England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		20th July 2006

1. MR JUSTICE BURTON: This has been the hearing of an appeal by Dunster Properties Ltd against a decision of the First Secretary of State's inspector, Mr Mead, given on 25th November 2005.
2. The property the subject matter of the planning application is in a very attractive area of Chelsea, falling within the Cheyne conservation area, and in particular it relates to premises at 64/65 Glebe Place, SW3. There is a terrace on the north-eastern side of the Place. I have only looked at some of the plans, but it appears that this terrace is one containing properties of different shapes and sizes. The desire is to build a first-floor extension to what is at the moment only a single-storey building which forms part of that terrace.
3. The application was made originally I think on more than one occasion, but eventually it met a planning appeal decision (in what we have called "the first appeal") by the Secretary of State's inspector, Mr Sargent, given on 6th May 2003. The plan that was before Mr Sargent was opposed by the Royal Borough of Kensington and Chelsea. Mr Sargent recited in paragraph 5 of his decision as follows:

"The Council considers the gap above No.65 plays an important role in providing a context for the neighbouring terrace to the north, and, for this reason, it contends its enclosure should be resisted. However I have not been advised this terrace is listed, and I believe its visual balance and symmetry have already been affected to some degree by the partial painting of the external brickwork, and by the presence of a 2 storey block close to its northern end. Furthermore, as stated above, this side of Glebe Place is characterised by its variety of buildings, and I consider each of them is of a strong enough design to contribute to the street scene despite the close proximity of its neighbours. I therefore do not believe an extension of a sympathetic appearance, scale and siting on the upper floor of No.65 would erode the contribution made by the neighbouring terrace to the appearance of the conservation area."

4. That is a clear position taken by the inspector in response to what has been called the "in principle" stand by the council then put forward, in opposition to any development of an upper storey of No. 65. However, he rejected the plan that was then put forward in paragraph 6 of his decision:

"It would be an unduly dominant and discordant feature on the building's front elevation, and, as a consequence, especially given its position at the front of the property, it would be highly noticeable and jarring within the streetscene, detracting from the pleasing character of this part of Glebe Place. ... Accordingly I conclude the proposal would neither preserve nor enhance the character and appearance of the Cheyne Conservation Area, and, as such, would be contrary to the objectives of the development plan."

5. This latter is a reference to the development plan of the Royal Borough of Kensington and Chelsea, in which CD61 provides a purpose:

"To ensure that any development in a conservation area preserves and enhances the character or appearance of the area."

6. In CD62 there are specific respects in which the council wishes to ensure that all development and conservation areas is to a high standard of design and is compatible with, among other things, the character, proportion and rhythm of the neighbouring area. As a result of the refusal of planning permission by the inspector, the claimant, Dunster Properties Ltd, went back to the drawing board. They produced a new plan and a new planning application. On this occasion it met the sympathy and the support of the planning officers from the Royal Borough. I have seen the report by the Executive Director of Planning and Conservation which was put before the Planning Services Committee on 25th April 2005, in support of the new plan. It recited the planning considerations. It recited at paragraph 4.7 the fact that:

"The current scheme attempts to overcome the issue of dominance of the roof form by reducing the degree of visible tile hanging and the extent of the roof. This is done by increasing the height of the front elevation in a style to match that of no.65, whilst keeping the ridge height of the new roof relatively low and in proportion to the existing roof form at no.65. The 'unduly dominant' bulk and visual dominance of previous refused schemes has been addressed by maintaining a degree of visual separation and distinctiveness between the two original buildings."

7. There had been public consultation, and of the 12 representations received there was a summary by the officers of the objections to the proposal. All of those are set out in section 5 of the report, and, for reasons there given, are persuasively disposed of.
8. The council did not accept the planning officer's recommendation. It is apparent that they continued the "in principle" objection to any development of a first-floor extension on No. 64/65. In relation to the appeal which landed up before Mr Mead, to which I have referred, the council put in a case which at paragraph 3.1 said:

"The adjoining terrace of six late Victorian studio houses to the North of Nos. 64-65 has been designed as a group, ... The section of No. 65 adjoining this terrace is predominantly single storey with a recessed first floor element. ... The ground floor element constitutes an important and pronounced townscape gap between the terrace and Nos. 64-65. This gap plays a significant role in providing a context for the neighbouring terrace to the north."

