Rachel Scarrott v Chelmsford City Council [2025] EWHC 1244 (Admin)

[2025] EWHC 1244 (Admin)

Case No AC-2023-LON-003762

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

PLANNING COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23 May 2025

Before

ROBERT PALMER KC

sitting as a Deputy Judge of the High Court

The King

on the application of

Between

RACHEL SCARROTTClaimant

CHELMSFORD CITY COUNCILDefendant

The Claimant appeared in person for in person

Josef Cannon KC (instructed by Chelmsford City Council) for Defendant

Hearing Hearing date: 25 February 2025

Approved Judgment

This judgment was handed down remotely at 11.00am on 23 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

ROBERT PALMER KC sitting as a Deputy Judge of the High Court

ROBERT PALMER KC sitting as a Deputy Judge of the High Court:

[1]By this claim for judicial review, Rachel Scarrott (“the Claimant”) challenges the decision of Chelmsford City Council (“the Defendant”) to grant planning permission for six new affordable homes on land to the rear of 27 Medway Close, Chelmsford (“the site”). The site is currently occupied by garages which would be demolished to make way for the proposed housing. The application for planning permission was made by the Defendant itself as owner and occupier of the site. It was considered by the Defendant’s planning committee, discharging the Defendant’s function as the local planning authority.

[2]The Claimant had made objections to the application. Following the grant of planning permission on 8 November 2023, she filed a claim for judicial review on 18 December 2023. The claim was made on seven grounds. On 16 February 2024, permission to apply for judicial review was refused on the papers by Mr CMG Ockelton sitting as a Judge of the High Court. On 12 June 2024, following renewal of the application on the first six of the seven grounds, Mr Dan Kolinsky sitting as a Deputy Judge of the High Court granted permission in respect of Grounds 1, 2, 3, 5(a) and 6. Permission was refused in respect of the remaining grounds.

[3]The Claimant had previously been represented by solicitors and counsel, but appeared in person at the hearing. Josef Cannon KC appeared for the Defendant. I was greatly assisted by each party’s articulately expressed submissions.

The factual background

[4]The application site is previously developed land, and is allocated for housing in the Chelmsford Local Plan adopted on 27 May 2020 (“the Local Plan”). The existing use of the site is for garaging and hardstanding. There are thirty two existing garages on site, of which only two are still used.

[5]Access to the application site is gained from Medway Close, on the eastern side of the site. The access runs between the side elevation of a house on Medway Close and the rear of adjacent properties on Avon Road, which runs westwards from Medway Close to the north of the site.

[6]The eastern and northern boundaries of the site meet the long rear gardens of properties fronting Medway Close and Avon Road. (The Claimant lives in one of the properties on Avon Road.) The southern and western boundaries meet undeveloped woodland.

[7]The Defendant’s application for planning permission was made on 2 February 2023. The proposed development was described as “Demolition of existing garaging and redevelopment to provide 6 new affordable homes with associated access improvements, parking, private amenity space and landscaping.” Five of the intended new homes would form a terrace of four-bedroom two-storey dwellings running down the main length of the site. A private driveway would run to their southern side. Each would have a garden running up to the northern boundary to the rear of the Avon Road houses’ gardens. Each would also have an off-street tandem parking space for two cars, arranged so as to allow one car to be parked behind another. The sixth dwelling was proposed to be a one-bedroom maisonette over car port (or “flat-over-garage”) to the south of the access way on the eastern side. Two new garages are also proposed, to replace the existing two garages which are still tenanted on the site. The existing access is to be widened and provided with a pedestrian walkway. A turning head is provided in the south eastern corner of the site, alongside the flat-over-garage.

[8]The Defendant consulted upon its planning application. On 7 March 2023 and 29 September 2023, the Claimant submitted detailed objections to the grant of planning permission on wide-ranging grounds. So far as is material for present purposes, her grounds for objection included: i) a complaint that the proposed development would be too close to her home and boundary, and was not in accordance with relevant Development Standards imposed by Appendix B of the Local Plan: it was said that this required a “back to boundary” distance of 15m, whereas the back of the proposed new dwellings would only be 10m from the boundaries of the Avon Road properties. ii) The policy in the Local Plan allocating the site for housing had provided that natural boundaries should be retained as an edge to the development, but the plans did not allow for any buffer zone around the edges of the site to create wildlife corridors. iii) The tandem parking arrangements would be inconvenient and may lead to cars being parked so as to block refuse vehicles from turning round. The Council’s Recycling and Waste Collection Services had been consulted and had confirmed that they had concerns that their vehicles would not be able to access the site. iv) The Council had used the wrong dimensions for a fire engine when producing the tracking diagram showing how it would access the site and turn using the turning head. Even when using dimensions which were smaller than those of the actual fire engines, access was extremely tight.

[9]On 3 October 2023, the Defendant’s planning committee met to consider the application (“the October meeting”). The officer report prepared for the October meeting described the site and the proposed development, and recorded that the site had been allocated for housing in the Local Plan. Under the heading “Main Issues”, the officer noted that the Council had numerous statutory homeless households requiring both four-bedroom and one-bedroom accommodation that were currently housed in temporary accommodation awaiting an offer of permanent affordable housing. The officer identified the main considerations for the proposal as including “neighbour relationships”; other considerations included “access”, and “technical compliance with development standards”. The report considered each of those matters in terms, the relevant parts of which I shall set out below in the context of the specific grounds of challenge to which they relate. The report recommended the grant of planning permission with conditions, having concluded on balance that the proposal was compliant with the development plan objectives and was acceptable.

[10]The planning committee’s discussion was transcribed. The committee heard from residents including the Claimant. During the discussion, officers responded to questions from councillors by providing further explanations of their advice and recommendation. (Again, I refer to relevant extracts of that advice as appropriate below, in the context of the specific grounds of challenge to which they relate.) At the end of the discussion, the committee decided to conduct a site visit, in light of the fact that concerns as to safety and access, and also as to privacy, had been raised.

[11]On 2 November 2023, the Claimant made some further written comments to the planning committee by way of update, which included information as to the true length of a fire engine being 8.64m rather than the 7.7m length used in the “Fire Appliance Tracking” document which had been submitted in support of the application.

[12]On 3 November 2023, the site visit took place. On 7 November 2023, the planning committee met again to determine the application (“the November meeting”). The main officer report submitted was materially identical to that which had been provided for the October meeting, having been amended only to record the outcome of that meeting and the fact that a site visit had been scheduled for 3 November 2023. However, the officer report was supplemented by a note entitled “Alterations and Additions to planning committee”.

[13]The planning committee resolved to grant planning permission subject to the conditions proposed, without further substantive discussion of the proposals. On 8 November 2023, planning permission was granted subject to those conditions. I shall refer to some of those conditions as necessary below, in the context of the Claimant’s grounds.

[14]The Claimant’s grounds for judicial review are based on a number of discrete criticisms of the officer report and oral advice given by officers at the October committee meeting. The grounds upon which permission was granted may be summarised as follows: i) Ground 1: Officers misconstrued Appendix B of the Local Plan and thereby provided members with significantly misleading advice on the compliance of the proposal with Policy DM26. ii) Ground 2: Officers made a material error of fact when informing members that the Claimant’s rear garden was in excess of 25 metres in length. iii) Ground 3: Officers failed to draw members’ attention to the relevant policy test within Growth Site Policy 1S of the Local Plan, with the result that the Council acted in breach of section 70(2) of the Town and Country Planning Act 1990. iv) Ground 5(a): Officers failed to report an obviously material consideration to members, namely the substance of a consultee objection from Recycling and Waste Collection Services. v) Ground 6: the Defendant did not proceed on a rationally sufficient evidential basis to conclude the site was accessible by fire appliances of the size actually used by the Fire Service, as the officers’ assertion that a fire appliance could access the site was based upon an incorrect assumption as to its dimensions.

