ON APPEAL FROM THE ADMINISTRATIVE COURT
MR C.M.G. OCKELTON (sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
Lord Justice Lindblom
| Crystal Property (London) Ltd.
|- and -
Secretary of State for Communities and
London Borough of Hackney Council
Mr Richard Kimblin Q.C. (instructed by the Government Legal Department)
for the Respondents
Hearing date: 12 October 2016
Crown Copyright ©
Lord Justice Lindblom:
The issue in the appeal
"The Deputy Judge erred in holding that … the Inspector was correct in considering that he was being asked on this occasion to consider the height and massing according to the plan submitted. The planning application was an outline application with all matters reserved … . The Appellant was simply seeking to establish consent for a part 4[,] part 5 storey building as is clearly stated on page 1 of the form. The requirements set out by the Council include the provision of indicative drawings. The Appellant [simply] submitted the same drawings as had been used in the 1990 and 2003 applications and the Deputy Judge erred in effect in holding that had the Inspector allowed the appeal, the Appellant would have established planning consent for a building as depicted in the drawings. This is simply not the case[. Had] the Inspector allowed the appeal then the Appellant would have achieved an outline consent for a part 4[,] part 5 storey building with all matters including height, massing and elevations reserved."
Outline planning permission
"(1) A development order may make provision as to applications for planning permission made to a local planning authority.
(2) Provision referred to in subsection (1) includes provision as to –
(a) the form and manner in which the application must be made;
(b) particulars of such matters as are to be included in the application;
(c) documents or other materials as are to accompany the application.
(3) The local planning authority may require that an application for planning permission must include –
(a) such particulars as they think necessary;
(b) such evidence in support of anything in or relating to the application as they think necessary.
(5) A development order must require that an application for planning permission of such description as is specified in the order must be accompanied by such of the following as is so specified –
(a) a statement about the design principles and concepts that have been applied to the development;
(b) a statement about how issues relating to access to the development have been dealt with.
Section 92, "Outline planning permission", provides in subsection (1) that "[in] this section and section 91 "outline planning permission" means planning permission granted, in accordance with the provisions of a development order, with the reservation for subsequent approval by the local planning authority … or the Secretary of State of matters not particularised in the application ("reserved matters")".
"Since consideration at the approval stages is limited by the terms of the initial permission, it is essential that that permission should not take the form of a blank cheque, and, correspondingly, the authority must be furnished with sufficient information to enable them to form a proper judgment of what is proposed; there can be no question of entertaining propositions which are still in embryo. The application should indicate the character and approximate size of the building to be erected, and the use to which it is to be put (e.g., 'a three-bedroomed house', a 'two-storied factory for light industrial purposes with an aggregate floor-space of 30/35,000 square feet')."
"outline planning permission" means a planning permission for the erection of a building, which is granted subject to a condition requiring the subsequent approval of the local planning authority with respect to one or more reserved matters;
"reserved matters" in relation to an outline planning permission, or an application for such permission, means any of the following matters in respect of which details have not been given in the application –
(d) layout; and
"scale" means the height, width and length of each building proposed within the development in relation to its surroundings;
Article 4, "Applications for outline planning permission", provided, in paragraph (1), that "[where] an application is made to a local planning authority for outline planning permission, the authority may grant permission subject to a condition specifying reserved matters for [its] subsequent approval", and, in paragraph (2), that where the authority is "of the opinion that … the application ought not to be considered separately from all or any of the reserved matters", it is to "notify the applicant … , specifying the further details [it requires]". Article 5 provided the requirements for an "application for approval of reserved matters". Article 8 provided for the content of design and access statements, including, in paragraph (3)(a), the requirement that a design and access statement must "explain the design principles and concepts …".