9. Mr Mead rejected the appeal by the claimant, and it is that rejection by Mr Mead that is now challenged before me. In paragraph 2 of his judgment, he referred to paragraphs CD61 and CD62 of the Royal Borough's development plan. He also referred to a number of other paragraphs, including CD47, which included the following words:

"To resist proposals for extensions if: ...

k) an important or historic gap or view would be blocked or diminished."

10. In paragraph 3 of the report, Mr Mead makes it quite plain that he has, as one would expect, not least because it was placed firmly before him in submissions, read the report of the earlier inspector Mr Sargent and "I concur with his description of the surroundings."
11. Mr Mead also rejected the appeal, but, as will be seen, on different grounds from those of Mr Sargent. He stated as follows:

"4. The character and appearance of this part of the Conservation Area is derived from the contrast between the relative uniformity of the terrace on the south west side of Glebe Place and the architectural variety on the north east side. Along the north east side of the Glebe Place, the gap at the appeal site due to the single storey frontage creates visual interest and adds depth to the views when looking along the street between the two facing rows of houses."

I shall return to the question of this gap, as he does.

12. In paragraph 5 he stated as follows:

"The Council suggested that the new roof at No.65 would appear dominant and overbearing in its position on the frontage."

That of course was a criticism which the council was making of the new plan, but which had indeed formed the fundamental basis for the rejection of the earlier plan by Mr Sargent, as I have already described. Mr Mead continued:

"However, the new roof would copy the form of the roof of No.64. Although No.64 is a slightly taller property, I consider that any degree of imbalance would hardly be perceptible and, as a design, the roof would visually integrate with the building on which it would sit and also the roof of No.64, with which it would have a comfortable relationship."

13. It would appear, therefore, that any particular objections to the design of the proposed extension which were put forward by the Royal Borough, or which were otherwise in the inspector's mind, were rejected by him.
14. The inspector's conclusion appears to be in the following two paragraphs of his report:

"6. However, the proposal would bring the new first floor at No.65 to the front main parapet and, in so doing, would remove the majority of the recessive view created by the juxtaposition of the single storey property with the end of the 3 storey terrace next door. I consider that the loss of the view which currently extends back beyond the frontage would erode the perception of depth which is an attraction of the existing townscape of the north east side of Glebe Place. The view of the rooftop garden at No.65 and the tree to the rear, both of which add to the ambience of the street, would also be either lost or significantly reduced.

7. Therefore, I consider that the erosion of the recessive view afforded by the single storey element of No.65 would fail to preserve either the character or the appearance of this part of the Cheyne Conservation Area. [That is plainly a reference to paragraph CD61.] Accordingly, the proposal would be contrary to the adopted UDP, notably Policies CD61 and CD62 which deal with development in conservation areas."

15. Pausing at this stage of his decision, it appears clear that the basis upon which he has rejected and is rejecting the application is that which was put forward by the Royal Borough in its statement of case to which I have referred, namely that the loss of the gap would be detrimental to the conservation area, and should therefore prevent the development sought. The inspector refers to it in terms as a gap in paragraph 4 which "adds depth to the views", and then in paragraph 6, which I have read, he refers to the removal of "the majority of the recessive view".
16. In argument before me, Miss Olley accepted that the reference to the loss of the recessive view must be one and the same as the loss of the gap. If there is no gap there is no view of what lies behind, which is presumably what is meant by the rather grandiose words "recessive view". That appears to be the basis, therefore, on which the inspector has rejected the application. It is, on its face, inconsistent with the basis on which Mr Sargent had approached the earlier application. Mr Sargent, having in terms rejected the council's argument as to the importance of preserving the view, had allowed for the possibility of an extension to the first floor, but disproved of the particular design put forward.
17. Mr Petchey does not seek to challenge Mr Mead's conclusion upon the basis that it is inconsistent with the earlier inspector's report. He accepts, of course, that it is trite law that one inspector is not bound by the decision of an earlier inspector. He does not rely on any issue of legitimate expectation arising out of the view of the first inspector, accepting that there was no promise that if the developer went out and did something which appeared to accord with what the first inspector wanted, that another application, never mind another appeal, would be successful. What would be obvious would be that if the developer had taken no steps to seek to comply with the first inspector's views a second go would be even more unlikely to succeed, though still possible.
18. But what Mr Petchey submits is, by reference to the balance of the judgment of Mr Mead, that in fact Mr Mead cannot be shown to have reached the decision he did, namely one which was in complete opposition to the decision of Mr Sargent. This argument arises out of the unclear words, as I conclude them to be – or, indeed as Miss Olley herself is forced to accept, not very felicitous words - of the inspector in paragraph 8. It reads as follows:

