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
		26th April 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 one of the first defendant's inspectors contained in a decision letter dated 22nd July 2004. In that decision letter, the inspector dismissed the claimant's appeal against the second defendant's refusal to grant planning permission for what was described, in an application dated 8th May 2003, as the removal of rear temporary structure and retention of existing office use on the whole of the ground floor at 26 Green Street, Forest Gate, London, E7.
2. At the outset of his decision letter, the inspector noted that although the development was in part described as the retention of office use, this should be more correctly referred to as a retrospective application for a change of use. He said, therefore, that he had considered the appeal on this basis.
3. In paragraph 2 of his decision letter the inspector identified the main issues as:

"... the effect of the proposal on:

"(a) the housing stock in the Borough

"(b) the character and appearance of the area

"(c) the living conditions of the adjoining occupiers."

4. Pausing there, it is to be noted that those three issues reflected the three reasons for refusal of planning permission given by the second defendant. Permission had been refused for three reasons: (1) the proposal would result in an unacceptable loss of residential accommodation and thus fails to comply with policies H2 and EMP 11 of the council's adopted Unitary Development Plan; (2) the proposed alterations to the front elevation, in particular the installation of a doorway in the bay window, would cause detrimental harm to the street scene, the visual amenity and the character of the area, contrary to policies EQ19 and EQ20 of the adopted UDP; (3) the proposed use of the premises as an office use by reason of the attraction of persons and private motor vehicles to the site would be likely to prejudice the amenity of the occupiers of the upper floors due to the consequent general noise and disturbance, contrary to policy EQ20 of the adopted UDP.
5. The inspector identified the relevant policies in the development plan, and stated that the most relevant policy was H2:

"... which states that the Council will resist the loss of residential accommodation. Exceptions are where there is an overriding benefit to the community and it would serve a specific need."

6. In that paragraph, the inspector correctly summarised policy H2. The background to the policy is set out in the reasoned justification of the plan in paragraph 4.35:

"As the Council is seeking to meet the growing demand for new homes it is important that any loss of existing residential accommodation is minimised. Loss of homes should only be considered where the alternative can provide overriding benefit to the community. Such alternatives may include the development of a more balanced and sustainable community, healthcare premises and buildings for childcare ..."

7. Cross-reference is also made to various community service policies in the UDP.
8. The inspector gave his reasons quite shortly. So far as relevant, they are as follows:

"4. The appeal premises are located in the northern part of Green Street between Romford Road and Westbury Terrace which is almost exclusively residential in character, unlike the area beyond Westbury Terrace which is a commercial area extending for a considerable distance to the south. The site is the only commercial use within a terrace of 13 dwellings, although there are a few long established corner shops on other blocks nearby, as well as the Forest Gate police station at the junction with Romford Road. The adjoining streets are generally residential in character consisting of terraced housing with little off street parking.

"5. The development is to retain the use as a general office, which at the time of my inspection occupied all of the ground floor flat and basement, together with a rear extension, which I understand was erected without permission. It is intended that this extension would be demolished as part of the proposal. It is also proposed to rearrange the entrance area to the office by installing a doorway in the centre of the front bay window. A self contained flat on the first floor would remain unaltered."

9. The inspector then dealt in turn with the three main issues: effect on housing stock, character and appearance and living conditions. So far as the first of those issues is concerned, the inspector said this in paragraph 6:

"The Council is concerned that, because of the growing demand for new homes in the Borough, the loss of existing residential accommodation should be minimised wherever possible. Exceptions to this would be where a proposal met a specific need that was of overriding benefit to the community. In this case the appellant runs a solicitors office and I acknowledge the argument that there is need for legal advice because a local Law Centre has closed, also that the appellant acts as an immigration advisor to the local community. The Council points out however that there are a number of other solicitors in the area that offer a similar service. In my opinion, although there may be some community benefit, this would be limited, and it is not a community or healthcare use of the type envisaged by the Council that would justify an exception to the policy."

10. In paragraph 7, the inspector concluded that the residential character of:

"...this small but distinct neighbourhood would in my opinion be significantly changed if this commercial incursion were to remain, and the loss of the ground floor flat would clearly conflict with the Council's aim to retain existing housing stock."

11. He then considered the issue of precedent and specifically acknowledged:

"...that the appellant considers that his professional business is of benefit to the community and that it has operated at the site for a number of years."

