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RUMSEY v. SECRETARY OF STATE FOR ENVIRONMENT TRANSPORT AND REGIONS and WAVERLEY BOROUGH COUNCIL [2000] EWHC Admin 399 (11th October, 2000)

Case no: CO/563/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Wednesday 11 October, 2000

BEFORE:
MR DUNCAN OUSLEY QC
(Sitting as a Deputy Judge of the Queen's Bench Division)
-------------------
RUMSEY
-v-
SECRETARY OF STATE FOR THE ENVIRONMENT
TRANSPORT AND THE REGIONS
and
WAVERLEY BOROUGH COUNCIL
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________

MR J. PERERIRA (Instructed by Shuttan Paul & Co, Middlesex UB1 1SW) appeared on behalf of the Appellant
MR M GIBBON (Instructed by the Treasury Solicitor, London SW1H) appeared on behalf of the Respondent

____________________
Judgment
As Approved by the Court
Crown Copyright ©

MR DUNCAN OUSLEY QC:
The Claimant sought planning permission for an extension to his house, by way of adding a floor to the existing bungalow, and approximately doubling its present size. The house "Beechnut House", Green Lea Wood, Frensham Hall Estate, Haslemere, is one of a number scattered in the countryside of Waverley Borough Council, beyond the Green Belt, in an Area of Outstanding Natural Beauty and an Area of Great Landscape Value. Waverley Borough Council refused planning permission because of the harmful conflict, which it thought the proposal had, with various policies for the protection of the countryside and with its restrictive policy, HS7, for extensions to dwellings in such a location.

The Claimant's appeal to the Secretary of State was dealt with by an Inspector at a hearing. His dismissal of the appeal is now challenged under S288 Town and Country Planning Act 1990.
Mr Pereira, who appeared for the Claimant, relies upon three grounds of challenge which all focus upon deficiencies which Mr Pereira contends arise from the way in which the Inspector dealt with the question of precedent and cumulative impact. This was an issue which was not, it is said, the major thrust of the Council's case but was an issue which the Inspector was particularly concerned to discuss. No complaint is made about that.
In essence, Mr Pereira submits that the Inspector did not dismiss the appeal because of any particular harm to the character or appearance of the surrounding area, or to the natural beauty of its landscape, which the proposed development would by itself cause. Rather, it was dismissed because the Inspector thought that it would act as a precedent for similar extensions, and that cumulatively such developments would be harmful to the character and appearance of the area. Mr Pereira, in brief, says that the Inspector had no basis for reaching such a conclusion, misunderstood the real point on precedent which the Council was making and gave legally inadequate reasons for his conclusions on the precedent point.
It is convenient at this juncture to set out the relevant parts of the decision letter.
The Inspector identified the main issue in paragraphs 2 and 3:
"The main issue
2. From the representations made at the hearing and in writing and from my inspection of the site and its surroundings I consider, having regard to prevailing planning policies, that the main issue in this appeal is the effect of the proposed development on the character and appearance of the surrounding area.
3. As the site lies in the Surrey Hills Area of Outstanding Natural Beauty (AONB) I have also taken into account whether the proposed development would conserve the natural beauty of the landscape of this area."

He then examined the relevant development plan policies:

