Rainbird, R (on the application of) v The Council of the London Borough of Tower Hamlets

In a planning judicial review, a planning officer’s report must fairly inform committee members of the considerations material to their decision. The court will intervene where, read as a whole, the report significantly misleads members on relevant facts, policy or technical guidance, and the error may have affected the outcome.

Where a development plan requires assessment by reference to the BRE Guide, its guidelines must be construed objectively. They are advisory and flexible, but flexibility does not remove the need to recognise a likely material deterioration where a guideline is not met. The separate VSC and daylight-distribution guidelines must not be treated as mutually compensating. Under section 31(2A) of the Senior Courts Act 1981, relief is withheld only where it is highly likely that the outcome would not have been substantially different.

The claimant challenged the Council’s grant of conditional planning permission for redevelopment at 3–5 Arnold Road. The proposed scheme comprised two buildings containing commercial units and 62 affordable flats. The claimant’s house and neighbouring properties in Tomlins Grove were concerned with the effect of the development on sunlight and daylight.

Three grounds were advanced: failure to make a supporting sunlight and daylight report available online during consultation; unfair treatment of material sent directly to committee members; and material misleading of the Development Committee about the likely sunlight and daylight impacts. The first two grounds failed. The central issue was whether errors and omissions in the reports to members rendered the planning decision unlawful and, if so, whether relief had to be refused.

1. Consultation documents. The Town and Country Planning (Development Management Procedure) (England) Order 2015 did not require every supporting document to appear on the authority’s website, although supporting documents had to be available for inspection at the specified address. The Council’s own statements and letters could, however, create a legitimate expectation that application details would be available online. The claimant had not shown that the report was absent from the website.
2. Representations to members. Members of the public were not generally prohibited from making representations directly to planning committee members. Members should preserve transparency and forward such material to officers. In the circumstances, officers acted fairly in advising members to give no weight to material that had not been provided to officers and whose accuracy they could not verify. The residents had failed to follow published procedures, and an adjournment was not required.
3. Interpretation of the BRE Guide. Policy DM25 required consideration of whether the development would cause a material deterioration in sunlight and daylight and whether that deterioration would be unacceptable. The BRE Guide had to be construed objectively, although its advisory numerical guidelines could be applied flexibly where justified by the development or its location. The VSC and daylight-distribution guidelines identified separate ways in which daylight might be significantly adversely affected. Compliance with one did not neutralise failure to meet the other. The effect of projecting side returns could not simply be omitted or discounted without considering whether the greater reduction was unavoidable.
4. Officer’s reports. The reports failed to tell members that 23 rooms in 12 properties failed the relevant daylight guidelines and that 11 rooms suffered material deterioration in sunlight. They misstated or omitted material matters and misdirected members about the BRE Guide. The overall conclusions that the affected rooms would remain well lit and that all habitable rooms met the sunlight guideline did not follow from the analysis. Applying the approach in Mansell, the reports were materially misleading.
5. Materiality and relief. The errors might have affected the assessment under Policy DM25 and the planning balance. It was not highly likely that the outcome would have been substantially the same without them. Section 31(2A) therefore did not require refusal of relief. The planning permission was quashed.

High Court (Administrative Court): permission to bring the judicial review claim was granted by Gilbart J. The claim was subsequently heard and allowed on the ground that the reports to the Development Committee were materially misleading; the planning permission was quashed.