12. The inspector, however, concluded that, since the criteria which would justify making an exception to policy H2 did not exist, there would be harm to the aim of maintaining the housing stock in the area and the development would conflict with, amongst other policies, policy H2.
13. So far as character and appearance were concerned, the inspector concluded that removing the rear extension would not cause any harm, but that the proposed insertion of a doorway in the centre of the bay window would be a discordant feature. As a result, he concluded that the proposed alterations would not respect the style and pattern of development in the area, and that its character and appearance would be harmed.
14. Dealing with living conditions, the inspector said that at the time of his inspection there were a number of staff occupying the premises:

"Noise and disturbance resulting from their business activity, together with disturbance from visitors and deliveries is likely to be transmitted through the walls and ceiling into adjoining dwellings. Although I am not aware of any representations from adjoining occupiers on this issue, I conclude that the impact of this is harmful to the living conditions of the adjoining occupiers."

15. Under the heading "Other Matters", the inspector said:

"I have taken into account that there are shops on the other side of Green Street, although these are typical of corner shops which are historically found in such areas. There is furthermore an estate agents office at No 12 but I am not aware of the background to this use."

16. He then went on to make it plain that he had taken account of the personal circumstances of the appellant, as well as the hardship that might result from relocating the business. However, he concluded that these matters did not "outweigh the more general planning considerations". For those reasons, the inspector dismissed the appeal.
17. On its face, the decision is entirely a matter of judgment on planning merits, and it is difficult to conceive of any arguable error of law on the part of the inspector. Undaunted, Mr Hussain submitted that the decision letter should be quashed on six grounds; five of which were set out in his skeleton argument and a sixth was added during the course of oral submissions.
18. Taking those grounds in turn, first it was submitted that the inspector had failed to carry out a proper site visit. At the time of the site visit, on 24th May:

"... the conduct of the Inspector was such as to give the impression that a decision had already been made and the visit was a mere formality. In the circumstances the Inspector left the appellant with the impression that he had failed to give this application the attention and due consideration it warranted."

19. The inspector has dealt with this allegation in a witness statement dated 16th November 2004. In paragraph 4 of that witness statement the inspector said, in part:

"I recall that the inspection had been arranged in advance for 10.30 am. I arrived on time and I met the representative for the Second Defendant outside the premises and we entered together. I recall that when I went into the premises I was asked to sit in the reception area until the Claimant was available. I said that I was not able to wait and that the inspection should not be delayed. This may have given the Claimant the impression that I was in a hurry.

"5. The inspection of the premises took about 20 minutes and I spent a further 5 minutes inspecting the outside of the property. It was thorough and not rushed. Both the Claimant and a representative for the Second Defendant were present at the Inspection. I recall noting that there were a number of differences between what was shown on the application plan and the existing situation at the premises. In particular, some rooms that were shown as being in residential use were, in fact, being used as offices. Also, a basement area which was not shown on the plan was in use as an office. I spent additional time making sure that these departures were recorded. I recall asking both parties if they were satisfied that I had seen everything. The Claimant raised no points or queries in response."

20. Whilst it is regrettable that the claimant may have been given the impression that the inspector was in a hurry, because the inspector did not wish to wait in the reception area, it is entirely understandable that the inspector would not have wished to delay the site visit. There is nothing in the decision letter to indicate that the site visit was in any way inadequate. I asked Mr Hussain what, if anything, would have been disclosed by a thorough site inspection that was not disclosed by the site inspection conducted by the inspector on 24th May. Apart from referring to the other grounds, with which I will deal in a moment, Mr Hussain was not able to identify anything which the inspector should have seen, on the basis that he should have conducted a more thorough inspection. In my judgment, there is no force whatsoever in this criticism of the inspector's conduct of the site visit.
21. The second ground of challenge contends that the inspector made "a narrow assessment on the impact on local housing stock and failed to consider the wider benefit to the community". It was submitted that the inspector failed to consider:

"... the extent of that benefit to the wider community by failing to scrutinise why the council maintained a narrow range of benefits to the community when applying the exception and whether such a narrow application was justified or fairly applied."

22. The starting point for the inspector, in view of the provisions of section 54A of the Act, was the relevant policy (or policies) in the Statutory Development Plan. Here the inspector had identified the most relevant policy as policy H2 and accurately summarised its provisions. Contrary to the assertion made in the second ground of challenge, it is plain that the inspector did consider the extent of community benefit provided by the claimant's solicitors office; see paragraph 6 set out above. As I understood Mr Hussain's submission, it was that the inspector should have assessed the benefits provided by the claimant's solicitors office in greater detail. He should not simply have confined himself to expressing the opinion that, although there may be some community benefit, that benefit would be "limited".
23. The appeal was dealt with by way of written representations. The council made the point that the office:

"... may provide a specific service however it does not qualify as an overriding benefit to the community as a whole. Also as you say this will be used as a solicitor's office, and as you rightly point out opposite is another solicitors office, this further proves this point."

