Forster v Secretary of State for Communities and Local Government & Anor [2016] EWCA Civ 422 (18 February 2016)

Forster v Secretary of State for Communities and Local Government & Anor [2016] EWCA Civ 422 (18 February 2016)

Permission to appeal is granted because there is a real question as to whether and how the risk of future complaints from new residents about noise (potentially leading to loss or diminution of business at an existing venue) should be taken into account as a material consideration in planning decisions. The planning system's treatment of such indirect outcomes justifies appellate consideration.

Citation
[2016] EWCA Civ 422
Parties
Appellant/claimant: Pauline Forster; First Respondent/defendant: Secretary of State for Communities and Local Government; Second Respondent/defendant: London Borough of Tower Hamlets; Third Respondent/defendant: Swan Housing Association Ltd
Jurisdiction
England and Wales
Judgment Date
18 February 2016
Procedural Posture
Planning Statutory Appeal (section 288 Town and Country Planning Act 1990) / Application for Permission to Appeal to Court of Appeal
Outcome
Permission to appeal granted; protective costs order granted/extended on revised terms.
Legal Topics
Material Considerations in Planning, Noise Nuisance and Planning, Protective Costs Orders (pco), Impact of Development on Existing Businesses, Daylight and Sunlight in Planning Context
Planning Law Administrative Law Environmental Law Material Considerations in Planning Noise Nuisance and Planning Protective Costs Orders (pco) Impact of Development on Existing Businesses Daylight and Sunlight in Planning Context

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Parties

Pauline Forster

Appellant/claimant

Secretary of State for Communities and Local Government

First Respondent/defendant

London Borough of Tower Hamlets

Second Respondent/defendant

Swan Housing Association Ltd

Third Respondent/defendant

Procedural Posture

Planning Statutory Appeal (section 288 Town and Country Planning Act 1990) / Application for Permission to Appeal to Court of Appeal

Legal Issues

  1. 1 Whether the inspector failed to take into account as a material consideration the harm the development would do to the viability of the George Tavern
  2. 2 Whether the inspector and judge erred in law by equating acceptability for normal use with acceptability for artistic and photographic use regarding daylight and sunlight
  3. 3 Whether a protective costs order (PCO) should be granted or extended on appeal

Ratio Decidendi

Permission to appeal is granted because there is a real question as to whether and how the risk of future complaints from new residents about noise (potentially leading to loss or diminution of business at an existing venue) should be taken into account as a material consideration in planning decisions. The planning system's treatment of such indirect outcomes justifies appellate consideration.

Court Disposition

Permission to appeal granted; protective costs order granted/extended on revised terms.

Orders

  • Permission to appeal to the Court of Appeal is granted.
  • Protective costs order made: applicant's liability capped at £10,000; reciprocal cap for adverse costs at £20,000.