Sroda Construction v Elmbridge Borough Council - Solar Panels Planning Permission Judicial Review

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2. Sroda Construction Limited, R (on the application of) v Elmbridge Borough Council

Sroda Construction Limited, R (on the application of) v Elmbridge Borough Council

[2026] EWHC 967 (Admin)

Sroda Construction Limited, R (on the application of) v Elmbridge Borough Council

[2026] EWHC 967 (Admin)

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HHJ Karen Walden-Smith:

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1. This is the judgment with respect to the application of the claimant (Sroda Construction Limited – referred to hereinafter as “Sroda”) for permission to bring judicial review proceedings challenging the decision of Elmbridge Borough Council (“Elmbridge”) made on 12 August 2025 to grant to the interested party, Clive Hawkins, permission to construct a 2-bedroomed dwelling at 79C Terrace Road, Walton on Thames, Surrey KT12 2SQ (“the development site”).

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1. There are three core issues to be determined in this application for permission to bring judicial review proceedings:

(i) Whether there should be an extension of time for the bringing of the proceedings as the application by Sroda is out of time;

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(ii) Ground 1 (if permission is granted to extend time): an alleged failure to investigate and/or take into account the impact of the development upon solar panels already installed at Sroda’s premises;

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(iii) Ground 2 (if permission is granted to extend time): an alleged failure on the part of Elmbridge to comply with the duty of notification.

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The Factual Background

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1. The application for planning permission for the development was submitted on 6 February 2025 and validated on 27 May 2025. The application was for a detached single-storey house with dormer window and rooms in the roofspace and associated landscaping following demolition of existing buildings. The records held by Elmbridge, exhibited to the statement of Clare Adamson, a Principal Planning Officer of Elmbridge Borough Council, dated 28 November 2025, show that 32 neighbour notification letters were printed on 27 May 2025 in respect of the application and were addressed to the owner/occupier. Elmbridge say that, based upon the screenshot exhibited to Ms Adamson’s statement, the addresses to which the letters were sent included 79, 79A, 81 and 81B Terrace Road. Sroda occupies 79 Terrace Road, which immediately adjoins the development site. Sroda say that they did not receive a neighbour notification letter at 79 Terrace Road, or at any of the other properties occupied by owned and/or occupied by Sroda – namely 79A Terrace Road, 81 Terrace Road and 81B Terrace Road.

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1. Clare Adamson has also exhibited to her statement a photograph of the bright yellow notice which she attached to a lamppost approximately 29.5m to the closest edge of the development site. She explains in her statement that having seen the list of addresses to which the neighbour notification letters had been sent by the Business Support Team, she could see that the properties on Terrace Road and Russell Road had been notified by letter, and that the garage users may not have been the same people and therefore not notified. She reasoned that the users of the garages were likely to pass that notice and that it would bring the application to the notice of those who may not have been in receipt of a neighbour notification letter. Sroda say that they did not see that yellow site notice.

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1. An Officer Report (OR) was produced as the application was subject to delegated decision making. The OR referred to Policy DM1 of the Elmbridge Development Plan which provided that when considering development proposals Elmbridge will take a positive approach which reflects the presumption in favour of sustainable development as set out in the paragraph 11(d) of the National Planning Policy Framework (NPPF). In paragraph 16 of the OR it was set out that the Core Strategy “indicates that there is scope for residential development through the development of existing sites with well-designed schemes that integrate with and enhance the local character …”

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1. The housing need for Elmbridge was identified as 1584 dwellings per annum across the borough increasing to 1900 applying the 20% buffer, with a need for small homes 1-3 bedrooms. As the proposed development was for one 2-bedroomed property the OR considered it to be in accordance with the Core Strategy and the NPPF.