"The appellants referred to the statement of the previous Inspector who wrote that 'I do not believe an extension of a sympathetic appearance, scale and siting on the upper floor of No.65 would erode the contribution made by the neighbouring terrace to the appearance of the conservation area'. The appellants also commented that the Council had re-instated the 'in principle' objection raised in the respect of the application which led to the first appeal. I have no comments on either of those two remarks other than to state that each case is judged on its own merits and my conclusions on the current scheme are given above."

19. Mr Petchey submits that this makes it plain that it cannot be taken that the earlier part of his judgment is indeed rejecting this application on the "in principle grounds" of simple preservation of the gap at all costs, which was the Royal Borough of Kensington's primary position in both appeals. This is because he expressly made no comment on either the statement of the inspector or the comments of the appellant on the council's position. If indeed he was deciding the instant appeal before him on the basis of an acceptance of the gap argument, he would and should have said so in terms in making the comments he did in paragraph 8. He did not. He was plainly bound to address the earlier inspector's report, both because he was obliged to address material arguments which had been put before him (see English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409, particularly at paragraph 6), but also because it is recognised that the content of an earlier inspector's report is material when it comes to a second inspector's report (see, for example, North Wiltshire District Council v Secretary of State for the Environment and Clover (1992) 65 P&CR 137.
20. Therefore, in addressing that report the inspector must have been saying something of substance. By specifically making no comment on the statement of the previous inspector, he cannot have been thereby adopting the reverse position to it. Equally, by failing to make any comment on the council's position, rather than in fact ratifying the council's position by adopting it, he was leaving the reasonable reader of the decision in complete doubt as to what he had decided. It looked, if one read the first part of the decision, as if he was making an in principle decision that the present application must be refused because it eliminated the gap, but then in paragraph 8 he appeared either to say the contrary, or at any rate not to confirm that position.
21. Mr Petchey referred to the important authorities in the House of Lords of Save Britain's Heritage v Number 1 Poulry Ltd [1991] 1 WLR 153, particularly per Lord Bridge at 167, and South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, particularly per Lord Brown at paragraph 36. Lord Bridge indicated that:

"The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given. ... a developer whose application for permission is refused may be substantially prejudiced where the planning considerations on which the decision is based are not explained sufficiently clearly to enable him reasonably to assess the prospects of succeeding in an application for some alternative form of development."

A similar comment was made about the need for an opponent of the development to have the same understanding.

22. Lord Brown, at paragraph 36 of South Bucks, said:

"The reasons for a decision must be intelligible and they must be adequate. ... They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications."