"Planning Policies
4. The development plan for the area is the Surrey Structure Plan 1994 and the Waverley Borough Local Plan 1993. My attention has also been drawn to an emerging plan, the Waverley Borough Replacement Local Plan Deposit Draft January 1999 and the Proposed pre-inquiry changes. The early stage of this plan towards adoption reduces the weight that may be attached to it.
5. The development plan contains policies to strictly control development in the countryside, to protect countryside designated as AONBs and Areas of Great Landscape Value (AGLVs), and to ensure good design. The emerging Local Plan contains policies with similar objectives.
6. Previous Structure Plans dating from 1980 have contained policies to control residential extensions in the countryside. The current Structure Plan does not have policies dealing with this. However, the explanatory text to this Plan says that it is expected that Local Plans will establish policies for this type of development and that they will be exercised in the light of the policies of restraint on development in the countryside.
7. Local Plan Policy HS7 says that the extension of houses in the countryside, both within and beyond the Green Belt, will not normally be permitted unless certain criteria are met. The criteria relevant to this appeal are that the proposal will not:
- significantly change the scale of the original dwelling;
- be more intrusive in the landscape or otherwise detract from the rural character of the area;
- adversely change the character, appearance, bulk, massing and setting of the original dwelling."
In paragraphs 9-15, he set out his reasoning:
"Main issue
9. Originally a dwelling of 58.4 square metres stood on the appeal site. That was replaced by a bungalow with an 88.7 square metres floor area, built in accordance with a 1973 planning permission. In 1992 permission was given to extend the bungalow at ground floor level to 126.2 square metres, and that extension has now been built.
10. The proposed development would add a floor to the existing bungalow. This would approximately double its present floorspace, and add even more substantially to the original floorspace of the bungalow as granted permission in 1973. In my view the scale of the extension now proposed would result in development that would significantly change the scale of both the bungalow as permitted in 1973 and the bungalow as it presently stands on the site. Assessed against the dwelling on site in 1968 the proposed development would be even more disproportionate in size.
11. The appeal building as extended would be well screened by trees from nearby properties, from the immediately surrounding area and from the main road to the east. From what I saw it would be seen in more distant views from properties on the other side of the valley from which the site lies, though its visual impact from such views would be reduced by the wooded hillside backdrop to the appeal site.
12. Taken in isolation I consider that the proposed development would have a limited effect on the character and appearance of the surrounding area. However, the site is in an area characterised by scattered housing of varied sizes set amidst extensively wooded land. Much of the attraction of the area lies in the fact that, in the main, only glimpses of dwellings are seen, thus preserving the sylvan quality of the landscape. If permission was granted in this instance it would make it difficult for the Council to resist proposals for similarly large extensions in this rural area. Cumulatively such development would, over time, detract from the character and appearance of this area. Additional weight is attached to this harm because of the designation of the site and surrounding area as an AONB.
13. In arriving at this view I have had regard to the fact that many of the dwellings close to the appeal site are fairly substantial, and that most, if not all, are larger than the appeal premises. However, there are also some relatively small properties in the area, and the variety of house sizes is part of the character and attraction of the area. Thus, I do not consider that extending the appeal premises to bring it more in line with the larger dwellings in the vicinity would make the proposed development more acceptable.
14. On the main issue I conclude that the proposed development would, through making it difficult for the Council to resist similarly large extensions to dwellings in the countryside, be detrimental to the character and appearance of the surrounding area. The proposal would be contrary to those policies on residential extensions in the development plan and emerging development plan in so far as they seek to avoid such harm. It would also be contrary to the more general policies of those plans which have the objective of protecting the countryside, and would not conserve the natural beauty of the landscape of this part of the Surrey Hill's AONB.
15. I have taken into account in reaching the above conclusion the advantages that the appellants say would arise from improving the appearance of the appeal building, and their requirement for additional accommodation. However, I did not find the existing building as unattractive as was alleged, and in my view, whilst there would be some improvement to its design, this would not outweigh the harm I have found. Nor do I consider the existing dwelling to be so small that the requirement for additional accommodation should override the harm I have identified."
Certain observations may usefully be made at this stage as to the Inspector's approach. Mr Pereira submits, that the Inspector has found that the proposed extension by itself would cause no harm. He focuses on the references in paragraphs 11-14 to the extended building being "well-screened", with the impact on distant views being reduced by the wooded backdrop; there would be a "limited effect" taking the dwellinghouse in isolation; only glimpses of dwellings are seen, preserving the "sylvan quality of the landscape". In particular the proposal would be contrary to policies on residential extensions "in so far as they seek to avoid such harm" which is a reference back to harm caused by the Council's inability to resist similar proposals were this appeal to be allowed, rather than any direct harm caused by this proposal on its own.