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1. The OR dealt with the impact on the amenity of adjoining occupiers by referencing policy DM2 of the Local Plan that: “to protect the amenity of adjoining and potential occupiers and users, development proposals should be designed to offer an appropriate outlook and provide adequate daylight, sunlight and privacy” and by also referencing the Elmbridge Design Code 2024 which sets out that:

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“if a development projects more than 3 metres rearward, the extension should be less than an angle of 45 o from the edge of the nearest adjoining neighbour’s window. The 45 o angle test applies to single and two storey extensions which are closer than 8m and 15m, respectively, measured from the nearest habitable windows on neighbouring properties.”

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1. The OR further provides that the design code further sets out the ‘25 degree’ rule of thumb can be used to assess impact of proposal on daylight and sunlight received by neighbouring habitable room windows that face the new development/extension:

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“The design code also sets out that the BRE ‘25 degree’ rule of thumb (Fig. 6.38) can be used to assess impact of proposal on daylight and sunlight received by neighbouring habitable room windows that face the new development/extension. This should be taken from the centre of the lowest window. If there is a breach, a daylight and sunlight assessment might be required to demonstrate adequate light is reaching this habitable room.”

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1. It was noted that the neighbours most likely to be impacted by the proposed development were numbers 79, 79a and 79b Terrace Road to the south east: “The plans show the 25-degree angle was still not breached. Although the separation distance between the properties is not significant, it is considered sufficient to prevent an overbearing impact.” The conclusion was reached that it was considered that the proposed development would not adversely affect the residential amenities of neighbouring properties by reason of overlooking, loss of light or overbearing effect and was in accordance with Policy DM2 of the Development Management Plan 2015.

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1. The OR records that there were no matters raised in representations and the conclusion was to recommend the grant of permission. The decision to grant planning permission, subject to conditions, was granted on 12 August 2025.

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1. On 8 September 2025, 27 days after the grant of permission, Sroda sent an email raising concerns (amongst other things) about the notification process and the boundary proximity, overshadowing and the impact on solar panels. Elmbridge responded on 16 September 2025 setting out that letters had been sent to neighbours and that the notice had been posted on the lamppost and that there could not be a reconsideration. With respect to the impact on neighbours’ amenity, that was considered in full and it was set out that “Solar panels are not considered to be a material consideration during the determination of a planning application.”

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1. A formal complaint was submitted on 25 September 2025 (44 days after the decision) which included that the impact on renewable energy is a material planning consideration which should have been considered and that there had been a failure to consult as four separate addresses had not received a notification letter and the site notice had been placed at a location far from the “directly affected” properties.

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1. On 3 October 2025, Elmbridge again rejected the complaint but then, on 21 October 2025 set out an acknowledgment that solar panels are capable of being a material consideration but that the solar panels were not discovered and could not be reasonably discovered during the determination of the application:

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“The impact of the proposed development on the operation of the solar panels under 2025/0314 is capable of being a material consideration. However, the officer was not, in fact, aware of the solar panels referred to. It is not the Council’s position that this material consideration was ignored by the officer, notwithstanding her response to you on 16 September 2025.

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Instead, the officer did not and could not have regard to the material consideration on the point of the solar panels prior to the issue of the decision because it was not discovered or reasonably discovered during the determination of this application.”

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1. In the letter dated 21 October 2025, Elmbridge then set out that the proposed development was to the north-west of the solar panels so that the main source of sunlight would not be affected:

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“… It is generally reasoned that solar panels in the UK receives most of its sunlight from south and south west facing roofs. In this particular instance, it is acknowledged that there would be limited times of the day and year when the proposed development is likely to temporarily obstruct any direct sunlight. Therefore, I surmise that even if the Council had been aware of the solar panels’ existence prior to the issue of the decision notice, it is unlikely that officers would have come to a difference conclusion on the proposal, having considered the development plan, the NPPF, PPG and all the other relevant material considerations.

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With regard to building height, this was taken into account by the officer and is a matter of planning judgment.

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With regard to the drawings showing the 25 degree line of sight from neighbouring windows incorrectly, this does not itself invalidate the application or the decision. The Local Planning Authority took this into account and assessed the impact on neighbouring properties before making a decision.”

