QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF IMPERIAL RESOURCES SA||(CLAIMANT)|
|FIRST SECRETARY OF STATE IN THE OFFICE OF THE DEPUTY PRIME MINISTER||(FIRST DEFENDANT)|
|THE ROYAL BOROUGH OF KENSINGTON AND CHELSEA||(SECOND DEFENDANT)|
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 COPPEL (instructed by TREASURY SOLICITOR) appeared on behalf of the FIRST DEFENDANT
MR HARRISON (instructed by THE ROYAL BOROUGH OF KENSINGTON AND CHELSEA) appeared for the SECOND DEFENDANT
Crown Copyright ©
"Erection of an additional storey to provide 4 self-contained one bedroom flats at LEONARD COURT."
The permission was subject to the normal time limit conditions, which provided that details had to be submitted within a year and that the development had to be begun by 16th September 1986 or within two years of the final approval of reserved matters. Reserved matters were eventually approved on 11th December 1986, and it is therefore common ground between the parties that the development had to be begun by 11th December 1988 in order to prevent the planning permission lapsing.
"(2)For the purposes and provisions of this Part [of the Act] ... development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out ...
"(4)For the purposes of subsection (2), 'material operation' means -
a) any work of construction in the course of the erection of a building".
"However, I have considerable difficulty in believing them to be comprised in [the 1983 permission]. The approved plans show walls in this position that would enclose corridors to two landings that would lead from the lifts to the flat entrances. The eastern and western walls would each have three window openings and one door opening. The height of the window cills would be some 600mm above roof level. The 1150mm high walls that have been erected would be expected to have lower sections rising to only 600mm to provide for three window openings if they were part of the 1983 permission. I believe that development permitted by the approved plans, that had been erected to half the final height of the wall, would probably have had a castellated profile. These walls have horizontal copings without undulations. Moreover, the approved location for the door opening in the western wall is about 5 metres from the chimney in the southwest corner. The gap between the walls, is about 2.2 metres from the chimney. Similarly on the eastern side, the approved location of the door opening is some 6 metres from the southeast corner and gap, as built, is some 2.2 metres from that corner."
"The walls as built were a functionally different construction, of itself finished or complete, rather than part of the development of four flats, albeit not constructed precisely according to the plans."
Ouseley J said that:
"If that had been [the inspector's] conclusion, then [he] would have expected that to emerge far more clearly from the decision letter."
"However, if the Inspector had reached a reasoned conclusion fairly on the material that the walls, as erected, were complete and functionally different from a partial construction of walls for the purposes of the sixth storey flat, it might have been open to him to conclude that the construction of the walls was not a material operation 'comprised within the development.' This is not a question of the claimant's subjective intention which rightly did not play a part in the Inspector's decision, but of an objective conclusion as to the function of such a wall. Such a wall would be potentially equivalent to the ambivalent earth stripping discussed in Staffordshire County Council v Riley and would lack the quality of being distinctly referable to the approved development. The fact that the wall only partially complied with the plans as approved would be a problem for the Inspector to examine in that context."
"Reached his decision based upon an analysis of the differences between the walls as built and the walls as shown on the approved plans."
That was all that the first inspector had dealt with. Paragraph 30 continues:
"Indeed, as Mr Mould for the Secretary of State accepted, first, the walls were constructed on the approved alignment in the approved locations and many of the brick courses would have complied with the approved plans, that is to say, up to cill level except for the door openings and they would have complied with the approved plans up to a higher level still where no aperture was required; second, the walls as built could be modified by the removal of the brick coping and by the creation of apertures for windows or crenellations leaving a substantial part of the structure in tact."
"I consider that the Inspector concluded that it was the differences in the location of the window and in the window apertures, the presence of the coping layer and the location of the door giving on to the fire escape, which meant that the wall could not be a material operation comprised in the development.
In my judgment that is an incomplete approach which errs in law or ignores relevant considerations. No doubt there will be cases where the difference between the plans approved and the development carried out, is so large that of itself that prevents the operations relied on being operations comprised in the development and of itself would permit an Inspector rationally so to conclude without more ado. However, the question of whether a material operation is or is not 'comprised in the development' cannot necessarily be answered by asking simply if there is a difference between the approved plans and the actual operations relied on."
