“5.1 For many people, the submission of a planning application, on a neighbouring or nearby site or premises, is the first, and possibly, the only time that they will become directly involved in the planning system. It is important that anyone who feels that they may be affected by a development proposal or has an opinion that they wish to be taken into account before a decision is made, is able to take part in and respond to consultation. 5.2 This section sets out the consultation requirements for applicants before a planning application is submitted, how the rest of the community will be informed about applications and how they can be involved in influencing decisions. […] How can you be involved? 5.18 All planning applications and appeals are added to our online database. You can view and track planning applications as they progress. There are a number of ways you can comment on an application; comments can be made in writing, by email or submitted electronically using the on-line database. All comments received are a matter of public record and will be published on the council’s website www.welhat.gov.uk/planning.”
“Whilst the site can be seen from a public road, public footpath, bridleway or other public land, (Site Visit section of the application form) the development subject to this application cannot. As such a site visit is definitely necessary to consider the impact on neighbouring premises. If the case officer wishes, the occupiers of No.32 Brookside Crescent would welcome a site visit to consider the impact the outbuilding has had on their private outlook and living conditions.”
“No. 32 have raised an objection on the grounds that the pool enclosure would have an impact on the outlook enjoyed from their living/dining room at ground floor level, as well as, loss of privacy primarily from, the rear facing first floor bedrooms. Although the permanence of the trees cannot be guaranteed the outbuilding is currently largely screened from view of No. 32 by the existing trees; providing limited overlooking. Also, given the single storey nature of the outbuilding (approximately 3m in height) and the acceptable separation distance (approximately 25m) between the pool enclosure and the rear flank walls of No. 32, it is considered that the outbuilding would not impact on the living conditions of this neighbouring property. Therefore, loss of outlook and privacy would not be reasonable grounds for refusal of this application. The outbuilding is fully glazed and a concern has been raised regarding light spills when the pool is in use outside of daylight hours, harming the amenity of the occupiers of No.32 Brookside Crescent. As stated above, there is an acceptable separation distance between the pool enclosure and No. 32, it is considered that glare and light spills would be minimised to acceptable levels.”
“You made the decision on ‘paper plans/photographs’ instead of visiting our premises within 6 months of first contacting you. You cannot visualise from paper the impact. COVID restrictions were lifted when Mr Chris Neal advised us that Lizzie Mugova is our new case officer and she will be attending our premises for assessment thereof. Lizzie Mugova never made an assessment visit to our premises at all. Lizzie Mugova informed me that she postponed the decision date from the 18 April until the 26 April as she was going on holiday. It so happened that Mr Chris Neal – who had been dealing with us – left his role the week before!!!....”
“Dealing with the first issue there was an inspection of the site undertaken by a planning enforcement officer on2 December 2021 in response to your complaint about the erection of the structure. I have spoken to this officer, and it is clear that she made a thorough inspection of the structure and its’ [sic] impact on the immediately adjoining properties, which naturally included your own property. Given the nature of the inspection undertaken it was not deemed necessary to view the site from your property. Following this inspection, the officer made contact with the property owner to advise that planning permission was required and to submit a planning application. As you will be aware this was submitted and the case was allocated to a different officer. Whilst the case officer for the application was a different officer to the officer who carried out the initial inspection the two officers liaised with each other such that an assessment and report on the application could be made. The conclusion was reached that, taking into account the particulars of the application such as the overall size of the garden area, together with the siting and details of the enclosure, there was no planning reason why permission could reasonably be withheld in this instance. I would add that had the original officer been of the opinion that retention of the enclosure was unacceptable then the property owner would not have been advised to submit a planning application and enforcement action for removal of the structure would have been instigated. Only one objection, made on your behalf, was received on the application and it is important to note that there was no objection from No.11 Thrush Lane which I consider is the property which could be most affected by the pool enclosure as it is sited immediately adjacent to the common boundary between the two properties.”
“You have also set out three further concerns in your email dated 22 May which I shall address in turn. Firstly, it was not considered necessary in this particular case to visit your property in order make an assessment of your neighbour’s proposals. In relation to your reference to Mr. Neal I can advise you that he was not responsible for the determination of the application. His role was that of a planning enforcement officer responsible for investigation alleged breaches of planning permission rather than that of a development management officer responsible for assessing planning applications. On your second point there was a full assessment made of the impact of the pool enclosure as can be seen from the officer’s report on the application which can be viewed via the Council’s website at the following link…..”
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
“In a claim for judicial review, the Claimant must establish a public law error on the part of the decision-maker. The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties Ltd v Secretary of State for the Environment(1981) 42 P & CR 26 . A legal challenge is not an opportunity for a review of the planning merits: Newsmith v Secretary of State for the Environment, Transport and the Regions[2001] EWHC 74 (Admin) .”
“The local planning authority shall, in determining the application, take into account any representations received from a consultee.”
