England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 July 2002

 
Mr Justice Richards:

1. This case concerns the grant of planning permission for residential development for 78 apartments with associated basement and surface access at 42-48 Church Hill Road and 2-10 Whitefields Road, Solihull. The developer, Cala Homes (Midlands) Limited (“Cala”), appealed to the Secretary of State against the failure of the local planning authority, Solihull Metropolitan Borough Council (“the Council”), to determine its planning application for the site. By decision dated 31 December 2001 the inspector appointed by the Secretary of State allowed the appeal and granted planning permission subject to conditions. The Council now challenges that decision.
2. The site is described in the inspector’s decision as generally flat, about one hectare in extent and approximately triangular in shape. It lies to the south of the town centre, separated from Princes Way by Alderwood Place, a 1980s development of apartment blocks. To the west it is bounded by a main railway line. The site is presently occupied by 9 large, two-storey, detached and semi-detached houses with rear gardens up to 100 metres long.
3. The development plan for the area comprises the Solihull Unitary Development Plan adopted in April 1997. The most material policy is Policy H4, which states:

“The Council will support the development of new windfall sites so as to achieve the target of 2,030 dwellings required in Policy H1. However, planning permission will only be granted if the proposals duly pay regard to the surrounding areas and do not conflict with other policies of the Plan.”

4. The material national guidance is PPG3: Housing (2000), to the relevant provisions of which I shall return.
5. Although the Council failed to reach a timely decision on the planning application, it resolved that had it been able to do so it would have refused permission for the following reasons, so far as material:

“i) Whilst re-development of this site with some form of flatted redevelopment would be acceptable, the scale and massing of this scheme would be incongruous and adversely affect the character and appearance of this site and the area not least at such a gateway to Solihull town centre. As such the proposals do not accord with the recently approved Unitary Development Plan policy H4 nor with guidelines set out in PPG3 – Housing and would have an adverse effect on residential amenity.

ii) The layout and intensity of development proposed would result in an unduly cramped and insensitive scheme squeezed into the site at an excessive density bearing little relation to its context.”

The decision

6. The inspector identified the main issue as the impact of the proposal on the character and appearance of the locality in terms of scale, massing, layout and density.
7. Under the heading “reasons” he then stated as follows:

“11. As stated in draft refusal reason i) and made clear at the inquiry, the Council does not object in principle to the re-development of the site with flats. The site is close to the town centre with good access to services and facilities, including public transport. To that extent, it is agreed to be in a sustainable location for new housing, where densities above the range of 30-50 dwellings per hectare net may be appropriate, as set out in paragraph 58 of PPG3 – Housing. Moreover, as confirmed in the report to committee by Council officers on the application, flatted development on the periphery of (the) town centre has been accepted for many years”.

12. Examples of the varying scales and densities of such development were referred to, including Alderwood Place adjoining the site, a scheme of three storey apartment blocks built on land between the railway line and Princes Way. Albeit at a lower density than now proposed, in my opinion, this scheme plays an important role in defining a transitional area, in terms of both building height and scale, between the town centre proper on the other side of Princes Way and the two storey housing to the east and south east. In that context, I consider that six further apartment blocks, albeit with a larger footprint in each case, would not be inconsistent with the general built form and layout of development in the locality.

13 I also take the view that the proposal would represent a logical extension and completion of the form, layout and style of Alderwood Place within the well defined boundaries of the railway line and the roads to the north and east. Accordingly, I consider that the contrast in terms of height and massing between the proposed blocks and the housing on the eastern side of the roads would not be materially greater or different than that between Alderwood Place and those properties. To my mind, the character of this transitional zone close to the town centre is defined more by the former than the latter in both physical and visual terms from public viewpoints. Nor, in my opinion, would three storey buildings be excessive in relation to the two storey housing opposite in terms of scale or proportion. Consequently, in my judgement, the continuation of a denser, more urban form along this side of Church Hill Road and into Whitefields Road, whilst introducing change, would not be harmful to the general character of the area.

