England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		27th January 2005

Thursday, 27th January 2005
1. MR JUSTICE NEWMAN: The claimants in this case seek judicial review in connection with the defendant's decision, dated 15th June 2004, to grant planning permission to the interested party, Mr Tom Dillon, for the erection of a single storey rear extension and a two-storey side extension with consequential alterations to the front of the property at 173 Whitton Road, Twickenham. Included also in the application he sought permission to make detailed internal rearrangements.
2. The claimants own a property and live at the property which is immediately adjacent, 171 Whitton Road. As presently sited there is, between the claimants' property and Mr Dillon's property, a space wide enough to take this development which will, but for a side entrance passageway, take the proposed development close to the boundary between the two properties. Number 173 is in itself a semi-detached property with 175 Whitton Road.
3. The grounds upon which judicial review is sought are three in number. The first alleges that the planning committee were led into error by the advice they had received in connection with two previous applications for planning permission which Mr Dillon had made and in respect of which he had been refused permission on each occasion. The error, it is said, is that the officers misinformed the committee by mischaracterising the previous grounds of refusal by stating that detriment to neighbours had not been accepted as a ground for refusal when, on the claimants' case, it had formed part of the decision to refuse. The resolution of that issue will require me to examine the reasons given for the refusal on those two earlier occasions and some ancillary material in the bundle which assists on that question.
4. The second ground, as formulated, is advanced as a discrete ground whether or not the first is established. As presented in skeleton argument and in the grounds, it was said to be further error which had occurred which had prevented the committee from considering an issue as to whether there had been an unacceptable impact on the claimants because of the physical impact, for example the light and so forth, which would be affected by the development.
5. As, in my judgment, was appropriate, it seems to me that the better way of approaching the second ground is to consider whether the committee were, by reason of advice and information given to it, led to conclude, or may have been led to conclude, that unless a material change of circumstance could be shown it was not open to the committee to refuse the application on grounds which I, for convenience, will describe as neighbour amenity issues. The resolution of that ground will require examination of a manuscript transcript of the committee hearing, a statement from Mr Summers who was present and tendered advice to the committee, and a statement from a professional representative, Mrs Scott, who also has put in a statement.
6. Thirdly, it is said that there was a failure on the part of the committee to comply with its legal obligations, laid down in Article 22 of the General Development Procedure Order 1995 (as amended by Article 5 of the Town and Country Planning (General Development Procedure) (England) Amendment Order 2003 (SI 2003 No 2047), to state, when granting planning permission, a summary of their reasons for the grant and a summary of the policies and proposals in the development plan relevant to the decision.
7. The first question is: did the reasons for the refusal of the two earlier applications include, as a ground for refusal, detriment to the amenities of the neighbours, in particular the claimants? One must start with the reasons as they were given. On 24th December 2002, page 70 of the bundle, there is a record of Mr Dillon's application which was described as a "New side extension to form 2 bed house with loft conversion and single storey rear extension and alterations to existing house." The reasons as given, given by reference to NSO1U non-standard, were as follows:

"The proposed separate residential unit is out of character with and detrimental to amenities of the area and neighbouring occupiers, and would be likely to lead to unacceptable manoeuvring of vehicles on and off the highway resulting in harm to users of such vehicles and other users of the highway.

"The proposal is thereby contrary to policies HSG 11 of the Adopted Unitary Development Plan 1996 and HSG 11 of the Emerging UDP First Review."

8. The next decision of 25th July 2003 was in respect of what was described as a "Single storey rear extension, two storey side extension, roof extension, alterations to front and internally", which was refused under the same rubric for these reasons:

"The proposed side extension, being tantamount to a separate residential unit, is out of character with and detrimental to the amenities of the area and neighbouring occupiers, and would be likely to lead to unacceptable manoeuvring of vehicles on and off the highway resulting in harm to users of such vehicles and other users of the highway. The proposal is thereby contrary to policies ENV 19, HSG 11 and TRN 23 of the adopted Unitary Development Plan and BLT 11, HSG 11 and TRN 2 of the emerging Unitary Development Plan First Review."