I do not consider that the Decision Letter can be read in quite that way. It is important, as Mr Gibbon who appeared for the Secretary of State pointed out, to read the Inspector's decision as a whole and these particular comments in their planning context.
The development plan policies to which the Inspector makes general reference in paragraphs 5 and 6 of his Decision Letter are restrictive of development such as that proposed. HS7, to which particular reference is made in paragraph 7, is supported in the Local Plan by explanatory notes at paragraphs 3.38 and 3.41-2 (Bundle p 57 and 54 respectively), which identify the objectives of the policy and the relevance to its application of avoiding ever-increasing numbers of smaller dwellings being enlarged, (3.38). The Inspector concludes in paragraph 10 that the proposed extension would significantly change the scale of the bungalow as it presently is, and even more so when compared to the original. It is a requirement of HS7 that there should not be a significant change of scale compared to the original, a requirement proposed to be amended to a comparison with the building as it currently stands.
So the Inspector's subsequent comments relate to an extension that has failed to satisfy one of the policy criteria for such an extension exceptionally to be permitted.
I read the reference to "limited effect" in this context as a clear indication that the extension would have an adverse effect taken in isolation but that that would not by itself be sufficient to warrant a refusal. That is the point which he makes in paragraph 14. That limited adverse effect would also be a component of the accumulation of harm which he saw this extension, if built, then engendering through the precedent effect which it would have. I consider that the cumulative effect was the real point of objection and the last sentence of paragraph 14 should be read in that context.
I turn now in more detail to Mr Pereira's attractively made submissions. His first and main ground is that the Inspector had no basis for his conclusion on the precedent effect. He referred me to the well known comments of David Widdicombe QC sitting as a Deputy High Court Judge in Poundstretcher Ltd v SSE 1988 3 PLR 69 at p 74F:
"I accept Mr Hobson's proposition that where precedent is relied on, mere fear or generalised concern is not enough. There must be evidence in one form or another for the reliance on precedent. In some cases the facts may speak for themselves. For instance, in the common case of the rear extension of one of a row or terrace of dwellings, it may be obvious that other owners in the row are likely to want extensions if one is permitted. Another clear example is sporadic development in the countryside."
Poundstretcher concerned a relaxation of conditions on the range of goods which could be sold from retail warehouses on two retail warehouse parks in Liverpool. The Inspector had relied upon the prospect that similarly constrained retail warehouses on two other identified retail warehouse parks in Liverpool would become similarly unconstrained, thus undermining town centres.
Mr Pereira submitted that there had to be a basis upon which the Inspector could conclude that there was a connection between permitting this extension and some planning harm which would be caused by subsequent cases which could treat this appeal as a precedent. The Inspector had to have a basis for concluding that there would be both a precedent created and that its effect would be harmful. On the facts of this case, Mr Pereira submitted that another extension, sufficiently similar to his client's proposal for his client's proposal to be a precedent for it, would equally leave the sylvan quality of the landscape preserved. If it did not, then the instant case could not be a precedent for it. The Inspector's approach was baseless and paragraph 3.7 (Bundle p 30) of the Council's submission was merely a generalised concern. Of course, it must be remembered that this comment in paragraph 3.7 triggered a more extensive debate at the hearing.
Attractively presented though they were, I am unable to accept Mr Pereira's submissions. First, as I have already said, I do not read the Decision Letter as Mr Pereira would have me read it. The Inspector finds a limited effect but insufficient by itself to warrant a refusal; it would become part of a wider harmful cumulative effect. Second, he specifically identifies, in para. 13 of his letter, the existence of some relatively small properties in the area; these are clearly the ones which he has in mind as being at risk of similarly large extensions, to which the precedent effect would apply. Third, he reaches the planning judgment that those extensions would be difficult to resist; it is clear that that is because, taken in isolation, each would say that it was insufficiently harmful to warrant refusal, just like Mr Rumsey's case. Fourth, he reaches the planning judgment that that consequential accumulation would be harmful to the character and appearance of the area both in landscape terms (paragraph 12 of the Decision Letter) and in reducing the variety of house sizes which is part of the character and appearance of the area (paragraph 13 of the Decision Letter).
I do not consider that that approach is baseless: the Council provided some written material, there was further discussion at the hearing, and above all the Inspector had his planning experience, his site visit and view of the area. The reasoning of the Inspector in the Decision Letter is clear and adequate. Poundstretcher cannot be seen as providing some precise legal test as to the nature of the material which an Inspector must have before him when reaching a judgment on a precedent issue. The recognition of the inadequacy of mere fear or generalised concern is no more than saying that an Inspector must have some material on which to base his view, and the nature of what is required will vary from case to case. But just using Poundstretcher as a guide, the Inspector here appears to have had at least as much material as in that case went sufficiently beyond a mere fear or generalised concern. Moreover, in Poundstretcher, it was rightly recognised that the planning judgment as to harm by precedent can be made in circumstances where the facts speak for themselves. The Inspector here identified his concern as being with the relatively small properties in the area; his conclusions as to precedent and cumulative effect do not require greater exposition than he provided as to the material upon which they were based. The circumstances which he has identified can be treated as speaking for themselves.
