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
		12th October 2005

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of the first defendant's Inspector, Julia Gregory, dated 16th February 2005, dismissing the claimant's appeal against a refusal of planning permission for extensions to the front and rear of the claimant's home at 108 Hill End Lane, St Albans, by the second defendant.
2. The claimant had been granted planning permission by the second defendant for extensions to the front and rear of number 108 and for the erection of a lean-to conservatory on 6th March 2003. However, that planning permission was not implemented. Work commenced and it differed from the permitted scheme.
3. The claimant applied for planning permission for the revised scheme, and the second defendant refused planning permission on 16th April 2004 for two reasons:

"1. By reason of its size, scale, bulk and massing and its flat roof form, the proposed two storey extension would unrelate to and be incompatible with the character and appearance of the original semi-detached dwelling. The proposal would conflict with Policy 72(i)(ii) of the St Albans District Local Plan Review 1994.

"2. By reason of its excessive rearward projection on the boundary with No 110 Hill End Lane, the proposed conservatory would have an adverse affect on the adjoining occupiers and conflict with Policy 72(v) and (viii) of the St Albans District Local Plan Review 1994."

4. The claimant appealed against that refusal of planning permission to the first defendant. In the meantime, the extensions and the conservatory had been constructed, so the inspector correctly treated the application as having been made under section 73A of the Act. In her decision letter dated 16th February 2005, following a site visit made on 25th January 2005, the inspector said that there were two main issues.
5. The first was the effect of the proposal on the character and appearance of the dwelling house and the area. The second issue was the effect of the proposal on the living conditions of the occupants of the adjacent dwelling house in relation to overbearing appearance. It will be noted that those two main issues reflected the two reasons for refusal of planning permission by the second defendant.
6. The inspector then considered the relevant planning policy, first summarising the effect of policy 72 in the St Albans District Local Plan Review, dealing specifically with those provisions in paragraph 72 which were mentioned in the reasons for the refusal. Secondly, she referred to the general guidance in Planning Policy Guidance Note 1.
7. She then set out her reasons and, since they are brief, I will read them out. Under the heading character and appearance she said this:

"5. The immediate vicinity comprises mainly two storey semi-detached dwelling houses. The two storey extension wraps around the side and rear of this semi-detached dwellinghouse at the same height as the existing dwelling. I consider that where the property fronts Hill End Lane this acceptably relates to the appearance of the original dwelling, because it incorporates a similar window to the other first floor window and a hipped tiled roof.

"6. However, the extension includes a three storey gable end of considerable at the rear, with a window at roof level and a section a flat roof at ridge height. This design at roof level is bulky. It does not reflect the hipped roof design of the dwelling or the predominantly hipped and tiled roof styles in the vicinity. This poor design, readily visible from the public open space to the rear, and from the public footpath to the side, harms the character and appearance of the dwelling and of the area contrary to policy 72 and national planning policy.

"7. I acknowledge that there are examples elsewhere in the locality of designs which have certain similarities to the appeal scheme, including at No 114 Hill End Lane. These are not in my judgment in such prominent locations. In any event, the existence of other similar extensions is not a good reason for allowing the development. Whilst planning permission has been granted for a two storey extension with the same footprint, that proposal had a hipped tiled roof on the rear elevation with a lower ridge height, and did not incorporate the rear gable and window at roof level."

8. Under the heading "Living Conditions" the inspector said:

"8. The conservatory extends some 4.5m along the common boundary with No 110 to which it is attached, and incorporates a with an. 5m solid wall along that boundary with a pitched glazed roof above. The extension projects more than 3m rearwards and is there contrary to Policy 72. Whilst I acknowledge that planning permission has previously been granted for a conservatory adjacent to the common boundary, that proposal projected less, albeit at a greater height for some 0.6m, and a lesser height for the remainder. I consider that the solid wall along the common boundary is overbearing on the outlook from the adjoining property because of its heightened location since there are patio doors in the rear elevation of No 110 in close proximity to the wall.

"9. Whilst the present occupier of No 110 has no objections, the development may remain long into the future, and I have considered the proposal in the public interest more generally. I conclude that the conservatory harms the living conditions of occupants of the adjacent dwellinghouse in relation to overbearing appearance contrary to policy 72. Although other conservatories were brought to my attention, I have insufficient information about them to be able to comment on their relevance, if any, to the proposal before me."

9. Under the heading "Other Matters" the inspector said:

"10. I note the local support for the scheme. However, local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission unless it is founded upon valid planning reasons that can be substantiated. In this instance, I have concluded that the proposal would be harmful in respect of both the main issues."