"… If a planning authority wishes to limit, at the outline stage, the scale of development, it can do so by an appropriate condition. An outline application which specifies the floor area, as this one does, commits those concerned to a development on that scale, subject to minimal changes and to such adjustments as can reasonably be attributed to siting, design and external appearance. I do not read Stuart-Smith L.J. as having said more than that in [Slough Borough Council] when he said that "it is possible when [the] detailed application is considered that the size of the development can properly be reduced having regard to such reserved matters as siting, design and external appearance of the buildings, access and landscaping." … I consider wrong [the] conclusion that … floor space is still to be determined. Floor space could not be treated as a reserved matter."
"There is an important distinction between [ex parte Chieveley] and the present case. In [ex parte Chieveley] the outline planning permission specified the permitted gross floor space. In those circumstances it is not surprising that the Court of Appeal concluded that the permitted floor space could not be cut down by means of a condition reserving design details for subsequent approval. The details to be approved would have to be details of a building of the permitted size. The present case would be analogous with [ex parte Chieveley] if the 1993, 1998 and 2002 outline planning permissions had specified the number of dwellings permitted on the site. They did not. No upper or lower limit was specified. In those circumstances, it was open to the local planning authority to control the number of dwellings to be erected on the site by controlling not merely their design, but also their siting, and indeed the amount of landscaping to be provided on the site. …".
The planning history of the appeal site
"The appearance and scale of the proposal are reserved matters but the application specifically refers to a six storey building. It would occupy the corner plot with the apartments at the highest level set back slightly and not covering the full footprint at that level. This set back would prevent views of the top floor from close to the site, although it would be visible in longer views along the Street. It is the height of the respective buildings that is important rather than the number of storeys. The proposal would be a similar height to the listed Cinema. However, even in views where the apartments at fifth floor could not be seen, the illustrative drawings indicate that the proposed building would appear significantly higher, some 2.1-2.5 metres, than its neighbours to the north and south, although the latter would be separated from the proposed building by the width of Sandringham Road. This would be at odds with the 4 storey building with a 5 storey feature at the corner anticipated by AAP Policy DTC-CA 01[A]."
"1) Each opportunity site within the Kingsland High Street Character Area is to be developed in a co-ordinated way and to a high design standard, ensuring a mix of suitable and complementary uses. The following site-specific planning policies are to be adhered to:
a) SITE A: 130 KINGSLAND HIGH STREET AND SITE TO THE REAR 130A KINGSLAND ROAD (SITE AREA 1920 SQ.M./0.192 HECTARE)
Site redevelopment for a 4 storey building to include retail, employment and residential with the potential for a key, high quality architectural feature at the corner of Sandringham Road and Kingsland High Street (up to 5 storeys) to complement the Rio Cinema diagonally opposite.
Crystal Property's application for outline planning permission
"Erection of a part 4 and part 5 storey building providing retail space on the ground floor, office space on the upper floors, car parking, cycle storage and waste storage in the basement".
Part 10, "All Types of Development: Non-residential Floorspace", asked the question "Does your proposal involve the loss, gain or change of use of non-residential floorspace?". Three answers were available: "Yes", "No" and "Unknown". The "Yes" box was ticked. The "[existing] gross internal floorspace …" in Class A1 use ("Shops") was stated to be 493.5 square metres, and the "[total] gross internal floorspace proposed …" 694.4 square metres, so that the "[net] additional gross internal floorspace following development …" was 200.9 square metres. As for Class B1(a) use ("Office (other than A2)"), the"[total] gross internal floorspace proposed …" was stated to be 2,323.2 square metres. The "[net] additional gross internal floorspace following development …" in that use was therefore 2,323.2 square metres, there being no office floorspace on the site at present. Thus the total "gross internal floorspace proposed …" was 3,017.6 square metres, and the total "[net] additional gross internal floorspace following development …" 2,523.2 square metres. In part 16, "Planning Application Requirements – Checklist", which warns that the application "will not be considered valid until all information required by the Local Planning Authority has been submitted", a tick was put in the box for "[the] original and 3 copies of other plans and drawings or information necessary to describe the subject of the application". Three drawings were submitted, for illustrative purposes. Two showed the elevations of the proposed building to Kingsland High Street and Sandringham Road, the third a view of the building in perspective and an axonometric image providing "site data".