The relevant principles of law

[15]Section 70(2) of the Town and Country Planning Act 1990 requires that in dealing with an application for planning permission, the planning authority must have regard to (among other things) the provisions of the development plan, so far as material to the application, and any other material considerations. Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that the determination of the application must be made in accordance with the development plan unless material considerations indicate otherwise.

[16]A planning authority’s decision to grant planning permission will be open to challenge if it fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it: City of Edinburgh Council v Secretary of State for Scotland

[1997] 1 WLR 1447

, HL, at 1459E. The meaning of planning policy is a question of law for the Court, to be interpreted objectively in accordance with the language used, read in its proper context. However, planning policies should not be construed as if they were statutory or contractual provisions: Tesco Stores Ltd v Dundee City Council

[2012] PTSR 983

;

[2012] UKSC 13

at [17]-[19].

[17]One of the functions of the officer’s report to committee is to draw the members’ attention to the material provisions of the development plan and any other material considerations to which they should have regard. The principles on which the court will act when criticism is made of a planning officer’s report to committee were set out by Lindblom LJ in R (Mansell) v Tonbridge and Malling Borough Council

[2019] PTSR 1452

;

[2017] EWCA Civ 1314

at [42]. They are as follows: i) Planning officers’ reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge. ii) Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer’s recommendation, they did so on the basis of the advice that he or she gave. iii) The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer’s report is such as to misdirect the members in a material way—so that, but for the flawed advice it was given, the committee’s decision would or might have been different—that the court will be able to conclude that the decision itself was rendered unlawful by that advice. iv) Where the line is drawn between an officer’s advice that is significantly or seriously misleading—misleading in a material way—and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact, or has plainly misdirected the members as to the meaning of a relevant policy. There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law. But unless there is some distinct and material defect in the officer’s advice, the court will not interfere.

[18]As Lindblom LJ also warned in Mansell at [41], the Planning Court must always be vigilant against excessive legalism infecting the planning system. Planning officers are entitled to expect good sense and fairness in the court’s review of a planning decision, not the hypercritical approach the court is often urged to adopt.

The relevant provisions of the development plan

[19]I set out below the Local Plan policies which are relevant to the present claim.

[20]Growth Site Policy 1S allocates a site described as “Garage Site and Land, Medway Close” for housing. The allocation site is identified on the Adopted Policies Map of the Chelmsford Urban Area. The boundary of the allocated site covers not only the application site, including its access to Medway Close, but also a substantially wider area of woodland to the south and west of the application site. The policy, insofar as material for present purposes, states:

“Development will be permitted at this site subject to meeting the requirements of Policy GR1, and the following site-specific criteria: • Around 10 new homes • Improved main vehicle access will be from Medway Close • Natural boundaries should be retained as an edge to development • …” • Around 10 new homes • Improved main vehicle access will be from Medway Close • Natural boundaries should be retained as an edge to development • …”

[21]Policy DM23 is entitled “High Quality and Inclusive Design”. It provides in its material part that “Planning permission will be granted for development that respects the character and appearance of the area in which it is located. Development must be compatible with its surroundings having regard to scale, siting, form, architecture, materials, boundary treatments and landscape.”

[22]Policy DM26 is entitled “Design Specification for Dwellings”. It provides, so far as material:

“A) All new dwellings (including flats) shall comply with all of the following: i. Achieve suitable privacy and living environment for residential occupiers; and ii. Achieve sufficient private amenity space; and iii. … The above must be in accordance with the standards as set out in Appendix B, unless it can be demonstrated that the particular site circumstances allow for a lower provision.”

[23]Appendix B is entitled “Development Standards”. The introduction to the Appendix provides as follows:

“Introduction B.1 This Appendix provides information about standards that apply to all new residential developments in Chelmsford including conversions, apartments, houses, Houses in Multiple Occupation (HMO’s) or extensions, unless it can be demonstrated that the particular site circumstances require a different design approach. B.2 The standards seek to ensure new developments will meet the needs of their occupiers, minimise the impact of new developments on surrounding occupiers and encourage higher rates of recycling. ... The following standards are covered: • Privacy and quality of the living environment • Private amenity space • Natural light • Open space • Internal space standards • Recycling and waste.” • Privacy and quality of the living environment • Private amenity space • Natural light • Open space • Internal space standards • Recycling and waste.”

[24]The remainder of Appendix B makes detailed provision in respect of each of those six bullet pointed areas, beginning with “Privacy and quality of the living environment”. The text under that heading provides as follows:

“Privacy and quality of the living environment B.3 The Council will seek to secure high quality design and a good standard of living environment for all existing and future occupants. B.4 The best way of ensuring privacy for new and existing occupiers is to minimise the extent to which windows face onto private areas of adjacent properties. These private areas include habitable rooms (living rooms, dining rooms, bedrooms), kitchens and privacy zones (areas in gardens immediately adjoining the building). Privacy can be ensured through design of new buildings, but also through achieving specified separation distances between windows and neighbouring private areas. Separation distance between buildings is also important to avoid buildings feeling overbearing to neighbouring residents. B.5 Where habitable rooms in a new or extended property will face the rear of an adjacent dwelling, whether new or existing, the separation distances set out in Table 9 apply (Criteria A-D). … B.6 The requirements may be relaxed where privacy is 'designed-in' through careful arrangement of internal accommodation, placement of windows, window design or screening. Shorter back-to-back distances may also be acceptable when the buildings face each other at an angle, typically 30 degrees or more. If there is a change in level between buildings, it may be possible for back-to-back distances to be adjusted. …”

[25]There then follows Table 9, which is headed “Privacy and proximity standards”. Its sets out a number of different criteria and the applicable standards, which in the present case are those which apply outside the city centre. Only two of the criteria are relevant for present purposes. i) Criterion A is “Minimum back-to-back (or front-to-back) distance between parallel 2 or 3 storey buildings with rear or front-facing windows serving habitable rooms on upper floors.” The applicable standard is 25 metres. ii) Criterion C is “Minimum back-to-boundary distance where new buildings, or extensions to new buildings, have a back-to-back relationship with existing residential buildings**”. The standard is 15 metres. The double asterisk refers to a note which appears below the table:

“** With existing buildings with a back-to-boundary distance less than 15m, in some circumstances a two-storey extension within 15m of the boundary may be acceptable subject to satisfactory relationships with neighbouring properties.”

[26]Appendix B then makes provision for the standards under the five remaining areas, continuing first with “Private amenity space”, which provides for minimum garden areas for private or communal gardens. Neither that standard nor any of the others which follow are in issue for the purposes of the present claim.

[27]Policy DM29 is entitled “Protecting Living and Working Environments”. It provides that planning permission will be granted for development proposals provided that the development safeguards the living environment of the occupiers of any nearby residential property by ensuring that the development is not overbearing and does not result in unacceptable overlooking or overshadowing.

Grounds 1 and 2: Development Standards for privacy

[28]It is convenient to address Grounds 1 and 2 together. They are both directed to the advice that officers gave in respect of the interpretation and application of Policy DM26 and Appendix B. The relevant facts

[29]The advice in the officer report to which this ground is directed appears under the heading “Neighbouring Impacts”. This part of the report ostensibly considered the application of Policy DM29, but it was apparent also that the officer had in mind Appendix B development standards relevant to privacy (which applied by virtue of Policy DM26). The officer advised that the proposal complied with policy, stating as follows:

“5.10. Concern has been raised from local residents that the proposed development would have a harmful impact on the existing properties on Avon Road, to the north of the site, and Medway Close, to the east. 5.11. The distances between the proposed dwellings and the end of the rear gardens of the existing dwellings is circa. 10 metres. Whilst the Local Plan Appendix B recommends a distance of 15 metres from rear of development to boundary, it should be noted that the rear gardens of the existing properties are relatively long (over 25 metres as required by Appendix B for new development). This means properties to the north are in excess of 30m from the rear elevations of proposed houses. This exceeds the recommended minimum back-to-back distance for two/three storey developments and achieves adequate remoteness to protect the amenity of those existing properties. To the east the relationship is with the flank elevations of 2no. two storey buildings, both of which have been designed without first floor windows facing towards existing neighbouring properties. To the east the relationship between habitable rooms on upper floors is again in excess of 30m which is in excess of Appendix B. The relationship between the proposed housing development and all surrounding properties is acceptable. 5.12. The applicant has also responded to representations and made an amendment to upper floor windows on Plots 1-5 during the life of the application. Through internal layout change the amount of clear glazing to the rear of those properties (facing north) has been reduced. Instead of two clear glazed windows and one obscure glazed window in the first floor elevation of those properties, there is now one clear glazed window (bedroom), and two obscure glazed windows (bathroom and en suite). Given the remoteness already achieved this is not a necessary change to the proposals, but it will help to reduce the perceived harm to existing properties. This change has been highlighted as part of the recent consultation.”