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1. This letter was sent on 21 October 2025 – 71 days after permission had been granted. Elmbridge, who had no duty to advise Sroda, reminded Sroda that as the decision had been issued on 12 August 2025, any application to bring judicial review proceedings needed to be made before 24 September 2025 (6 weeks). The letter also pointed out that while time can be extended by the court, in this particular case Sroda was aware of the decision by 6 September 2026 (the email from Sroda was dated 8 September 2026), with the response from Elmbridge stating that there could not be a reconsideration dated 16 September 2025 – in other words within time to bring an application for permission to judicially review the decision.

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Time Limits

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1. CPR 54.5(5) provides that:

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“Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose.”

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1. The proceedings were not in fact issued until 13 November 2025 – 13 weeks and 2 days after planning permission was granted. This is not a short delay. It is more than double the time the rules provide for bringing such an application.

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1. Sroda (a limited company) did not instruct solicitors but acted through its director (Magdalena Tadych). It is said on behalf of Sroda that, as a litigant in person, Sroda made a formal complaint when told by Clare Adamson on 16 September 2025 that “if you have any further comments to make please use the council’s complaint procedure” without mention of the possibility of a judicial review. As I have stated above, it was not for Elmbridge to advise Sroda. Once the letter was received on 21 October 2025 setting out that time had passed for judicial review proceedings (although extensions of time could be granted), the application was not immediately made but a pre-action protocol letter was sent, further delaying submitting anything to the court.

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1. Sroda decided not to obtain legal advice but, even if they had no real choice over that decision, litigants in person are expected to understand and apply the civil procedure rules. Having decided to act through its director, Sroda needed to apply for permission “with the greatest possible celerity” (R(Gerber) v Wiltshire County Council [2016] 1 WLR 2593).

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1. The Interested Party was granted planning permission on 12 August 2025. His ability to proceed with the development has been adversely impacted by Sroda’s late application for permission to bring judicial review proceedings. In a letter dated 5 December 2025, he refers to being the owner/occupier of properties at 79C and 81A Terrace Road and receiving notification letters at both properties and that tenants of their other owned properties, at 1a, 1b, 1c and 1d Russell Road, also received notification letters. He sets out that there has had to be a delay in connection of water and drainage facilities and that he is being prohibited from proceeding with the development for which he has planning permission. While there was no party wall agreement in place, so that the development could not proceed, there is undoubtedly prejudice to any developer not being able to proceed as he would wish while awaiting any outstanding challenge. Hence the short period of time for seeking permission.

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1. The court takes into account the detriment to good administration caused by the delay and is clear that an extension of time for challenging a planning decision by judicial review is not lightly given (R (Thornton Hall Hotel Ltd) & Wirral LBC v Thornton Holdings [2019] EWCA Civ 737):

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“We stress once again that the court will not lightly grant a lengthy extension of time for a challenge to a planning decision by a claim for judicial review, nor will it lightly grant relief after a long delay. It will insist on promptness in bringing such challenges in all but the most exceptional circumstances.”

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1. As in Thornton, the circumstances here are not in any way exceptional. There is no good basis for extending time. Sroda made a complaint to Elmbridge and it was for Sroda to decide whether to challenge the planning decision in court. Sroda cannot place the blame of not acting through the court on to Elmbridge and, even though there was an error communicated to Sroda that the solar panels were not a material planning consideration, which was only remedied on 21 October 2025, this did not prohibit or mislead Sroda into not bringing the application for permission sooner. Even when told that time had passed for bringing the application, rather than immediately submitting an application for permission with an application for an extension of time, Sroda decided to divert into the pre-action protocol process and await Elmbridge’s response. That resulted in a delay of a further three weeks.

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1. Sroda contend that the pre-action protocol imposes a mandatory waiting period. It does not. The Administrative Court Judicial Review Guide 2025 (“the Judicial Review Guide”) provides in paragraph 6.2.4 that:

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“A judicial review claim must be brought within the time limits fixed by the CPR. The Protocol process does not affect these time limits …The fact that a party is following the steps set out in the Protocol would not, of itself, be likely to justify a failure to bring a claim within the time limits set by the CPR, nor would it provide a reason to extend time. So, a party considering applying for judicial review should act quickly to comply with the Protocol but note the time limits for issue if the claim remains unresolved.”