9. Two material points emerge from the terms of that refusal: (1) the phrase the proposed extension "being tantamount to a separate residential unit"; and (2) the various references to design policies and policies other than HSG 11.
10. The court has been provided with a document which amounts to a record of the conclusion reached in some detail by the relevant officer in connection with the 2003 application. He was a Mr Summers. As I have already recited, he was at the committee meeting now under scrutiny. The significance attached to that by Mr Mould for the defendant is that he submits it is perfectly plain from that, that at that time, as indeed there had been on the earlier occasion, there were objections, which in broad terms can be described as detriment to neighbour amenities, loss of light, loss of outlook, loss of privacy and other objections too, but the professional comments make it plain that the opinion of the officer was that the direct impact of the extension work is not considered to be contrary to council guidance on extensions, and not considered appropriate to refuse the applications on the grounds of loss of sun, daylight, privacy or outlook. He then went on to confirm that the extension, being extremely amenable to be used as a separate dwelling, fell foul of the previous reason for refusal and thus it was so expressed in the reasons as being an application "tantamount to a separate residential unit".
11. Mr Kolinsky advances his submissions under ground 1 with something of an open-ended goal as to what it is he is seeking to achieve. On the basis that the previous applications had plainly been rejected, not only on the grounds of separate accommodation being created, but also on the grounds that there was detriment to the neighbours' amenities, would, had it been established, have assisted him in relation to his formulation of ground 2. It would obviously have assisted him because it is not in doubt what the committee were told. They were told, not just by the planning officer, but also by Mrs Scott, that the previous refusals did not identify design or neighbour impact as being unacceptable. That was the view of Mr Brown, the relevant officer for the 2004 application, in his report to the committee. In the words of Mrs Scott:

"In respect of the amenity issues whilst I note that the previous schemes were not refused on grounds of harm to residential amenity I would point out that these earlier applications were refused under officers' "delegated powers."

She went on to add:

"Members themselves have not had the opportunity to consider these amenity issues."

12. The submission by Mr Mould, which in my judgment is correct, is that insofar as one can see from the reasons, it is plain, that on each of the two previous occasions, that which was at the centre of the refusal of planning permission was, that there was to be, either a separate residential unit, or something which was tantamount to being a separate residential unit.
13. Refining out, as one must, some form of meaning from the phraseology employed, it was accepted by Mr Kolinsky that if the court concluded that the reasons must be taken to have included some consideration relating to detriment to neighbouring occupiers, he would not advance submissions to the contrary.
14. The conclusion of the court is that he is right to so submit, and Mr Mould was not submitting to the contrary. The reasons given include a conclusion that the proposal comprised detriment to the neighbouring occupiers. That said, a problem arises in working out the nature of the detriment which the earlier two occasions envisaged would be done to the neighbouring occupiers; namely, what did they include from among the broad range of matters which could amount to detriment?
15. In my judgment, looking at the terms of the reasons, and assisted as one is by the documentary material from Mr Summers in relation to the 2003 application, it is plain that on a true interpretation of the reasons what was being referred to was such detriment to the neighbours as arose from the fact that there would be two separate units. That, it seems to me, is the logical and sensible interpretation because the underlying position is that intensification of development can not only be detrimental to the area, but if there is a neighbour as close as the claimants are in a case such as this, then there will plainly be detriment to them by an intensification of function and use. Not the least being, for example, the use of the side passage where it was intended, clearly under the first application, that there would be independent access to the building. Thus, instead of the occasional use of the side passage by the present occupiers, there would be an independent and separate occasion for increased use of that small space adjoining their property.
16. In my judgment, there is nothing between the parties, apart from the desire on Mr Kolinsky's part to extend the conclusion as covering a range of amenity objections. In my judgment, his conclusion is not borne out by a sensible interpretation of what had gone on before.
17. So I turn to ground 2. The legal argument under ground 2 reflects, as one would expect, a substantial measure of common ground between the parties as to how previous decisions in relation to the same planning site should be treated. I say a large measure of common ground because, as I shall endeavour to point out, there are one or two points of departure which seem to me to be not without some importance in this field of decision-making.
18. The basic position can be stated as follows: (1) The planning history in relation to the site is a material consideration in connection with a planning application (see Spackman v Secretary of State for the Environment and another [1977] 1 All ER 257). (2) A previous appeal decision is a material consideration in connection with a planning application including a subsequent appeal to a different inspector (see North Wiltshire District Council v Secretary of State for the Environment and others [1993] 3 PLR 113, 122, F to H). The reason why previous appeal decisions are a material consideration is, as Mann LJ pointed out:

