Guerry, R (on the application of) v & Ors

A planning officer’s report must be read fairly and benevolently, but the court must intervene where it materially misleads the decision-maker on an issue capable of affecting the result. A planning guideline may permit flexibility, yet the chosen methodology must be applied correctly. Where a daylight assessment considers both the total amount and distribution of daylight, compliance with one measure does not remove the need to address the other. Selective reporting of compliance, while omitting material non-compliance, may deprive councillors of the opportunity to exercise the required planning judgment. Relief may be refused under section 31 of the Senior Courts Act only where it is highly likely that the outcome would not have been substantially different.

The claimant sought judicial review of the defendant’s decision to grant permission for a hotel, restaurant, bar and retail unit at Shepherd’s Bush Green. She challenged the decision on two grounds: first, that the officer had unlawfully applied Housing SPD Policy 8 when assessing outlook and the 45-degree general standard; and secondly, that the officer had materially misapplied the Building Research Establishment daylight methodology by treating vertical sky component and no-sky-line assessments sequentially and omitting material no-sky-line results.

Permission had initially been refused on Ground 1 and granted on Ground 2. The renewed permission application and substantive judicial review were heard together. The issues were whether the officer’s reasoning was unlawful and, if so, whether the errors were material.

1. Ground 1 dismissed. Policy 8 did not impose an inflexible 45-degree rule. It allowed departure from the general standard where the officer exercised on-site judgment about the effect on neighbouring properties. The officer gave intelligible reasons, including the tree screening, the prevailing urban form and the greater impacts of other local buildings. There was no unlawful exercise of judgment.
2. Ground 2 allowed. Where an authority chooses to apply the BRE Guide, it must construe and apply it correctly. The Guide states that both the total amount of daylight and its distribution within a building are important. The report instead treated vertical sky component and no-sky-line analysis sequentially, so that no-sky-line results were considered only after vertical sky component failure. That was inconsistent with the Guide.
3. The error was material. Councillors were told about no-sky-line compliance in some cases but were not told about significant losses in other properties, or that daylight distribution was a distinct issue requiring judgment. They therefore lacked the information needed to assess the development’s impact.
4. The claimant only had to show that the decision might have been different. The court was not satisfied that the same decision was inevitable, or that it was highly likely that the outcome would not have been substantially different for purposes of section 31 of the Senior Courts Act.

The planning permission was quashed.

The judgment does not state a prior appellate decision. Permission on Ground 2 had been granted by Neil Cameron QC, sitting as a Deputy High Court Judge, on 24 May 2018. Permission on Ground 1 was initially refused, but the claimant renewed that application. The renewed application and substantive judicial review were heard together.