B e f o r e :
THE HONOURABLE MR JUSTICE STANLEY BURNTON
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| | R. ON THE APPLICATION OF DENNIS CARLTON-CONWAY
| Claimant
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| | and –
|
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| | LONDON BOROUGH OF HARROW
| Defendant
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(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)
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(Martin Edwards instructed by Merricks Solicitors for the Claimant)
(Jonathan Moffett instructed by Borough Solicitor, London Borough of Harrow for the Defendant)
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JUDGMENT
AS APPROVED BY THE COURT
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Crown Copyright ©
MR JUSTICE STANLEY BURNTON :
This is a claim by Mr Dennis Carlton-Conway, the owner and occupier of the detached dwelling house at 1 Southacre Way, Pinner Hill, Pinner in Middlesex, for an order quashing the grant of planning permission, dated 6th October 2000, by the Defendant Local Authority, the London Borough of Harrow, for the construction of a “part two storey / part first floor front to side, part single / part two storey rear extensions” at 2 Southacre Way, Pinner. 2 Southacre Way is adjacent to 1 Southacre Way. The decision to grant planning permission was made by the Defendant’s Chief Planning Officer, Mr Graham Jones. Mr Jones purported to act under delegated powers, and the sole question in these proceedings is whether he acted within the scope of his delegated powers when determining that the planning permission should be granted. The Claimant’s case is that he had no delegated authority to determine the planning application, and that it should have been referred to, and the grant or refusal of planning permission determined by, the Planning Committee of the Defendant Local Authority.
Delegation of the functions of a local authority to a committee, sub-committee or an officer of a local authority is authorised by section 101 of the Local Government Act 1972, which so far as material provides as follows:
“ (1) Subject to any express provision contained in this Act or any Acts passed after this Act, a local authority may arrange for the discharge of any of their functions –
(a) by a committee, a sub-committee or an officer of the authority…
(2) Where by virtue of this section any functions of a local authority may be discharged by a committee of theirs, then, unless the local authority otherwise direct, the committee may arrange for the discharge of any of those functions by a sub-committee or an officer of the authority…”
The relevant delegation in this case authorises the Chief Planning Officer of the Defendant to exercise the Council’s functions in relation to applications under the Town and Country Planning Act 1990, and associated legislation, other than those:
“1.1 Which, pursuant to the provisions of the Act, are required to be referred to the Secretary of State for the Environment, and the application would otherwise be dealt with under the terms of this delegation;
1.2 Which, in his opinion would be refused unless they involve minor development;
…
1.6 Which involved development by another Local Authority, Statutory Undertaker or Government Department having, in his opinion, a material environmental impact;
1.7 Where approval is recommended for development which, in his opinion, would have a material impact on the character of a Conservation Area;
1.8 …
1.9 Where approval of development is recommended and a written objection or objections have been received, except where the proposals do not conflict with agreed policies, standards and guidelines;
1.10 …”
I have set out a number of the sub-paragraphs of the delegation scheme to show the difference in drafting between those, such as paragraphs 1.2, 1.6 and 1.7, which expressly refer to the opinion of the Chief Planning Officer, and those, such as Paragraph 1.9, which do not. It is with Paragraph 1.9 that I am concerned. The Claimant’s case is that the test for the application of Paragraph 1.9 is objective, so that it is insufficient for the Chief Planning Officer to be of the opinion that “the proposals do not conflict with agreed policies, standards and guidelines”. If the Chief Planning Officer wrongly determines that proposals do not so conflict, any planning permission granted by him pursuant to Paragraph 1.9 is outside his authority and liable to be quashed.
The “agreed policies, standards and guidelines” with which the proposals in the present case are alleged to have conflicted are Policy E45 of the Defendant’s Unitary Development Plan, Part 4 of the Council’s UDP Supplementary Planning Guidance, and the Council’s Guidelines on House Extensions, Paragraph C.9.
Policy E45 is in familiar general terms. Under the heading “Quality of Development – Design and layout of residential development” it states:
“Developers shall provide a high quality of design and layout in new residential development and extensions. In considering proposals the Council will take into account the character of the Borough, the surrounding residential district and locality in which the development site is located and the development site itself, together with the design and layout of the proposed development, and will require that the proposal: -
(A) respects the scale, massing, siting, size, height, character, spacing, form, intensity and use of buildings in the district and locality;
(B) provides space around buildings which reflect the setting and character of neighbouring buildings and the district and locality, protects the privacy and amenities of the occupiers of adjoining properties and the occupiers of proposed buildings,…”
Particular reliance is placed on Paragraphs 2.122 and 2.123 of its amplification, which are as follows:
“2.122 The Council wishes to ensure that new development and extensions respect the established setting and character of neighbouring buildings and the locality. An important element of this character is the amount of space around, and the distance between, buildings….