14 Although extending the zone of higher density housing visible to the casual observer along those roads, the visual effects of the increased scale of building would be reduced by the set back from the road. It would also be mitigated by the retention of much of the existing peripheral vegetation, resulting in road frontages having a similarity with those of Alderwood Place. In such circumstances, whilst changed to a degree, the character and appearance of the locality would not be materially harmed by the height or scale of the new buildings, partly due to its relative isolation within the boundaries of the triangle formed by the railway and the roads. Notwithstanding the location on one of the gateways to the town centre, the elevational treatment and gaps between the frontage blocks would also help to ensure that the massing of the new structures would not appear overbearing or unduly dominant in relation to other nearby buildings.

15. Both the Council and other parties considered that, if permitted, the scheme might set some form of precedent for the re-development of other low density housing areas around the town centre, which are a feature of Solihull. Attention was drawn to land at The Crescent (doc.13) as an example. However, national planning policy, as expressed in PPG3 applies to Solihull as to any other town or city. By any standards the existing housing at 9 dwellings per hectare represents a low density of development, particularly close to the centre of a large town. In the absence of any special justification, such as Listed Buildings, Conservation Areas or adopted development plan policies concerning important townscape features to be protected, it would be inappropriate to presume against schemes for the intensification of existing housing areas, particularly on density grounds alone.

16. Nevertheless, I am satisfied that, given the well known principle that “each scheme should be decided on its own merits etc”, the council’s development control policies, notably H4, would not be undermined in relation to other similar sites if this proposal were to be approved on its own merits. Accordingly, in my view, no form of precedent would arise. I conclude on the main issue that the scheme would not have a harmful impact on the character and appearance of the locality in terms of scale, massing, layout or density. It would comply with policy H4 and the SUDP, as well as policies H5 and ENV4, and is therefore acceptable.”

8. After a section on “other matters” he dealt with the question of conditions. He stated inter alia that in the interests of the visual amenities of the area the Council should retain control over external materials, hard and soft landscaping, together with its implementation and maintenance, and the retention of existing trees. He went on:

“For similar reasons, the full architectural details unfortunately missing from the plans prepared to date should also be submitted. I shall impose conditions, based on the wording in [Circular 11/95], accordingly.”

9. For the reasons given, and having regard to all other matters raised, he concluded that the appeal should be allowed. In the exercise of the powers transferred to him he allowed the appeal and granted planning permission subject to conditions. Condition 9, relating to the question of architectural details, was in these terms:

“Notwithstanding the submitted plans, no development shall take place until there has been submitted to and approved in writing by the local planning authority drawings at not less than 1:50 scale showing full architectural details of all eaves, balconies, fenestration, porches, lifts, drain pipes, rainwater goods and underground car parking vents.”

The grounds of challenge

10. The council is troubled by what it believes it to be the precedent established by the decision, which it fears will open the floodgates to applications for permission for new flatted developments replacing existing housing of good quality. On its behalf Mr Smith QC acknowledges that the inspector’s value judgments cannot be impugned but he submits that the inspector made a number of errors that do render his decision open to challenge.
11. There is a degree of overlap between some of the points advanced. Essentially, however, the points are these:

i) The inspector failed to take (or to give reasons to show that he had taken) the correct starting point, namely the site in its existing state as a residential development of quality housing. What is going to be lost by development of this nature is a material consideration. It is not enough to concentrate on what is going to replace it.

ii) The inspector failed to have regard (or to give reasons to show that he had had regard) to important aspects of the guidance in PPG3. One of the threads running through PPG3 is that new development should result in an amelioration or improvement. The decision contains no recognition or consideration of this important policy objective.

iii) It was illogical and therefore irrational for the inspector to treat the appeal site as part of, or as an extension of, the “transitional area” between the town centre and the two-storey housing to the east and south east (paragraphs 12-13 of the decision). The appeal site forms part of the areas between which the transition lies. It is part of the two-storey housing beyond the transitional area and cannot be treated as part of the transitional area itself.

