Bailey, R (on the application of) v St Albans City and District Council & Anor

A planning policy requiring a minimum separation does not necessarily create an inflexible rule. The court must identify the policy’s purpose and context. Here, the relevant policies sought to prevent an undesirable terracing effect, assessed cumulatively in the street scene. A one-metre gap was normally required only where that effect would otherwise arise.

An officer’s report is read fairly and with reasonable benevolence. A report need not repeat every policy if, read as a whole, it shows that the material considerations were understood and addressed. Previous planning decisions may be material under the consistency principle, including decisions concerning different developments, but mistaken applications of policy cannot establish that the policy directly applies.

The claimant sought judicial review of the Council’s delegated grant of planning permission for an infill dwelling between existing properties in Hamilton Road, St Albans. Permission had previously been granted for an identical proposal and quashed by consent.

Permission was granted on four grounds concerning the alleged failure to consider emerging Policy L23, Policy 72(vii) of the Local Plan, the cumulative effect on the area’s character, and the absence of a permanent parking condition. The central issues were whether the officer’s report misunderstood or failed to apply the relevant planning policies, whether previous decisions required a different approach, and whether the parking challenge remained academic.

1. Grounds 1, 2, 2A and 6 dismissed. The claim was dismissed.
2. Emerging Policy L23 was not part of the development plan, but was a material consideration which could properly be given limited weight. The officer’s report, read as a whole, considered its substance. The policy did not impose an absolute one-metre separation requirement. Its purpose was to avoid an undesirable terracing effect, assessed cumulatively in the street scene. Whether that effect existed was a planning judgment subject only to limited judicial review.
3. Policy 72 concerned extensions, and Policy 72(vii) concerned side extensions. It had no direct application to the proposed infill dwelling. Construing it otherwise would distort its plain meaning. Nevertheless, previous Council decisions provided sufficient evidence that the substance of Policy 72(vii) had been treated as relevant by analogy in infill cases. Under the consistency principle, that approach was a material consideration.
4. The officer did consider Policy 72(vii) by analogy. She correctly understood that the one-metre provision was qualified by the policy’s purpose and by the word normally. Her conclusion that the proposal would not create a terracing effect was a planning judgment open to her and was not irrational.
5. The officer had regard to the cumulative impact and the character of the area. The report’s fair reading showed consideration of Policy 4 and the street scene as a whole, despite the absence of a repeated express reference to that policy in the detailed discussion.
6. The parking ground was academic because a later section 106 agreement required the spaces to be provided and retained permanently. In any event, the decision not to impose the proposed condition fell within the range of reasonable responses and was not irrational.