2.123 Consideration should be given to the visual impact of a new development or extensions on neighbouring properties, particularly near site boundaries. Such impact is perceived from within the existing building and from the rear gardens of the properties… The Council will also issue supplementary planning guidance notes on matters such as design, to illustrate good planning practice.”
As envisaged in Policy E45, the Defendant Council issued the following guidance:
“In addition to the above, the relationship between buildings is also important, particularly the visual impact of new development or extensions on neighbouring properties, particularly near site boundaries. In respect of new dwellings or extensions: -
(1) …
(2) The visual impact of the flank wall of a new building bracket or extension, alongside the rear flank boundary of an existing property should be reduced by ensuring that the building is not sited directly against the boundary.
(3) Two storey or first floor extensions to semi-detached or detached dwellings should not detract from the existing character or create terracing effects. Normally, the impact of such extensions should be reduced by setting back the front and / or side walls of the extension by one metre and provision of a subordinate roof.
The Council will, as appropriate, issue planning guidance notes on matters such as design, to illustrate good planning practice.”
Lastly, in this connection, it is necessary to refer to Paragraph C.9 of the Council’s Guidelines on House Extensions. It states:
“There will be a general presumption against two storey rear extensions abutting a side boundary because of the excessive bulk and loss of light and consequent damage to the amenity of the adjoining residents. Where appropriate the forty-five degree Code will be used in conjunction with site considerations to govern the depth of extensions.”
The Claimant’s case is that there were good grounds, set out in the Claimant’s objections to the grant of planning permission, for considering that the proposals in this case conflicted “with agreed policies, standards and guidelines” within the meaning of Paragraph 1.9 of the Delegation Scheme; whether or not there was such a conflict was a matter for the Defendant’s Planning Committee; and its Chief Planning Officer could not, by concluding that there was no such conflict, in effect confer authority on himself. Alternatively, the Claimant submits that the planning application which resulted in the grant of planning permission did conflict “with agreed policies, standards and guidelines”, namely those referred to above, correctly interpreted and, objection having been received to the planning application, it follows that the Chief Planning Officer had no authority pursuant to Paragraph 1.9 to determine it. The Defendant contends that it was for the Chief Planning Officer to determine whether the proposals conflicted “with agreed policies, standards and guidelines”; and that if he reasonably concluded that the proposals did not so conflict, he had authority validly to determine the application. In addition, the Defendant submits that it was for the Chief Planning Officer to determine the meaning and effect of the “agreed policies, standards and guidelines” in order to determine whether he was authorised pursuant to Paragraph 1.9, as well as to determine whether planning permission should be granted.
In interpreting the scheme of delegation, it is necessary to bear in mind that the Council’s “agreed policies, standards and guidelines” are likely to include, and indeed do include, statements of general policy couched in broad terms. UDP Policy E45 and paragraphs 2.122 and 2.123 are typical examples of this. Practical considerations indicate that the Chief Planning Officer is intended to determine whether or not there is a conflict with such policies. Otherwise, the Chief Planning Officer would have to refer to the Planning Committee the question whether or not there was a conflict; in order to determine that issue, the Committee would have to consider the proposals and the relevant policies, standards and guidelines in detail. Once the Committee has considered these matters, if it decides there is no conflict, there is little if any point for the Committee then to return the proposals to its Chief Planning Officer for him to determine them. In the case of such policies, standards and guidelines, therefore, and notwithstanding the difference in the wording of Paragraph 1.9 as compared with other paragraphs of the Delegation Scheme, in my judgment it is for the Chief Planning Officer, acting reasonably, to determine whether or not there is a conflict, and if he determines that there is no such conflict, he may validly grant planning permission.
More difficult is the question whether it is for the Chief Planning Officer to determine the meaning of the relevant “agreed policies, standards and guidelines” for the purpose of deciding on his authority as well as deciding on the grant or refusal of planning permission. I was of course referred to the judgment of Brooke LJ in R v Derbyshire County Council, ex p Woods [1997] JPL 958, in which he said, at 968:
“If in all the circumstances the wording of the relevant policy document is properly capable of more than one meaning, and the planning authority adopts and applies a meaning which it is capable as a matter of law of bearing, then it will not have gone wrong in law.”