I should add that I do not accept an earlier submission which Mr Pereira made, but then drew back from, to the effect that if no harm were found in any individual case, then no harmful effect could follow from subsequent decisions on all fours with that one. I consider that it is open to a planning decision-maker to reach a contrary conclusion: one development is harmless, but a second or more, each individually harmless, would lead to a harmful accumulation; thus the first might be refused, because decisions could not be taken in isolation, when in reality one decision led to another.
Mr Pereira's first and main submission is accordingly rejected.
His second submission is based upon paragraph 5 of the Inspector's witness statement, which was submitted for the purpose of responding to and refuting an assertion in the Claim Form that the Inspector had no evidence in relation to precedent beyond that which the Claimant characterised as merely an assertion contained in the Council's written submission, paragraph 3.7 Bundle p 30:
"3.7 The Council is concerned to avoid a gradual change in character from a small dwelling into a large one through successive additions over a number of years. The appeal proposal if allowed, could encourage further such proposals resulting in the extension of similar dwellings which would, cumulatively, be detrimental to the rural character of the countryside."
In paragraph 5, the Inspector said:
"5 The reference by the Council in its written statement was brief. The claimant did not himself refer to or deal with the effect of precedent in his written statement at all. At the outset of the hearing therefore I identified this concern of the Council as an area for discussion and allowed both the Council and the claimant to comment fully on it. It was clear from the Council's representations that it was of the view that there was currently a variety of sizes of properties in the area and that excessive increase in floorspace in the proposed development would cumulatively result in very large properties in the area. The claimant however contended that precedent elsewhere was not relevant, and each site had to be considered on its own merits. On site, the claimant's agent informed me that he had been keen for me to inspect the site."
Mr Pereira submits that the fourth sentence shows that the Council was concerned with the effect of the proposed extension when seen cumulatively with other large existing dwellings, rather than with the effect which the proposed extension would have as a precedent for yet more extensions. Thus the Council's case or the case as understood by the Inspector, was irrelevant to his conclusions which were based on the latter rather than the former point.
I accept Mr Gibbon's contrary submission, that this paragraph is simply not happily worded rather than indicative of a misapprehension as to the thrust of the Council's material. It is clear that paragraph 3.7 of the Council's material is actually wholly in line with the Inspector's approach in his Decision Letter, so he did not then misunderstand it. It is perfectly clear from paragraph 7 of his witness statement that the Inspector there is clearly setting out the Council's case as described in the Decision Letter. Paragraph 7 states [insrt p 81] Both relate to the precedent effect which the proposed development would have rather than to the effect which it would have simply added to the currently existing dwellings. He did not misunderstand the case in paragraph 5 only to get it right in paragraph 7 of the Witness Statement. In that context therefore it is clear that the third sentence of paragraph 5 of the Inspector's statement is simply not expressed as clearly as it should be, and affords no basis for quashing the decision.
Mr Pereira's final submission was that the Inspector's reasoning in his Decision Letter was inadequate as it makes no findings as to the likelihood of other applications coming forward or of their potentially harmful effect, nor does he say that the facts speak for themselves. For the reasons which I have given when dealing with Mr Pereira's main submission, I do not consider there to be any inadequacy in the Inspector's reasoning. Of course, the Inspector does not actually say that the facts speak for themselves; but he does not need to; paradoxically the more obvious something is as a matter of judgment, the less likely it is that elaborate reasoning will be found, or that an Inspector will feel a need to say that it is obvious.
In reaching this particular conclusion, I have ignored paragraph 7 of the Inspector's witness statement. It is wrong in my judgment for witness statements to be used to supplement or clarify the reasoning in a Decision Letter. I appreciate that the purpose of the statement was the legitimate one of explaining what material was before the Inspector and in this context, a hard and fast distinction between explaining that and avoiding any elaboration of reasoning may be difficult to draw. But in so far as that material could be used to supplement or clarify the reasoning in a Decision Letter, it should be ignored.
In those circumstances, R v Westminster C.C. ex parte Ermakov 1996 2 All ER 302, does not fall to be considered. For the sake of completeness, in so far as such a witness statement could be used itself to found a challenge, I do not consider that what the Inspector says in paragraph 7 of his Witness Statement is in any way at odds with his Decision Letter.
For all those reasons, this application is dismissed.

