Amended schemes, planning permission and consultation

The High Court has recently handed down judgment in R (Broad) v Rochford DC [2019] EWHC 628 (Admin), upholding the council's decision to grant planning permission for an amended development proposal without further consultation.

Sanctuary Group applied for planning permission for two blocks of affordable residential accommodation on a site adjacent to the claimant's home (known as "Keld").

The claimant objected to the development on a number of grounds including loss of light, overshadowing, loss of privacy from overlooking, poor outlook, overdevelopment, and noise and disturbance.

Subsequent to that objection, and in light of comments received from other consultees, the scheme was amended to move one of the blocks ("Block B") closer to Keld, to alter the blocks' finish, and to introduce a new balcony which would, to some degree, overlook Keld.

The amended plans appear not to have been uploaded to the council's website until the date permission was granted and the claimant was not further or subsequently consulted regarding the amendments to the scheme.

She therefore challenged the grant of consent by judicial review, arguing that the amended development would further impinge on her enjoyment of her property and would worsen the impact on her amenity.

The claim was brought on two grounds, namely that: (1) the council had acted unlawfully in approving amended plans without consultation; and (2) the council had erred in fact in granting consent for the development and/or had failed to have regard to relevant material considerations or acted irrationally. 

The council resisted the claim for judicial review, producing evidence from officers regarding the approach it had taken and the matters before the officer who took the decision under delegated authority (the admissibility of which was disputed by the claimant in accordance with the Ermakov principles).

Permission for judicial review was granted by John Howell QC and the matter listed for a final hearing before David Elvin QC (sitting as a deputy judge of the High Court).

Having reviewed the relevant legal principles in relation to the admissibility of evidence from officers, the judge admitted the evidence put forward by the council, albeit noting the importance of approaching some elements of that evidence with caution.

The evidence and arguments in relation to Ground 1 "troubled him". On the evidence before him, he concluded that the change in plans created a difference in layout and introduced a completely new feature. He also expressed dissatisfaction at the fact that the plans had not been placed (so far as he was aware) on the planning register or on the council's website, and that some consultees appeared to have had the opportunity to comment on revisions, but not others.

Nevertheless, the judge held that the council's decision that the changes were not fundamental was not Wednesbury unreasonable. As regards whether there had been a breach of natural justice, he said, "I have reluctantly concluded that I cannot accept that the changes were of a high order of significance, but that they were ones that the council could properly consider in light of the existing concerns."

On this basis he held "I consider that no material prejudice was suffered by the claimant" and "in light of the evidence and the terms of the officer's report, supported by the evidence filed by the council as to what was taken into account in reaching the decision to grant permission, it seems to me that the council would have reached the same conclusions even had the claimant had an opportunity to present further objections."

For these reasons the claim was dismissed and the claimant ordered to pay the council's costs.

Charles Streeten is a barrister at Francis Taylor Building. He represented the successful Defendant, instructed by Rebecca Broad of Rochford District Council.