[30]Under a subsequent section of the report entitled “Development Standards”, the report recorded at paragraph 5.22 that Policy DM26 stated that all new dwellings shall have sufficient privacy, amenity space, open space, refuse and recycling storage, and that “these must be in accordance with Appendix B.” The report noted at paragraph 5.26 that the proposals met the requirements in Appendix B in respect of garden sizes (i.e. “amenity”), refuse provision and parking provision. However, the development standards set out in Appendix B regarding “Privacy and quality of the living environment”, including the Table 9 standards, were not separately addressed in the report beyond what had already been said at paragraph 5.11 (as set out above).

[31]At the October meeting, the planning officer sought to clarify the report in response to questions from councillors and points made by local residents in their oral submissions objecting to the proposal. The officer first gave an introduction which essentially repeated the contents of the written report, but which contained some adumbration:

“Concern has been raised from local residents that the proposed development would have a harmful impact on the existing properties on Avon Road to the north of the site and Medway Close to the east. The distances between the proposed dwellings and the end of the rear gardens of the existing dwellings is roughly 10 metres. Whilst the Local Plan at Appendix B recommends a distance of 15 metres, it should be noted that the rear gardens of the existing properties are relatively long at over 25 metres. As such, the majority of the garden areas of these properties are over the 15 metre recommended distance from first floor windows in the proposed development. Furthermore, the back-to-back distances between the proposed dwellings and the existing development to the north exceed 30 metres. This exceeds the recommended minimum distance for two storey development rear windows serving habitable rooms on upper floors over 25 metres as per Appendix B of the Local Plan. … To conclude, the application would have a positive impact on affordable housing in Chelmsford by providing six units for social rent. The level of separation achieved means that the proposal would not have an adverse impact on neighbouring properties. The proposal meets the standards for internal and external amenity set out in Appendix B. …”

[32]The Claimant was amongst the objectors who spoke. She pointed out that the Appendix B standards were not “recommendations” but requirements of the plan. She said that the proposed houses were only 10 metres from her boundary, not the required 15 metres. She argued that this standard could not be traded off against the fact that the proposed housing met the separate standard of being at least 25 metres from the homes which would be opposite, as the Local Plan required that both of those minimum standards were required to be met.

[33]The planning officer replied as follows:

“So just starting with development standards and compliance with the Development Plan, so we do acknowledge that the back-to-boundary distance would be less than 15 metres which is the minimum standard in the Local Plan. 15 metres should be achieved even where the scheme otherwise meets the 25 metre remoteness criteria for back-to-back relationships. The properties on Avon Road are 30 metres away from the proposed houses, so the 5 metre deficit to boundary is considered insufficient harm to justify a refusal of the development as there will be no demonstrable harm to neighbours due to the loss of light, privacy or overbearing impacts. So, essentially, we have a 10 metre back-to-boundary but a 30 metre back-to-back and so it is considered that that level of remoteness would not have an adverse impact on neighbours. … Further, the windows in the upper floors of Plots 1 to 5 have been amended so that each property only has one glazed window facing neighbours, which is 30 metres from the rear of neighbouring properties.”

[34]In response to further questions about whether the 15m standard was a hard-edged requirement, a second planning officer repeated that the table set out in Appendix B “states that you achieve a back-to-boundary distance of 15 metres between a new development and an existing boundary.” The officer continued:

“we actually make an allowance: where you’re otherwise meeting a Residential Remoteness Standard, we actually do allow you to come down from the 15 metres to the boundary. This is explained in one of the asterisked pieces of text in Appendix B. What we’ve got here is a situation where we do have remoteness between properties in excess of the minimum remoteness that we would otherwise have to have. That minimum remoteness is 25 metres. We’ve got 30 metres. In terms of privacy to residential gardens, yes, of course, we’re trying to protect properties and the gardens, but where you do have that kind of remoteness you won’t have the privacy concerns.”

[35]The officer was later asked again by a councillor to confirm “that we are allowed to, particularly these distance things, that we are allowed under certain circumstances to weigh the balance and apply them in a flexible manner and that that is okay for us to do that?” The officer replied:

“Yes, as explained, Appendix B is quite clearly worded that where you are otherwise meeting that Remoteness Standard you can reduce that 15 metre to boundary distance.”

The Claimant’s submissions

[36]Ms Scarrott submits as to Ground 1 that the officer was wrong to advise that the proposed development complied with the development plan: it was common ground that the distance between the proposed development and the boundaries of the gardens to the rear of Avon Road was only 10 metres, not the 15 metres required by Policy DM26 and Appendix B. Policy DM26 provided that the requirement to achieve suitable privacy and living environment for residential occupiers “must” be in accordance with the standards set out in Appendix B. This was not simply a recommendation that could be departed from at will.

[37]Nor could the fact that the proposed development complied with the standard for minimum back-to-back distance be relevant to compliance with another: the policy required all the standards to be met. The oral advice at committee compounded the error: the asterisked text below Table 9 did not allow one standard to be relaxed where another is met: it concerned only the limited case of extensions to existing buildings. In treating that guidance as applicable to this proposal for new residential development, the officer misunderstood and therefore misled the committee on the meaning of Appendix B and thereby Policy DM26. The issue had clearly been a material one.

[38]In oral submissions, Ms Scarrott added that the report had been wrong at paragraph 5.26 to suggest that the proposals met the requirements of Appendix B in respect of garden sizes. The officer had also been wrong to advise in the October meeting that the proposal met the standards for internal and external amenity set out in Appendix B.

[39]As to Ground 2, Ms Scarrott submits that the officer erroneously advised members in paragraph 5.11 of the report that “the rear gardens of the existing properties are relatively long (over 25 metres as required by Appendix B for new development). Her own garden was in fact only 21 metres long, as her ground floor had been extended outwards. (She told me in her submissions that figure of 25m was “probably right” for five of the other six houses, but also wrong for the sixth.) The error as to the length of (at least) her garden was a material error of fact. The error of fact was common ground in relation to her garden. As to materiality, the excess of the requirement in the development plan had been relied upon by the officer as a basis for concluding the proposal was acceptable; it was clearly material therefore that the distance in fact fell below that standard.

[40]On behalf of the Defendant, Mr Cannon KC submits in response to Ground 1 that Policy DM26 requires accordance with standards set out in Appendix B “unless it can be demonstrated that the particular site circumstances allow for a lower provision.” Thus, where particular site circumstances justify it, a lower provision than specified in Appendix B would amount to compliance with the policy. The aim was ultimately to meet the requirement in Policy DM26(A)(i) that all new dwellings should “achieve suitable privacy and living environment for residential occupiers”.

[41]That was the position here: the officers recognised that the standards in Appendix B were not met in full, but concluded nonetheless that the living environment created by the proposals were acceptable. The 30 metre back-to-back distance was judged to achieve “adequate remoteness to protect the amenity of those existing properties”, and so “the relationship between the proposed housing development and all surrounding properties is acceptable”. This was not claimed to have been an irrational judgement; nor was there any attack on the conclusion that the proposal was compliant with policy DM29, which is expressly concerned with the impact of new development on neighbouring properties. The officers did not have to recite the precise words of the policy to members: as a matter of substance, a judgement was exercised in terms that the policy allowed, and which formed the basis of the advice to members that the proposals were compliant with the development plan in this respect.