10. For those reasons the inspector dismissed the appeal.
11. I appreciate that the claimant, who appears in person, feels very strongly that the inspector's decision is wholly unreasonable. However, he must appreciate that it is not for me to substitute my own view as to the planning merits of his proposal. To be successful, a challenge under section 288 has to demonstrate some error of law or procedure on the part of the inspector. Looking at this decision letter, it is difficult to see what possible error of law there might have been, since the inspector's decision is entirely a matter of planning judgment.
12. The claimant contends that the inspector's decision was perverse or unreasonable. Again he must appreciate that the question is not whether he considers the decision unreasonable. The perversity threshold is a high one. It is not sufficient for the claimant to establish that some other inspector might have formed a different view about the merits of the extensions; he has to establish that any reasonable inspector would have allowed his appeal.
13. It is difficult to see how he can begin to surmount that hurdle because this is not a case where the inspector has gone off on a frolic of her own and relied upon some point which has not hitherto been raised. All she has done, in essence, is to agree with the second defendants' two reasons for refusal, explaining in a little more detail why the two reasons were justified. Thus, the claimant has to persuade me not merely that the inspector was perverse, but that the initial decision to refuse planning permission by the second defendant was perverse.
14. He has produced a number of photographs that were produced in the written representations which were considered by the inspector, which show what he says are a number of properties which have similar rear extensions. He particularly draws attention to number 114, which would appear from the photographs to have a similar extension. However, it is plain that the inspector acknowledged that there were other properties where the designs were similar to the appeal scheme, and she specifically mentioned number 114. However, she said that they were not, in her judgment, in such prominent locations. Whether they were more or less prominent was pre-eminently a matter of planning judgment for her, having carried out a site inspection.
15. By way of background, I should explain that there are playing fields at the back of number 108, and a footpath runs beside number 108 across the playing fields, linking Hill End Lane with Jake's drive. That is the background to the inspector's conclusion that the other properties relied upon by the claimant were not in such prominent locations. Plainly, she was entitled to so conclude. But, as she pointed out, the existence of other, similar, extensions was not a good reason for allowing the development.
16. I can readily appreciate that, in some cases, an inspector will take the view that, by reason of the unattractive nature of other developments in the vicinity it is, in simple terms, impossible to do any further harm, so that a particular proposal might be acceptable. Equally, there are circumstances in which an inspector will take the view that, in simple terms, two wrongs do not make a right. Which approach is to be adopted is, again, entirely a matter for planning judgment, and for the inspector who has made the site visit. It is impossible to say that, merely because there are other similar extensions in the vicinity, the claimant's extension should be permitted.
17. I repeat that it is not for me to substitute my judgment on the planning merits for that of the inspector, but, having looked at the photographs, I can readily understand the inspector's criticisms of the design. For these reasons, I reject the proposition that her decision was unreasonable.
18. Secondly, it was contended in the grounds of appeal, and in the skeleton argument submitted by counsel originally instructed on behalf of the claimant, that the reasoning in the decision letter was inadequate. Again I reject that criticism. The claimant knows perfectly well why his application was refused. The inspector concluded that this was a poor design, in particular that the design at roof level was bulky, and that it was prominent from public viewpoints.
19. The other aspect of the matter is the conservatory, and it was submitted that the inspector had erred in fact in some way. The grounds made the point that, whilst the conservatory was longer, it had been reduced in height by a maximum of 1.2 metres, from 3.8 metres to 2.6 metres. What had happened was this: the original conservatory, as permitted by the second defendant, was a lean-to. That did not project beyond the rear extension and, being a lean-to, it was, where it joined the house, higher than the conservatory that has been built, which has a ridged roof and which does project beyond the rear extension.
20. The inspector's particular concern was with the 2.5-metre high solid wall along the boundary. She concluded that this high wall, along the common boundary, was overbearing. She had regard to the fact that the current owners at number 110 did not object, but perfectly properly had regard to the fact that the wall may well continue after they have ceased to occupy number 110. She was plainly entitled to have regard to the fact that the development may remain long into the future and to consider the public interest rather than the particular views of the present occupiers of number 110.
21. So, for those reasons, I am satisfied that the inspector was perfectly entitled to form the planning judgments that she did, which in essence echoed those of the second defendant, and there is no basis at all for saying that they were unreasonable.
22. The claimant, in various photographs, showed the inspector other conservatories which projected rearwards from properties and again contended that because other houses had such conservatories, there was nothing objectionable about the conservatory in his case.
23. The inspector was entitled to focus upon the merits of this particular conservatory and its effect on number 110. She noted that other conservatories had been brought to her attention, but said that she had insufficient information to comment on their relevance. Again, she was entitled to adopt that approach. There does appear to have been very little information about those conservatories: whether, for example, they were erected pursuant to planning permissions, whether they were erected pursuant to the general development order, or whether indeed they were erected in breach of planning control, but the council failed to enforce against them. There was, then, little information on those matters, and merely because there were other large conservatories in the vicinity, that did not mean that the particular conservatory at number 108 should be granted planning permission.
24. In summary, I am satisfied that in reality the grounds merely seek to reargue the planning merits. That is perfectly clear if one reads what is described as a response to the skeleton argument, which has been produced by Mr Tucker, FRICS, who was responsible for the design of the extensions.
25. For the sake of completeness I should mention that I have also had regard to a supplemental affidavit from Mr Davey, which is dated 11th October and which was received in the Administrative Court Office today. In that supplemental affidavit, he states that the inspector arrived and departed with the council officer, and contends that that was inappropriate and contrary to standard practice.
26. The supplemental affidavit says:

"I believe she was influenced by the planners to come to the same conclusions as them and that her decision was biased and not based upon an independent investigation."