"One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities."

Mann LJ went on to add:

"But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest, and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision."

19. Thus analysed, the principle is straightforward enough; that in the planning process the previous history in connection with the site, including decisions in connection with the site, are material considerations, but anybody having any power to reach a decision in connection with the site at a subsequent date has a discretion. The discretion must be exercised in accordance with their own judgment. The requirement for consistency does not mean that they must be slaves to the previous decision and are in any sense bound by it, or must therefore come to the same conclusion. Their judgment and discretion is informed but not fettered by the history.
20. The principle of consistency comprises a material consideration to be taken account of in reaching a judgment. Because of the importance to be attached to consistency, a decision-maker should not depart from it without realising the importance to be attached to it, and when departure occurs reasons for departure from any previous decision must be given.
21. With that as a preamble to the position, as both sides have in effect submitted it to be, subject to differences to which I will come, let us now examine the nature of the case which has been put forward by the claimants under ground 2.
22. Mr Kolinsky refers to the record of the proceedings, and as I have said, the evidence. Turning first to the record, he refers to the manuscript notes of the committee, or the person taking the notes on their behalf, and in particular to page 110 of the bundle where, against an entry "VM", which the court is informed is Mr Morris, the following appears:

"Previous refusals - delegated cttee?

Delegated.

Cttee hasn't refused on aesthetics."

23. Then an arrow from that leading to this note:

"Difficult to overturn decisions made by Council."

24. Obviously delegated decisions made by authorised officers are decisions of the council. But more light is thrown upon what that note means by the assistance given to the court from Mr Summers' statement which constitutes the grounds of defence. I now refer to page 41 at paragraph 17:

"I do not recall the exact words of all parties at the Planning Committee but from the Committee clerks written notes it appears that when Mr Brown was asked what weight the Committee could give to the previous decisions to refuse planning permission, having regard, in particular, to the lack of any objection to the two previous scheme[s] in relation to the physical impact of the proposed extensions on neighbours, Mr Brown said that it would be difficult now to take a different view in relation to the Proposed Development."

I pause only to say that is exactly in accordance with the note. But Mr Summers goes on to say:

"I understood Mr Brown to mean that the two recent planning decisions concerning a similar form of development must be material considerations, particularly if there had been no significant change in circumstances since those decisions were taken. He did not, however, advise members that they could not take a different view to officers on this aspect."

25. I pause at that stage to observe that of course what I have just read, commencing with the sentence "I understood Mr Brown to mean..." is not evidence which is of any direct relevance as to what the committee might have understood Mr Brown to mean. That in itself raises an issue as to how far the committee were properly informed in connection with the right approach to the previous decisions.
26. It has to be said that taking it simply as it appears, the committee was told that it is difficult now to take a different view in relation to the proposed development. It does not bear, in my judgment, much relationship to the principles which I have endeavoured to extract from the two cases of Spackman and Wiltshire and the above formulation of the relevance of the previous decisions and the doctrine of consistency. Indeed, it seems to me, to amount to a qualitative piece of advice to the committee by way of opinion and without the committee being told, in clear terms, that it was open to them to exercise their own judgment and that the previous decisions were merely a material consideration. It amounted to a qualitative judgment in the sense that it was an expression by Mr Brown that in his judgment no reason had been made out for departing from the earlier decisions. But again, however one looks at it, in my judgment, this cannot be seen as any form of sufficient guidance to the committee as to the relevant principle.
27. I do not find the comment by way of argument, and I am not criticising the fact that it appears as argument, which is at the end of the section I have just read, namely, "He did not, however, advise members that they could not take a different view to officers on this aspect", as really particularly helpful. The significant thing is that if one goes back to the judgment of Mann LJ one can see that it is plain that an aspect of the operation in this area of previous decisions is that the body making the decision must recognise that it is able to exercise its own judgment in connection with the application. The result of its own judgment should not be driven by some form of hurdle that the previous decisions present for them, other than that when coming to their conclusion they should recognise the importance of consistency and realise that if they are going to depart from it they should give their reasons.
28. The next entry to which Mr Kolinsky refers is on page 110, a member of the committee called Hollis, who is record as observing:

