Thomas, R (On the Application Of) v Merthyr Motor Auctions

An application concerning the removal or variation of a planning condition must be considered within the statutory framework governing the application. Whether made under section 73 or section 73A of the Town and Country Planning Act 1990, the authority must address the relevant planning merits, development plan and material considerations. The scope of that inquiry depends on the nature and circumstances of the application.

In assessing floodlighting, the authority must consider more than glare or light entering neighbouring homes. Where relevant, it must also address protection of the natural environment, dark skies, wider visual amenity and neighbouring land uses. Reasons must explain the conclusions reached on principal controversial issues, including the claimed need for the proposal.

The claimant sought judicial review of the council’s decision to remove a condition attached to a 1997 planning permission for the interested party’s vehicle auction premises. The condition restricted floodlighting to specified daytime hours. The council approved unrestricted operation, subject to specification and light-spillage controls.

The claimant challenged the decision on four grounds: failure to consider sustainable development policy, failure to address the need for unrestricted lighting, failure to consider effects on bats and protected species, and use of section 73 rather than section 73A of the Town and Country Planning Act 1990. The central issues were the proper statutory approach, the scope of the planning inquiry, the adequacy of the policy assessment and the reasons given.

1. Statutory approach. Permission was granted to argue the fourth ground, but the ground failed. The application was treated as one under section 73, although section 73A appeared more apposite because the relevant development had already been carried out. The distinction did not alter the result. Under either provision, the planning merits inquiry was narrow and concerned whether the permitted hours of floodlighting should be extended, having regard to the development plan and other material considerations. The wider planning merits of the underlying use did not require reconsideration: [22]-[32].
2. Policy and light pollution. The report sufficiently identified the relevant national policy balance between lighting for safety and security and protection of wildlife, dark skies, neighbouring amenity and reduced carbon emissions. However, the council considered principally light spillage and glare into nearby homes. It failed to weigh the wider need to protect the natural environment and retain dark skies, including effects viewed from other homes, paths, roads and nearby public places. Ground 1 was therefore made out to that limited extent: [33]-[43].
3. Need and reasons. The council had considered the claimed need for unrestricted lighting, albeit on scant information. It failed to explain why that need was accepted in light of the existing security fence and 24-hour CCTV. The issue was a principal controversial matter. The absence of reasons created substantial doubt whether the council had erred in law and substantially prejudiced the claimant: [44]-[46].
4. Biodiversity. The council had sufficient regard to the local bat population and the potential for roosting. Read as a whole, the assessment and report addressed local effects rather than only significant effects on the species generally. Ground 3 failed: [47]-[49].
5. Relief. The decision was quashed. Although the outcome might have been the same had the omitted consideration been addressed, the court could not safely conclude that it was highly likely that the outcome would not have been substantially different under section 31(2A) of the Senior Courts Act 1981: [50]-[52].

The judgment was a first-instance judicial review of the council’s decision dated 18 November 2015. The court granted permission on the fourth ground but dismissed that ground, allowed the challenge on the limited light-pollution issue and on reasons, dismissed the biodiversity ground, and quashed the decision.