The High Court has handed down judgment in Bounces Properties Limited v Secretary of State [2023] EWHC 735 (Admin), quashing an inspector’s decision to dismiss an appeal against the refusal of prior approval for a change of use from retail to residential under Class M of Part 3 of Schedule the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”) on the grounds that it was both unfair and unreasonable.

The case concerned the change of use of commercial property in Edmonton. The Local Planning Authority had refused prior approval on a number of grounds, including on the grounds the daylight/ sunlight conditions in the proposed development were inadequate.

The developer appealed, and in doing so provided a report from an appropriate expert which assessed the light levels in the proposed development on the basis of the methodology in the Building Research Establishment (“BRE”) Guidance and concluded that they exceeded the standards set by that Guidance.

The Council did not provide any evidence to dispute what was said in that report. The Inspector who determined the appeal on the basis of written representations, however, dismissed the appeal on the grounds that he “cannot be certain that the proposed windows would be effective in enabling adequate natural light to penetrate into all of the habitable rooms”.

His reasons for reaching this conclusion were that some of the proposed windows were roof-lights, which would be situated next to an access walkway, such that it was “likely that these roof-lights would need to be fitted with obscure glass” in circumstances where “it is unclear whether privacy was factored into the methodology for determining the extent of natural light that would be received”.

The developer challenged the Inspector’s decision under section 288 of the Town and Country Planning Act 1990.

Permission was granted on the papers by Eyre J and the matter was heard by Timothy Corner KC (sitting as a Deputy Judge of the High Court) on 22 March 2023.

The High Court allowed the challenge and quashed the Inspector’s decision on the grounds that:
    
(1)    The Inspector’s approach was procedurally unfair because he reached his conclusions on the impact of installing obscure glass without giving the Claimant the opportunity to comment upon the issue in circumstances where it was not an issue raised by the Council (see Judgment paras. 56-66); and

(2)    In circumstances where the inspector had no basis for supposing that obscure glass would transmit light at less than the level identified as the appropriate transmittance value in the BRE Guidance and adopted in the developer’s daylight/ sunlight report, it was irrational to dismiss the appeal on the basis it might do so without giving the parties the opportunity to comment (see Judgment para. 67).

Going to the heart of both of these errors was the fact that, had the developer been asked, it would have provided evidence (as it did before the High Court) that “obscure” or “texture” glass is in fact capable of transmitting light better than clear glass (due to its less reflective properties) and at levels well in excess of the transmittance level specified in the BRE Guidance of 68%. For this reason, as the Judge said at para. 53 of his judgment, “the term “obscure glass” may be misleading, in that it has connotations of glass which leads to a darker or more “obscure” interior, because it transmits less light. This is unfortunate because it was apparent from the evidence before me that this is not the case.”

The pithy but comprehensive distillation of the legal principles that apply when challenging a planning inspector’s decision on the basis of procedural unfairness provided at judgment para. 32 provides a useful digest for practitioners, and the case also serves as a useful reminder that the rules of natural justice apply “whatever procedure is followed” and apply “as much to written appeal processes as they do to oral hearings” (see judgment paras. 33-34).

Charles Streeten acted for the successful Claimant