"Unneighbourliness - can it be taken into consideration?"

Then underneath, what may again be some advice tendered or an observation made by somebody:

"Not a new part of scheme - difficult."

Again the independence of judgment which could be exercised in this regard has not been emphasised.

29. Then one has, in the middle of the page, Mr Summers' observation:

" - previous concern re use

- need material change in circumstances."

As to that one can obviously go back to Mr Summers' own statement, page 41, paragraph 18 where he says:

"I also advised members, given my knowledge of the site, that the two previous refusals centred on the likely harmful impact of the use and occupation of an additional dwelling at the Site. I also advised that there would, in my opinion, need to be a material change in circumstances to introduce a new ground for refusal at this stage based upon the physical impact of the Proposed Development upon neighbouring occupiers. I did not, however, advise that no weight could be given to third party objections regarding the size and bulk of the addition proposed."

30. In my judgment there was no justification for the committee being told that there was a need for there to be a material change in circumstances in order to introduce a new ground for refusal. There was a need for the committee to understand the importance of the consistency, and a need for the committee to express a reason if it was going to depart from it, which would reflect its own judgment as to whether or not a basis for refusal was to be found in the physical impact upon the neighbouring occupiers.
31. I then, having made those observations, can conveniently add at this stage that, in my judgment, it is not insignificant in this regard that when one looks at the case of Wiltshire one is looking at the consistency to be derived from appeal decisions. What we are concerned with in this case is a quality and character of decision-making of a different order. In a case such as this, where an objector puts in a number of grounds upon which it is said planning permission should be refused, and one of them happens to result in the officer exercising delegated powers to refuse permission, it results in a decision where the objector, although the reasoning of the delegated officer might have included a rejection of the other grounds, has no locus to complain in relation to the adverse decision that there has been on the other grounds.
32. That is not to say that I am not impressed by what Mr Mould has urged upon me, namely that some very significant number of planning decisions are reached by way of delegated powers being exercised; I was informed something of the order of 80 per cent. It is obviously of great importance in the field of planning that delegated decisions should be recognised as having sufficient status to form part of the recorded continuity comprising the planning history in connection with a site.
33. But, on the other hand, fairness requires that if, at a later stage in the planning history after objections have been raised, and the matter goes to a committee for consideration as to whether there should be a grant of planning permission, on that occasion, where the applicant for planning permission has reformulated his scheme for it to be considered afresh by the committee, in my judgment, so far as possible the committee should be alert to the need to consider and deliberate upon the objections which are before it, even though there may be material suggesting that the consistent position of the planning officers in the exercise of the delegated powers has been to the effect that there was a lack of force in those objections. The history is something which will add weight to the planning officer's representations, for example, the case advanced by Mr Brown on this occasion. But that is not how the position was represented to the committee on this occasion. One can see that from what Mrs Scott has stated at page 131:

"Mr Roy Summers, Area Planning Officer said that the previous concerns had been only about the use as a separate dwelling house and that to introduce new grounds it would need to be shown that there had been a material change in circumstances."

