Kerswell, R (On the Application Of) v London Borough Of Lewisham

A planning decision is unlawful where the decision-maker fails to address a material and controversial amenity issue raised by the evidence. Structural noise from a terrace attached to a neighbouring property was capable of being a material planning consideration; private party-wall rights did not remove the council’s duty to consider it. Under section 31(2)(a) of the Senior Courts Act 1981, the defendant bears the burden of showing that it was highly likely that the same, or substantially the same, outcome would have resulted. A permission without noise-related conditions was not substantially the same as a permission with such conditions.

The claimant challenged Lewisham’s grant of planning permission to the interested party for a roof terrace above a shared garage at 13 Dartmouth Row. The claimant lived at the adjoining property, number 11, and had objected on grounds including structural noise, overlooking, visual separation and heritage impact.

The challenge concerned whether the planning officer and delegated decision-maker had considered the structural transmission of noise, whether the relevant local heritage policy had been addressed, and whether relief should be refused because the outcome would probably have been the same.

1. Structural noise. The officer’s report considered airborne noise, privacy and overlooking, but did not address the distinct issue of vibration and noise transmitted through a structure attached to the neighbouring wall. The issue was material, controversial and supported by the available evidence. The council’s after-the-event evidence did not establish that it had been considered.
2. Private rights, including party-wall rights, did not relieve the council of its duty to consider matters affecting residential amenity. Structural noise was capable of being controlled by a lawful planning condition and could not simply be left to building practice.
3. Outcome. The council failed to discharge the burden under section 31(2)(a) of the Senior Courts Act 1981. A permission without conditions addressing structural noise was not the same, or substantially the same, as a permission with such conditions. The permission was therefore unlawful and was quashed.
4. Heritage policy. Policy DM37 was applicable because the properties were locally listed heritage assets. Its omission from the officer’s identified policies supported the conclusion that it had not been considered. The judge provisionally considered that DM37 required a heightened assessment of significance and character, stricter than the assessment under DM36. That issue was academic because the structural-noise ground succeeded.
5. The matter was to return to the council for reconsideration. The parties were encouraged to cooperate, including by obtaining structural advice and addressing possible noise-mitigation conditions.

This was a first-instance judicial review in the Administrative Court. Permission to bring the claim was granted on paper by Elizabeth Laing J on 19 December 2018.