Court Boosts Planning Objectors' Rights

A local authority has been dragged over the coals by a High Court judge for its 'perverse' failure to heed furious neighbours' complaints about a poorly constructed home that overlooks their back gardens.

The house in Brighton was built as part of a wider development for which planning permission had been granted. However, it was badly built to a greater height than permitted and included a 'tatty green roof' with skylights overlooking neighbouring gardens. Neighbours had bitterly attacked it as an eyesore.

Brighton and Hove City Council was at first supportive of the neighbours and resolved to take enforcement action requiring the house's demolition on the basis that it had not been constructed in accordance with the approved plans and thus did not have planning permission.

The developer's bid for retrospective planning consent was rejected by a planning inspector; however, the Council subsequently performed a dramatic volte-face and decided to take no further action. The Council said that the house's poor construction could not be addressed by an enforcement notice, that the increased height of the building did not cause 'sufficient harm' to the outlook and privacy of neighbouring homes and that conditions attached to the original planning consent could not be enforced because the structure was 'not authorised'.

The Council later accepted that this decision was legally flawed, but only on the basis that it should have required the developer to obscure the property's bathroom windows. The Council also contended that by that time, the four-year time limit for taking enforcement action had expired.

In upholding a local resident's judicial review challenge, Mrs Justice Lang described the Council's decision as 'perfunctory' and its approach to the matter as 'perverse'. Neighbours had 'genuine, legitimate, ongoing concerns' and Council proposals that they should double the height of their boundary walls to ensure their privacy were simply unacceptable.

She added, "I conclude that the decision was legally flawed. The decision was perverse in the light of the previous history, including the Council's own previous assessments, which were not properly considered." The Council had failed to consider the possibility of taking enforcement action in respect of an unlawful change of use, where the relevant limitation period is ten, rather than four, years.

Directing the Council to consider the matter afresh, the judge said that it was up to local planners to decide whether it remained desirable, or feasible, to enforce demolition of the offending building.