Why councils are approving schemes that the courts later block because of daylight impact

A court judgment that found committee members were "misled" by an officer on daylight guidance when considering plans for a new hotel shows that council planners can find it difficult to interpret the rules in this complex area, say observers.

London's Royal Courts of Justice
London's Royal Courts of Justice

In February, the London Borough of Hammersmith and Fulham granted planning approval for the demolition of a 1950s office building and its replacement with a nine-storey hotel in Shepherd’s Bush, west London. However, a High Court judgment earlier this month quashed the consent on the grounds of a flawed officer’s report which, it said, did not fully inform planning committee members on the daylight impact of the scheme. Deputy judgeJustine Thornton QC concluded that councillors were "significantly misled" about the reduction of daylight on some  existing homes around the site. She suggested that members were not given key information on the overall daylight distribution, which meant they were not in a position to form a proper view on it. 
The judicial review, brought by local resident Sabine Guerry, whose flat would have been affected by the approved scheme, challenged the report by developer Newco’s daylight consultancy, GIA. GIA's report used the methodology developed by the Building Research Establishment (BRE) to assess the scheme’s impact on daylight levels for residents in nearby properties, said Lisa Foster, partner at solicitors Richard Buxton Environmental and Public Law, which acted for Guerry.
Foster said the firm argued that the GIA report focused on just one element of BRE's daylight impact methodology – the "vertical sky component" that measures the amount of sky that can be seen from an existing neighbouring property – as opposed to a second element that analyses the distribution of daylight within a building. The judge said that councillors were not told that "both the total amount of daylight and the distribution of light within a building are important", she said. The judge accepted Guerry’s case but absolved the planning officer from responsibility, finding that "none of this appears to be the fault of the planning officer, who simply repeated the analysis put before him in the GIA report".
Richard Buxton, senior partner at the same firm, said: "I think the general experience is that planning officers and certainly committees do not understand how to use the BRE guidelines properly." He pointed to another High Court judgment in MarchRainbird v London Borough of Tower Hamlets, where a planning permission for a scheme in east London was quashed on the basis of its daylight impact. The judge concluded that both the developer's assessment and the officer's reporting of it were at fault and planning committee members were "misled".
"This is a highly technical area, and it is unreasonable to expect local authority planners to have a detailed understanding of it," said Bob Bennett, chair of the Planning Officers Society’s development management group. In both cases, he pointed out, highly reputable consultants were used to advise the applicants, which the planning officers should have been able to rely on. 
Gregory Francis, an associate director at consultancy GVA Schatunowski Brooks, said several London boroughs are concerned about the implications of these judgments because they have large, dense developments coming forward that can affect daylight levels in surrounding properties. Council planners need the skills to interrogate the methodology applied by the applicant’s consultants, he said.

"There is a clear flow diagram in the BRE’s methodology and, at the very least, officers should be able to confirm that each step has been followed," Francis suggested. If that basic level of scrutiny had been applied, he contended, the officer in the Guerry case would have seen the problems in the developer's analysis of the hotel scheme. Council planners concerned about a daylight study can check it with the BRE or another consultancy, he suggested. 
Hannah Quarterman, senior associate at law firm Hogan Lovell, said the judge pointed to an appendix to the GIA report that showed that the impact of the hotel development on daylight distribution in several neighbouring properties would fall below the BRE’s threshold levels. However, "these transgressions and any explanation of their significance, or otherwise, were not drawn to councillors' attention", said Quarterman. "If GIA’s report had transparently discussed the reductions and they had been reported in a neutral way to councillors, the decision over the scheme could have been reached in a well-informed manner," she suggested.
Because of government pressure on councils to meet housebuilding targets, they may feel they need to approve schemes that don’t meet the BRE’s daylighting  values, said Tim Fogarty, a partner at law firm Winckworth Sherwood. He pointed out that the new National Planning Policy Framework and the draft London Plan suggest there should be some flexibility in the application of the guidelines. "Local authorities need to have a discussion about how flexible they might be in terms of allowing daylight reductions to accommodate new development," he said. 
Hammersmith and Fulham Council declined to respond to Planning's request for a comment. Planning also approached GIA but it had not responded at the time of publication.

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