England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		17th December 1999

1. MR NIGEL MACLEOD QC: This is an application for an order under section 288 of the Town and Country Planning Act 1990 to quash two decisions of the First Defendant's Inspector. The Inspector held a local enquiry into the Second Defendant's refusal to grant permission for (A) the erection of a single garage and store and (B) the removal of a condition attached to the planning permission granted by the Second Defendant. The application to quash (B) is not pursued in court and I refer now only to application (A).
2. The application relates to a large house on the Wentworth Estate known as Longcroft, which was under construction and substantially completed at the time of the public enquiry. Permission had been sought for the erection of a single garage and store adjoining a permitted double garage at the front of the house.
3. The application was refused for the following reasons:

"The additional building proposed, taken together with the increase in accommodation and building already allowed on the site, would constitute inappropriate development which would harm the openness of the Green Belt, contrary to policy PE2 of the Surrey Structure Plan 1994 and Policy GB6 of the Modifications Draft of the Runnymead Borough Local Plan (Second Alteration), November 1998."

4. The Inspector stated the main issue in the case to be as he set it out at paragraph 4. In respect of appeal (A), he identified the main issue as being whether the proposed garage and store were an appropriate form of development in the Green Belt, having regard to the adopted and emerging planning policies for the area and national advice, and, if not, whether there were very special circumstances to justify allowing the appeal as an exception to the presumption against inappropriate development within the Green Belt.
5. The history of the appeal site is relevant. The appeal site had formerly contained a different house with a 271 square metre floor area, constructed in the 1950s. This house had subsequently been extended under a permission granted in June 1986. The extension had been completed by March 1998. In 1994, permission was granted for the replacement of this building by a much larger house to be known as "Longcroft". This was to have a floor area of 1168 square metres. Although the permission remained extant and the site was cleared, the house was not subsequently built in this form.
6. In February 1998, permission was granted for a house in a different orientation on the site. This, together with its detached garage, had a floorspace of 1084 square metres. Whilst this house was under construction, variations to this permission were sought and ultimately a new permission was granted in December 1998. This house has a floor area of about 1160 square metres including a detached double garage. It was as an addition to this double garage that the extension, the subject of this application, was proposed.
7. It was the Inspector's judgment, in paragraph 11 of his decision letter, that the proposed garage and store would result in a very minor extension to the built development on the appeal site as it stood at the time of the enquiry.
8. I need to refer to the relevant policies. First, Planning Policy Guidance Note 2 (PPG2), dated January 1995 stated, so far as relevant, in paragraphs 3.4 and 3.6, the following:

"3.4. The construction of new buildings inside a Green Belt is inappropriate unless it is for:

(1) ...

(2) ...

(3) ...

(4) limited extensions, alterations or replacement of existing dwellings (subject to paragraph 3.6 below)."

9. Paragraph 3.6 says:

"Provided that it does not result in disproportionate additions over and above the size of the original building, the extension or alteration of dwellings is not inappropriate in Green Belts. The replacement of existing dwellings need not be inappropriate, providing the new dwelling is not materially larger than the dwelling it replaces. Development plans should make clear the approach local planning authorities will take, including the circumstances (if any) under which replacement dwellings are acceptable."

10. Structure Plan Policy PE2 indicates that development which would conflict with the purposes of the Green Belt or adversely affect its open character will not be permitted except in very special circumstances.
11. Adopted Local Plan Policy GB5, so far as relevant, says:

"Proposals for the rebuilding or extension of dwellings in the Green Belt ... will normally only be permitted if the council is satisfied that the proposals do not:

(1) ...

(2) ...

(3) ...

(4) Significantly increase the scale of the existing property also having regard to the scale of existing development in the immediate locality."