23. This did not mean, as characterised by Miss Olley, that a developer was looking for a promise or guidance from an inspector as to how to do better next time. Mr Petchey accepted, and I accept, Miss Olley's submissions that an inspector cannot bind a future inspector, and therefore will be careful not to give hints or guidance as to how to trim a future application so as to be sure to succeed in the future. But what is plain from both these two speeches in the House of Lords is that which is required is that the inspector should give enough reasons as to why he or she is refusing the particular application in the particular case, so that the developer can then learn for the future. If in fact the reader is left at the end of Mr Mead's decision not knowing why he had lost, then not only does that offend against the ordinary principles of judicial duty to give reasons (exemplified, for example, in the cases referred to and summarised in English v Emery Reimbold) but it offends against the particular need for care by planning inspectors referred to in the two House of Lords' authorities to which I have referred.
24. Miss Olley accepted that the reasons given by an inspector must be clear. She submitted that they are. Her submission is that the first part of the report contains the meat of the decision, and paragraph 8 is a subordinate paragraph.
25. I raised with the parties the possibility that this would be an occasion for an enquiry of the inspector as to what he did intend, so as to make his reasons clear: not so as to change his mind, or so as to give him a second bite of the cherry, but so as to understand whether there was in fact an inconsistency in his conclusion or whether in fact he could tell us what, by reference to his decision, his reasons for refusing the appeal in fact were. This course would derive in terms of court decisions from English v Emery Reimbold, and the recommendation of the Court of Appeal in that case that that may be an appropriate course for an appellate court, particularly on an application for permission to appeal where the grounds are inadequate reasons; and as to employment tribunal decisions from Barke v SEETEC Business Technology Centre Ltd [2005] ICR 1373, again a Court of Appeal decision, where that course was approved in relation to appeals on grounds of alleged non-existent or inadequate reasons to the Employment Appeal Tribunal, by way of referral to the Employment Tribunal chairman for giving or supplementing of reasons, a course which was there approved.
26. It is plain that the High Court has its own inherent jurisdiction, and that the Employment Tribunal and Employment Appeal Tribunal have their own rules. As it happens, Miss Olley was able to help us by further reference to an Administrative Court decision referred to in Barke, namely VK v Norfolk County Council [2005] ELR 342, because she was counsel in that case. In that case, Stanley Burnton J might have been prepared, had he thought it appropriate, to have adjourned in order to invite the Special Educational Needs Tribunal to supplement its reasons, although he concluded that there would be no way in which to compel them to respond to such an invitation.
27. Miss Olley accepted, and Mr Petchey firmly submitted, that there would be no similar way in which such a course could be taken (even if I were minded to do so) in this case, because of the different statutory structure applicable in relation to a planning inspector. I certainly, wearing my hat as a former President of the Employment Appeal Tribunal in relation to the procedure now approved at least twice by the Court of Appeal, would welcome that opportunity, particularly at a preliminary or permission stage, because it seems to me that such a step, provided care is taken not to enable a tribunal to change its mind unfairly, saves costs and time where the only complaint is in relation to an inadequacy of reasons. But I am satisfied by the careful note prepared by Mr Petchey that the provisions of section 288 would not permit such a course, both because in effect the inspector is functus officio and because the only power that this court would appear to have, under the limited statutory jurisdiction given to it, is a power to quash the decision of an inspector.
28. I was therefore content not to consider that course further; although it did seem to me that, had it been available, this would have been an ideal candidate for such an application, because in essence this is not a case in which, on the face of it, the absence of reasons is the fundamental objection to the judgment, in terms of the appellant seeking to allege that it is wholly flawed – the primary aim of the appellant, as explained to me by Mr Petchey, is that it should be able to guide its conduct for the future in the way that the House of Lords has indicated is proper and sensible. If in fact this decision of the planning inspector is founded upon a particular detailed objection to this plan, then it must be identified, so that the basis upon which this plan failed can be understood, and the defect in it avoided so far as possible for the future, just as the defect in the first set of plans was avoided as a result of Mr Sargent's decision. If, on the other hand, the decision is an in principle objection on the basis of the loss of the gap, then that does not prevent a further application being made by the developer because, as I have previously indicated, it is common ground that a further inspector would not be bound by this inspector's views and might indeed prefer the earlier views of Mr Sargent. But what is necessary is for the parties and the court to understand what was intended to be Mr Mead's reasons.
