QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HANNA TAUSSIG||(CLAIMANT)|
|(1) FIRST SECRETARY OF STATE|
|(2) MR BERG|
|(3) MRS BERG|
|(4) LONDON BOROUGH OF HARINGEY||(DEFENDANTS)|
MR J STRACHAN (instructed by THE TREASURY SOLICITOR) appeared on behalf of the FIRST DEFENDANT
Crown Copyright ©
Friday, 12th September 2003
"Applications to extend converted properties will normally be refused unless exceptional circumstances can be demonstrated."
As is apparent from the fact that the parties have flats one above another, the building in which they are contained, originally erected as a single, large, Victorian dwelling house, has been converted, as I understand, into seven separate flats.
"In recognition of the detriment to neighbours' amenity that may result from overintensive use of a converted property, Policy HSG 2.9 states that extensions to converted properties will normally be refused unless exceptional circumstances can be demonstrated."
In spite of having so recited the policy, it is said, however, that the decision letter failed to identify any exceptional circumstances which had been demonstrated to justify the granting of a permission to extend this converted property which otherwise, in accordance with the policy, should normally be refused.
"[It] aims to protect the privacy and amenity of neighbouring residents."
"In order to protect the reasonable amenity of neighbours, planning permission for development or change of use should meet the following criteria:
1. The scheme would not be unacceptably detrimental to the amenity of adjacent users, residents and occupiers, or the surrounding area in general."
The other matters to which consideration has to be given in respect of policy DES 1.9 need not concern the court.
"As requested, I viewed the appeal site from the flat immediately above it, no. 28C, [that is to say, the present applicant's flat] which is the flat most likely to be affected by the proposal. During my visit I saw that the proposed conservatory would be directly below the main living room window, although the ridge of the roof would not extend as far upwards as the window ledge. To anyone standing at the window, the roof of the conservatory would be clearly visible but it would fill only a small proportion of the existing open and extensive view down the rear gardens of the houses in Southwood Avenue and Southwood Lawn Road. Moving only one step back from the window would further reduce the extent of roof which would be visible. In my opinion the proposed conservatory would not result in an unacceptable degree of visual intrusion to the occupiers of no. 28C or to any of the other adjoining neighbours.
"In my experience patio areas such as the appellant's can be used extensively for entertaining for much of the year and often have outdoor lighting installed. The enclosure of such activity and the provision of lighting within a conservatory would in my view reduce any disturbance to the adjoining residents, including noise, and would increase the privacy of all parties. I have taken into account the neighbour's comments on glare, dirt, damp, noise of rain on the roof, and security. However, none of these considerations alters my view that the proposal would not result in such an adverse impact on the living conditions of neighbouring residents that it should not be allowed."
That is clearly a direct reference to the criterion 1 in DES 1.9 which I have already read.
"3.37. Conversion of a property results in the intensification of use of the original dwelling house. Extensions, including conversions of lofts, are normally resisted when permission is sought to convert a property in order to avoid an over-intensification of use that would be detrimental to amenity of adjoining residents. It would therefore be inconsistent and inappropriate to accept extensions once a property has been converted. Exceptions to this policy may be made where an applicant can demonstrate exceptional circumstances relating to their particular case. The Council will have regard to Supplementary Planning Guidance; SPG 2.4".
"Turning to the matter of the increased intensity of use of the converted building, Policy HSG 2.9. explains that conversion of one property into several units will in itself increase the intensity of use compared with a single dwelling. It suggests that extensions, either during conversion or afterwards, could result in overintensive use of a property, which would be detrimental to the amenity of adjoining neighbours."
She then sets out what I take to be her judgment on the issue raised by policy HSG 2.9 as follows:
"In this case, however, the building is considerably larger than the majority of individual dwellings in the surrounding area and it is set on a spacious plot. The appellant's flat has its own patio and garden area which could be intensively used in its current form. In my view, the patio could be considered as already forming part of the living space associated with the flat and the conservatory will do no more than enclose part of that space. I have considered above the impact of the proposal on the amenities of the occupier of the flat immediately adjacent to the proposal."
I interpolate that was her consideration of the issues arising out of policy DES 1.9 which was concerned merely as to the satisfaction of a criterion, of not being unacceptably detrimental to the amenity of adjacent users. She continues:
"The communal garden which is available for use by the residents of all 7 flats will not be affected by the proposed conservatory. As a result of these particular circumstances I do not consider that the purpose of the policy would be undermined by allowing the appeal."
