Judge quashes grant of planning permission for extension over 45-degree rule

The claimant brought the case against Hackney after it granted permission for the disputed extension next to her home.

HHJ Russen KC, sitting as a judge of the High Court, criticised the council’s treatment of the 45-degree rule, finding “clear errors of law.”

Richard Buxton Solicitors, which acted for the claimant, said under Hackney’s planning guidance for residential extensions the 45-degree rule is used by planners to protect neighbouring amenity.

The claimant’s nearest window meant the proposal breached the 45-degree rule but Hackney said the rule was only a guide, but never established whether the extension complied with the rule.

Richard Buxton Solicitors noted evidence from the council showed that the case officer could not recall whether she had formed a view on compliance.

It said the court accepted all three arguments advanced by the claimant. The first was that Hackney’s approach was procedurally irrational, since it could not simply note the existence of the rule without reaching a conclusion on compliance.

Her second was that compliance or not with the rule was a material consideration which the council had ignored, and the third that Hackney’s reasoning was legally inadequate, because the officer’s report failed to explain how the extension would affect her property or how conflict with the 45-degree rule had been resolved.

Concluding, HHJ Russen said a Hackney planning officer had said she correctly identified and recorded in her report the 45-degree rule approach as a guide.

“However, the claimant's complaints are that there is a critical gap between the reference to the 45-degree rule and that conclusion (with a resulting leap in reasoning to be inferred) and a concomitant failure by the decision-makers to take reasonable steps to inform themselves of the impact of the rule.”

HHJ Russen said it was not sufficient to say reference was made to the 45-degree rule the in the officer’s report so some weight had been given to it.

“The rule itself carries no weight, in some ontological sense, without it being applied,” the judge said.

“As [the claimant's counsel] submitted, it makes no sense to use the 45-degree rule as a guide without forming a view on whether or not it has been complied with.”

Although the rule was engaged, and was noted by the officer’s report to be engaged, the planning officer's witness statement confirms that no view was formed it.

The judge said it followed that the reasoning in the report’s 'residential amenity' section “is not sufficiently intelligible or adequate for the purpose of enabling the reader to understand why issue of the 45-degree rule raised by the claimant was decided as it was.”

He added the decision was unlawful and would be quashed.

Mark Smulian