[42]There was no basis for the suggestion that exceeding the back-to-back metric of 25m could not amount to “particular site circumstances” justifying departure from another standard, the back-to-boundary distance. An open-textured judgement was required. The first was at least relevant to the amenity impact of the shortfall in respect of the second. As a matter of application of the policy, a lower provision than the minimum standard was found to be justified; that was an issue for the decision-maker and not the Court. In any event, the committee conducted a site visit and would have been able to judge the likely relationships, and their implications for amenity, for themselves.

[43]As to the language of “recommendation” in the report, that had been corrected orally to make plain that the standard was a requirement, subject to the qualification that it could be departed from where site conditions allowed. The reference made to the double asterisked point was accepted to be a confusing point to have been made: the second officer had been right that the standard could be relaxed by reference to other characteristics of the site, but wrong to have suggested that the source of that flexibility lay in the double asterisked point. Similarly, the second officer’s suggestion that “Appendix B was quite clearly worded that where you are otherwise meeting that remoteness standard you can reduce that 15 metre to boundary distance” was infelicitous wording, but had to be understood in the context of the fuller advice that he had given earlier, and the fact that the policy did indeed allow for the relaxing of standards.

[44]The references made by the officer to the development standards on garden sizes and amenity space were concerned with the development standards which applied to “private amenity space”, not the impact on the privacy and amenity of neighbours.

[45]As to Ground 2, Mr Cannon accepts that the Claimant’s own garden is only 21m long, but denies that this was a material error of fact: there was still more than 30m between the facing flanks of the two properties (notwithstanding the Claimant’s shorter garden). That was the material point in the analysis: it was the distance of 30m, not the length of the garden itself, which provided sufficient remoteness.

[46]Ms Scarrott responds with respect to Ground 1 that the officer report did not use any terminology to suggest that it had been demonstrated that the particular site circumstances allowed for a lower provision than the 15 metre standard; nor was the committee asked to turn their minds the question of whether that was so. Nor (with respect to both Grounds 1 and 2) could members have judged matters for themselves on the site visit, as her garden and ground floor extension could not be viewed from the application site or any publicly accessible point. This was a judgement call that the committee was required to make, but they were not asked to make it: they were simply told that the proposed development complied with Appendix B. Discussion

[47]Although the officer report considered the standards set out under Table 9 within the context of consideration of Policy DM29 rather than Policy DM26, that was because the officer rightly recognised that the standards on separation distance are relevant to the amenity of both the new occupants of the proposed dwellings and the occupants of existing dwellings (such as the Claimant). Rather than apply Policy DM29 (which is concerned specifically with the amenities of the occupiers of any nearby residential property) in a vacuum, it was sensibly recognised that the concerns raised by local residents as to the impact of the proposed dwellings on the existing properties on Avon Road should be judged by the same yardstick as would be applied to the amenities of new occupiers.

[48]The difficulty with Ms Scarrott’s primary submission as to the correct interpretation of Policy DM26 and Appendix B is that it neglects the caveat in Policy DM26, to which the application of the development standards in Appendix B is subject. As Mr Cannon rightly submits, Policy DM26(A)(i) is intended to ensure that all new dwellings achieve suitable privacy and living environment for residential occupiers. Whether or not proposed new dwellings do achieve that end is, in the ordinary event, to be judged in accordance with whether they meet the standards set out in Appendix B, unless it can be demonstrated that the particular site characteristics allow for a lower provision.

[49]Paragraph 5.11 of the officer report correctly noted that the distances between the proposed dwellings and the end of the rear gardens of the existing dwellings was c.10 metres, which fell short of the standard of 15 metres set out in Appendix B. It wrongly used the word “recommends” to describe the requirements of Appendix B, a word which was repeated by the officer when introducing his report at the October meeting. However, this was corrected at the meeting in response to a clear challenge by Ms Scarrott, who expressly stated:

“This is not just a recommendation. This is a clear minimum standard in the Local Development Plan.”

This was directly acknowledged by the planning officer in response, who clarified his terminology to the committee: he acknowledged that the back-to-boundary distance would be less than 15 metres, which he described as “the minimum standard in the Local Plan.” He also emphasised that the “15 metres should be achieved even where the scheme otherwise meets the 25 metre remoteness criteria for back-to-back relationships.”

[50]However, the officer then went on to explain that the fact that the Avon Road properties were as much as 30 metres away from the proposed houses meant that the 5 metre deficit to the boundary was considered insufficient harm to justify a refusal of the development as there would be “no demonstrable harm to neighbours due to the loss of light, privacy or overbearing impacts”, and that “that level of remoteness would not have an adverse effect on neighbours.” This was entirely consistent with what had been said in the report – namely that the rear gardens of the existing properties were relatively long, and that this meant properties to the north were in excess of 30 metres from the rear elevations of proposed houses:

“This exceeds the recommended minimum back-to-back distance for two/three storey developments and achieves adequate remoteness to protect the amenity of those existing properties.”

The report added:

“The relationship between the proposed housing development and all surrounding properties is acceptable.”

[51]I detect nothing in these planning judgements which is inconsistent with the terms of Policy DM26 of Appendix B: it seems entirely plain to me that the officers considered that the particular site circumstances – namely, the presence of relatively long gardens in the case of the Avon Road properties, giving rise to a level of remoteness from the proposed dwellings which was sufficient to overcome the policy objectives to which Policies DM26 and DM29 were directed – allowed for a lower provision (by 5 metres) in respect of the back-to-boundary standard. Such an approach was entirely open to the planning officers to take, consistently with the terms of the development plan: they were entitled to advise that in their judgement the proposed development was in accordance with the development plan (in this relevant part). Moreover, the committee was free to accept or reject the planning judgements in question. It is plain that having heard the objections and considered the evidence, including what could be seen on the site visit (even if that afforded a limited view of Ms Scarrott’s own property), the committee can be taken to have shared that view.

[52]It is appropriate to interpose consideration of Ground 2 at this point: it is directed to the fact that in describing the rear gardens of the existing properties on Avon Road as “relatively long”, the officer added in parentheses:

“over 25 metres as required by Appendix B for new development”

. Ms Scarrott’s complaint is that this was not true of at least her property (and it was said one other), in that her garden is 21 metres long (as the Defendant agrees). As to this complaint: i) First, Ms Scarrott accepts that what the officer said was true of most of the properties (at least five out of seven). The reason it was not true of her property was that at ground floor level an extension had been built out into the garden. Otherwise, the point was generally true. ii) Secondly, the fact that the point was not true of one (or two) of the houses is entirely immaterial. The relevant question was not the length of the garden, but the length of the distance between the backs of the new and existing dwellings. As Ms Scarrott accepts, notwithstanding the fact that her garden is (by reason of her extension) somewhat shorter than that of others, the distance between her property and the nearest proposed dwelling is still over 30m. The point as to the slight inaccuracy in respect of the length of her own garden is therefore entirely irrelevant to the broader point that the planning officer was making – which was that the back-to-back distance was in excess of 30m. iii) It follows that there is no basis for Ms Scarrott’s suggestion that the error of fact – insofar as it related to her garden – was a material one. It plainly was not. That is sufficient to dispose of Ground 2.

[53]Returning to Ground 1, the next aspect of Ms Scarrott’s complaint is that the fact that the proposed development complied with the standard for minimum back-to-back distance cannot be relevant to compliance with another: the policy required all the standards to be met. It is certainly correct that the policy requires all standards to be met, as the officer correctly advised at the October meeting:

“15 metres should be achieved even where the scheme otherwise meets the 25 metre remoteness criteria for back-to-back relationships.”

However, for the reasons I have given, he was also correct to advise that the 15 metre standard could be relaxed in certain circumstances.