"Only in compelling circumstances will development be permitted where it would...
(2) be obtrusive in or damaging to the landscape, particularly in Areas of Outstanding Natural Beauty...
(8) be within a strategic gap between built up areas."
"The site is designated as within both the strategic gap and the AONB, and the proposal was rejected by the council for non-compliance with the relevant policies. In those circumstances I see the question whether significant harm would result to those policy objectives as the primary issue in the case.
Having posed the question, I think the answer appears readily from what I saw of the site and surroundings, particularly in the light of the ongoing or imminent changes that the extension of Crawley and the provision of the south-west by-pass will bring about. I understand the Council's concern to prevent coalescence and to protect the AONB. These are important considerations on the basis of which previous proposals for petrol filling stations and allied development along the A264 between the 2 towns have been quite properly rejected. However the site is at the very tip of the AONB, in a position where because of the landform it appeared to me very firmly visually linked to the land to the north, outside the AONB, and to the east, still within the AONB but consisting of only a small area of land soon to be severed by the by-pass, rather than to be associated with the major part of the AONB to the south and west. The prevailing character of these surroundings is therefore, and will become increasingly, one of a manmade environment with its predominance of housing development and pattern of roads and roundabout, into which I consider a service area as proposed, particularly with reasonable attention to design details, would fit quite happily without threatening the natural appearance of the remainder of the AONB. As to coalescence, it is making the same point in a different way to say, as is my view, that the scheme of development would not entail breaking out into the gap of countryside between Horsham and Crawley and would not therefore detract from the objective of that policy."
"The difficulty... with the Inspector's decision, is that it pays no regard at all to ENV 3(8). However limited the content of the decision-maker's duty to have regard to the policies in the development plan may be, it surely cannot allow him to ignore one of them altogether. I accept, of course, that for the purposes of ENV 6 the Secretary of State's notice of approval makes it plain that there is no presumption against the development of strategic gaps and that the only purpose of that policy is to prevent coalescence. But the council do not rely on ENV 6. They rely, and have always relied, on ENV 3. They are entitled to know whether, and if so why, that reliance is misplaced. For the sake of clarity I repeat the particular provision of ENV 3(8). It was: 'Only in compelling circumstances will development be permitted... within a strategic gap between built up areas.' Such policy being made without reference, as the AONB policy was, to its being obtrusive or damaging or any other such qualification."
"The authorities plainly establish that an inspector is entitled to depart from the policies of the development plan, but, if he is making such a departure, it is his duty to say so and to make his reasons clear. Mr Howell [who appeared for the Secretary of State]... felt driven to submit, as I understood him, that here the inspector had in fact made a departure from those policies. He certainly does not say that he is doing so or give any reasons for it. The truth is, in my judgment, that he thought he was applying them, but he was wrong in so thinking. He ought to have been looking to see whether there were 'compelling circumstances' for permitting this development in a strategic gap between built up areas. He found none. Indeed, he did not look for any. In those circumstances the result should, in my judgment, be that his decision is quashed."
"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
That to depart from the requirements of the plan would not undermine the purpose of the policy, might well be held to be an indication to the contrary of following the plan. The conclusion that it would not undermine the policy might therefore justify departing from the policy so as to justify the grant of planning permission. But the Inspector did not put her decision on that basis, and I think that if she had realised that it was a necessary part of her reasoning that she should treat herself as departing from the policy of the plan, she might well have reached a different conclusion as to whether planning permission ought to be granted.
"There is reference in some of the above policies to Supplementary Planning Guidance (SPG) but the content and status of the SPG has not been made clear. I have not therefore been able to take it into account."
"Extensions are generally only acceptable when they are designed to improve otherwise substandard facilities of an existing flat, such as to enable a separate bathroom to be provided or to make the kitchen bigger, provided it does not harm the neighbours amenity."
"In the course of argument... the extent to which an inspector should himself initiate inquires where he deemed such inquiries necessary before he could come to a fair conclusion was debated. It was not possible to lay down any general rules. An inspector had no duty to seek to put the parties' own representations in order or to give them assistance. However, if an inspector came to the conclusion that he was unable to come to a fair decision on an issue on the basis of the material before him he [that is to say, the judge] did not think he was necessarily entitled to sit back and hold that, because of a lacuna which could easily be filled, a party has failed to fulfil a burden placed upon him."