iv) The inspector was wrong to reach the judgments he did without having the full architectural details of the proposal, which were treated as reserved matters and the subject of condition 9. It was not sufficient to include a condition. The full details were needed for a proper decision to be reached in the first place.

v) The inspector’s reasoning on the issue of precedent was defective. The statement in paragraph 16 of the decision that “no form of precedent would arise” was a straight contradiction of what he said in paragraph 15; and the effect of his decision, which provided no basis for distinguishing the appeal site from other similar sites in Solihull, was in fact to set a precedent.

12. In relation to the contentions that the inspector failed to take into account relevant considerations and/or failed to give adequate reasons, Mr Smith referred me to Bolton Metropolitan District Council v. Secretary of State for the Environment [1995] JPL 1043 and Save Britain’s Heritage v. Number 1 Poultry Limited 1991 1WLR 153. For an example of a case involving detailed reasoning on the application of PPG3, he cited Wigan Metropolitan Borough Council v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 587, [2002] JPL 417. On the issue of precedent he referred to Reading Borough Council v. Secretary of State for the Environment and Commercial Union Properties (Investments) Limited (1985) 52 P&CR 385 and also to Save.
13. Mr Corner QC, for the Secretary of State, took issue with Mr Smith’s submissions on each of the five issues. Mr Corner’s submissions were adopted in their entirety by Mr Lowe QC for Cala, though he also provided some elaboration of his own. I shall refer to the various submissions as necessary in considering each of the issues, which are conveniently dealt with sequentially.
14. I should record that it was common ground that planning judgments were a matter for the inspector as decision-maker (Welsh Development Agency v. Carmarthenshire County Council (1999) P&CR 192), that the interpretation of policy was a matter for the inspector provided that the meaning adopted by him was one that the policy was capable of bearing (R v. Derbyshire County Council, ex parte Woods [1997] JPL 958) and that references to policies in the decision letter must be taken in the context of the general thrust of the inspector’s reasoning (South Somerset District Council v. Secretary of State [1993] 1 PLR 80).

Issue (i)

15. The points made by Mr Smith on this issue must be evaluated in the context of the way in which the Council put its case at the inquiry. As Mr Corner submitted, there is no evidence that the Council was opposing all proposals for redevelopment of the site and was therefore contending that the existing housing must be protected from any redevelopment. On the contrary, as the inspector stated in paragraph 11 of his decision, the Council did not object in principle to the redevelopment of the site with flats. Its objections were to the particular proposal. The question for the inspector, therefore, was the impact of the particular proposal on the character and appearance of the locality - the very question that he identified as the main issue, the formulation of which is not challenged. Resolution of that issue necessarily involved consideration of the existing character of the area (including the existing housing) and the consequences of the change that would be brought about by the proposed redevelopment (including the loss of the existing housing). The inspector could not sensibly consider the main issue without considering those matters.
16. In my judgment it is plain that the inspector did give proper consideration to those matters. He was fully aware of the nature of the housing on the appeal site, which he described at paragraph 8 of the decision. He bore in mind the thrust of the Council's case, directed not to the principle of redevelopment but to the particular proposal. He had clearly in mind the nature of the change that the proposal would bring about (i.e. the loss of the existing housing and its replacement with the flatted development). Both at the end of paragraph 13 and in the middle of paragraph 14 he referred in terms to the change and concluded that it would not be materially harmful to the character or appearance of the locality.
17. Accordingly I reject the submission that the inspector failed to have regard to the starting point of what was on the site already and concentrated solely on what was going to replace it. He had both aspects clearly in mind and carried out a careful assessment of the effects of the change. His reasoning is clear and sufficient.