12. A new Local Plan is in an advanced state of preparation, and the Inspector explained the position in respect of this at paragraph 8 of his decision letter. He said:

"Policy GB6 of the deposit draft version (1996) of the plan indicates that proposals for the rebuilding or extension of dwellings may be permitted provided, amongst other things, that the development would not result in an increase in built development which would be likely to have a harmful impact on the Green Belt. The reasoned justification indicates that only in exceptional circumstances will increases in floor area in excess of 30% of the size of the original dwelling be permitted. For the purposes of the policy the original dwelling is defined as the dwelling as it stood on May 1986 when the Green Belt came into force. Following a public local enquiry into objections to the deposit plan, the Inspector recommended that Policy GB6 be modified. His recommendation included the deletion of the 30% threshold and the 1986 base date. In his view the Council should deal with each proposal on its merit having regard to the 4 criteria set out in the policy. The Council has decided not to accept the Inspector's recommendation as it is entitled to do. I am aware that objections have been lodged to the Council's proposed modifications to the policy. However, it is the Council's intention to adopt the Local Plan in the autumn, although this is not as yet the subject of a formal resolution. While I am mindful of the Local Plan inquiry Inspector's reservations regarding the policy, I must have regard to the fact that Policy GB6 is likely to be adopted in its modified form. Consequently, I attach considerable weight to that policy in accordance with the advice in paragraph 48 of the Planning Policy Guidance Note PPG1."

13. Mr Caws, for the Claimant, has challenged the Inspector's decision on a number of grounds. I have already recited the central issue as identified by the Inspector in paragraph 4 of the Decision Letter. Although these policies referred to by the Inspector only related directly to the rebuilding and extension of dwellings, rather than to ancillary buildings within their grounds, the Inspector, at paragraphs 9 and 10, considered that the tests set out in PPG2, Policy GB5 of the adopted Local Plan, and GB6 of the draft Alteration were applicable to the appeal proposals. He also considered that if the proposals did not conflict with the purposes of the Green Belt or adversely affect its character, they would not conflict with Structure Plan Policy PE2.
14. Mr Caws, therefore, contends that the application of these policies was central to the Inspector's reasoning. On this basis, Mr Caws argued that the issues raised by the various policies were:
15. (i) Under PPG2, paragraph 3.6, whether the proposals would result in "disproportionate additions over and above the size of the original building".
16. (ii) Under Policy GB5 of the adopted Local Plan, whether the proposals would "significantly increase the scale of the existing property ...".
17. (iii) Under draft Policy GB6, whether the proposals would (among other things) result in an increase in floor area in excess of 30% above the floor area of the dwelling which stood on the site in May 1986.
18. The Claimant had contended to the Inspector that these policies were in conflict, because PPG2 and GB5 required comparison with the dwelling which was presently on the site in its unextended form (i.e with a floorspace of 1160 square metres). Draft Policy GB6, on the other hand, would require comparison with the 271 square metres building built in the 1950s. This, coupled with the fact that the Local Plan Inspector had criticised Draft Policy GB6 as being out of step with PPG2 and had recommended the deletion of the 30% threshold and the 1986 base date, should, it was argued, affect the weight which could be placed upon the draft policy.
19. It was against this background that the Claimant argued the first issue, i.e. whether the Inspector correctly identified the original building in this case, for the purpose of applying the First Defendant's policy in paragraph 3.6 of PPG2. It was, Mr Caws says, necessary in the circumstances before him (as identified in the background) to determine what was meant in terms of government policy by the phrase "original building".
20. Mr Caws argued that the Inspector did not do so in the context of PPG2, and therefore failed to deal with an issue which was central to the Claimant's case; and thus, failed to take into account that material consideration. In support of his submission, Mr Caws referred to paragraphs 11 to 13 of the decision letter:

"11. In my view, central to the consideration of the matter of whether the garage extension and store would result in a disproportionate addition to the existing development at the appeal site is whether the dwelling which stood on the site in May 1986, as suggested by the Council, or the house currently under construction should be regarded as the original dwelling. There is no significant dispute regarding the estimated sizes of the dwellings. The house constructed in the 1950s had a floor area of some 271 square metres and was approximately 7 metres in height to the ridge. The extensions added following the 1986 permission were commenced in July 1986 and completed in March 1988. The planning permission granted in 1994 was for a house with a floor space of about 1168 square metres (including portico) and a ridge height of some 9.9 metres (8.7 metres above existing ground level). The house currently under construction, including portico and balconies, has a floor area of about 1112 square metres. The overall height of the building ranges between 10.2 metres and 10.5 metres. The approved double garage has a floor area of some 45 square metres. It is apparent from these figures that the proposed garage and store would result in a very minor extension to the built development on the appeal site as it now stands. Equally, the current house and its ancillary buildings amount to a very significant increase to the extent of the development at the appeal site compared with the original dwelling.