27. He also complains about the thoroughness of her site inspection. Those are serious allegations, particularly the allegations of bias, and if they were to be made they should have been made at a much earlier stage so that the inspector could have had a proper opportunity of answering them. In the circumstances, I am not prepared to allow the grounds to be amended to raise such serious allegations at such a late stage.
28. For these reasons, this application must be refused.
29. MISS BUSCH: Thank you, my Lord. I have an application for the second defendant's costs in this matter.
30. MR JUSTICE SULLIVAN: Yes.
31. MISS BUSCH: A schedule of costs should have been --
32. MR JUSTICE SULLIVAN: Have you submitted a schedule of costs?
33. MISS BUSCH: Yes.
34. MR JUSTICE SULLIVAN: Yes. I am not sure if I have that schedule. It probably was submitted, I suspect, but I do not seem to have it. It appears to have floated off somewhere. Do you have a spare copy? (Pause). Wait a minute, it is here, but anyway, right. (Handed). Thank you. Yes. Well, Mr Davey, what do you want to say about costs? Firstly, is there any reason why you should not pay them in principle, and then, secondly, if you should, what do you want to say about the amount claimed?
35. MR DAVEY: I am a little bit shocked about not having the whole thing quashed, really. But I am not working at the minute, I was made redundant a year or so ago and have no income, and this will now expedite the matter and we will lose the house. So if you want 50p a week --
36. MR JUSTICE SULLIVAN: That is a separate matter. Whether the costs can actually be recovered is a different matter from whether you can actually pay them. You have the opportunity now to say whether you think the second defendant is entitled to them.
37. You have not raised the issue, but I do, and I do not want do it in any critical sense, Miss Bush, but if we look at the work done on the documents, there is a heck of a lot of work done on the documents: one hour, nine and a half hours, three hours, point eight of an hour, ten and a half, twelve and a half, over 13 hours. Now this is a relatively simple challenge to a relatively straightforward decision letter, and I am not saying this in any critical sense, I know the Treasury Solicitor likes to be very thorough, but the question is whether other people should pay for the Secretary of State being very thorough, and I am pretty surprised that someone from the Treasury Solicitor's office took quite so long to work out that actually this is yet another of these challenges which does not really raise a point of law.
38. MISS BUSCH: Yes, my Lord, certainly. In essence the challenge, and the answer to it, if I may respectfully say so, is a straightforward one, pursuant to what -- as I understand it, a minute of advice was produced, and I assume that would have taken up the bulk of the work on the papers.
39. What I would say about the simpleness or complexity of the matter is that, in fact, as set out in the claim form, there are some numerous grounds that are put forward, at least one of which, namely the remarks about the inspector's comments on the height or the relative height of the approved and non-approved dwelling, required reference to the plans and a certain degree of attempting to work out what the heights were. In my submission, going through each of those grounds and ascertaining that there really was nothing of substance to them simply would take a reasonable amount of time, together with a certain degree of legal research.
40. Again, I appreciate that the principles that are involved here are relatively straightforward, but they still had to be, as it were, checked. So in those circumstances, and particularly as I say as regards the complexity of grounds as set out in the part 8 claim form, this does justify the amount of time that was spent.
41. MR JUSTICE SULLIVAN: Yes. Thank you. What I am going to do, Mr Davey, is, first of all, I think there is no basis on which you should not in principle pay the costs, so you are to pay the first defendants' costs. I am satisfied that they should be summarily assessed, but I am, notwithstanding what Miss Bush says, not entirely convinced about the amount of hours spent on looking at the documents. I do not criticise the Secretary of State or the Treasury Solicitor for poring over the documents for ages, but I am not necessarily persuaded that you ought to pay for them doing so.
42. So what I am going to do is to knock £400 off the documents, looking at the documents costs, just simply doing the best I can, and I am summarily assessing the costs therefore in the sum of £2,330 rather than £2,730. I do so on the basis that this is pretty much, well, certainly for the Treasury Solicitor, a straightforward case.
43. MISS BUSCH: Thank you very much, my Lord.
44. MR JUSTICE SULLIVAN: Right, thank you very much.