29. I return then to Miss Olley's submissions against the background that I must do my best to decide the question without reference back to the inspector. Her submission is that there is no inconsistency in the decision, and she addresses paragraph 8 as follows. So far as the first sentence is concerned, that sets out the previous inspector's view that he was only rejecting an application for a first-floor extension on the basis of particular matters, and was not ruling out any first-floor elevation. It was open, as is common ground, to Mr Mead to disagree with that and not follow it. Plainly in argument the matter was put before him and he needed therefore to address it, even if only to disagree with it.
30. Miss Olley's submission is that the inspector did disagree with it. In terms, he simply said "I have no comment on it". That was perhaps unfortunate. He could perhaps better have said, in terms, that he disagreed with it. But having said that he had no comment on the statement of the previous inspector, he went on to say that his conclusions on the current scheme were given above, and those conclusions were quite plainly at odds with the previous inspector's decision, in resting solely on the required retention of the gap.
31. In those circumstances, says Miss Olley, what the inspector was doing was, albeit not wholly clearly, stating the position, namely that he was not bound by the previous inspector's view and therefore had no need to comment upon it. As I have indicated, it seems to me it would have been better if he had stated, as is obvious, that his decision is in contradiction of it, as it is entitled to be.
32. So far as the second sentence is concerned, this relates to the appellant's comment that the council had reinstated, as he put it, the in principle objection. Again, perhaps unfortunately, Mr Mead did not deal with this by saying that indeed they had not just reinstated but repeated the in principle objection. That must have been obvious to everybody, because it was contained in the statement of case before him, which appears, albeit that the council officials had supported this application, to have repeated the position that had been taken unsuccessfully in front of Mr Sargent. It would thus have been more sensible for Mr Mead to have said that the council had repeated its in principle objection, and that he had, unlike Mr Sargent, found in favour of it. It would have been preferable if he had so expressed himself. But once again, he had gone on, after saying he had no comments on either of those two remarks, to repeat that his conclusions on the current scheme were given above.
33. The one unfortunate aspect of paragraph 8 are the words that I have not specifically addressed, namely that he said "I have no comments on either of those two remarks other than to state that each case is judged on its own merits." It is those words which have caused me a little doubt before coming down, as I do, in favour of Miss Olley's arguments, because while he has of course judged this application, as any application, on its merits, he has concluded in favour of the in principle objection. But once again, I am persuaded that, albeit ham-fistedly, this inspector has stated, in effect in paragraph 8, by way of supplementation to the report, that he is obliged to deal with these arguments, but that he has no specific comment to make on them. The basis on which he has decided this appeal is in my judgment clear and is unaffected by the balance of paragraph 8. He did support the in principle position of the council. He did of course judge the appeal on its own merits, but he decided those merits by reference to his conclusion that the gap must be preserved and the recessive view left unaltered, in order to comply, as he saw it, with CD62.
34. The answer therefore to Mr Petchey's very proper question, namely that his client should be left in no doubt as to what the basis was of this second inspector's report, so that they could go forward able to adjust their conduct, is that this inspector, in my judgment, clearly rejected this application because of his view, right or wrong, different from Mr Sargent's view, that the application should be refused because of his conclusion that the gap should be preserved.
35. In those circumstances, this decision is not defective for lack of reasons. On analysis, it does not contain mutual inconsistencies. It does not fall to be construed as a statute. On analysis, I accept Miss Olley's arguments as to the conclusion that this inspector reached, and it is one, as I have indicated, contrary to that of Mr Sargent, but nevertheless binding, for the moment, on this developer.
36. MISS OLLEY: My Lord, I am grateful. I have an application for the Secretary of State's costs.
37. MR JUSTICE BURTON: Now, first of all, the matter of principle; do you have anything to say about that?
38. MR PETCHEY: If I could just deal with that. Can I just mention there are two points on the actual wording of the judgment. I do not know if you want me to deal with those first, my Lord?
