Gill, R (On the Application Of) v London Borough of Brent (Rev 1)

A planning officer’s report must be read fairly and as a whole. The court asks whether it materially misled the committee on a matter bearing on its decision and whether the error might have affected the outcome. A local planning policy requiring amenity space of a sufficient size and type may contain normally expected quantitative standards without creating absolute minima. Supporting text and supplementary planning guidance cannot impose additional, prescriptive policy requirements absent clear wording in the policy itself. “Family housing” may include three-bedroom flats above ground floor. A planning authority may nevertheless conclude that a shortfall is acceptable as part of its planning judgment, having regard to the development plan as a whole and other material considerations.

The claimant sought judicial review of the London Borough of Brent’s decision to grant conditional outline planning permission for redevelopment of Preston Library to provide a library and 12 flats. An earlier planning permission had been quashed by consent after the authority accepted that amenity space had been assessed by averaging provision rather than considering the space available to each dwelling.

On redetermination, the claimant challenged the officers’ report on three grounds: alleged misinterpretation of Policy DMP19; failure to assess amenity space consistently with the authority’s supplementary planning document; and treating the normal 50 square metre expectation for family housing as applying only to ground-floor flats.

1. Claim dismissed. The court applied the principles summarised in Mansell v Tonbridge & Malling BC [2019] PTSR 1452. A report must be read fairly and as a whole. The relevant question is whether it materially misled the committee on a matter bearing upon its decision and whether the error might have made a difference.
2. Although the report inaccurately stated in its summary that amenity space complied with Policy DMP19, the capitalised word “CHECK”, the background explaining the previous error, the detailed analysis, and the conclusion identifying a limited conflict meant that members were not materially misled.
3. Policy DMP19 required external private amenity space sufficient to meet residents’ needs. The references to 20 square metres per flat and 50 square metres for family housing were normally expected standards, not prescriptive minima. The policy did not require every shortfall to be made up exclusively by communal space. The supporting text could assist interpretation but could not impose an additional policy criterion: see R (Cherkley Campaign Ltd) v Mole Valley District Council [2014] EWCA 567; [2014] PTSR D14.
4. “Family housing” in Policy DMP19 had the meaning used in the authority’s Core Strategy and included self-contained dwellings capable of providing three or more bedrooms, including flats above ground floor. The bracketed words “including ground floor flats” clarified inclusion rather than excluding upper-floor family flats. The report therefore adopted the wrong normal expectation for three upper-floor three-bedroom flats.
5. That error did not materially affect the decision. The report gave members the actual provision for each flat, identified the alternative shortfall of 99 square metres, and explained the other factors relied upon, including private space, communal space, proximity to Preston Park and wider policy support. The authority could find that the proposal accorded with the development plan as a whole, a planning judgment under section 38(6) of the Planning and Compulsory Purchase Act 2004, consistent with R (Corbett) v Cornwall Council [2020] EWCA 508.
6. The supplementary planning document was guidance, not adopted development-plan policy. Its reference to minimum balcony width and depth did not require all smaller areas to be excluded mechanically from amenity-space calculations. In any event, it was highly likely that the outcome would have been the same. Relief would therefore also have been refused under section 31(2A) of the Senior Courts Act 1981.

The judgment records that an earlier planning permission in the same dispute was quashed by consent on 28 November 2019 after the authority accepted that amenity space had been assessed incorrectly. The present claim concerned the authority’s redetermination and was dismissed at first instance.