"Erection of a part 4-storey, part 5-storey building providing retail use on ground floor and offices on upper floors, with associated car parking, cycle parking and waste storage. (Outline planning application with all matters reserved)."
Two "Plan Numbers" were given: "1018 and 1019". These were the illustrative drawings showing the Kingsland High Street and Sandringham Road elevations of the proposed building. The reason for refusal, reflecting the officer's assessment of the proposal, was this:
"1. The proposed development, by reason of its excessive height and massing on this prominent corner junction, would result in a development that would relate poorly to the existing development on Kingsland High Street and Sandringham Road to the detriment of the streetscene and would unduly compromise and compete with the setting of the Grade 2 listed Rio Cinema opposite. The proposal is therefore contrary to Hackney Core Strategy 2010 policy 24 (Design) and 25 (Historic Environment), the Dalston Area Action Plan 2013, London Plan 2011 policies 7.4 (Local Character), 7.6 (Architecture) and 7.8 (Heritage assets and archaeology), and paragraphs 17, 64 and 133 of the National Planning Policy Framework ["NPPF"]."
The section 78 appeal
"12.The current application, the subject of this appeal, is for a part 4, part 5 storey building providing 694 square metres of retail space on the ground floor, 2,475 square metres of office accommodation on the upper floors and a basement car park providing 21 car parking spaces including 6 disabled spaces, 25 cycle storage spaces and a large waste storage area. … ."
In paragraph 20 it was stressed that "the indicative design of the proposed development is the same as that of the building which was approved in 1990 …". In a section headed "Conservation and Urban Design" paragraph 39 said this:
"39. The application is outline with all matters reserved and the drawings submitted are only an indicative design. This is an important consideration as matters of detailed design remain for determination, and accordingly the Appellant need only demonstrate that a building of this general form would be acceptable on the site, subject to detailed design. The appellant is simply trying to establish the parameters of a building which is deemed acceptable for this site, especially as the LPA's officers and the Appellant and its counsel disagree with the interpretation of policy DTC-CA-01 … ."
Paragraph 42 stated:
"42. The indicative design submitted, apart from a slight change to the corner element, is almost exactly the same as that submitted in application TP/99497/D/DCK which was granted in August 1990. At (P19) there is a copy of the 1990 design and at (P20-21) a copy of the current design, the pitched roof is steeper in the 1990 version making it slightly taller than the current proposal. The height of the 3rd floor windows in relation to the parapet of the adjoining building on both (P19-20) make comparison of the respective heights easy to judge. … There has been no change in the built environment of KHS, apart from the demolition of the buildings on sites D1 and D2, since the 1990 consent was granted. The Appellant therefore submits that the application should be treated in the same way and considered in keeping with the character of the area, given that the only change to the area has been the development of various sites with taller buildings."
In the following passages of the "Grounds of Appeal" there were numerous references to "the proposed building" – the building shown in the illustrative drawings submitted with the application for outline planning permission – in comparison with developments approved by the council on adjacent sites, including, in particular, sites known as C1, C2, D1 and D2. For example, in paragraph 45, it was pointed out that "[the] floor to ceiling heights in the proposed building … mirror those of the adjoining building", and that "[the] proposed buildings on D1, D2 and C2 have the same floor to ceiling heights as the adjoining buildings and as that of the proposed building on the appeal site".
The inspector's decision letter
"The application is for outline permission with all matters reserved for subsequent approval. However, plans accompanying the application indicate the built form reflecting the description of development, although this is a possible rather than definitive layout and design. As the Council had regard to these indicative plans in determining the application, I have dealt with the appeal on the same basis."