"The decision in Spackman shows that as a matter of law, differences between the approved plans and the operations relied upon, need not be fatal to the capability of the operations to be effective in commencing the development."
"It is, in my judgment, necessary for an Inspector dealing with this sort of problem to consider not just the existence of differences between the plans and the operations relied on, but also to consider the significance of those differences. It is insufficient just to mark and measure the existence of differences. In my judgment this can be seen either as a question of the correct approach in law, or as a question of whether an Inspector has had regard to material considerations. Consideration of the similarities, or degree of compliance of the operations relied upon, with the approved plans is also relevant, together with substantial usability of those works in the permitted development, and the degree of alteration required to them in order for them to effective to that end. I do not consider that the Inspector took those other matters into account or examined the significance of the differences which he found to exist."
"I have much sympathy for the Inspector in this case who had no helpful evidence or argument provided to him by the claimant on this issue. Yet, he still could see, without it being specifically pointed out, that the walls were in the correct location and that several courses of brickwork would conform to the plans and, as Mr Mould accepted, much would be substantially usable even if modifications were necessary. The Inspector ought to have appraised the whole in order to reach a conclusion as to whether the works were operations comprised in the development rather than just to have focused on the differences. He had the necessary material in front of him on his site visit and needed no further evidence from the claimant in order to weigh the visible similarities and the visible differences."
"I do not accept Mr Hobson's submission that it is sufficient to look only at whether there was a modicum of works which complied with the plans and that the existence of works which did not comply with the plans was legally irrelevant. I consider that the question of whether the operations done were comprised within the development involves looking at what has been done as a whole and reaching a judgment as a matter of fact and degree upon that whole. It does not entail any artificial process of ignoring part of what has been done. I reach that view even where it is not contended that the works are different functionally from the planning permission which has been granted, or are ambivalent in nature and so not unequivocally referable to the planning permission in question."
"i) whether the walls as built are a functionally different construction, itself substantially finished or complete, rather than a part of the development of 4 flats to which the 1983 planning permission related;
"ii)the extent to which the work carried out does comply with the approved plans;
"iii)the extent to which the works that have been built would be usable in a final scheme built in accordance with the planning permission,
"iv)the full extent to which the work deviates from the approved plans;
"v) whether there is a reasonable explanation for all or any of those difference; and
"vi)the significance of those differences, including the position of the door leading to the fire escape."
"1) It is the Council's view that the walls which were built are functionally different from those that would be required as part of the proposed development. As has already been documented, the differences between the wall as built and as approved are that the walls do not include any window openings and the fire escape door openings are shown in the wrong place from the approved plans.
"2) The significance of these differences is that considerable alterations would need to be carried out for the existing walls to be used as part of the development. In particular, the required works would involve removal of the brick on edge coping and cutting of brickwork and part demolition to allow the installation of windows. It is not considered that this would result in a satisfactory appearance to the elevations as the bonding of the brickwork would have to be altered during construction to allow a window to be inserted.
"3) It is clear that the walls were built as one operation as parapets and not with a view to installing windows as part of the roof extension. The walls will very likely have to be taken down and rebuilt in order to comply with the approved scheme.
"4) It is considered that the extent of the rebuilding would mean that little of the walls would be reused in the final scheme. The walls as built are therefore considered to be significantly different from those approved. The explanation for the differences between the approved plans and that built on site would seem to be that the walls as built are a parapet wall, which has a different function from the part of the proposed roof extension. As the changes are significant the Council would contend that the new Inspector should find that the development had not been implemented."
"The walls built to the 2 sides of the lightwell amounted to a 'material operation' or operations for the purposes of [the act]."
"In this case, I understand the work to build the walls took some 2-3 weeks, involving the erection of scaffolding, brick and block laying and rendering. Those works were not inconsequential. The scale was small in relation to the permitted works, but that is not point. It is whether, as a matter of fact the degree, those works were material operations in the context of s.56 of the Act. My view is that they were."
"Whether there had been anything begun that could be said to be a commencement of the development."
