Gorton, R (on the application of) v Lewisham Council & Anor

Reports to planning committees are not required to address every controversial issue as a reasoned decision letter would. Officers have judgment as to the information and detail to include, subject to public law controls such as irrationality. Where technical guidance is advisory rather than mandatory, members may make an overall planning judgment based on the relevant analysis and tests; the report need not reproduce every passage of the guidance. A new ground raised orally at the permission hearing may be refused where it is unfair to other parties, requires additional court time, and contradicts the claimant’s previous position.

The claimant sought renewed permission for judicial review of Lewisham Council’s grant of planning permission for development in Deptford. She alleged that the officers’ report materially misled the committee about daylight and sunlight impacts, including the application of the BRE guidelines, the VSC and NSL tests, and the treatment of existing balconies.

Morris J had refused permission and an injunction on the papers. The renewed application also raised, for the first time orally, a contention that the ADF test was irrelevant to the assessment of impacts on existing buildings.

1. Permission refused. The claimant could not identify any passage in the officers’ report which arguably misled committee members by suggesting that the proposal passed the BRE guidelines solely by reference to the NSL test or by assuming removal of existing balconies.
2. An officers’ report is not analogous to a planning appeal decision letter. Its function is to summarise the information and issues and advise the committee. Officers retain judgment about what material to include and the level of detail. The court may interfere only on public law grounds, notably irrationality.
3. The report summarised the analysis using several tests and invited members to decide, as a matter of overall planning judgment, whether the identified impact was unacceptable. It was unnecessary for the report to reproduce a particular passage of the BRE guidelines stating that failure of the VSC test represented a significant impact. The issue involved fact and degree and was for planning judgment.
4. The BRE guidelines were advisory and expressly not mandatory policy or binding standards. They provided techniques to assist decision-makers in assessing sunlight and daylight. The use of the ADF test was therefore not shown to be an irrelevant consideration. In any event, the proposed new ground was raised late, without notice, and contradicted the claimant’s previous acceptance that the ADF test was material. The court would not permit the amendment.
5. It was unnecessary to decide the alternative point under section 31(3C) of the Senior Courts Act 1981, although the judge indicated that the alleged errors could not have affected the outcome when the report was read fairly as a whole. The application was dismissed. The £5,000 costs cap was confirmed. The defendant’s £5,000 costs order was confirmed and the further order for £8,000 payable to the interested party was set aside.

The judgment records that Morris J refused the claimant’s earlier application for an injunction and permission on 6 September 2018. This court refused the renewed application for permission.