34. It was submitted by Mr Mould that it was very important to have in mind not simply the point to which I have just referred about fairness to an objector, but the need for fairness to the applicant. Let me deal with that. He submits that in a case such as this, it can be seen that Mr Dillon had had two refusals and the two refusals, on their face, indicated one ground for refusal, namely that it involved the creation of a separate residential unit. Thus he, with his advisers, altered his proposal so as to accommodate that objection and ground of refusal. It is said he had, therefore, reason to believe that if he met that objection he would not be struck down on the third occasion by an objection which had not been a basis for prior refusal, then surfacing as an objection and leading to refusal on the third occasion.
35. In my judgment, understanding as I am of the position, the argument presses too much in favour of the earlier unsuccessful applicant and ignores the true position which arises before the committee. Mr Dillon is in no better position than the law allows him to be. The law allows him the advantage which I have outlined above and which the cases show should be accorded to a previous decision. He has the advantage of relying upon the principle of consistency. But it gives him no privilege. It gives him no legitimate expectation. It gives him no reasonable grounds for complaint later, if the council, through the committee, exercise their judgment, for good reason, to refuse. Of course if it is not for a good reason and they have expressed the reason (and I shall come to ground 3 in a minute), then Mr Dillon is protected. He can complain if it is not a good reason, and if it is a good reason he cannot complain and he should not feel aggrieved. That is the way in which these matters, in my judgment, fall to be resolved.
36. I am satisfied that on this occasion the committee were misinformed as to the approach to be adopted in connection with the previous decisions. Next I must consider whether that could have had any impact upon the committee. The material assists, in my judgment, at page 111, where the recorded observation by Councillor Elengorn, appears as follows, "Bound by case decisions - limits grounds for refusal. No substantial harm caused". This entry leads me to conclude that I cannot exclude the possibility that the advice as tendered led to this conclusion being formed, not only by that councillor, but by others, or at least influencing the weight that others gave to this material consideration.
37. I am satisfied that the committee did consider the neighbour amenity objections. I am also satisfied that there is a real risk that the members of the committee, or some of them, believed that their judgment on those objections was fettered by the previous decisions. It follows that there is a real risk that the claimants' objections were not considered in accordance with law. To that conclusion Mr Mould has, in response, drawn attention to the vote: three of them were against it. That is true. But the difficulty is that one does not know why.
38. That leads me on to the significance of ground 3. The reasons were expressed as follows, page 112:

"... permission to develop the said land in accordance with the said application is hereby GRANTED subject to the conditions and informatives summarised and listed on the attached schedule."

39. One therefore needs to go to the attached schedule to see whether reasons were given and if they were what they were. Then, under the Summary of Conditions and Informatives, and in particular detailed informatives, one has:

"This decision has taken into account the relevant policies of the Unitary Development Plans and all other material considerations where appropriate. Full reasons are given for the imposition of any conditions attached to this notice. For a full understanding of the reasons for reaching this decision reference should be made to the application report and any accompanying minutes. Minutes are only relevant if the application was considered by the Planning Committee. The following have been taken into account in the consideration of this proposal... [and it then listed various references to the plans and policies.]"