24. It was, of course, open to the claimant to give as much or as little detail as he chose about the community benefits provided by his solicitors practice. It would appear, although I am far from convinced that the appeal bundle is complete, that the claimant did not choose to give any particulars about his practice; he contented himself with generalities. In the grounds of appeal, he stated:

"The office use of the appeal site will be for a solicitor practice and will conduct regularly free legal advice sessions therefore it will be benefited to the local community especially with the closure of Newham Rights Law Centre at 185 Romford Road, London E7."

25. It is plain that the inspector had that submission in mind, because in paragraph 6 he specifically mentioned that there was a need for legal advice because a local law centre had closed. Given that the parties were content to deal with this issue in relatively general terms, the inspector cannot be criticised for the manner in which he resolved the matter in paragraph 6 of his decision letter.
26. Moving on to the third ground of challenge, it is submitted that the inspector's assessment of the residential character of the area in paragraph 7 of the decision letter:

"... does not accord with the location as described at paragraph 4 or the reality on the ground, the vast majority of premises on Green Street are commercial in nature which the Inspector failed to give adequate regard to."

27. Mr Hussain handed up a plan from a consultation leaflet issued by the second defendant relating to proposed parking controls in the Green Street north area. Although the plan was not before the inspector, I indicated to Ms Olley, who appeared on behalf of the first defendant, that I was prepared to look at it de bene esse for the purpose of identifying the location of the appeal site.
28. In fact, it is plain from that plan that the inspector's description of the area in paragraph 4 of his decision letter is wholly correct. The appeal premises, which are located in the northern part of Green Street, between Romford Road and Westbury Terrace, are in an area which is almost exclusively residential in character. It is clear from the plan produced by Mr Hussain that there is a distinction between the northern part of Green Street and the area on the other side of Westbury Terrace which, as the inspector says, is a commercial area extending for a considerable distance to the south. It would also appear from the plan that the site is indeed the only commercial use within a terrace of 13 dwellings, and that there are a few long-established corner shops on the other blocks nearby.
29. Mr Hussain submitted that the inspector had drawn what he described as an "arbitrary line" at Westbury Terrace and should have had regard to the character of Green Street as a whole. Viewed as a whole, Green Street is a busy commercial road. He conceded, however, that whether or not a line should be notionally drawn at Westbury Terrace was very much a matter of planning judgment for the inspector. It was for the inspector to decide whether describing the northern part of Green Street as almost exclusively residential in character, and distinguishing that part of Green Street from the area to the south of Westbury Terrace, was appropriate. In effect Mr Hussain submitted that the inspector had reached the wrong planning judgment, but such an argument does not disclose any arguable error of law on the part of the inspector. He saw the site, he saw the surrounding area, and it was a matter for him to decide whether the site lay within a predominantly commercial area or within a part of a commercial street that was almost exclusively residential in character.
30. The fourth ground of challenge contended that the inspector had taken into account factors about which he had no evidence and had therefore simply relied upon mere speculation. This criticism is directed at paragraph 9 of the decision letter, in which the inspector concluded that the impact of the business activity on the site would be harmful to the living conditions of the adjoining occupiers. This was not a point that was raised for the first time by the inspector. I have already mentioned the three reasons for refusal, and it will be seen that this issue was squarely raised by the second defendant in the third of those reasons. It is to be noted that, in his grounds of appeal, the claimant does not appear to have addressed this issue at all. In the circumstances, there can be no criticism of the inspector for, in essence, agreeing with the second defendant's representations in this respect.
31. The fifth ground of challenge complains that, although the inspector in paragraph 10 of the decision letter referred to an estate agent's office located on the opposite side of Green Street, at number 12, he:

"... did not place any weight on this as he claimed he was unaware of its history."

32. The submission was that the inspector should have taken full account of the planning history, or have invited representations from the parties about that history. That submission is surprising, since, on the material before the court, it would seem that neither the claimant nor the second defendant made any mention in their representations of the estate agent's office. Nevertheless, the inspector, in paragraph 10, went out of his way to make it clear that he had taken account of the fact that there were shops on the other side of Green Street. He made the point that they were typical of corner shops which are historically found in such areas, and he said:

"There is furthermore an estate agent's office at No 12 but I am not aware of the background to this use."

