QUEEN'S BENCH DIVISION
B e f o r e :
|MR D PATEL|
|(1) SECRETARY OF STATE FOR TRANSPORT,|
|LOCAL GOVERNMENT AND THE REGIONS|
|(2) THE MAYOR & BURGESSES OF THE|
|LONDON BOROUGH OF BRENT|
of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 0207-421 4040/0207-404 1400
Fax No: 0207-831 8838
(Official Shorthand Writers to the Court)
MR J MAURICI (instructed by the Treasury Solicitors) appeared on behalf of the first defendant
MISS WIGLEY (instructed by the Borough Solicitor) appeared on behalf of the second defendant
MR J GOLSTEIN appeared in person as an interested party
Crown Copyright ©
"Single storey rear extensions
B1 This type of extension is usually acceptable, providing it complies with the following depth limits. The depth is measured externally from the main back wall of the original house and includes the depth of bay windows...
Semi detached house - 3.0 metres."
"In circumstances where for example the impact on neighbouring properties is greater than usual because the properties are at different levels, the depth of the extension will be reduced. In exceptional circumstances the layout of neighbouring properties may also allow a slightly increased depth."
"Rear extensions should be designed to respect the character and size of your house. You will have to be particularly careful with the design of your extension if your home is located at the end of a terrace or is corner property as it is likely to be visible from the street. Extensions to extensions are usually not acceptable except where no material harm arises. However, any extension may be required to be set off the boundary."
"The maximum depth permitted is 3.0 metres. However, if your neighbour's house is set at a lower level or has a different rear building line this depth may have to be reduced."
"The SPG does not actually say that 3m is the maximum allowable depth for single storey rear extensions to semi-detached houses, although the implication is that this is the normally accepted maximum. In fact the guidance goes on to say that, in exceptional circumstances, the layout of neighbouring properties may allow a slightly increased depth."
"5. Whilst SPG5 provides sound general advice, I consider that it should be interpreted with sensitivity. For example it does not specify if, or how, the 3 metre guideline can be varied to reflect the existence of neighbouring extensions. To my mind the application of the guideline in the present case should reflect the fact that No 24 itself has a 3m deep single-storey rear extension, which projects about 1.2m beyond No 22's existing rear wall. The result is that the proposed conservatory would project only about 3m beyond this extension.
6. In discussing the 3m guideline, the Council's appeal statement says that it has been developed to minimise the impact of overshadowing on adjoining properties. However, I consider that the degree of overshadowing is more directly dependent on the distance an extension projects beyond the adjoining house than the distance it projects beyond the original rear wall of the parent house. In the present case the distance the conservatory would project beyond the rear of No 24 would be almost equal to the 3m in the guideline, and I do not consider that it would unacceptably obstruct the outlook from the rear of the adjoining property or conflict with the objectives of policies E1 or H22."
"I take it as general law that, if the court is considering whether to quash a decision of the Secretary of State, it should normally look only at the material put before him, which means the material put before his inspector. Indeed, Mr Brown reminded me that I so held myself not very long ago in Sears Blok v Secretary of State for the Environment. That was a case, put quite shortly, in which counsel was urging me to admit evidence that, had it been admitted, might have shown that a specific finding of fact made by the inspector was wrong. It was a finding of fact relating to the ambit of a planning permission. It was not a matter that related to evidence within the knowledge of the Secretary of State. In considering whether there may be exceptions to the general rule, I propose to confine myself to dealing with evidence relating to matters within the knowledge of the Secretary of State. There may be other circumstances in which, in exceptional cases, it would be right to admit fresh evidence, but I am concerning myself solely with the question, which, so far as I or counsel are aware, has yet to be decided, namely: 'If there is information in the Department and thus available to the Secretary of State that corrects or contradicts material put before the inspector at the inquiry, is it right when that information comes to light, that the court should allow it in evidence and thus take it into account in reaching its decision?'."
"Fresh evidence should not be admitted save in exceptional circumstances. It is not correct for the court to approach the case absolutely de novo as though the court was sitting to decide the matter in the first instance. The court can receive evidence to show what material was before the Minister; but it cannot receive evidence of the kind which was indicated in the present case so as to decide the whole matter afresh."
"Though I do not question the correctness of the decision in Ex parte Hawthorn ... I do question whether it is correctly classified as a case depending on either procedural impropriety or a breach of the rules of natural justice. Certainly there was unfairness in the conduct of the proceedings, but this was because of a failure by the prosecutor, in breach of a duty owed to the court and to the defence, to disclose the existence of witnesses who could have given evidence favourable to the defence. Although no dishonesty was suggested, it was this suppressio veri which had the same effect as a suggestio falsi in distorting and vitiating the process leading to conviction, and it was, in my opinion, the analogy which Lord Widgery CJ drew between the case before him and the cases of fraud, collusion and perjury, which had been relied on in counsel's argument, which identified the true principle on which the decision could be justified."
"These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than a resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument."
"... in the ordinary way it was for the applicant to produce the evidence to be put before the board and there was no onus on the board or the police to obtain it or on the board to adjourn the case for further investigation if the applicant did not request it to do so; but, on the facts, and in the light of the importance of the police co-operating with the board in the obtaining of evidence, there had been unfairness and a breach of the rules of natural justice in the omission of the doctor's evidence."
"Mere factual mistake has become a ground of judicial review described as 'misunderstanding or ignorance of an established and relevant fact' [that is a reference to Tameside] or acting 'upon an incorrect basis of fact'... This ground of review has long been familiar in French law and it has been adopted by statute in Australia. It is no less needed in this country, since decisions based upon wrong facts are a cause of injustice which the courts should be able to remedy. If a 'wrong factual basis' doctrine should become established, it would apparently be a new branch of the ultra vires doctrine, analogous to finding facts based upon no evidence or acting upon a misapprehension of law."
"The taking into account of a mistaken fact can just as easily be absorbed into a tradition legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision on any evidence. In this limited context material error of fact has always been a recognised ground for judicial intervention."
"It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness. Thus I would accept that it is in the ordinary way for the applicant to produce the necessary evidence. There is no onus on the board to go out to look for evidence, nor does the board have a duty to adjourn the case for further inquiries if the applicant does not ask for one. I accept as a general proposition the statement of Hutchison J in Ex parte Parsons (unreported) ...
'Provided reasonable steps are taken to obtain material and place it before the board, and provided the material that has been obtained is fairly deployed and there is no concealment or unfair advantage taken, then the board has fulfilled its proper function.'
Nor is it necessarily the duty of the police to go out to look for evidence on particular matters.
But the police do have a special position in these cases. The applicant accepted that the police had initially been supportive, even though she later criticised [particular evidence] and there is no doubt that in the 10,000 or so decision hearings a year, the board is very dependent on the assistance of and the co-operation of the police who have investigated these alleged crimes of violence."