Issue (ii)

18. Mr Smith submitted that, although the inspector referred to what is said in PPG3 about housing density, those passages of the guidance have to be read in the light of the thread of policy in PPG3 to the effect that new development should be ameliorative. What is said about density does not mean that PPG3 automatically favours the replacement of existing quality houses with higher density housing.
19. In support of the contention that one of the threads of policy in PPG3 is that development should be an improvement on the existing position, Mr Smith referred inter alia to the statements in paragraphs 1 and 2, under the heading of "The Government's Objectives", that "[n]ew housing and residential environments should be well designed and should make a significant contribution to promoting urban renaissance and improving the quality of life" and that local planning authorities should "promote good design in new housing developments in order to create attractive, high-quality living environments in which people choose to live"; and to the statement in paragraph 3, under the general heading "Widening Housing Opportunity and Choice", that "… to promote sustainable development, the need for economic growth has to be reconciled with social and environmental considerations, particularly those of conserving and enhancing the quality of our environment in both town and country" (emphasis added in each case).
20. Mr Smith also placed weight on a number of passages in paragraphs 46 et seq. under the general heading "Creating Sustainable Residential Environments": for example, that local planning authorities should promote "a greater emphasis on quality and designing places for people" (paragraph 46), that "[g]ood design and layout of new development can help to achieve the Government's objectives of making the best use of previously-developed land and improving the quality and attractiveness of residential areas" (paragraph 54, emphasis added), and that local planning authorities should adopt policies which "respect and enhance local character" (paragraph 56, emphasis added).
21. PPG3 contains several passages on the desirability of maximising the use of previously developed land, including windfall sites, in preference to greenfield site (see e.g. paragraphs 6, 22, 31, 35, 41). It is accepted by the Council that the appeal site falls within the definition of previously developed land. Mr Smith submitted, however, that the guidance in relation to previously developed land contemplates derelict sites or empty property rather than the replacement of existing good quality housing and that the guidance should not be read as favouring the development of previously developed land where it would not be an improvement.
22. Those are matters that, in Mr Smith's submission, the inspector ought to have addressed. The statement in paragraph 58 that local planning authorities should "encourage housing development which makes more efficient use of land (between 30 and 50 dwellings per hectare net)" has to be read subject to that thread of policy. It was simplistic and erroneous of the inspector to refer to the policy aim of increasing density without dealing with the general policy aim of seeking improvements over the existing position.
23. In my judgment Mr Smith's submissions seek to extract from PPG3 a policy thread that the text of PPG3 does not support. PPG3 is not be read as including a specific development control policy that new development should be an improvement over the existing position in the sense advanced by Mr Smith. Paragraphs 1 and 2 are concerned with broad and potentially competing objectives, including matters such as the efficient use of land and maximising the use of urban sites as well as promoting attractive, high quality living environments. They do not translate into a specific policy that each new development should be an improvement in terms of housing quality or quality of the environment. Indeed, embedded in them is the point that more efficient use of land in a sustainable location such as an urban site is to be regarded as desirable in itself.
24. Moving on to some of the other parts of PPG3 referred to by Mr Smith, the passage relied on in paragraph 3 does not support the contention that new development should be an improvement: it refers to "conserving or enhancing" the quality of the environment, not only to "enhancing" it. What is said in paragraph 46 about placing greater emphasis on quality must be read with the other aims referred to, including that of promoting the most efficient use of land, and cannot be read as a specific policy that new development should be of higher quality than existing development. The passage relied on in paragraph 54, whilst referring to the contribution that good design and layout can make to achievement of two of the Government's general objectives, namely making best use of previously developed land and improving the quality and attractiveness of residential areas, again not does amount to a policy that new development should be of better design and layout than the existing. The statement in paragraph 56 that policies should create places and spaces which "respect and enhance local character" likewise falls short of a specific policy that new development should improve the character of the area. The passages on the use of previously developed land are not subject to the gloss that Mr Smith sought to put on them. They support the more efficient use of land in a sustainable urban location such as the appeal site.
25. In any event the submission that the inspector failed to have regard to the relevant passages of PPG3, or failed to give reasons to show that he had regard to them, fails to get off the ground. There was no obligation on the inspector to deal with PPG3 any more fully than he did. He was required to state his reasons in sufficient detail to enable the reader to know what conclusion he had reached on the "principal important controversial issues" (see the Bolton decision cited above). The evidence shows that it was agreed between the parties that the principal issue was that set out by the inspector, i.e. the impact of the proposal on the character and appearance of the locality, and that the Council's essential case was that the development would harm the character and appearance of the area (not that it would fail to lead to an improvement). The inspector dealt adequately with the issue and with the Council's case. There is nothing to show that a principal important controversial issue was whether PPG3 contained a policy requirement that new development should be an improvement over existing development or that the Council's case on harm to the character and appearance of the locality was being advanced in the context of a claimed policy of that kind. It was therefore not necessary for the inspector to deal with PPG3 to any greater extent than he did. There was nothing to require the kind of examination of PPG3 that took place in the Wigan MBC case relied on by Mr Smith. The inspector referred to PPG3 and must be taken in any event to have been aware of the general policy background to the case. The Council has not established that he failed to take into account a material part of that policy background or that he erred in his interpretation of relevant policies.
26. On both those grounds, therefore, I reject the Council's case on issue (ii).