"11. … While the detailed design of the building is yet to be determined, to the extent that the proposal is for a 4 and 5 storey building I accept also that it reflects the numerical requirements of Policy DTC-CA 01. I note, however, that the appellant is seeking to establish the parameters of a building that would be considered acceptable on the appeal site. To my mind this reinforces the importance of the Inspector's comment in the previous appeal that it is the height of the respective buildings that is important rather than the number of storeys (paragraph 8)."
Policy DTC-CA 01 was, in the inspector's view, consistent with the NPPF, "particularly section 7 concerning good design". He gave it and the other relevant policies of the area action plan "considerable weight in this case" (paragraph 12).
"13. To the immediate south of the appeal site is a four storey terrace, while the adjoining terrace to the north is three storeys high. The tallest building in the immediate vicinity is the Rio Cinema. The indicative drawings show a four storey building (excluding the basement) extending across the full site frontages on both the High Street and Sandringham Road. Above this, a fifth storey and pitched roof form covers the majority of the footprint, with insets adjacent to the northern and eastern boundaries.
14. A comparison of the current proposal with that in the previous appeal shows buildings of broadly similar height. This is despite the additional storey in the previous case and results from the larger storeys and roof form in the current proposal. I accept that the floor to ceiling heights appear to be similar to those of neighbouring buildings. However, it is the fact that the fifth storey and roof form covers much of the building's footprint that defines the overall height of the building and adds to the perception of a building of greater bulk and mass. The resulting effects would be a building that would dominate rather than complement this part of the street scene at the northern end of the town centre. The height, bulk and mass of the building would be particularly prominent in views from the south on the High Street due to the differences in ground levels.
15. Approaching from the north and the south along the High Street, the proposed building and the Rio Cinema would be the tallest buildings in the immediate street scene. However, the presence and height of the appeal proposal would detract from the appearance of the listed cinema as it would compete with and visually dominate this existing building. This would in large part be due to the extent of the fifth storey and roof form across much [of] the building, which in my view would not readily conform to the requirements of Policy DTC-CA 01 for a key architectural feature of up to 5 storeys on the corner of the two roads.
16. The appellant contends that views of the cinema, specifically the auditorium, are limited in relationship to the appeal site and proposed building. However, the cinema as a whole is a designated heritage asset and, as such and due to its physical prominence, is recognised as a landmark building in the AAP. Furthermore, its relationship with the development of the appeal site is specifically defined in Policy DTC-CA 01 and my findings above are that there would be a clear visual relationship between the two buildings in views from the High Street. For these reasons, I give the appellant's contentions on these matters little weight."
"19. Reference is also made to an outline approval in 1990 for an equally tall, if not taller, building on the appeal site … ; and a similar one, which was deemed acceptable but not formally permitted in 2003 … . The appellant contends that these are material to the current proposal, particularly as the development plan policies relied on at the time have effectively been carried forward into current plans. The AAP has, however, been adopted since those decisions and I am not aware that earlier plans included a site-specific policy akin to Policy DTC-CA 01, which now has the most significant bearing on the site's development. Moreover, the previous appeal and the Council's decision that led to it are more recent relevant decisions involving a proposal of broadly similar height to the current one, which were assessed against the provisions of the AAP. For these reasons, I give little weight to a direct comparison with these much earlier permissions."
The judgment in the court below
"There is a further point, which is this: the present decision is one which is specifically based on the height and massing of the proposed development. However, questions of height and massing were specifically reserved in the 2003 decision, so that decision cannot be read as consent for the height and massing, which is the subject of the present application, for a similar development. In the present application, the plans were not marked as illustrative, and given the 2012 decision where the application and appeal essentially failed because of the height, the inspector considered, obviously correctly, as I have said, that he was being asked to consider, on this occasion, the height and massing according to the plan submitted. The 2003 consent, therefore, although it relates to a building said to be identical to the one which was the subject of the 2013 application, is not, in truth, comparable at all: not only was it made subject to different policies but the decision itself is a decision on a different issue."
Did the inspector adopt an incorrect approach to the application for outline planning permission?
Lord Justice Tomlinson