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1. The Judicial Review Guide further reminds the litigant in person that he/she is expected to comply with the CPR and its practice directions.

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1. While CPR 3.1(2) provides the court with a discretionary power to extend time for the filing of a claim, there is nothing in this case which justifies the exercise of the discretion in favour extending time.

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1. While there is a conflict of evidence with respect to whether notification letters were sent, there is no dispute as to the factual circumstances of the placing of the site notice. With respect to the neighbour letters: Elmbridge rely on the screenshot showing that Business Support dealt with the letters being sent out, and the evidence of the Interested Party that he received the letters, as did his tenants; Sroda say they did not receive the letters at their neighbouring properties. With respect to the site notice, Sroda complain that it was placed 30m from the site and away from immediately adjoining occupiers.

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1. The alleged failure to comply with the duty of notification is a ground relied upon by Sroda and I will deal with this ground in greater detail below. However, for the purposes of whether there should be an extension of time, I am satisfied that Sroda did have a fair opportunity to become aware of and object to the proposed development. As set out by the Court of Appeal in Thornton:

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“Where third parties have had a fair opportunity to become aware of, and object to, a proposed development – as would have been so through the procedure for notification under the Town and Country Planning (General Development Management Procedure) Order 2010 (“the 2010 Order”) – objectors aggrieved by the grant of planning permission may reasonably be expected to move swiftly to challenge its lawfulness before the court. Landowners may be expected to be reasonably alert to proposals for development in the locality that may affect them. When “proper notice” of an application for planning permission has been given, extending time for a legal challenge to be brought “simply because an objector did not notice what was happening” would not be appropriate. To extend time in such a case “so that a legal objection could be mounted by someone who happened to remain unaware of what was going on until many months later would unfairly prejudice the interests of a developer who wishes to rely upon a planning permission which appears to have been lawfully granted for the development of his land and who has prudently waited for a period before commencing work to implement the permission to ensure that no legal challenge is likely to be forthcoming… (see Sales LJ in Gerber, at paragraph 49). When planning permission has been granted, prompt legal action will be required if its lawfulness is to be challenged, “unless very special reasons can be shown …”

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In any event, Sroda was aware of the planning permission being granted and at least one ground upon which it challenges the decision (namely the alleged failure to notify or consult) within the six-week time period for bringing an application for permission to challenge the decision.

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1. The time for bringing an application for permission did not start to run until the decision was issued, and any alleged failure to notify or consult cannot provide a justification for an extension of the six weeks which starts to run on the day after the date of the decision letter itself, expiring at midnight on the 42 nd day (see Croke v Secretary of State for Communities and Local Government [2019] EWCA Civ 54).

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1. While the provisions of section 31(6) of the Senior Courts Act 1981 have been referred to, I do not consider it has relevance to this case. Section 31(6) gives power to the High Court to refuse to grant permission or relief if it considers that will cause substantial hardship or prejudice the rights of any person or be detrimental to good administration. Section 31(7) makes it clear that power is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made. Section 31(6) gives power to the court to refuse permission or relief where an application was made within time. The application for permission was not made within time and the court does not need to consider whether section 31(6) applies.

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1. In my judgment, there is no justification for granting an extension of time in this matter. Sroda waited more than 13 weeks after the decision was promulgated to bring the application for permission. That is more than double the permitted the time. Sroda knew of at least one of the grounds upon which it seeks permission before time expired, and while blame is placed upon Elmbridge for failing to provide Sroda with legal and other advice as to what Sroda should do, that is misplaced. It was for Sroda to decide whether to act with or without legal advice and it was for Sroda, having decided to act through its director, to take the steps it needed to. The time limit for bringing challenges to planning decisions is deliberately short. That is because there needs to be certainty and a party with the benefit of planning permission should be entitled to act on that planning permission unless there is a valid challenge being made. In the circumstances, time will not be extended to enable this application for permission to be brought.