40. Mr Kolinsky's complaint is not in respect of that part of Article 22 referring to the policies, but in respect of the requirement under Article 2 for a summary of the reasons. He submits that simply to refer the public, or any interested party, to the application report and any accompanying minutes, is not a proper compliance with Article 22. In my judgment it is not in this case and it is not likely to be, in the majority of cases. I should not be understood as attempting to cover the circumstances which can arise in all cases, but great care should be taken to provide what can be read as a summary of reasons which inform the interested parties as to how and why the committee has reached its decision. Where there has been a range of argument over different issues, which occurred in this case, and there were matters of detail to be resolved, simply to refer to a document which preceded the committee's deliberations such as the report of the advising reporting officer, is not likely to shed light on how a particular decision was reached by the committee.
41. For example, in this case, there is nothing in the report of the advising officer which could inform an interested party as to what approach this committee took to the prior decisions. There is nothing which sheds any light on the weight they attached to the material consideration, namely the prior decisions. Nor is there anything which discloses whether or not their decision was driven by a belief that they believed that there had to be a material change in circumstances and, if so, whether they were satisfied there was a material change in circumstances.
42. Having regard to the errors which occurred in the course of the committee's decision-making, which are reflected under ground 2, the point so far as ground 3 is concerned is made out. Committees or decision-makers should, as a general rule, give their decision by way of a separate summary of reasons, not by way of a global reference to a document, not in itself a summary. In my judgment, that is what Article 22 requires. Certainly good administrative practice would indicate it as desirable. More than that, it would be a useful exercise for those who reach decisions to go through the intellectual exercise which the drafting of summary reasons involves and increase the certainty that matters have been considered according to the approach which the law requires.
43. For those reasons, in my judgment, this decision must be quashed.
44. MR KOLINSKY: I am grateful to my Lord. On behalf of the claimants I make an application for my costs of the claim. My Lord, I do not know if a summary schedule has reached the court?
45. MR JUSTICE NEWMAN: Has it?
46. MR KOLINSKY: There is one available.
47. MR JUSTICE NEWMAN: Not that I have seen.
48. MR KOLINSKY: My Lord, we have copies available, my learned friend indicates that, although I am instructed a copy was faxed to the council offices, he has not seen it. In those circumstances, my Lord, it may be an appropriate course to say detailed assessment if not agreed and the parties can discuss it and if they have differences go on a detailed assessment if that is appropriate.
49. MR JUSTICE NEWMAN: Yes. Is there any other consequential order you want by way of -- if the matter comes back again is there an order required for remission back to --
50. MR KOLINSKY: My Lord, as I understand it, has given an indication that the decision falls to be quashed and that is sufficient for my purposes.
51. MR JUSTICE NEWMAN: I do not need to remit it, it just goes back to another committee.
52. MR KOLINSKY: My Lord it --
53. MR JUSTICE NEWMAN: It goes back into the process?
54. MR KOLINSKY: My Lord, that is right, I am most grateful.
55. MR JUSTICE NEWMAN: Thank you very much. Do you want to say anything on costs?
56. MR MOULD: No, save to say that I plainly cannot resist the order. We have not, as I understand it, received a notice of the costs.
57. MR JUSTICE NEWMAN: There will have to be a detailed assessment. So defendants to pay costs, detailed assessment.
58. MR MOULD: My Lord, would you just allow me a moment?
59. MR JUSTICE NEWMAN: Of course. (Pause)
60. MR MOULD: My Lord, I am grateful, there is just one matter. My Lord, I respectfully make an application for permission to appeal if I may. My Lord, I do so on this single basis, that what your Lordship has had to say about the question of the quality of reasons that are required, which obviously is relevant directly to the third ground but also relates to the second ground as well, that that is a matter of clearly some general interest and Article 22 of the order is a provision which is relatively new. It has been the same consideration by Sullivan J, but obviously in that case, the Wall case, the parties agreed that there had been a failure to comply and the only question of what failure here there had been was an issue as to whether what was done by this council was sufficient to satisfy the statutory requirement.
61. My Lord, that is a matter of interest and, my Lord, if I may say so, has had some helpful observations to make which are perhaps more general in their application than simply this case. I invite your Lordship, in the light of that, to consider whether this is a case which is appropriate to go out to the Court of Appeal. That is my application.
62. MR JUSTICE NEWMAN: No. I take it the application was only on ground 3?
63. MR MOULD: Essentially, yes.
64. MR JUSTICE NEWMAN: No. I will endeavour when I get my transcript to -- obviously I will not change the position -- but I will endeavour to improve upon the clarity if there was any lack of clarity. But it was not intended to be anything other than a piece of guidance rather than, as I was endeavouring to say, prescriptive for every case, because I have not heard enough argument, but I will endeavour to accommodate anything that occurs to me to be consistent with my view but nevertheless expressing it rather more helpfully.
65. MR MOULD: My Lord, I can be absolutely frank, your Lordship knows that it is necessary for me, if I want to help the position, to make the application to their Lordships.
66. MR JUSTICE NEWMAN: I know, but on that one I will look at it in my transcript.
67. MR MOULD: I am very grateful.
68. MR JUSTICE NEWMAN: Thank you very much.