[54]It is true that the second officer misidentified the source of that (potential) flexibility at the October meeting. He was wrong to recall that it appeared in the double asterisked text below Table 9. However, he did not refer the committee to the substance of what does in fact appear in the double asterisked text, which concerned extensions to existing dwellings and which was on any view irrelevant. It is clear that the officer was misremembering the location of the relevant provision in the Local Plan, not its effect: he can only have had in mind the flexibility provided by Policy DM26 itself, namely where the particular site circumstances allow for a lower provision. In the context of the present case, that meant that the properties were sufficiently remote from each other (by reason of the long gardens) that there was no planning justification to insist upon a distance of 15 metres rather than 10 metres from the back of the new dwellings to the boundary of the existing ones. The effect of that was fairly explained to the committee: the second officer explained that an allowance would be made to reduce the distance to the boundary, relating it to the “situation” (i.e. site circumstances) where there was remoteness in excess of the required remoteness, to such an extent (“that kind of remoteness”) that there were no surviving privacy concerns.

[55]It is also true that the second officer’s later, briefer restatement of the position he had described was infelicitously worded: it cannot be said that Appendix B is “quite clearly worded” to explain that where the “remoteness standard” is met, the 15 metre to boundary distance can be reduced. The reference should have been to Policy DM26 itself, not Appendix B; and it should more accurately have been explained that the “remoteness standard” in question was not the 25 metre standard found in Appendix B itself, but a planning judgement that the new dwellings would be sufficiently remote that an objection based on a distance of only 10 metres to the boundary could not be sustained on the grounds of privacy or amenity. However, the correct position had been properly explained already. Reading the officer report and the transcript of the October meeting fairly and as a whole, the effect of the advice given was in accordance with the true interpretation of the development plan. This additional statement did not materially mislead members, notwithstanding that it was in error to the extent I have described.

[56]I also reject Ms Scarrott’s additional point that the report had been wrong at paragraph 5.26 to suggest that the proposals met the requirements of Appendix B in respect of garden sizes, and that the officer had also been wrong to advise in the October meeting that the proposal met the standards for internal and external amenity set out in Appendix B. In each case, the officer was referring to the standards applying to “private amenity space” under Appendix B (so far as external amenity was concerned), which set down minimum garden sizes, and to internal natural light and space standards (so far as internal amenity was concerned). There has not been any suggestion that those standards were not met; the officer did not mislead the committee in this respect either. Conclusion

[57]In conclusion, although the officers did make some errors in the way that they described the effect of Policy DM26 and Appendix B, such errors as there were either were corrected or were minor or inconsequential and may be excused. Any misdirection was not ultimately material: even to the extent that there were errors in the detail of the advice given, I cannot say that the committee’s decision would or might have been different but for that advice. Grounds 1 and 2 are dismissed. Ground 3: natural boundaries Submissions

Ground 3: natural boundaries

[58]The Claimant’s complaint under Ground 3 is that the officer report was silent on the question of whether the proposed development complied with the site-specific criterion in Growth Site Policy 1S that “Natural boundaries should be retained as an edge to development.” Although the officer report noted at paragraph 2.5 that “The site is allocated for housing redevelopment (10 units) under Growth Site Policy 1S in the Local Plan”, there was no reference there or elsewhere in the report to the requirement concerning the retention of natural boundaries. She submits that it follows that members were not asked to form a judgement about whether the development would indeed retain natural boundaries as an edge to the development. The Defendant therefore failed to have regard to a policy in the development plan which was relevant to the application.

[59]Ms Scarrott further submits that the fact that Condition 17 required that the proposed treatment of all boundaries was required to be submitted and approved in writing provides no answer to her point: a judgement as to whether the proposal would retain natural boundaries was required to be made at the stage of considering whether to grant planning permission. Further the reason provided for the imposition of the condition did not refer to the requirement to retain natural boundaries or Policy 1S at all, but only to Policy DM23. This meant that if submitted plans were refused, there would be no “hook” for the planning inspectorate to find that natural boundaries needed to be retained.

[60]Ms Scarrott submitted that she had alleged a conflict with Policy 1S in her written objections to planning permission in relation to the requirement for natural boundaries. She had referred to an Ecological Appraisal which had identified the need for a 2m buffer zone around the site boundaries to create corridors for wildlife. In that context, she had referred to the requirement in Policy 1S that natural boundaries should be retained as an edge to development. She had submitted that the proposed plans did not leave any buffer zone around the edges of the site.

[61]The landscape plan showed fences up to the woodland; the one-bedroom flat over garage on the southern boundary of the site went right up the boundary on land which was currently vegetation; there was no natural boundary on the northern side where there was currently a strip of scrub growth; and to the west, there was to be hardstanding right up to the boundary. The committee should have considered the acceptability of the loss of vegetation leading up to and on the boundary, and whether this complied with Policy 1S, but failed to do so.

[62]Mr Cannon submitted that this was a prime example of an over-forensic approach to an officer report. The criterion did not concern the question of whether planning permission should be granted, but concerned implementation. The background to the Defendant’s consideration of the boundary treatment was provided in the witness statement of Neil Jordan, Principal Planning Officer. The criterion requiring retention of “natural boundaries” was secured by Condition 17. Condition 18 also required a scheme to be submitted for hard and soft landscaping, including trees, planting and surfaces. These provided a hook to retain natural boundaries. Their reference to policy DM23, which required compatibility with a site’s surroundings, having regard inter alia to boundary treatments, was sufficient. Whether what was proposed in discharge of that condition amounted to satisfactory retention of “natural boundaries” could be assessed at that stage, as a matter of judgement, when consideration could be given to whether the boundaries were sufficiently “natural” to be acceptable. Planning Practice Guidance made clear that planning permission should not be refused on the basis of matters which could be dealt with by condition.

[63]The officer report did not need to draw members’ attention to this criterion of the policy, as, first, no party had appeared to object on the basis of the proposed boundary treatment (including the Claimant); second, the proposed boundary treatment was addressed at paragraph 5.7 of the officer report which referred to the submitted landscape plan having proposed a scheme of shrub and tree planting as well as boundary treatments including walls and close boarded fences, which measures were proposed “to soften the impact of the development and assist in integrating the site into its context”; and third, the reason provided for Condition 17 referred to policy DM23 in any event, which would secure the same end.

[64]The Claimant’s objection, read in context, concerned ecology not the retention of natural boundaries. Ecological matters had been dealt with by condition, without challenge from the Claimant. As the officer report had made clear at paragraph 5.28, the Ecology Appraisal had not concluded that no further assessment or survey was needed; the specification of landscaping and recommendations for other ecological betterment would be secured by planning condition.

[65]The northern boundary was marked by a fence which was owned by the homeowners of Avon Road and could not be described as natural. If the Council thought it important to retain the scrub between those fences and the proposed dwellings’ gardens, that could be required pursuant to the conditions.

Discussion

[66]The submissions on this ground proceeded on a somewhat unreal basis.

[67]First, it is important to recall that Policy 1S shows an allocated site which is much larger than the application site, which forms only a part of it. The allocated site includes a substantial area of woodland to the west and south of the application site. It is this woodland which forms the natural boundaries to the site referred to in Policy 1S. It cannot be referring to the boundaries to the north and east of the site, as those boundaries consist only of close boarded fencing marking the ends of the gardens belonging to the houses on Avon Road and Medway Close. There is nothing natural about them at all. The area of scrub within the site does not form its boundary.

[68]Second, the proposed development barely touches the existing woodland to the west and south as shown on the Location Plan, save for a small area at the western end of the site which will not have buildings upon it (but may have hardstanding). Paragraph 5.27 of the officer report stated:

“Submitted with the application is a tree report concluding that development would have no significant impact on surrounding trees. There is a short section of independent hedgerow and two C Category trees within the site which will be removed to facilitate development. These are of low value. The development has been largely designed to avoid impact on tree roots, but methodologies would nonetheless be required, which can be secured by condition.”

There is no challenge to what is said in that paragraph. It is plain that the substantial areas of woodland to the west and south of the application site are not proposed to be developed, with no significant impact upon them.