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Grounds

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1. While time is not being extended and the application must, therefore, fail I have decided to deal with the grounds raised for the purpose of completeness. While pleaded as four grounds, these have been reduced to two issues:

Ground 1: the alleged failure to investigate/the failure to take into account the impact of the proposed development on the solar panels installed at Sroda’s premises;

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Ground 2: the alleged failure to comply with the duties of notification of the planning application.

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Ground 1

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1. Had this application been made in time, I would not have granted permission to bring judicial review proceedings on the basis that the original decision maker failed to take into account the impact of the proposed development on the solar panels. It is clear that she did not take the solar panels into account, the OR does not refer to them and the Decision Letter makes no mention of them. Conclusively, the letter from Elmbridge in response to the complaints raised by Sroda, expressly states that the solar panels are not a material consideration. That was incorrect.

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1. As was set out by Hoffman LJ (as he then was) in Tesco Stores Limited v Secretary of State for the Environment [1975] 1 WLR 759:

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“… if the planning authority ignores a material consideration because it has forgotten about it, or because it wrongly thinks that the law or departmental policy … precludes it from taking it into account, then it has failed to have regard to a material consideration.”

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1. Elmbridge missed the existence of the solar panels on Sroda’s building. I have seen photographs of the development site and, from certain angles, it is possible to see that there are solar panels, but I am not convinced that would have been obvious on a site visit and the difficulty for Elmbridge is that there was no application for pre-approval for the installation of solar panels in non-domestic premises. In those circumstances, the planning history of the surrounding buildings did not reveal any application for solar panels. The grant through which the solar panels were funded was provided by the Policy and Performance team within the Chief Executive’s Directorate, which is not connected to the planning department (see the witness statement of Clare Adamson) and so there is nothing that would have flagged the existence of the solar panels to the planning department.

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1. The impact on solar panels is capable of being a material planning consideration (R v (McLennan) v Medway Council & Kennedy [2019] EWHC 1738 (Admin), as Lane J said:

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“… given what is now said at national level about climate change in relation to new development, the first defendant is not entitled to reject as immaterial, in planning terms, the effect that another development proposal may have upon a renewable energy system, such as the claimant’s solar panels. That however, is the stance of the first defendant. It is a stance which, I find, no reasonable authority could take. It is, in short, irrational.”

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1. While, in my judgment, Elmbridge ought to have taken into account the solar panels and the impact of the proposed development upon them, had the planning officer been aware of them I do not consider it would have made any difference to the outcome and planning permission would still have been granted.

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1. The officer considered the presumption in favour of sustainable development and the housing needs of Elmbridge. There was no express mention of the “tilted balance” presumption, but the officer was plainly considering the low housing land supply (0.90 year). The OR must be read with reasonable benevolence (St Modwen Developments v Secretary of State for Housing, Communities and Local Government [2017] EWCA Civ 1643) and it is clear that housing need was pivotal in deciding the application in favour of permission. The adverse impacts of developing the site upon the solar panels cited to the north west would not outweigh the benefits of the development. In those circumstances, the outcome for Sroda, had consideration been given to the solar panels, would not have been substantially different and the court must, therefore, refuse leave pursuant to the provisions of section 31 of the Senior Courts Act 1981:

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“(3C) When considering whether to grant leave to make an application for judicial review, the High Court –

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(a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and

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(b) must consider that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave.

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(3D) If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave.”

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1. The Court must not fall into error by stepping into the shoes of the decision maker. See R(Bradbury) v Awdurdod Parc Cenedlaethol Bannau Brchiniog [2025] EWCA Civ 489, per Lewis LJ:

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“In relation to section 31 (2A), the court is concerned with evaluating the significance of the error on the decision-making process. It is considering the decision that the public body has reached, and assessing the impact of the error on that decision in order to ascertain if it is highly likely that the outcome (the decision) would not have been substantially different even if the decision-maker had not made that error. It is not for the court to try and predict what the public authority might have done if it had not made the error. If the court cannot tell how the decision-maker would have approached matters, or what decision it would have reached, if it had not made the error in question, the requirements of section 31 (2A) are unlikely to be satisfied.”

