QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MARK PATERSON||(CLAIMANT)|
|(1) THE FIRST SECRETARY OF STATE|
|(2) LONDON BOROUGH OF HOUNSLOW|
|(3) WEXFORD RESOURCES||(DEFENDANTS)|
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MR D KOLINSKY (instructed by TREASURY SOLICITORS) appeared on behalf of the 1ST DEFENDANT
MR T HILL (instructed by FLADGATE FIELDER SOLICITORS) appeared on behalf of the 3RD DEFENDANT
Crown Copyright ©
Monday, 26th January 2004MR JUSTICE RICHARDS:
The Inspector's Decision
"10. As I understand was the case with the earlier appeal scheme, the main front and rear elevations of the proposed houses would be some 16 metres from the main rear elevations of the nearest neighbouring properties. Appendix 2 of the adopted UDP recommends a distance of at least 21 metres between the windows of directly facing habitable rooms. The previous Inspector noted that there would be no overlooking at ground level because of the existing boundary wall which is some 3 metres high. The wall abuts the adjoining properties on both sides, and I consider that it would prevent harmful overlooking either to or from the clear glazing proposed at this level to serve the main living accommodation within the houses, as well providing light by way of voids to the basement. The intervening boundary wall and acute viewing angles would also ensure adequate privacy in relation to the limited amount of clear glazing at basement level where kitchen, dining, bedroom and bathroom accommodation would be located.
"11. At first floor level to the front, windows serving bathrooms and high level secondary bedroom windows could reasonably be required to be kept obscure and non-opening, with scope to provide ventilation by mechanical or other means. At the rear, two bedrooms in each house would be lit by way of obscure glass blocks set in triangular projections and clear windows within recesses at right angles to the rear elevation. The appellant's analysis of potential views from these windows, which in my opinion fairly excludes those at angles of less than 45 degrees as not being directly facing, demonstrates that the 21 metre standard would be met apart from a very minor breach at one point. I consider that means could be provided to open these windows for ventilation without affecting this result...
"13. I acknowledge the concern regarding the relatively limited extent of clear glazing and outlook that would exist for the proposed accommodation, and the potential views between the facing two rear bedroom windows of each house. However, such features would be obvious to any incoming resident, and I consider that the living conditions created would not be so deficient as to be unacceptable. The possibility of future alterations that could threaten the privacy of neighbouring residents could in my opinion be satisfactorily addressed through planning conditions. I therefore find that the proposal would not give rise to harmful loss of privacy through overlooking, and that it complies with the adopted and emerging UDP in this respect.
"14. I recognise the specific inclusion in the emerging policy H.6.3 of reference to outlook and open aspect in relation to consideration of loss of amenity, and I have already indicated that this policy attracts substantial weight. While the plans of the previously dismissed scheme are not before me, I was informed by the Council that its concern in this respect in relation to the current proposal arises as a result of the progress of the emerging policy towards adoption rather than a change in the nature of the proposal itself.
"15. At my visit I viewed the appeal site from numbers 4 and 6 Brackley Road, which I was told are typical of the relationship of the properties in the adjoining roads to the site. From ground floor level and the gardens of these properties the boundary wall to the site is dominant in the outlook, and in my opinion the upper parts of the proposed houses would have little visual impact since these would be set back from the boundary. At first and second floors within these properties there are rear facing windows, and balconies at second floor level. I recognise that views from these would change significantly as a result of the proposal, especially having regard to its height and width by comparison with the existing presence on part of the site only of a single-storey building and use of the remainder for open car parking. However, taking into account that the maximum height of the ridged roof of the proposed buildings would not exceed that of these houses, together with the separation distance that would exist, I consider that in its context the overall impact would not be so unneighbourly as to result in an undue loss of amenity. I reach a similar conclusion in relation to outlook from the neighbouring Annandale Road properties. Although the Council also cites the residential accommodation on the second floor of 147 Chiswick High Road as of concern in the same way, this is separated by a greater distance and would face the narrower flank elevation of the proposed development, so that the impact would be considerably less. I therefore consider that the proposal would not result in an unacceptable loss of amenity by way of reduction of outlook and open aspect. In my opinion it would also not have a significant effect on daylight and sunlight to adjoining properties."
"The proposal would not seriously detract from the living conditions of neighbouring residential occupiers by way of loss of privacy or visual intrusion, and... does not conflict with the adopted or emerging UDP in these respects."
"19. Concern has been raised by local residents regarding the design of the proposed houses. The enclosed nature of the site restricts its prominence in public views. In my opinion the blend of contemporary styling with more traditional features would not detract from the character and appearance of the surroundings, notwithstanding the extent of obscure glazing within the design. Although a basement has been added by comparison with the proposal previously at appeal, I consider that the density would provide for an efficient use of housing land as advocated by the Government in Planning Policy Guidance Note 3 while not being out of keeping with the character of the area".
"Privacy and Spacing Between Buildings
1.0. The design and layout of a development should ensure sufficient privacy for its intended residents in the dwelling and to a smaller area of garden close to each dwelling...
2.0. A distance of at least 21m (70 ft) is recommended between the windows of habitable rooms which directly face those of another habitable room, or windows of any other premises where these give light and outlook to rooms normally occupied during the day; in the case of windows of non-habitable rooms, within 21m of another facing window, obscured glazing would be considered acceptable.
3.0. Roof terraces and balconies are not acceptable where they would directly overlook neighbouring habitable rooms or gardens.
4.0. In calculating the effects of a particular development on outlook, the natural features of the site including slope will need to be taken into account, together with the effects of existing and potential extensions".
"Such features would be obvious to any incoming resident, and I consider that the living conditions created would not be so deficient as to be unacceptable".
"In attempting to overcome the issues identified by the Inspector at the previous appeal, the design of the proposed development has changed significantly and has resulted in a proposed building that is out of character with the surrounding area and would provide unacceptable residential amenity for future occupiers".
"Paragraph 2.3(3) of section 3 of the SPG states: 'dwellings should be designed so that habitable rooms overlook the front entrance and the street.'
"As noted in paragraph 4.31 above, the applicant has specifically designed the development to have no habitable rooms facing in the direction of the entrance or the street, clearly contrary to this guidance and resulting in a poorly designed building".
"All new development and refurbishment schemes should be designed in order to help create a safe and secure environment".
It contains numerous detailed guidelines including that at 2.3(3) quoted in the residents' statement.
"In calculating the effects of a particular development on outlook, the natural features of the site including slope will need to be taken into account, together with the effects of existing and potential extensions."
"7. In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.
"8. Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task".