Hemms, R (On the Application Of) v Bath And North East Somerset Council & Anor

In deciding whether to make an order under section 102 of the Town and Country Planning Act 1990, a local planning authority has a broad discretion to assess expediency in the interests of proper planning and amenity. A material-considerations challenge succeeds only where a matter is legally required to be considered or is so obviously material that it must be considered. The authority is not required to adopt an inspector’s assessment or explain its disagreement on every point, provided it addresses the material issues and gives sufficient reasons. Article 8 is engaged only by a substantial lack of respect for the home. A reduction of light to one room, where other windows remain, is insufficient. The authority need not quantify potential compensation before deciding whether to act.

The claimant sought permission to judicially review Bath and North East Somerset Council’s refusal to make a section 102 order requiring removal of a boundary fence beside her property. The fence had previously been the subject of enforcement proceedings and an inspector had found harm to landscape character, appearance and residential amenity. Following an earlier judicial review and reconsideration, the Council again refused to act, relying on changed visual circumstances, permitted development rights, compensation risk and the public interest in deploying officer time elsewhere.

The claimant challenged the decision on material-considerations and irrationality grounds, alleged breaches of Article 8 of the European Convention on Human Rights and Article 1 of Protocol 1, and argued that the decision had been improperly delegated.

1. Permission refused. None of the claimant’s grounds was arguable.
2. Under section 102(1) of the Town and Country Planning Act 1990, the question was whether it was expedient, in the interests of proper planning and amenity, to make an order. Expediency involved a wide discretion and was distinct from the question whether planning permission should be granted. The inspector’s findings were material considerations but did not dictate the Council’s decision.
3. The Council had considered the inspector’s conclusions, the AONB designation, landscape impact and residential amenity. It was entitled to attach its own weight to those matters. Its explanation that weathering and regrowth had materially altered the fence’s visual impact was sufficient. It was not required to explain its disagreement on every matter raised by the inspector. The irrationality challenge therefore failed.
4. Article 8 was not engaged. Following Lough v Secretary of State [2004] EWCA Civ 905, a substantial lack of respect for the home was required. Loss of light to one room, where the room retained other windows, was insufficient. There was also no requirement to establish that the relevant objective could not be achieved by another measure or on another site.
5. The Council was not required to quantify the compensation likely to arise from a section 102 order. The potential compensation liability and the use of officer time were legitimate factors weighing against intervention. The Article 1 of Protocol 1 complaint consequently added nothing.
6. The Constitution, construed as a whole, gave directors general delegated power to take any decision within their areas of responsibility. That general scheme applied to non-executive as well as executive functions and was not displaced by the more specific planning delegation provisions. The delegation was therefore valid.

The judgment concerned a renewed application for permission after permission had been refused on the papers by Holgate J. An earlier judicial review concerning the Council’s refusal to make a section 102 order had been withdrawn by consent after the Council conceded a delegation defect.