COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTUCE BURTON)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
MR JUSTICE STANLEY BURNTON
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MS K OLLEY (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Lloyd:
"The north-eastern side of Glebe Place, from No. 52 to King's Road, is notable for being an eclectic mix of attractive properties of differing styles and ages, which, with the exception of a gap next to No. 62, give the impression of forming a continuous built up frontage at ground floor level. Although the roof line varies significantly, houses along this length are predominantly 2 or 3 storeys in height. However the appeal property, positioned roughly in the centre, comprises 2 of the lower units. When viewed from the front, No. 64 appears as 1½ storeys high, whilst No. 65 appears as being only single storey, so resulting in a pronounced gap being apparent at upper floor level within the streetscene."
"The Council considers the gap above No. 65 plays an important role in providing a context for the neighbouring terrace to the north, and, for this reason, it contends it enclosure should be resisted. However I have not been advised this terrace is listed, and I believe its visual balance and symmetry have already been affected to some degree by the partial painting of the external brickwork and by the presence of a 2 storey block close to its northern end. Furthermore, as stated above, this side of Glebe Place is characterised by its variety of buildings, and I consider each of them is of a strong enough design to contribute to the street scene despite the close proximity of its neighbours. I therefore do not believe an extension of a sympathetic appearance, scale and siting on the upper floor of No. 65 would erode the contribution made by the neighbouring terrace to the appearance of the conservation area."
"The Council suggested the new roof at No. 65 would appear dominant and overbearing in its position on the frontage. However, the new roof would copy the form of the roof of No. 64. Although No. 64 is a slightly taller property, I consider that any degree of imbalance will hardly be perceptible and as a design the roof will visually integrate with the building on which it will sit and also with the roof of No. 64, with which it would have a comfortable relationship."
"… would remove the majority of the recessive view created by the juxtaposition of the single storey property with the end of the 3 storey terrace next door."
The loss of the view he considered:
"… would erode the perception of depth which is an attraction of the existing townscape of the north east side of Glebe Place."
The extension would also remove or significantly reduce:
"the view of the rooftop garden at No.65 and the tree to the rear".
"I have no comments on either of those two remarks other than to state that each case is judged on its own merits and my conclusions on the current scheme are given above."
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
"One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.
"To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in a previous case? The areas for possible agreement or disagreement cannot be defined but they would include an interpretation of policies aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."
"31. In those circumstances, says Miss Olley, what the inspector was doing was, albeit not wholly clearly, stating the position, namely that he was not bound by the previous inspector's view and therefore had no need to comment upon it. As I have indicated, it seems to me that it would have been better if he had stated, as is obvious, that his decision is in contradiction of it, as it is entitled to be."
"33. The one unfortunate aspect of paragraph 8 are the words that I have not specifically addressed, namely that he said 'I have no comments on either of those two remarks other than to state that each case is judged on its own merits.' It is those words which have caused me a little doubt before coming down, as I do, in favour of Miss Olley's arguments, because while he has of course judged this application, as any application, on its merits, he has concluded in favour of the in principle objection. But once again, I am persuaded that, albeit ham- fistedly, this inspector has stated, in effect in paragraph 8, by way of supplementation to the report, that he is obliged to deal with these arguments, but that he has no specific comment to make on them. The basis on which he has decided this appeal is in my judgment clear and is unaffected by the balance of paragraph 8. He did support the in principle position of the council. He did of course judge the case on its own merits, but he decided those merits by reference to his conclusion that the gap must be preserved and the recessive view left unaltered, in order to comply, as he saw it, with CD62.
"34. The answer therefore to Mr Petchey's very proper question, namely that his client should be left in no doubt as to what the basis was of this second inspector's report, so that they could go forward able to adjust their conduct, is that this inspector, in my judgment, clearly rejected this application because of his view, right or wrong, different from Mr Sargent's view, that the application should be refused because of his conclusion that the gap should be preserved.
"35. In those circumstances, this decision is not defective for lack of reasons. On analysis, it does not contain mutual inconsistencies. It does not fall to be construed as a statute. On analysis, I accept Miss Olley's arguments as to the conclusion that this inspector reached, and it is one, as I have indicated, contrary to that of Mr Sargent, but nevertheless binding, for the moment, on this developer."
Mr Justice Stanley Burnton:
Lord Justice Chadwick:
Order: Appeal allowed.