12. It seems to me that, in the everyday meaning of the term, the 'existing dwelling' at the appeal site must be taken to be the replacement dwelling which currently exists, since the original dwelling on the site has been demolished. National and local Green Belt policies seek to ensure that the extension or replacement of dwellings does not result in disproportionate additions over and above the size of the 'original dwelling'. The word 'original' is generally used to convey that which has been existent from the first. However, there are many instances where dwellings may have been replaced or extended over the years so that the extent of the original building may not be known. Policy GB6 seeks to address this matter by defining the existing dwelling as the size of the dwelling at May 1986. For a replacement dwelling built after May 1986 it will be the size of the original dwelling on the site at May 1986, unless the original building was erected after that date. As the Local Plan Inspector identified, this approach does not directly follow the advice in PPG2. Nevertheless, as I have already indicated, I must attach due weight to the policy and the definition of existing dwelling which it contains.

13. I accept that the garage extension and store do not form an extension to the dwelling at the appeal site. However, the site is in the process of being developed and the appeal application is one of a series of planning applications which have sought to modify the details of the development as work has progressed. In my view, therefore, it should be considered in the context of the overall proposals for the site. National and local Green Belt policies seek to ensure that a replacement dwelling is not significantly larger than the property, in its original form, which it is to replace. In this case the size of the replacement dwelling is far in excess of the original dwelling on the site. The new house and its associated outbuildings have significantly reduced the openness of the Green Belt and cannot, in my view, be regarded as appropriate in the Green Belt. The planning permission granted by the Council should be considered to be an exception to the normal presumption against inappropriate development in such areas. As the current appeal proposal is to provide ancillary domestic buildings as part of the overall development of the site it is also, in my view, an inappropriate form of development. Therefore, having regard to the advice in PPG2 it falls to the appellant to demonstrate that very special circumstances exist which clearly outweigh the harm which would be caused by reason of inappropriateness."

21. Before proceeding further with the consideration of Mr Caws' arguments, I should say that both parties before me accept that interpretation of the meaning of a policy is a matter for the decision maker on the facts and circumstances of the case, provided that the ascribed meaning is a meaning which, on the facts, it is capable of bearing (R v Derbyshire County Council ex parte Woods [1997] JPL 958 at 967).
22. Mr Caws says that "original building" in paragraph 3.6 of PPG2 can only apply to a building which exists. To construe an extension as being an extension to a building which does not exist is a meaning which the paragraph is not capable of bearing, and for a development to be a "disproportionate addition" within the meaning of paragraph 3.6, it can only be an addition to what is there, with the relevant question being: is the addition disproportionate to what it is being added to? Mr Caws also makes the point, with which I agree, if he is right, that the last sentence of paragraph 3.6 does not allow rewriting of the concepts in 3.6 by referring to a previous building as opposed to an existing building.
23. I am not able to accept Mr Caws' contention that the words are incapable of referring back to the first building on the site. While I am of the view that there are very compelling reasons for accepting Mr Caws' interpretation, I consider that there is just sufficient ambiguity in paragraph 3.6 to exclude me finding that the words are incapable of bearing a meaning which goes back to the first building on the site.
24. However, I do find favour with, and accept, the next part of Mr Caws' argument. He specifically refers to the question posed in the first sentence of paragraph 11 of the decision letter, which the Inspector states to be central to the consideration of the matter. Mr Caws contends that the question is never answered by the Inspector; he says that in paragraph 11, the Inspector confused and conflated the various policy tests by referring to:

"... whether the ... [proposals] ... would result in a disproportionate addition to the existing development ..."