[69]Third, the fact that the one bedroom flat on the southern edge of the application site directly abuts this woodland is nothing to the point. The woodland remains, continuing to provide a natural boundary within the allocated site as a whole. The same may be said of the proposed area of hardstanding.

[70]Fourth, there was therefore no issue at all before the planning committee as to whether the existing natural boundaries to the allocated site would be retained: they plainly would be. The fact that they almost entirely fell outside the red line of the application site amply demonstrated that, as confirmed by paragraph 5.27 of the officer report. The Claimant’s objection was, as Mr Cannon rightly submitted, directed towards the suggestion that a buffer zone around the boundary should be provided for ecological reasons; although the failure to provide such a buffer zone was asserted to infringe Policy 1S, it plainly did not. Instead, ecological matters are to be controlled by condition, and there is no challenge to that approach.

[71]Fifth, insofar as there are matters of detail concerning the relationship between the application site and the woodland, there is no reason why those matters should not be dealt with by condition, as they have been. Those are not matters which go to the fulfilment of Policy 1S, and still less to the principle of development. Conditions 17 and 18 amply fulfil that purpose, allowing the Defendant to control the detail of whether fences (for example) should be permitted in the interests of the visual amenities of the area, notwithstanding the detail set out on the submitted Landscape Plan. No further “hook” is required for that purpose.

[72]It follows that there was no failure by the officers to report the requirement in Policy 1S for natural boundaries to be retained to members, or for members to exercise any planning judgement in respect of it. It was already plain that the natural boundaries to the site were to be retained. Ground 3 is dismissed. Ground 5(a): Recycling and Waste Services’ consultation response

The relevant facts

[73]The planning application for the proposed development was supported by a tracking drawing showing how a 3 axled refuse collector would enter and exit the site for the purposes of collecting waste. The diagram showed the vehicle using the breadth of Medway Close to turn into and out of the site’s access way. Within the site, it showed the vehicle would drive into a turning head in the south eastern corner of the site, and then reverse into the accessway running between the one bedroom flat to the south and the terrace of four bedroom houses to the north to collect refuse. It would then be able to travel forwards again to exit the site.

[74]On 9 March 2023, the Defendant’s Recycling and Waste Collection Services officer responded to the consultation over the proposed development in the following terms:

“I have concerns in relation to vehicles accessing the site, the vehicles would need to swing into the site which due to cars parked directly opposite the entrance they would not be able to do. I have concerns that the turning head as shown would not allow vehicles to easily position themselves to be able to reverse past the front of the properties, this would only be made more difficult/impossible if vehicles were parked in the turning head which often happens. My comments have taken into consideration the tracked drawing.”

My comments have taken into consideration the tracked drawing.”

[75]The officer report for the October meeting included (at section 4) a summary of the consultation responses received. In respect of Recycling and Waste Collection Services, the officer recorded:

“Raised concerns regarding access for refuse vehicles which have been addressed or can be controlled by conditions.”

[76]Appendix 1 of the Report set out consultees’ responses in more detail. The only recorded response from Recycling and Waste Collection Services was: “My earlier comments have taken into consideration by the tracked drawing (those comments related to vehicle access and turning within the site)” (sic). The earlier comments referred to were not separately reported to members beyond the summary that had been provided in section 4.

[77]The discussion of access arrangements in the officer report included the following:

“5.20. Access to the site is to be taken from Medway Close in the same position to the existing car park access. No matters of principle arise from this proposal. The specific works affecting the public highway, including a Traffic Regulation Order, will need further agreement by the Local Highway Authority, which is covered by separate highways legislation. 5.21. The site is to be serviced (e.g. refuse collection) from the within the site (sic). Submitted with the application is a refuse and recycling strategy plan which confirms that all of the units have legible pathways from on-plot storage to the shared bin collection point which is suitably accessible to operatives from the street. Vehicle tracking submitted with the application shows that the refuse vehicle can turn within the site. Installation of bin stores and collection point will be required by condition to ensure that there is adequate provision to serve the development.”

[78]Condition 12 to the planning permission provided:

“Prior to the construction of any access roads, a plan to show how the development will be serviced by a refuse vehicle shall be submitted to and approved in writing by the local planning authority. All roads shown on the approved drawing to be served by a refuse collection vehicle shall be constructed to a standard capable of carrying a 26 tonne vehicle. Reason: In the interests of highway safety and to ensure that the development is accessible in accordance with Policy DM23 [and DM24] of the Local Plan.”

[79]Condition 19(iii) further required (unless the Local Planning Authority agreed to a “commensurate solution”) “provision of Traffic Regulation Order (TRO) parking restrictions to prevent parking on Medway Close to each side of the vehicular access to the north and south and opposite the vehicular access on the east side of Medway Close to facilitate refuse vehicle entry to the development, in accordance with details to be agreed with the Highway Authority.” The reason included “to facilitate entry/exit of refuse vehicles, in the interest of highway safety.”

Submissions

[80]Ms Scarrott submitted that the consultation response of 9 March 2023 had not been reported to members in the officer report, and that section 4 of the Report had been “wrong” to report that the matters raised had been addressed or could be controlled by condition. None of the conditions did anything to prevent cars from parking in the turning head. The failure to report the objection in that respect resulted in the Defendant failing to have regard to an obviously material consideration.

[81]Mr Cannon submitted that the officer had been entitled to report that the concerns expressed had either been resolved or could be dealt with by condition. No one had been misled; nor had there been any failure to have regard to an obviously material consideration: i) Car parking on Medway Close would be controlled by a TRO as required by Condition 19(iii), specifically to allow refuse vehicles to enter and exit the site. ii) Condition 12 ensured that details of access for a refuse vehicle would have to be submitted and approved, notwithstanding the submitted tracking drawing showing that it could do so. iii) The plan to be submitted under condition 12 could also address any measures thought appropriate to discourage parking in the turning head. However, the officer report had noted at paragraph 5.19 that “the proposed development incorporates sufficient parking for future occupiers and visitors”.

[82]Ms Scarrott replied that it remained unclear whether Recycling and Waste Collection Services had been satisfied by the proposed conditions, given the ambiguity of their reported response set out in Appendix 1 to the Office Report.

Discussion

[83]In my judgment, there was no error in the officer report in this regard. Insofar as the matters raised were susceptible to planning control, they had been dealt with by condition. The TRO would resolve access to and from Medway Close. There had been no suggestion that the refuse vehicles would not in fact be able to turn in the turning head to be provided, as the tracking drawing showed they could.

[84]The Claimant’s concern that the conditions would have no or limited effect on whether cars might park in the proposed turning head – despite the presence of sufficient parking for the houses – is not a matter which could be further susceptible to planning control (beyond submission and approval of a plan). It would be a matter for the Council to consider whether any signage was required to discourage such parking, or whether (as landowner of this private access) it adopted more formal enforcement measures in respect of any parking there.

[85]Ground 5(a) is dismissed. Ground 6: Access for fire appliances The relevant facts

Ground 6: Access for fire appliances

[86]The application documents also included a tracking drawing showing how a fire appliance would enter and exit the site. The detail shown did not give rise to any formal objection from Essex County Council Highways, nor from the Fire Service who, though not a statutory consultee, had been informally consulted. The officer report did not note any issue arising from the arrangements for access by a fire appliance, albeit Condition 19 required “a suitable dropped kerb crossing of the existing footway/verge to be provided.”

[87]In her written objections, of 29 September 2023, however, the Claimant informed the Council that the tracking drawing had used the wrong measurements for a fire appliance. She said that the Fire Service had confirmed to her that the width of a local fire appliance was not 2.4 metres as shown on the tracking drawing, but 2.55 metres body width and 2.98 metres including the wing mirrors.

[88]At the October meeting, the planning officer explained in response to questions on the issue:

“On site access, the proposal includes the widening of the access to 5.5 metres for the first 6 metres which will enable two vehicles to pass each other. A minimum width of 3.7m will be provided for the remainder of the access road which is suitable to accommodate a fire tender and refuse vehicles. … The tracking has been modelled by a transport consultant and, based on our assessment and the assessment of the local Highway Authority, there’s no reason to question why it would comply with those standards. We’ve had discussions with Essex Fire and Rescue and they have confirmed that they are not concerned with access to the site for fire tender. This will be reviewed during the Building Regulations stage. If there are issues with the access at building control stage, these will simply need to be raised with the Applicant and the Applicant would need to come back to Planning with some revisions.”