33. The inspector is making it plain that he has taken the estate agent's office into account, but is simply stating as a fact that he was not aware to the background of that use. Again, no criticism can be levelled at the inspector, since the parties had not chosen to make him aware of the background. Moreover, there is no question here of the inspector relying on a point, and giving it as a reason for refusal, without giving the appellant a proper opportunity to respond. The estate agent's office at number 12 is mentioned as part of the background to the inspector's overall appraisal to the character of the area, but it was not in any way a reason for refusing the application. Certainly the inspector was not required to invite further representations about the planning background to a particular use that neither party had relied upon.
34. In addition these five grounds in the skeleton argument, Mr Hussain submitted that the inspector had failed to consider whether appropriate conditions could have been imposed so as to enable permission to be granted. As far as one can tell, the closest one gets to the suggestion that a condition might be imposed is in the claimant's grounds of appeal, which stated:

"the applicant can consider conditions if any that the Council may decide to subject the proposal to keep within the Council's Development Plan."

35. In his witness statement, the claimant says:

"It was put to the Council that the applicant can consider conditions if any that the Council may decide to subject the proposal to keep within the Council's Development Plan."

36. Given the lack of particularity, the inspector can be forgiven for failing to mention the question of conditions. In any event, it is plain that the suggestion is academic, since no condition could overcome the council's principal objection that the loss of residential accommodation would be contrary to policy H2 in the statutory development plan.
37. Mr Hussain submitted that a condition might have been of assistance in dealing with the council's second ground of refusal, the effect of the alterations to the front elevation on the visual amenity and the character of the area, but the inspector plainly found that the proposed insertion of a doorway in the centre of the bay would be a discordant feature. That was the proposal before him. While a condition may qualify a particular proposal, it cannot radically alter it. Thus, it would not have been lawful to impose a condition that a doorway should have been inserted in some different position on the building. That would have required either an amendment to the application or a fresh application.
38. For all of these reasons, I am satisfied that there is no substance whatsoever in any of the these grounds, whether viewed individually or collectively, and it follows that this challenge to the inspector's decision must fail. The application is therefore dismissed.
39. Now, Mr Hussain, in front of witnesses I am going to give you back the plan.
40. MR HUSSAIN: Thank you, my Lord.
41. MR JUSTICE SULLIVAN: Ms Olley I do not think I have any costs schedule, but there simply may have been one that did not get to me through the machinery.
42. MS OLLEY: Yes, I understand it was served within the time limits. I am sorry it has not made its way on to the court file. My Lord, I have an application for the Secretary of State's costs in the sum of £3,197.
43. MR JUSTICE SULLIVAN: Is this a case where it did involve going along and asking the inspector -- so it is not one where you could just rely on the decision letter?
44. MS OLLEY: That is correct, my Lord. I understand that the amount of the costs is not disputed by my learned friend. He will, of course, confirm that for himself.
45. MR JUSTICE SULLIVAN: Thank you very much. Mr Hussain, can you argue with either the principle or the detail?
46. MR HUSSAIN: In terms of the amount, I do not have any instructions to deal with that, but in terms of the principle of the costs, what I would submit is that the applicant was entitled to bring this application, given the nature of the decision, and the impression that he had been given of the site visit. Moreover, the other factors that have not been taken into account in terms of the commercial premises across the road -- certainly, one could be forgiven to believe that there was certainly some merit in this application, and it was only as a consequence of obtaining a witness statement from the inspector which confirmed that there was an impression given that the application may not have been properly conducted.
47. It may not have in the event changed the overall decision one way or the other, but certainly in terms of the merit of the application. So in those circumstances, I would invite your Lordship to make no order as to costs.
48. MR JUSTICE SULLIVAN: Yes, thank you very much. I do not think I need to trouble you, Ms Olley. I am satisfied that there is no reason to depart from the usual course, which is to order that the claimant should pay the first defendant's costs. Mr Hussain's submissions would have had rather more force if, upon receipt of the explanation in the inspector's witness statement, the claimant had withdrawn from the proceedings. Notwithstanding the explanation, which gave a perfectly innocent explanation for any impression of hurry, the claimant chose to proceed, and must accept the consequences.
49. So the application is dismissed, the claimant is to pay the first defendant's costs, those costs are to be summarily assessed in the sum of £3,197. For completeness, I should add that that figure is a little higher than one might normally expect in a short challenge of this kind, but in this case there is the additional factor that the inspector had to prepare a witness statement in answer to the first ground of challenge.