- - - - - - - - - -
THE DEPUTY JUDGE: For the reasons given in the judgment which has been handed down, this application is dismissed.

MR GIBBON: My Lord, we are much obliged. Before addressing you on costs which are agreed, my learned friend has one or two short points in relation your Lordship's judgment.

THE DEPUTY JUDGE: Yes.

MR PERERIRA: I have two points. I think they both arise on page 10. In the first paragraph of the text, after the citation of paragraph 5 of the witness statement, "Mr Pererira submits that the third sentence", I think that should read the "fourth sentence"; just counting the sentences in paragraph 5.

THE DEPUTY JUDGE: Yes. Thank you very much.

MR PERERIRA: My Lord, I hesitate before raising the second point. I do not wish to appear impertinent but your Lordship mentions, in relation to grounds two and three, paragraph 7 of the witness statement. I appreciate that in relation to ground three the point being made is that your Lordship has not had regard to it, but in relation to the second ground, paragraph 7 appears to be material but it does not seem to be cited anywhere in the judgment. I wondered if it might be helpful to do that, just to cite paragraph 7. I say that because we have to explain to the client what it all means and it might be useful if that was there.

THE DEPUTY JUDGE: Yes.

MR PERERIRA: It is at page 81 of the bundle towards the back, my Lord.

THE DEPUTY JUDGE: Yes. I will do that.

MR PERERIRA: I am grateful.

My learned friend has indicated that costs are agreed. The agreed sum is £2802.50.

THE DEPUTY JUDGE: And the principle?

MR GIBBON: My Lord, we do apply for costs and the principle is not contested by my learned friend.

THE DEPUTY JUDGE: Very well. I order the costs to be paid by Mr Rumsey to the Secretary of State in the sum of £2802.50.

MR PERERIRA: I am much obliged to you.

MR GIBBON: My Lord, the other matter -- having observed what has gone on before, I am not sure if I need to apply to you for permission or not, but to the extent that I do I make an application, it is on one ground only and that is the reasons ground, and I make it against this background. Firstly, the case concerns precedent effect which is exceptional in the sense that it is a case where no material harm is identified as arising from the instant application, which I say is exceptional area of planning law and judgment.

The second limb of the background to the application is that we were concerned with Poundstretcher and this issue of facts speaking for themselves. My Lord, the risk that I submit exists there is that if the court approaches the criticism of an absence of reasoning on the basis that this is a case where the facts speak for themselves, then inevitably the court is entering into an area of planning judgment.

This was a case where the inspector had not articulated anything about the facts speaking for themselves. He had not mentioned the Poundstretcher case. Your Lordship has interpreted his judgment as one where it was appropriate to say that the facts speak for themselves --

THE DEPUTY JUDGE: No. It is one where that is what he is in effect saying. I was not making a judgment as to whether it was appropriate for him to say it. I was making the judgment that that is what he was in effect saying.

MR PERERIRA: My Lord, yes. My simple point is this: given the exceptional nature of precedent and given the inevitable need in a case such as this for the court to, as it were, second guess that this is a case where facts do speak for themselves, I do say it is a matter on which guidance is required as to what the standard of reasons given should be. That therefore raises an important issue on which it would be appropriate for me to be given permission to appeal.

MR GIBBON: My Lord, before you make any observations, I do have one submission which may preclude you, if your Lordship is so minded, from making observation on the basis of my learned friend's comments and also bearing in mind submissions made to you in relation to an earlier case. If you turn to CPR 52.13 in the White Book. 52.13 in the new part relating to appeals. I have the Spring 2000 version and it is page 764 in that.

THE DEPUTY JUDGE: Page 764, 52.13(1).

MR GIBBON: "If permission to apply ... (reading to the words) ... which was itself made on appeal."

My simple submission, my Lord, is that this is a decision made on appeal.

THE DEPUTY JUDGE: That would be an unusual situation. Can you elaborate it any further?

MR GIBBON: My Lord, it is unfortunately a point I hoped to discuss with my learned friend this morning. It is not a point I addressed specifically until this morning. My Lord, my understanding is that the provision relating to second appeals is one relatively recently introduced. It does not say in terms what the first appeal was to be from and therefore I am in some difficulty in giving full assistance in relation to it, but it appears prima facie that that would cover this situation. My Lord, to the extent it is relevant I can also show your Lordship 52.3 on page 761 and subparagraph 2 there:

"An application for permission to appeal may be made to the lower court or to the appeal court ..."

Then there is a saving, so it appears, underneath the second set of bracketing comments "or 52.13(1) where the decision of the High Court was made on an appeal."

My Lord, if you are against me on those submissions or require further assistance, my second submission is that this is not a case bearing in mind the principles which I do submit apply in relation to point 13, it is not a case were your Lordship should grant permission.

THE DEPUTY JUDGE: I would be reluctant upon the basis of the procedural analysis which I have had in front of me to rule out a case which I would otherwise grant permission to go to the Court of Appeal on to decline to do so. But I would not grant permission in this case anyway.

I will just tell you very briefly why, although you will get the pro forma. The reasons you have provided where you say no material harm was identified does not, in my judgment, raise any new point. That is a commonplace when dealing with precedent, if by material harm you mean harm which by itself would not have been sufficient to warrant a refusal, which is the situation in this case.

Secondly, so far as Poundstretcher saying the facts speak for themselves, as I pointed out to you this is not a case where the court -- unless I have more grievously erred than I expect -- has entered into the arena. This is a case where I am endeavouring to explain to you what it is obvious the inspector meant in circumstances where he has identified the properties potentially affected and the process whereby they would be damaged. So if you need permission from me, you cannot have it.

MR GIBBON: Thank you, my Lord.