QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BRIAN BURGESS||(CLAIMANT)|
|THE FIRST SECRETARY OF STATE|
|GUILDFORD BOROUGH COUNCIL||(DEFENDANTS)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR D KOLINSKY (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
First issue: Policies 99RE2 and 99H9
"Within the Metropolitan Green Belt, as shown on the Proposals Map, new building will be deemed inappropriate unless it is for the following purposes. . .
3. Limited extension, alteration or replacement of existing dwellings providing it is in accordance with Policies 99H6 and 99H9."
" . . . extensions to dwellings will be permitted provided the development:
1. Will not result in the loss of a small dwelling;
2. Will have no adverse effect on the scale and character of the dwelling;
3. Will have no adverse effect on the amenities enjoyed by the occupants of buildings in terms of privacy and access to sunlight and daylight;
4. Will have no adverse effect on the existing context and character of the adjacent buildings and immediate surroundings.
In addition to the above criteria, outside the identified settlements and within the Green Belt there will be a presumption against extension to dwellings which result in disproportionate additions taking into account the size of the original dwelling."
"For the purposes of this policy, a conservatory will be considered as an extension to a dwelling as will applications for garages or domestic outbuildings (incidental to the enjoyment of the dwelling) which are not physically attached to the dwelling . . . "
Paragraph 5.41 was not included in the material supplied to the inspector by the Council. It was included neither with the completed questionnaire nor with the subsequent appeal statement. The omission was not noticed at the time. There was at one point in these proceedings a dispute about whether there had been an omission from the questionnaire at all, but it is now accepted that the inspector did not have that paragraph before her. It is also accepted all round that that was an unfortunate omission. No useful purpose is served by attributing blame and it is not necessary to consider whether the inspector herself should have spotted the omission. What matters is the consequence of the omission for the inspector's reasoning and decision.
Second issue: Policy 12RE
"When considering development proposals within the AONB or AGLV as shown on the proposals map, the Council will take special care to ensure that development proposals are not detrimental to these characteristic landscapes."
"The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector's reasoning. A reference to a policy does not necessarily mean that it played a significant part in the reasoning. It may have been mentioned only because it was urged on the inspector by one of the representatives and he wanted to make it clear that he had not overlooked it. Sometimes his statement of policy may be elliptical, but this does not necessarily show misunderstanding. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy or proposed alteration to policy."
Third issue: change of description of proposal
Fourth issue: factual errors
"On my site visit I recall that I viewed the existing garage roof from the woodland where it was clearly visible. The railings around the proposed balcony are only slightly lower than the ridge height of the existing roof. They would be clearly visible from the woodland, as would persons standing or sitting in this area. The larger roof in the proposed development would also be clearly visible."
"On my site visit I recall that I spent time assessing the level of overlooking of Heathcote. To do so I assessed the impact from the existing landing which was in the same position but lower than the proposed balcony. I considered that when occupants and visitors to Heathcote park and walk up to the house, they will be conscious of being directly overlooked as they proceed towards and from the house. I concluded that anyone standing or sitting on the proposed balcony would be very close to and would be able to see the driveway and parking area to Heathcote".
"As I stated in my submission letter, in my opinion the proposal would cause harm to the AONB and AGLV, as well as harming the living conditions of the occupiers of other properties."