Rainbird, R (on the application of) v The Council of the London Borough of Tower Hamlets, Court of Appeal - Administrative Court, March 28, 2018,  EWHC 657 (Admin)
|Issuing Organization:||Administrative Court|
|Actores:||Rainbird, R (on the application of) v The Council of the London Borough of Tower Hamlets|
|Resolution Date:||March 28, 2018|
Case No: CO/2034/2017
Neutral Citation Number:  EWHC 657 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 28 March 2018
JOHN HOWELL QC
Sitting as a Deputy High Court Judge
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Mr Richard Buxton (instructed by Richard Buxton Environmental and Public Law) for the Claimant
Mr Matthew Reed QC (instructed by the Defendant's Director of Legal Services) for the Defendant
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JudgmentJohn Howell QC:
This is a claim for judicial review of the grant of conditional planning permission by the Council of the London Borough of Tower Hamlets to themselves for the demolition of the existing buildings at 3-5 Arnold Road and the construction of two new buildings together with amenity space and other facilities. The two new buildings would provide a number of commercial (B1) units on the ground floor of each building with 62 flats on the floors above which would be let as affordable units.
The site of the proposed development lies on the western side of Arnold Road. It has a frontage to that road of 98 metres. The existing building on the site, the William Brinson Centre, is up to two storeys in height. Only the ground floor, which is used as an adult day centre, is occupied.
The Claimant, Mrs Melanie Rainbird, was granted permission to bring this claim by Gilbart J. She does not object to a redevelopment of the application site but she is concerned about the impact that the new buildings proposed would have given their scale on the sunlight and daylight enjoyed by her house and others on the western side of Tomlins Grove. The houses that will be affected are part of a late nineteenth century terrace, listed as being of special architectural or historic interest, which lies within the Tomlins Grove Conservation Area. The houses are to the east of the application site, separated from it by Arnold Road itself; a railway line on a substantial viaduct, and by their own rear gardens. The houses are predominantly two storeys, with dormers, basements and rear extensions. It should be noted, however, that the rooms in the rear of the basements appear to be at roughly the same level as the rear gardens, with doors to it, with the result that some of those rooms are apparently used as kitchens, living or dining rooms. Currently little or nothing of the existing low building on the application site can be seen above the railway viaduct from the lower floors of the terrace.
The proposed development consists of two linear blocks facing Arnold Road, eight storeys (40.3m) in height to the south and six storeys (33.7m) in height to the north, with a communal open space between. The new southern building would be about between 35 metres (at its northern end) and 47 metres (at its southern end) from the rear of the properties in Tomlins Grove, and the new northern building would be about 28 metres from them. The new buildings proposed would be visible from, and would obstruct the passage of sunlight and daylight to, a number of windows in the terrace. A report produced by Waldrams Limited and submitted in support of the application for planning permission (``the S&D report'') examined the likely impact of the proposed development on the sunlight and daylight enjoyed in the terrace. The data in it indicated that, in twelve houses, daylight is likely to be adversely affected significantly in 23 habitable rooms, and sunlight in 11 habitable rooms, measured by the normal guidelines in ``Site Layout Planning for Daylight and Sunlight: a guide to Good Practice'' published by the Building Research Establishment (``the BRE Guide'').
The Claimant seeks to impugn the grant of planning permission on three grounds. In summary these are (i) that the Council failed to make the S&D Report available on their website during the prescribed period when representations on the application may be made, thereby depriving the Claimant and others of the opportunity of making representations about, and in the light of, it; (ii) that the Council's Development Committee, which resolved to grant the planning permission impugned on January 12th 2017, acted unlawfully and unfairly in giving no weight to materials that residents had provided to members of that Committee before their meeting; and (iii) that members of the Development Committee were misled materially about the likely impact of the proposed development on the sunlight and daylight enjoyed by houses in the terrace.