25. but does not give an answer to the question.
26. As to paragraph 12, Mr Caws says the Inspector did point out that he must give due weight to draft policy GB6 but nowhere does he say that he prefers policy GB6 over the other two policies. In paragraph 13 of his decision letter, the Inspector goes on to a new matter. In the result, there has been a failure to deal with an issue central to the applicant's case and a failure to take into account a material consideration.
27. Mr Mould, for the First Defendant, disagrees. He argues that having reviewed the approach of both national and local policies, and set out the limitations of and practical problems associated with applying them in practice, in paragraph 12 of the decision letter, the Inspector then turns to apply them to the circumstances of the case in paragraph 13.
28. Mr Mould says that it is clear from the reasoning in that paragraph that the Inspector has chosen to follow the approach to the identification of the "original dwelling" which is set out in the draft Local Plan. He says that the Inspector was entitled to do so in law and, therefore, it was unnecessary for him to address the meaning of the phrase "original building" in PPG2 in any greater detail than he does. He says the Inspector acknowledged the limitations of PPG2 in its reference to the phrase, looked to the draft Local Plan for further guidance in the Runnymede context and acknowledged that there was some inconsistency between the national and local policy guidance, and that the law required no more of him.
29. Notwithstanding Mr Mould's argument, it is not clear to me that this is a proper interpretation of paragraph 13. I find the paragraph is very difficult to follow both in itself and in terms of how it fits into the overall context of the decision letter. It is clear that within the paragraph there is, from time to time, reference both to national policy and to local policy: the fourth sentence of the paragraph refers to national and local Green Belt policies being applied. I prefer the approach of Mr Caws and the application succeeds on the first issue.
30. I turn to the second and third issues raised by Mr Caws together. These issues are expressed by Mr Caws in the terms:
31. (2) Whether the Inspector failed to have regard to a material consideration, namely the particular construction which had been placed on the phrase "original building" in PPG2 by other Inspectors in decision letters put before him;
32. (3) Whether the Inspector failed in his duty to give proper and adequate reasons for his decision, where no reasons were given by him for disagreeing with the construction of the phrase "original building" by those said Inspectors and, if so, whether the applicant has suffered substantial prejudice thereby.
33. Mr Caws refers to the fact that the claimant had put before the Inspector three decision letters, each of which, it is said, supported the view that the phrase "original building" in PPG2, paragraph 3.6 was referring to the existing building on site before any extension, rather than some pre-existing building which had been replaced. The Inspector's attention was specifically drawn to his colleagues' conclusions in this respect in each case.
34. Mr Caws says that the way the phrase from PPG2 had been construed by other Inspectors was a material consideration which the Appeal Inspector was required to take into account. As a matter of law, if he disagreed with those Inspectors, he was also required to give reasons for doing so. The authority for this is North Wiltshire DC v Secretary of State [1992] 3 PLR 113 page 122, where Mann LJ said:

"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 will usually 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 the previous case? The areas for possible agreement or disagreement cannot be defined but they would include 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."

35. At paragraph 16 of his decision letter, the Inspector shows that he has had regard to these appeal decisions but had concluded they were not directly comparable. He said:

"In arriving at my conclusions, I have had regard to the conclusions of the Inspectors in the various appeal decisions which have been brought to my attention. However, in my view none of the cases are directly comparable with those before me and I have considered the appeals on their own merits."

36. The first of the decisions brought to the Inspector's attention was a decision letter dated October 1997, concerning a decision of the New Forest District Council. This concerned a proposed conservatory, and in paragraph 4 of that decision letter that Inspector said:

"I was not directed to any other relevant policies of a more specific nature in the development plan and so I have turned to PPG2 for further guidance on this matter. This states that limited extensions to existing dwellings may be appropriate development provided they do not result in disproportionate additions over and above the size of the original dwelling."

37. In paragraph 6, he says:

"Although PPG2 does not define the term 'original', in this case I consider that the relevant starting point should be the existing dwelling as it now stands. I have no details of the demolished farmhouse or its history, but I understand that it was sited much closer to the road frontage. I was told that the existing property had not had any previous additions and I consider that your proposal would therefore represent a modest addition which would not be disproportionate in size to the existing dwelling. In the circumstances, I am satisfied that the proposed conservatory would be an appropriate form of development within the green belt."

38. In my judgment, this does meet the practical test approach referred to by Mann LJ in the North Wiltshire case, and should have been considered appropriately by the Inspector.
39. The second decision brought to the Inspector's attention was a decision letter dated 18th March 1996, concerning a decision of the Brentwood Borough Council. This referred to a single storey lounge extension and, in paragraph 3 of the decision letter, that Inspector said:

"There is also a requirement in Policy GB2 of the Local Plan that the appearance and character of the Green Belt should not be detrimentally affected by development and it is stated in Policy GB7 that extensions will normally be limited so as not to so exceed the habitable floorspace of the original dwelling by more than 37 square metres."