[89]Later in the meeting, in response to concerns expressed by a member as to how a fire appliance might enter the site and whether this was dangerous, the second planning officer explained as follows:

“What’s on the screen currently is a tracking drawing, which I’m not entirely sure what vehicle that is but there’s a number of vehicles that have been tracked as part of the application to show that they can make the turns. Sorry, I can hear some grumblings and I know there’s been a point raised about the overlap. Now what actually happens just to explain a point that was raised earlier, sorry, if I can, when these are modelled, they’re modelled on software. It is a specific proprietary software that deals with movement of vehicles and it’s all computer modelled. What they do is they take that off the model and they superimpose it on the planning drawing and sometimes there is a little bit of an overlap. It’s just a copy and paste job just to show that this is how it works in the context of these planning drawings. So, if there’s overlap, it’s not an actual physical overlap of any physical structures because the model wouldn’t allow that. The access route allows for passing at the first section. There’s a pinch point of 3.7, that’s the minimum pinch point that you’re allowed. You’re allowed that for a period of distance into the site. That’s entirely acceptable. The local authority have signed off on that. You then have an adequate turning facility. That turning facility then allows your fire tender to reverse to a point where they can unravel their hose. It’s all measured on distances and those distances are based on hose length. But they’re also based on the maximum they’re prepared to travel in reverse so that, if they get a secondary call while they’re on that first call and they need to disappear quickly, they can do that and they can get out of the site in enough time. Now we have spoken to the fire officer last week and confirmed all of this and they’ve said that’s absolutely fine for this stage for planning stage. Of course, it will be looked at at Building Regulation stage - that’s always the case. As my colleague said earlier, if there were any issues at building regulation stage that required any tweaking whatsoever, all it would take is for the developer to come back to us and say: these are the changes that we need to make to make this acceptable. That’s the same for any other issue that comes into the equation under Building Regulations if there are any changes required.”

[90]Each time one of the planning officers spoke, there were vocal interruptions challenging what was said, with one speaker (likely the Claimant) expressly stating that the vehicle dimensions (used for the purpose of the tracking drawing) were wrong. By that stage, the floor was not open to members of the public, and the point was not pursued further at the time.

[91]After consideration of the application was deferred for a site visit, however, officers produced a supplementary document entitled “Alterations and Additions to planning committee, 7 November 2023”, which was appended to the officer report for the November meeting. It added this in respect of “Fire Appliance Tracking”:

“A proposed tracking drawing has been added to the green sheet for the benefit of the planning committee. The tracked drawing has been updated to reflect the correct measurements and reversing distances for the largest type of fire appliance vehicle, as set out in Fire Safety: Approved Document B.”

[92]The new tracking drawing was produced upon the assumption that a fire appliance would be 7.70 metres long and 3.00m wide, and a lock to lock time of 4 seconds. The drawing showed a slight conflict at the access point at Medway Close, in that the path of the vehicle overlapped with half of the (indicatively shown) canopy of a tree to the immediate south of the access, and overran the corner of the pavement to the north. Notwithstanding that, planning permission was granted: it may be assumed that was on the basis of officers’ advice that this remained a matter which could be dealt with if necessary at the Building Regulations stage (and if necessary on return to Planning).

[93]The Claimant obtained evidence that a fire appliance that could be used to access the site would in fact be 8.64 metres long. So although the updated tracking drawing was now using the correct width for such a vehicle (and lock to lock time), it was still using the incorrect length. The Defendant now accepts that the Claimant is correct in that respect. Although the Defendant initially pointed to the fact that the tracking drawing for the refuse vehicle used a vehicle measurement of 8.74 metres, which was even longer than the length of a fire appliance, by the time of filing its Summary Grounds of Defence, it had accepted that the tracking drawing for a refuse vehicle does not provide an acceptable substitute, given that the width of such a vehicle is only 2.50 metres, not the 3.00 metres of the largest fire appliance.

[94]For that reason, the Defendant submitted a witness statement by its solicitor in support of its Summary Grounds of Defence appending a third tracking drawing for a fire appliance. This drawing is now accepted by all to show the correct dimensions of a fire appliance which might need to access the site, with a length of 8.70 metres, a width of 3.00m, and a lock to lock time of 4 seconds. The Defendant contends that it shows that there is no material difference with the plan which had been submitted to the November meeting.

[95]The Claimant’s ground 6 was that members were told that a fire appliance could access the site, but there was no evidence upon which that conclusion could be rationally based.

[96]The Defendant now accepts that proposition, but submits that the new tracking drawing it has produced in the context of these proceedings shows that had the correct size vehicle been used, the same outcome would have been “highly likely”. The Defendant therefore relies upon section 31(2A) of the Senior Courts Act 1981, and submits that no relief should be granted in respect of this admitted error.

[97]In support of its position, the Defendant filed with its Detailed Grounds of Resistance a witness statement by Stephen Amman dated 12 July 2024, who had been responsible for producing the tracking drawing. He explains that the drawing had been produced using an industry standard software package. He explains that the revised tracking assessment indicates that a maximum size fire appliance was able to enter and exit the site in forward gear in accordance with current standards. He drew attention to the fact that “The Tracking indicates that the manoeuvre will result in some minimal over-run of the landscaping area the east of Plot 5. The over-run will be limited to the vehicle body overhanging the landscaping to a very minimal extent as opposed to wheel over-run.” The area of landscaping is to the immediate east of the eastern end of the terrace of five houses.

[98]Mr Amman also expressed an opinion as to the materiality of this overhanging; however, opinion evidence is not admissible other than where the necessary requirements of CPR Part 35 in respect of expert evidence have been complied with: R (AB) v Chief Constable of Hampshire Constabulary

[2019] EWHC 3461 (Admin)

, at [118]. I do not take this opinion evidence into account.

[99]In response, the Claimant made an application dated 5 August 2024 to admit a witness statement by Andrew Roberts, a highways consultant. The Claimant already had permission to serve any further evidence in reply to the Defendant’s Detailed Grounds, by virtue of the directions made by Mr Dan Kolinsky KC when granting permission. However, the directions did not extend to permitting expert evidence to be adduced. Nor did the application notice seek the admission of expert evidence; nor did the witness statement otherwise comply with the requirements for an expert report imposed by CPR 35.

[100]Mr Roberts asserted that the tracking drawing had been produced using an Ordnance Survey, not a topographical survey, which he said was less accurate. He criticised the software package that had been used to produce the tracking drawing, asserting that it allowed overrunning. He produced his own tracking drawing using a different software package, which he said showed that a fire appliance would over-run part of the pedestrian access, as well as a give-way area next to the landscaping area (but not the landscaping area itself).

[101]The Defendant responded to this evidence with an application notice to admit a second witness statement of Mr Amann dated 9 August 2024. He said that Mr Roberts had been mistaken to assert that his tracking drawing had been based upon Ordnance Survey mapping; he had based it upon the topographical survey undertaken for the architect’s plans. The software package had been accepted for use by Essex County Council (the highway authority), as well as various other highway authorities. Mr Roberts’ own tracking assessment had not taken the optimum vehicle line limiting vehicle over-run, but in any event both the give-way area and pedestrian access were designated as being for shared use and as such were over-runnable.

[102]Without any accompanying application for its admission or permission from the Court, the Claimant filed a second witness statement by Mr Roberts dated 10 September 2024. He suggested that the topographical survey (which he now conceded could have been used) might not have been fully used, as it did not show the full access splay. He acknowledged that it if it had, that would help overcome any concern as to overrun of the verge to the north of the access at Medway Close. He drew attention to the overrun with the tree canopy to the south of the access. He denied that an optimal path had not been taken on his own tracking drawing. He introduced a new point, to the effect that the vehicle used for tracking ought to have assumed a lock-to-lock time of 6 seconds, not 4 seconds.