“81. The requirement to meet the legitimate expectations of the public flows from the general public law duty of fairness (Schmidt v Secretary of State for Home Affairs[1969] 2 Ch 149 ). 82. A legitimate expectation, whether procedural or substantive, may arise from an express promise or representation made by a public body. In order to found a claim of legitimate expectation, the promise or representation relied upon must be ‘clear, unambiguous and devoid of relevant qualification’: R v Inland Revenue Comrs, Ex p MFK Underwriting Agents Ltd[1990] 1 WLR 1545 , per Bingham LJ at 1569G. 83. Bingham LJ's classic test has been widely approved and applied. In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2)[2009] AC 453 , Lord Hoffmann said, at [60]: ‘It is clear that in a case such as the present, a claim to a legitimate expectation can be based only upon a promise which is 'clear, unambiguous and devoid of relevant qualification': see Bingham LJ in R v Inland Revenue Comrs Ex p MFK Underwriting Agents Ltd[1990] 1 WLR 1545 , 1569. It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called 'the macro-political field': see R v Secretary of State for Education and Employment, Ex p Begbie[2000] 1 WLR 1115 , 1131.’ 84. The onus of establishing a clear, unambiguous and unqualified representation rests on the Claimant (Re Finucane's Application for Judicial Review[2019] UKSC 7 , at [64]). 85. The Courts have given guidance on how Bingham LJ's test in MFK is to be applied. In Paponette and Ors v Attorney General of Trinidad and Tobago[2010] UKPC 32 , Lord Dyson JSC, giving the judgment of the majority of the Board, said, at [30]: ‘As regards whether the representations were "clear, unambiguous and devoid of relevant qualification", the Board refers to what Dyson LJ said when giving the judgment of the Court of Appeal in R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence[2003] QB 1397 , para 56: the question is how on a fair reading of the promise it would have been reasonably understood by those to whom it was made.’”
"The second ground on which the Lord Chancellor's Decision is challenged encompasses a number of arguments falling under the general head of "irrationality" or, as it is more accurately described, unreasonableness. This legal basis for judicial review has two aspects. The first is concerned with whether the decision under review is capable of being justified or whether in the classic Wednesbury formulation it is "so unreasonable that no reasonable authority could ever have come to it": see Associated Picture Houses Ltd v Wednesbury Corp[1948] 1 KB 223 , 233-4. Another, simpler formulation of the test which avoids tautology is whether the decision is outside the range of reasonable decisions open to the decision-maker: see e.g. Boddington v British Transport Police[1998] UKHL 13 ;[1999] 2 AC 143 , 175 (Lord Steyn). The second aspect of irrationality/unreasonableness is concerned with the process by which the decision was reached. A decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it - for example, that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error. Factual error, although it has been recognised as a separate principle, can also be regarded as an example of flawed reasoning - the test being whether a mistake as to a fact which was uncontentious and objectively verifiable played a material part in the decision-maker's reasoning: see E v Secretary of State for the Home Department[2004] EWCA Civ 49 ;[2004] QB 1044 ."
“In any case, where an expert tribunal is the fact-finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments.”
“100. The following principles can be gleaned from the authorities: (1) The obligation upon the decision-maker is only to take such steps to inform himself as are reasonable. (2) Subject to a Wednesbury challenge, it is for the public body, and not the court to decide upon the manner and intensity of inquiry to be undertaken (R(Khatun) v Newham LBC[2005] QB 37 at paragraph [35], per Laws LJ). (3) The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision (per Neill LJ in R (Bayani) v. Kensington and Chelsea Royal LBC(1990) 22 HLR 406 ). (4) The court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient (per Schiemann J in R (Costello) v Nottingham City Council(1989) 21 HLR 301 ; cited with approval by Laws LJ in (R(Khatun) v Newham LBC (supra) at paragraph [35]). (5) The principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant, but from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion (per Laws LJ in (R (London Borough of Southwark) v Secretary of State for Education (supra) at page 323D). (6) The wider the discretion conferred on the Secretary of State, the more important it must be that he has all relevant material to enable him properly to exercise it (R (Venables) v Secretary of State for the Home Department[1998] AC 407 at 466G).”
“63.. In our view, the CICB case points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between “ignorance of fact” and “unfairness” as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that “objectively” there was unfairness. On analysis, the “unfairness” arose from the combination of five factors: i) An erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); ii) The fact was “established”, in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; iii) The claimant could not fairly be held responsible for the error; iv) Although there was no duty on the Board itself, or the police, to do the claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; v) The mistaken impression played a material part in the reasoning.”
“..on the basis that, in the light of the contents of the Claimant’s detailed letter of objection and in the light of the statements made by the Claimant in emails from Mr Neal of the Defendant, the Defendant’s failure to visit the Claimant’s property, and in particular failure to view the impact of the development from the Claimant’s house (and not simply the garden) was procedurally unfair, alternatively rendered the grant of planning permission irrational.”
“If the case officer wishes, the occupiers of no 32 Brookside Crescent would welcome a visit to consider the impact the outbuilding has had on their private outlook and living conditions.”
“..the application has been received and validated and will shortly be allocated to an officer. Once it has been allocated you will be notified of the details and the case officer who will visit and make the assessment….”
“In regard to the request for a Site Visit, I can confirm that this is agreed to be appropriate and the Chairman and relevant officers are in agreement with this. The precise details will be confirmed in due course.”