39. MR JUSTICE BURTON: Yes, of course. You will be wanting to ask for a transcript.
40. MR PETCHEY: We will want a transcript in due course.
41. MR JUSTICE BURTON: When I see the transcript I can correct it.
42. MR PETCHEY: There is a reference to section 287, which was in fact my mistake in the particulars of claim long ago, and it should be 288.
43. MR JUSTICE BURTON: Yes, it should.
44. MR PETCHEY: Also, my Lord, you said that the officers in respect of the first application had recommended refusal.
45. MR JUSTICE BURTON: I thought they had.
46. MR PETCHEY: That may well be correct. I think your Lordship is right, and because there was the detailed objection it is certainly likely, but I have looked quickly through the bundle. I am not mindful of any such indication on the material before your Lordship, and --
47. MR JUSTICE BURTON: I have got it from somewhere. If that is not your recollection, then, unless Miss Olley has anything else to say on that, I can simply remove that reference.
48. MR PETCHEY: I am grateful, my Lord. I do not think it bears upon --
49. MR JUSTICE BURTON: No, particularly as you may be taking the matter on further, you do not want to have anything in here which might prejudice the future.
50. APPELLANT COUNSEL: Yes, I am grateful, my Lord.
51. Turning to costs. Your Lordship has referred to the approach of the inspector as ham-fisted. In my submission, it is certainly obscure in the way your Lordship has clarified for the benefit of the appellant, and I am grateful for that. But I would submit that this is a slightly unusual case, but it happens from time to time in these cases, where it would be appropriate to reflect the ham-fistedness of the inspector's decision letter in the award of costs. Clearly it is a matter that has troubled your Lordship, but obviously reached a clear decision in the result, but the ham-fistedness is a matter which should, in my judgment, be reflected in the order for costs.
52. MISS OLLEY: My Lord, I do not accept that the fact that the matter caused your Lordship some concern and doubt should detract from the principle that an award of costs should normally follow the event. I do ask for my costs on principle, and I ask for them in the sum that is set out, subject --
53. MR JUSTICE BURTON: Remind me how much that is. I am sure I have got it somewhere. I remember seeing it, but what I have done with it I do not know.
54. MISS OLLEY: If your Lordship does not have a copy to hand, I perhaps better hand up my own copy.
55. MR JUSTICE BURTON: Yes, that would be helpful.
56. MISS OLLEY: The costs are claimed in the sum of £4,488. I submit that those are proportionate in view of the matter your Lordship has decided.
57. MR JUSTICE BURTON: Not an enormous sum.
58. MR PETCHEY: I do not have an issue on quantum.
59. MR JUSTICE BURTON: No.
60. No, I conclude that the ordinary order ought to be made. It was perfectly properly in your commercial interests, quite apart from your legal interests, to have this clarified. If you had been successful, because that is what you were aiming for, you would have knocked it out completely. You have not been successful. So your second best position has been achieved, but I think that has got to come with a cost. So I order costs of £4,488. That includes VAT, does it?
61. MISS OLLEY: It does not. The VAT would not be claimed because it is a government department.
62. MR JUSTICE BURTON: It disappears anyway. So it is £4,488.
63. MISS OLLEY: I am grateful.
64. MR PETCHEY: My Lord, may I have leave to appeal?
65. MR JUSTICE BURTON: On what basis?
66. MR PETCHEY: First of all, of course it is an important matter to the appellants, your Lordship will recognise that. We obviously will think carefully about the position because your Lordship has clarified --
67. MR JUSTICE BURTON: What is the matter of principle on which you will be taking this to the Court of Appeal?
68. MR PETCHEY: The point of principle relates to the giving of reasons, and --
69. MR JUSTICE BURTON: But all your arguments about the requirement to give reasons --
70. MR PETCHEY: You have accepted.
71. MR JUSTICE BURTON: -- I accepted them, and the need for those reasons and the purpose in this particular kind of case. So what you lost on was whether, on an analysis of this particular judgment, we could tiptoe thorough the tulips or not, and I did. I do not think that looks like a Court of Appeal case, does it?
72. MR PETCHEY: It is not quite a principle, I would accept that my Lord, but it is a difficult area and the giving of reasons is a very important matter that has troubled the House of Lords, as your Lordship has seen, on four occasions. The fact that ultimately Number 1 Poulry, they all come down to the facts, does not mean that it is not a proper matter for appeal, because of the interests involved.
73. MR JUSTICE BURTON: I think you must persuade the Court of Appeal that there is something worth their Lordships looking at. So I will fill this form out in my room, but effectively that is the reason. I am saying that I think all the points of principle were resolved in your favour. My decision was one effectively of construction of a decision, and I do not believe their Lordships will be interested. Thank you both very much.