Issue (iii)

27. The need to avoid construing a decision letter as if it were a statute is well established. It tells strongly against subjecting a decision to undue logical scrutiny. But in my judgment that is just what Mr Smith's submissions on this issue seek to do. They seek to convert what was plainly intended to be a matter of broad planning judgment into a series of logical propositions. It is obvious that when the inspector referred to the proposal as "a logical extension and completion of the form, layout and style of Alderwood Place" he was not thinking in terms of syllogistic logic but was expressing a planning judgment as to the appropriateness of the proposed development as an extension of what was already there in Alderwood Place. That was a judgment properly open to him.
28. Even if one does embark upon detailed logical analysis of this part of the decision, it seems to me that the inspector cannot be faulted. He does not define the transitional area in terms of Alderwood Place, such that the two storey housing to the east and south east (including the appeal site) necessarily falls outside the transitional area and cannot logically be treated as an extension of it. The transitional area to which the inspector refers is a broader area and includes the appeal site. Thus what he says in paragraph 12 is not that Alderwood Place is the transitional area but that the scheme at Alderwood Place "plays an important role in defining a transitional area". That transitional area is the same as the "transitional zone" to which he refers in paragraph 13. He states in paragraph 13 that the character of the transitional zone is defined more by Alderwood Place than by the properties on the eastern side of the roads. He also states that the contrast in terms of height and massing between the proposed development and the housing on the eastern side of the roads would not be materially greater than or different from that between Alderwood Place and those properties. In those circumstances it is perfectly logical to conclude that the proposed development accords with the character of the transitional area and to refer to it as a logical extension and completion of the form, layout and style of Alderwood Place.
29. In my judgment, therefore, the argument based on illogicality is misconceived and unsustainable.

Issue (iv)

30. As I understand the case advanced by Mr Smith on this issue, it is not that the condition itself was unlawful but that in the circumstances it was not open to the inspector to reach a judgment on the merits of the proposal without having full architectural details.
31. If there is a challenge to the lawfulness of the condition, it fails. I accept Mr Corner's submission that the condition met the tests in Newbury District Council v. SS for the Environment [1981] AC 578 that it must be imposed for a planning purpose, it must fairly and reasonably relate to the development permitted by the planning permission and it must not be unreasonable.
32. I also reject the contention that the inspector could not judge the merits of the proposal without the specific architectural details referred to in the condition. He had ample information upon which to form the relevant judgments about the effect of the proposal on the character and appearance of the locality in terms of scale, massing, layout and density. The details referred to in condition 9, namely full architectural details of eaves, balconies, fenestration, porches, lifts, drain pipes, rainwater goods and underground car parking vents, were not necessary for that purpose.