[103]The Defendant responded with a second witness statement from Mr Jordan, again without application or permission. He said that the point about the lock-to-lock time had never been previously raised, and formed no part of the pleaded grounds of challenge. However, he exhibited a further tracking drawing now using a vehicle with a lock-to-lock time of 6 seconds, which he explained showed no material difference at all.

[104]He noted that the point about the verge to the north had not previously been raised either, but that the verge belonged to the Council in any event. As to the tree, the tree was avoided in all cases, with the overrun being to the indicatively shown canopy only. It was also on land owned by the Council, and was a non-protected tree in any event. Both the point about the verge and that about the tree appeared in exactly the same way in the diagram shown to the planning committee in November, and had not given rise to any concern.

Submissions

[105]While accepting the error identified by the Claimant in respect of the tracking drawing put before members at the October and November meetings, Mr Cannon submitted that no relief should be granted as section 31(2A) of the Senior Courts Act 1981 applied: while the point raised as to the incorrect size of the fire appliance which had been used had been fair, the evidence showed that it made no difference. If the corrected drawing had been before the committee, it would have shown the same thing and the committee would therefore have been highly likely to have reached the same conclusion. If any concern was raised at the Building Regulations stage, a variation application under section 73 of the Town and Country Planning Act 1990 could be made in respect of Condition 2 (which otherwise required the development to be carried out in accordance with the approved plans and conditions listed on the decision notice.)

[106]He criticised the Claimant’s case for having otherwise moved beyond that which had originally been pleaded, insofar as it raised new points which would have been equally true of the original drawing put before the November meeting (such as the alleged over-running of the verge to the north of the access, the canopy of the tree to the south, and the use of a 4 second lock-to-lock time). These unpleaded complaints should not be admitted.

[107]Ms Scarrott submitted that the Defendant’s evidence served with its summary and detailed grounds of defence had been “ex post facto”, but that even that evidence showed the vehicle was unable to access the site without overrunning, even if the extent of overrunning was disputed between Mr Amman and Mr Roberts. Officers had informed members that the software model would not allow for “an actual physical overlap of any physical structures”, but it was now accepted that there would be overrunning. Had the planning committee been informed that a fire appliance could not access the site without overrunning certain areas (such as landscaping, pedestrian access path and a tree) then the committee would have been very unlikely to conclude that the site could be adequately serviced by fire appliances, which may have led to a different outcome.

Discussion

[108]Given the Defendant’s concession on this ground, the only issue before me is whether section 31(2A) applies. By virtue of that provision, the Court must refuse to grant relief if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred, unless the Court considers that it is appropriate to disregard that requirement for reasons of exceptional public interest.

[109]The conduct complained of was the presentation of a tracking drawing at the November meeting based on a fire appliance of 7.70m in length rather than 8.64m. Had the tracking drawing which has now been produced by the Defendant based on the correct measurements been shown to the committee: i) it would have shown the same apparent overrunning of the verge to the north of the access as appeared in the diagram that was actually shown to the committee in November; ii) it would have shown the same apparent conflict with some of the indicative canopy with the tree to the south of the access as appeared in the diagram that was actually shown to the committee in November (and indeed was also shown in respect of the refuse collector tracking drawing); iii) it would have shown that the fire appliance would make use of the give-way area on turning the corner next to the landscaping area, in the same was as was shown in the diagram shown to the committee in November; iv) it would not have shown any contact with the pedestrian access, in the same way as the diagram shown to the committee in November; but v) unlike the diagram shown to the committee in November, the plan would have shown a very slight overrunning of the landscaping area. Had any question been raised about this, it would have been explained by officers that the overrunning related to overhang by the body of the fire appliance, and not to wheel overrun.

[110]The submission of this evidence does not amount to inadmissible “ex post facto” reasoning: it is not submitted in an effort to supplement the reasons for which the decision under challenge was taken. Instead, it is submitted in order to establish the extent to which the admitted error made any difference to the outcome.

[111]I accept Mr Cannon’s submission that it would have been highly likely that planning permission would have been granted on exactly the same basis as it was. That is because the only difference between the two diagrams related to a minimal vehicle body overhang of some landscaping as the fire appliance entered or exited the site, in the event that a fire appliance was called to the site. There is no suggestion by anyone that this additional overhang would give rise to any danger to any person or to any property, such as to justify the refusal of planning permission.

[112]The Claimant’s grounds do not include any challenge to the decision to grant planning permission based on the apparent conflict with the verge to the north of the access or the indicative canopy of the tree to the south, notwithstanding that these conflicts were apparent even from the submitted tracking drawings. These points were raised for the first time in Mr Roberts’ second witness statement, for which no application was made. That is no substitute for a properly pleaded complaint.

[113]However, it might be argued that it was enough for the Claimant to plead reliance on the fact that the fire appliance drawing was based on the wrong measurements, without the need to raise further points as to the conflicts it showed. Any such argument would not be sustainable, however, as the same conflicts were shown in respect of the unchallenged refuse vehicle tracking drawing. Still no point was raised in respect of them. These points, were they to be raised at all, should therefore have been properly pleaded notwithstanding the deficiency of the original fire appliance tracking drawings. Had they been raised, they could not even arguably have led to the conclusion that the decision to grant planning permission was irrational, or that the apparent conflicts were each a mandatory relevant consideration that it would have been irrational not to take into account. That is because: i) As to the verge to the north, Mr Roberts concedes that the topographical survey shows a splay at that corner, rather the hard edged corner which appears to be overrun. Even if that were not the case, or if it provided only a partial answer, this was a matter of detailed design of the access which could be resolved pursuant to Condition 19, which required that prior to the occupation of any of the proposed dwellings, the private drive should be “provided with a suitable dropped kerb crossing of the existing footway/verge.” ii) As to the tree to the south, the apparent conflict was not with the tree itself, but only with its indicatively shown canopy. Were any actual conflict with that tree or its canopy to emerge, there would be nothing to stop that tree from being cut back or removed, given the tree is not a protected one.

[114]Ms Scarrott additionally argued that the identified conflicts now show that the committee was misled when it was advised that the software used would not allow “an actual physical overlap of any physical structures”. This point has no merit either: the overhanging of the body (but not the wheels) of the vehicle in respect of the landscaping area does not show any physical overlap with any physical structures. Nor would there be any in respect of any conflict with the verge or the tree canopy. Nor does the fact that use is made of the give way area represent any such overlap with a physical structure.

[115]Nor does the late suggestion that the incorrect lock-to-lock time for the fire appliances had been used give rise to any arguable error. Again, that point – were it a good one – could have been raised at an earlier stage with respect to the November drawing. In any event, it has been answered by the provision of the further tracking drawing which shows it makes no material difference at all.

[116]Finally, Mr Roberts’ objections to the software and mapping base used by the Defendant in producing the tracking drawings and criticisms, and his production of an alternative tracking drawing which was not produced before the committee, are wholly inadmissible. Any complaint based on this evidence would not only need to have been pleaded, but would also have needed to be the subject of an application to admit expert evidence. Any expert report that was permitted to be adduced would also have had to comply with CPR Part 35. Mr Roberts’ report does not. In any event, the only additional alleged conflict it identified (on the tracking path he selected) was a very slight overlap with the pedestrian access. As Mr Amman explained in his second witness statement, this area is designated as being for shared use and as such is over-runnable.

[117]It follows that: i) no other public law error has been shown by the Claimant beyond that conceded by the Defendant; and ii) in respect of that accepted error, it appears to me that it is highly likely that the outcome would not have been substantially different if that error had not been made.

[118]I must therefore refuse to grant relief in respect of Ground 6, in accordance with section 31(2A) of the Senior Courts Act 1981.

Conclusion

[119]This application for judicial review is dismissed. Only Ground 6 had merit, but relief in respect of that ground must be refused.