That statement is applicable where an authorised decision-maker determines whether or not planning permission is to be given. It does not necessarily follow that the same principle applies where the question is not whether planning permission is to be given, but whether a person has delegated authority to determine whether permission should be given. In my judgment it does apply. However, having regard to the content of “agreed policies, standards and guidelines”, to which I have referred above, I conclude that the Planning Committee must have envisaged that the Chief Planning Officer would interpret them when deciding both whether he had authority to determine a planning application and in applying them to the application. It is unlikely that they would have envisaged his referring back to the Committee to decide what a policy meant. Moreover, the principle enunciated by Brooke LJ in R v Derbyshire County Council, ex p Woods means that there is a degree of latitude in the meaning that a decision maker may attach to a planning policy. It would be curious to permit that flexibility for the making of a decision but to deny it to the Committee in determining the scope of delegation. But if there is always such latitude on the part of the Committee, the argument for confining the principle in R v Derbyshire County Council, ex p Woods to the Committee is weakened. So to confine it would mean that the Chief Planning Officer would be unable to determine whether he had authority under paragraph 1.9 of the Scheme of Delegation whenever “agreed policies, standards and guidelines” are reasonably capable of more than one meaning, since the Committee might adopt a different reasonable meaning from his. The possibility would also arise of different meanings being attached to “agreed policies, standards and guidelines” for the purpose of determining whether he has delegated authority and for the purpose of deciding the planning application. Lastly, there may be no clear division between the process of ascertaining the meaning of a policy statement or guideline and its application. To take Policy E45 as an example, there is little difference between the decision as to what is denoted by “a high quality of design and layout” and the decision whether a particular proposal exhibits that quality.
Accordingly, I conclude that a decision of the Chief Planning Officer of the Defendant Council to grant planning permission where he approved development, a written objection had been received, but he reasonably concluded that the proposals did not conflict with “agreed policies, standards and guidelines” of the Council as reasonably interpreted by him, was within his delegated authority.
Turning to the conflicts with the Defendant’s “agreed policies, standards and guidelines” alleged by the Claimant, it is not suggested that the Chief Planning Officer acted unreasonably in interpreting or applying UDP Policy E45 or paragraphs 2.122 and 2.123 of its amplification.
The Claimant’s submissions in relation to the application of section 4(2) of the Defendant’s Supplementary Planning Guidance are more substantial. Mr Jones states that the text of that guidance was incorrect, and that it did not accurately express one of the “agreed policies, standards and guidelines” of the Council. He states that in the words “rear flank boundary of an existing property” the word “flank” was inserted in error; that those words should read “rear boundary of an existing property”; and that so read Section 4(2) does express the relevant agreed policy, standard or guideline of the Defendant Council; and that it has always been so applied in practice. This evidence is contested by the Claimant, who points to the lack of identification of any specific cases in which this provision has been applied in the way Mr Jones applied it in this case.
The expression “rear flank wall” is an unlikely and imprecise one in this context. Mr Moffett took me to examples of the Council’s “agreed policies, standards and guidelines” which would be in obvious conflict with the text of section 4(2) as written, as graphically illustrated by the drawings at pages 10 and 45 of the Council’s Guidelines on House Extensions showing approval of extensions abutting the flank wall of semi-detached house, and by the text of paragraphs C.2 and C.4 at page 17 of that document. Paragraph C.4 refers to an extension sited away from an adjoining side (i.e., flank) boundary as a special circumstance, which it would not be if section 4(2) had the effect contended for by the Claimant. Those matters, together with the subsequent formal amendment of that provision to bring it into line with what Mr Jones states was always agreed, lead me to accept that Mr Jones not only reasonably interpreted (and applied) section 4(2) of the Defendant’s UDP Supplementary Guidance, but also that as he interpreted that provision (i.e., omitting the word “flank” before “boundary”), it correctly set out one of the Defendant’s “agreed policies, standards and guidelines”. So interpreted, it did not apply to the planning proposal for 2 Southacre Way.
The issue in relation to paragraph C.9 of the Council’s Guidelines turns on the question whether the proposed extension to 2 Southacre Way is a two-storey rear extension or, as Mr Jones considered, a side extension. In support of the Claimant’s case that the proposed extension is a two-storey extension, Mr Edwards placed considerable reliance on the description of the extension as a two-storey extension in the planning application and in the grant of permission. Mr Jones considers this description to be an error, on the basis that the drawings of the proposed extension submitted and approved by him show no part of the first floor extension extends beyond the existing rearmost wall at first floor level of the existing property. In my judgment whether the proposal is or can reasonably be considered not to be a two-storey extension within the meaning of paragraph C.9 must depend not on its verbal description but on the drawings showing the proposed (and the permitted) development, which show what is actually to be constructed. On that basis, in my judgment Mr Jones was entitled reasonably to conclude that the proposed extension was not a two-storey extension within the meaning of paragraph C.9.
It follows that Mr Jones had authority to grant the planning permission in this case, and that this claim for judicial review must be dismissed. It is therefore unnecessary for me to consider whether, if the planning permission were unauthorised, relief should be refused in the exercise of the Court’s discretion on the ground that the Planning Committee subsequently decided that it would approve the grant of permission.
It is accepted by the Claimant that as a result of my decision the Defendant is entitled to its costs, the amount of which is not disputed. There will be an order that the Claimant pay the Defendant’s costs which I assess in the amount of £10,985.
MR JUSTICE STANLEY BURNTON: My judgment in this case has been distributed in draft. For the reasons set out in my judgment the claim is dismissed. There will be an order for costs as provided for in the judgment. Copies of the judgment are available for those who may be interested.
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