"But did those operations implement [1983 planning permission]? I consider they did not. The 2 walls, facing each other across the lightwell, were built in the same positions as walls to the permitted flats. However, the approved plans show western and eastern walls were each to have 3 window openings and one door opening. The window cills were to have been about 600mm above roof level. No provision has been made in the 1.15m high walls as built for any of those window openings. If the walls had been built in compliance with the 1983 planning permission, at the height reached, there should have been 3 gaps each of a width of about 1m above a height of 600mm. As built, each wall has a gap only to access the ladder landing. Also, the walls, as built, have a single brick on edge coping, completed with lead flashings, rendering to all surfaces except to the brickwork, seemingly finishing off what appear to be completed safety parapet walls. Their purpose appears to have been to protect those on the roof from possible falls into the lightwell."
"It must be, that whether the walls are parapet walls or were intended to be the partial construction of the walls to the flats, access to the existing stairways would be needed in the position the gaps have been built."
He then said, paragraph 20:
"Setting aside the question of plan errors, however, the walls as built are substantially different to incomplete walls of the same height that would have complied with the approved layout."
"The next question to address is the significance of the differences between the approved layout and what was built. The differences between what was permitted and what was built, are in my opinion, decisive. By building what look like parapet walls, it is difficult to imagine that the builders thought they were constructing the first phase of the approved flats. If they were implementing the planning permission, it would be expected they would have allowed for the windows. In the two walls, a total of 6 window openings should have been provided for. That should have been done by constructing the reveals as shown on the approved plans. Or, if it was to be argued they were temporary parapet walls, yet still part of the flats development, it could possibly have been done by constructing the openings, then infilling with temporary construction materials. As it is, the walls are built of continuous stretcher bond brickwork to the lightwell face and continuously bonded blockwork to the other face. They look like finished parapet walls, complete with top flashings, copings, rendered and finished off at the ends."
"Differences between approved plans and the operations relied on, (as these walls are), need not be fatal to those operations being capable of commencing the planning permission."
Having referred to the decision in Spackman v Thamesdown BC  1 ALL ER 257; 33 P&CR 430, the inspector said this in paragraph 23:
"To practicably adapt the Leonard Court lightwell walls to fit the approved plans would mean demolishing most of the wall. Scarcely any of the existing walls would be of use. I consider it would be impracticable to cut the openings and form proper brick and blockwork reveals and inset cills in these low bonded walls. The coping, flashings and most of the rendering would need to be removed. The ends of the walls would have to be re-built to allow for bonding into northern and southern lightwell walls to the flats. Alternatively, the walls could be demolished down to cill level prior to rebuilding according to the approved plans. Or, more practically, the walls could be entirely removed prior to a re-build. Whatever method was used, I consider it would be no mere minor work to readapt the existing walls to comply with the approved layout. Almost any building operations could ultimately be made to fit another layout, however extensive the required alterations were. But it would not mean that the originally built, non-conforming works could necessarily be said have been part of what might eventually be a different, subsequent layout."
"In this case, I conclude that the walls as built were not part of the works comprised in the permitted development. The walls have, in my opinion, been built as parapet walls, not part of the permitted flats. They look like operations in there own right. They do not look like part of the approved layout, irrespective of the approved drawing errors."
"In concluding that what was built were parapet walls, not a partial construction of walls for the flats, I refer briefly to the applicants' assertion to the contrary. I do not set them out here. That is because the decision must be based on an objective assessment on the function of the walls as built, rather than the developer's stated intentions, Riordan Communications Ltd v South Bucks DC  1 PLR 45. In my view, this is not a contradiction of Spackman, as Riordan referred to a rejection of stated assertions, rather than an objective assessment of intentions based on an examination of works carried out."
"As a matter of fact and degree, I consider that the erection of walls on the roof of Leonard Court are material operations but are not material operations comprised in the development permitted by  planning permission."
"The walls as built could be modified by the removal of the brick coping and by the creation of apertures for windows or crenellations leaving a substantial part of the structure intact."
"Their purpose [the walls] appears to have been to protect those on the roof from possible falls into the lightwell."
Again, all the inspector was doing in that paragraph was describing how the walls looked to him. The decision letter has to be read as a whole and the proposition that the inspector wrongfully imputed some subjective intention flies in the face of the inspector's express disavowal of that approach in paragraph 25 of his decision letter.