Issue (v)

33. As I understand Mr Smith's submissions on this issue, there are several intertwined strands to them: first, that the position adopted by the inspector in paragraph 15 is in effect that a precedent is established by PPG3; secondly, that the inspector adopts an inconsistent position in paragraph 16 when he states that no form of precedent would arise; and thirdly that, contrary to what the inspector says about no form of precedent arising, the decision does in fact establish a precedent.
34. I do not accept any part of those submissions. In my judgment the inspector is not guilty of inconsistency, his decision does not have the precedent effect alleged and, in particular, it does not open the floodgates to further development in the manner feared by the Council.
35. In paragraph 15 the inspector refers fairly and accurately to PPG3. As he says, PPG3 applies to Solihull as to any other town or city; and in saying that the existing development on the appeal site, at 9 dwellings per hectare, is low, he clearly has in mind the comparison with the figures in PPG3 which aim in general for a density of 30 or more dwellings per hectare. The proposition that in the absence of any special justification it would be inappropriate to presume against schemes for the intensification of existing housing areas, particularly on density grounds alone, is unexceptionable. What is said about the effect of PPG3 goes no further than that. The inspector does not say or suggest that the effect of PPG3 is to establish a precedent or to result in his decision establishing a precedent. (I therefore reject a point made in Mr Lowe's skeleton argument, but not repeated orally, that the inspector concluded that if there was a precedent it was established by the policies of PPG3. In my view the inspector does not even go that far in his observations about the effect of PPG3.)
36. That the inspector is not purporting to establish a precedent or saying that a precedent is established is clearer still from the next paragraph, where he goes on to cite the principle that each scheme should be decided on its own merits and to express the view that the Council's development control policies, notably Policy H4, would not be undermined in relation to other sites if this proposal were to be approved on its own merits. Such a view was entirely reasonable. Policy H4 provides in terms that planning permission will only be granted if the proposals duly pay regard to the surrounding areas and do not conflict with other policies in the Plan. Whether a proposal pays due regard to the surrounding areas is pre-eminently a question of judgment based on the particular proposal in its particular context. By forming a judgment on that issue in relation to the specific facts of the application before him, the inspector was not establishing a precedent. That is underlined by the very careful way in which he examined the particular proposal in its individual context at paragraphs 12-14 of his decision.
37. The present case is readily distinguishable from the Reading Borough Council case relied on by Mr Smith. In that case the Secretary of State's decision was such that, if applied generally, it would produce a result inconsistent with the policies of the structure plan which he himself had approved; and there was a failure to make clear whether the decision was limited to the special circumstances of the site or was of general application and, if the latter, how it was to be reconciled with a local plan which purported to carry into effect the structure plan policies. Accordingly there was a real problem in relation to precedent which had not been dealt with adequately in the reasons. In the present case, for reasons clearly expressed, the inspector found that the particular proposal was consistent with the development plan and that approval of the proposal would not undermine the policies of the development plan. In the circumstances nothing further was required.
38. Nor do I consider that Save assists the Council on the issue of precedent. In that case the concern as to precedent was said to be without foundation because, although there was a departure from policy, it was in "special circumstances" that affected the appeal site but were unlikely to be repeated. It does not follow that more need be said on precedent in a case where there is no departure from policy and the reasons why the proposal conforms with policy are clearly explained. In any event there is nothing in Save to cast doubt on the lawfulness of the inspector's approach to the issue of precedent in this case.
39. I therefore reject the Council's contention that the inspector's handling of the issue of precedent was illogical, inadequately reasoned or otherwise unlawful. There is nothing in the decision that opens the floodgates in the way that the Council claims to fear. Neither the inspector's reasoning in relation to the individual site nor his approach to the relevant policies has that effect. I note finally, though in the event nothing turns on it, that the Council's professed concerns as to precedent fit very uneasily with its acceptance of the principle of redevelopment of this particular site with flats.

Conclusion

40. For the reasons given above the Council's case fails on all grounds and the claim is dismissed.