Bounces Properties Limited v Secretary of State for Levelling Up, Housing and Communities & Anor.

On a prior-approval application under Class M of Part 3 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, a decision-maker may consider the likely effect of proposed glazing on adequate natural light. However, where an inspector develops a new concern about obscure glazing which has not been raised by the parties or addressed by the evidence, procedural fairness requires an opportunity to respond before the appeal is determined. A decision dismissing the appeal on an unsupported assumption about reduced light transmission is unlawful. The condition requiring development to follow submitted details does not necessarily make every technical assumption in an expert report mandatory.

The claimant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of an appeal against refusal of prior approval for conversion of a retail unit into a dwelling. The local planning authority had raised concerns about adequate natural light, but did not challenge the applicant’s expert daylight and sunlight report or suggest that obscure glazing would reduce light transmission. The inspector nevertheless dismissed the appeal because rooflights would likely require obscure glass and he could not be certain that adequate natural light would enter all habitable rooms. The issues were whether privacy was an impermissible consideration, whether the inspector acted procedurally unfairly, and whether his approach to glazing, the rear window and paragraph W (12) was unlawful.

1. Claim allowed and inspector’s decision quashed. The inspector was entitled to observe that rooflights near another flat would likely use obscure or texture glass. Privacy was not itself a prior-approval matter, but it could explain the likely type of glazing relevant to the natural-light assessment.
2. Procedural fairness required the inspector to give the appellant an opportunity to address the effect of obscure glass. The expert report had assessed transmittance at 0.68, the local authority had raised no contrary point, and nothing before the inspector suggested that obscure glass would reduce transmission below that level. The appellant could not reasonably have anticipated the concern.
3. The failure caused material prejudice. Evidence before the court indicated that obscure glass could achieve transmittance exceeding 0.68 and could transmit light better than clear glass. It was therefore irrational to dismiss the appeal on the possibility of lower transmission without first obtaining the parties’ views.
4. The challenge concerning the rear façade window failed. The inspector was entitled to treat it as making no sufficient contribution to overcome any inadequacy caused by obscure rooflight glazing.
5. Paragraph W (12) had to be construed sensibly. It did not necessarily require conformity with every detail or assumption in the daylight report if the recommended daylight levels could still be achieved.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. No subsequent appellate decision is stated.