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1. I am satisfied, that in the circumstances of this matter, it is highly likely that the outcome would not have been substantially different if the existence of the solar panels had been known and been taken into account as a material consideration. This is supported by Elmbridge’s own correspondence prior to the application brought by Sroda for permission to bring the judicial review proceedings. In the letter dated 21 October 2025, Elmbridge referred to the position of the solar panels:

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“It is generally reasoned that solar panels in the UK receive most of its sunlight from south and south west facing roofs. In this particular instance, it is acknowledged that there would be limited times of the day and year when the proposed development is likely to temporarily obstruct any direct sunlight. Therefore I surmise that if the Council had been aware of the solar panels’ existence prior to the issue of the decision notice, it is unlikely that officers would have come to a different conclusion on the proposal, having considered the development plan, the NPPF, PPG and all the other relevant material considerations.”

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While the writer of that letter was not saying that the decision would have been the same, he does say it is unlikely that the planning officers would have come to a different conclusion.

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1. In all the circumstances of this matter, I am satisfied that it is likely that the decision would not have altered had Elmbridge considered the solar panels – given the need for housing and the limited impact upon the direct sunlight. Consequently, while I have already determined that the application is out of time and fails for that reason, had the application been made in time (of if time had been extended) I would not have granted permission on ground 1.

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Ground 2

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1. Article 15(5) of the Town and Country Planning (General Management Procedure) (England) Order 2015 provides that notice of the application for planning permission must be given:

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“(a) by site display in at least one place on or near the land to which the application relates for not less than 21 days; or

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(b) by serving the notice on any adjoining owner or occupier. ”

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1. Sroda accept that the obligation to notify is satisfied either by the service of a letter or the publication of a notice at the site.

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1. I am satisfied, on the balance of probabilities, that the letters were sent out to the property occupied by Sroda and the three adjoining properties occupied by staff and subcontractors. The evidence of Elmbridge is that there is a screenshot showing that letters were sent out to the neighbouring properties, including the properties owned or occupied by Sroda and the properties owned or occupied by the Interested Party. The Interested Party has stated that the letters were received at the properties owned and occupied by him. That is evidence to corroborate the stance of Elmbridge that the letters were sent out. I cannot determine why it is that Sroda did not receive those letters, but I am satisfied that the letters were sent out and are deemed served on Sroda.

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1. Further, Elmbridge placed a site notice on a lamp post less than 29.5 metres from the development site. It was placed there in order to capture anyone who would not have been in receipt of the notification letters sent to the direct neighbours. Clare Adamson has provided evidence that the location of the notice was specifically chosen. It was not deliberately placed where Sroda would not see it and it was “near” to the site. On the facts of R(Wallis) v North Northamptonshire Council & Ors [2024] EWHC 3076, Lang J. found that a site notice which was either 350 metres or 483 metres from the site was “near”. It cannot be realistically contested that a notice less than 30 metres from the site is not near. The notice was bright yellow and could be seen with ease from a distance. The notice was present from 5 June 2025, two days short of a full 10 weeks before planning permission was granted on 12 August 2025. To not see or investigate the notice would require a considerable lack of curiosity. Again, on this limb of the requirement, Elmbridge have satisfied Article 15(5).

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1. Elmbridge have to satisfy Article 15(5) either by sending out notification letters or by a site notice. In my judgment, Elmbridge did both. Notice was given and this ground of the application cannot succeed. Consequently, had the application been made in time (or an extension of time given) then this ground would not have led to Sroda being granted permission.

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Aarhus and Costs

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1. The determination has already been made that Aarhus, as set out in CPR 46.26, does not apply to this case given the requirement to file the financial statements at the time of the claim being brought. I do not see there is a basis for going behind that determination. In any event, the costs sought falls below any costs cap and I will order that Sroda pay the costs of Elmbridge in the sum of £3535 which costs are reasonable and proportionate.

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End of document

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