40. Paragraph five included this sentence:

"It is considered, however, that development which exceeds the floorspace limitation in the Local Plan is not necessarily inappropriate and what is proposed in this case would be appropriate in the context of the advice in PPG2."

41. In paragraph 6, he says:

"In the present case, the replacement dwelling has not exceeded the floorspace of the former cottage by more than the stated limit but, from what I saw and from the limited details available of the original building, it would appear to me that a change in the scale of the development including an extension of the curtilage, has already taken place. In my opinion, this has established a new base for assessing the effect of any further development at the site and the present proposal should, therefore, be considered on its own merits in relation to its effect on the character and appearance of the Green Belt.

This is not quite so strong, and I do not find that the Inspector was at fault in his approach to it.

The third decision brought to the Inspector's attention was a decision dated 21st October 1998, concerning Windsor and Maidenhead Council. This was concerned overall with an enforcement notice. Paragraph 6 of the decision letter, under the heading "The Development Plan" says:

"Following paragraph 3.6 of Planning Policy Guidance Note 2, the emerging Local Plan states that, provided it does not result in disproportionate additions over and above the size of the original building, the extension of dwellings is not inappropriate in Green Belts."

42. Paragraph 9 of the letter says:

"Emerging policy about extension to an existing dwelling in the Green Belt turns on whether it would cause a disproportionate addition over and above the size of the original dwelling."

43. Paragraph 11 states:

"As the Council accept that, for the purpose of this appeal, the original house is the dwelling under construction, the earlier planning history of the site is of some interest but of scant weight. I firmly believe that, once construction of the replacement dwelling begins, it becomes the original dwelling. The emerging policy concerns one large extension or the cumulative impact of a series of small ones to a particular dwelling not a retrospective assessment of a former and now demolished dwelling."

44. This is the same approach as PPG2. Again, it meets Mann LJ's practical test, and should have been considered appropriately by the Inspector.
45. The case for such consideration is much strengthened by the first sentence of paragraph 11 of the decision letter, which makes the competing views on this matter a central consideration, as they were in the cases to which I have just referred. That central matter for consideration was in circumstances where the interpretation taken by the Inspector is not one which easily fits with the words in paragraph 3.2 of PPG2.
46. I refer back to what I said about this earlier in my judgment in my consideration of the first issue. The Inspector should have weighed these previous decisions and given reasons for reaching conclusions different to his colleagues. He failed to do this and the decision must be quashed for that reason also.
47. Further grounds of challenge based on the policies have been pursued, but in the light of my judgment on the first issue which concerns those policies, and my further finding on the second issue, the determination of those issues would not effect my overall finding that this decision should be quashed, and I do not find it necessary to give further consideration to them. Accordingly, the decision is quashed.
48. MR CAWS: I am much obliged, my Lord. Your Lordship will therefore order that the decision under appeal (A) be quashed.
49. Would your Lordship also order that the First Respondent should pay the Applicants' costs? This has been a matter of decision between the parties and I would ask your Lordship to assess those costs if you feel it appropriate to do so. If I might hand up to your Lordship a schedule of the costs. They have been updated today to cover the cost of today in the copy I will hand to your Lordship, who should have one on file. I have written on the bottom, in ink, a single figure which Mr Mould has agreed with me. It is the figure agreed by the solicitors on each side as being the total including VAT (handed).
50. I have not broken that figure down, for your Lordship to have the net figure before VAT.
51. MR NIGEL MACLEOD QC: I have already seen the figure for total of £5,500, but this produces a further £1400 or thereabouts.
52. MR CAWS: It does not include the VAT perhaps. I cannot recall.
53. MR NIGEL MACLEOD QC: Mr Mould?
54. MR MOULD: My Lord, I accept that the order as to the substantive appeals must be in the form that my learned friend has sought, and I accept that I must pay his costs. It is my understanding that the figures have been agreed.
55. MR NIGEL MACLEOD QC: So I make a cost order for that figure. That would be --
56. MR CAWS: Consistent with our agreement, yes.
57. MR NIGEL MACLEOD QC: I make an order that the decision be quashed and that the First Respondent pay the Defendants' costs in the sum of £6,900 including VAT.
58. Thank you very much.