WHETHER THE CLAIMANT AND OTHERS WERE UNFAIRLY DEPRIVED OF THE OPPORTUNITY TO MAKE REPRESENTATIONS ON THE S&D REPORT
On behalf of the Claimant Mr Richard Buxton contended that local residents, including the Claimant, had been unable to make representations on the S&D Report during the period in which the relevant legislation provides that representations may be made. A number, who had every interest in considering the S&D Report, have filed witness statements confirming that they did not see any reference to it in the list of documents associated with the application for planning permission when they visited the Council's website during that period, in some cases on many occasions. Others who objected to the effect of the development on sunlight and daylight, with one exception, made no reference to it, as no doubt they would have done had it been available. The exception, a representation by Mr Stephen Lyman and Ms Janet Davies, which appears to have referred to information in the S&D Report, may be explained by the fact that Mr Lyman worked for the architects for the scheme and may have had access to it in that way.
Mr Buxton accepted that the Council's evidence was that, if its system worked according to plan, then all the documents associated with the application, including the S&D Report, should have appeared on the website. There is no suggestion that there was any malfeasance and, all other things being equal, the S&D Report should have been available. But, as an expert, Mr George Edwards, had said, things go wrong with computer systems. There is no positive evidence that the S&D Report (or any other document) was actually listed on, or downloaded from, the website in the relevant period. Mr Buxton submitted that the evidence is such that, on the balance of probabilities, the S&D Report was not available for viewing in the relevant period.
Mr Buxton submitted that the failure to make the S&D Report available was procedurally unfair, seriously prejudicing the ability of the Claimant and others to provide representations about its shortcomings and inaccuracies. They would, for example, have been able to show that the main habitable room affected on the ground floor of each of the properties on Tomlins Grove was not a bedroom (as the S&D Report suggested) but a living room, lounge, or kitchen (for which daylight and sunlight are more important than bedrooms). The misclassification was also significant in relation to any appraisal in terms of Average Daylight Factors and sunlight. There were also other serious shortcomings in the report. There was no requirement for individuals to visit the Council's offices or to make other enquiries about the availability of documents: they were told by letter that the information would also be available on the Council's website.
On behalf of the Council Mr Matthew Reed QC submitted that the evidence established that the S&D Report was listed on their website during the consultation period. It was uploaded onto the website on September 23rd 2016 and made publically available with others at the beginning of the consultation period on October 3rd 2016. The evidence is that, apart from deliberate intervention, there was nothing that would cause only one document not to appear on the list. Absent a failure in the system, there would have to have been deliberate interference which is extremely unlikely. The report was seen by Mr and Mrs Lyman between October 29th and 30th 2016 and their assumption has been that they saw it on the Council's website. Mr Edwards has provided no example of a document that has been uploaded failing to appear on the online list and no explanation of how such an omission could occur. There is a simple explanation why other residents may have failed to see the report on the list. The list contained 99 documents; the S&D Report was on it towards the end, and it did not have an entry in the description section.
Mr Reed further contended that, even if the document was not available, there was no unfairness. That involves the Claimant being materially prejudiced: see Hopkins Homes Limited v Secretary of State for Communities and Local Government  PTSR 1145 at  and -; George v Secretary of State for the Environment (1979) 77 LGR 689 per Lord Denning MR at p695. In her case the Claimant had the opportunity to obtain the document, the existence of which she should have been aware. But, even had she obtained the S&D Report, it would not have led her to make any different comments that would have affected the decision. She had no detailed knowledge of the BRE Guide but, even if she had and had made the criticisms now advanced of it, it would have made no difference. Accordingly, if the third ground of her claim, that the report to members was misleading, fails so equally must this ground for her claim.
a. whether there was any requirement for the S&D Report to be available for inspection on the authority's website
The publicity that applications for planning permission must be given is prescribed by article 15 of the Town and Country Planning (Development Management Procedure)(England) Order 2015 (``the DMPO''). In all cases, article 15(7) provides inter alia that:
``The following information must be published on a website maintained...
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