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
		16th August 2006

1. MR JUSTICE COLLINS: This is an application under section 288 of the Town and Country Planning Act 1990 seeking to quash the decision of an inspector, who upheld the refusal by the local planning authority, in this case the London Borough of Southwark, to refuse planning permission to the applicant. He had applied for permission to construct a small one-bedroom dwelling house in place of an existing garage at 3 Townley Street, London, SE17. The council refused permission on three grounds, stating, first, that it was considered unacceptable because of its close proximity to houses in an adjoining street which would result, it was said, in an unacceptable sense of enclosure and loss of outlook. Secondly, it was said to be unacceptable by virtue of the inadequate living accommodation and garden space provided for future occupiers. Thirdly, it was inconsistent with the height, layout and building line of the surrounding properties, and the design, it was said, did little to reflect the architectural character to the surrounding area.
2. Mr Ali appealed against that refusal. The appeal was decided on the papers by an inspector who reached his decision on 16th August 2005. As I say, he upheld the council's refusal. He referred to the relevant plans and the policies to which he had to have regard. He noted in paragraph 5 of his decision letter that his attention had been drawn to the Supplementary Planning Guidance Note No 5, "Standards, Controls and Guidelines for Residential Development (the Standards SPG)". This appeared to have been attached to the UDP and was one of the documents referred to in the relevant policy H.1.8, and accordingly the inspector gave considerable weight to it.
3. The inspector had also had his attention drawn to another document, "Residential Design Standards: Housing" of November 2002, but that was a document which had been produced for consultation and was not a final document, and therefore he properly attached to it only limited weight. The inspector decided that he was not persuaded that the development would adversely affect the character and appearance of the area, but he upheld the council's decision on the other two grounds.
4. The appeal site is a small one fronting Townley Street. The surrounding area is generally residential, but the houses in the streets are of varied age. It may well be, I suspect, that there was an element of war damage in the area and therefore some of it will be post-war and some pre-war.
5. The proposed building would be lower in height than the buildings in the adjoining street and considerably smaller in scale than the blocks of flats and any recent developments. The inspector decided that the small size and the roof design would give the impression of it being an outbuilding to one of the existing buildings and it would be in keeping with the development in Townley Street.
6. The inspector then went on to consider the effect on the living conditions of neighbouring residents. He made the point that there would be no overlooking from the new house because there were to be no windows from which such overlooking could take place. However he thought there would be some loss of outlook from the nearest houses, namely 112 and 115 Brandon Street. He then considered the issue of overshadowing. Mr Ali, in a very thorough presentation and provision of documentation to the inspector, had set out a number of diagrams, and provided a number of photographs, which indicated what the likely overshadowing would amount to. He demonstrated that as things stand it would amount to very little. The reason it would amount to very little is largely because there exists at present an extension to the height of the fence around the relevant end of the garden of 114 Brandon Street, and the occupiers have in addition built a canopy which extends over a considerable part of their garden. It follows that as those present arrangements exists, any overshadowing caused by the extra height of the proposed building over that which exists at the moment would be marginal in the extreme. What the inspector decided (I take his reasons from paragraph 12 of the decision letter) was this:

"The appellant says that the occupant of 114 Brandon Street has erected a tall fence on the boundary with the appeal site, and a timber canopy, and that these cause overshadowing to the rear garden. However, it seems to me that any such overshadowing is under the control of the occupier of 114 Brandon Street, who could remove the fence and canopy. The proposed building would not be under that occupier's control and would be more permanent than a fence or canopy. The proposed building, although lower in height than a traditional dwelling, would be considerably higher than the existing tall fence. The appellant's calculations clearly demonstrate to me that there would be some additional overshadowing of the rear gardens of 112 and 114 Brandon Street compared to what currently exists. Bearing in mind the small size of the existing rear gardens at both these properties, I consider that this would adversely affect living conditions for the occupiers of those properties."

7. Mr Ali submits that that is assertion based on the flimsiest of material, because he demonstrated by his diagrams that any extra overshadowing of the garden of 114 would be minimal. It seems to me that the inspector has perhaps not expressed himself as clearly as he might have done because what in reality I think he was saying, as is apparent from his reference to the possibility of removal of the existing canopy and fence, is that the overshadowing could be (and would be, if that were removed) a significant amount. There is some extra overshadowing, particularly to 112 (which does not as I understand it have a canopy unlike 114), and that in itself is not of such a minimal amount as to be capable of being ignored. The inspector draws attention to the small size of the gardens, which obviously is a relevant consideration. It is true that he does not qualify any specific damage, but then it is difficult to see in overshadowing cases how that is usually possible. It is a matter for judgment as to whether any overshadowing or any effect of that sort upon neighbouring properties is or is not sufficiently significant to amount to a proper planning objection. If it is sufficiently significant it will almost always be contrary to a planning policy which prevents and was designed to prevent any such interference.
8. Mr Ali makes the very valid point that in London, in particular, and indeed in any urban environment, there is bound to be some degree of interference with existing light or existing views if any development takes place. He also draws my attention to the fact that there has been development close by which has created much greater overshadowing of gardens, and that has been permitted.
9. Each case has to be considered on its own merits. This inspector formed the view that the overshadowing, particularly bearing in mind, as he was entitled to, that future occupants of 114 might well want to enjoy their garden without the canopy and the additional high fence, resulting from the existence of the building would have an adverse effect.
10. I can only interfere, as Mr Ali I know appreciates full well, if I am persuaded that there was an error of law. The fact, if it be a fact, that the decision seems to be a harsh one or seems to be one which could have gone the other way is not sufficient to amount to an error of law. It seems to me that, although I accept that there is no hard and fast guideline as to what does and what does not amount to interference which is sufficient to create a proper objection on planning grounds, unfortunately that is always and has to be a matter for the judgment of the individual who has to make the relevant decision, in this case the inspector. He does indicate why he has formed that view. It is a view which Mr Ali believes is manifestly wrong. It may even be that Mr Ali is correct that it is a wrong view, but a wrong view is not an unlawful view. One has to remember that the inspector is the person who has the task of making this decision and, more importantly, of exercising his judgment.
11. However this was not the only basis for refusal. The other basis was the effect on the living conditions. The inspector referred to the Standards SPG, which he was clearly entitled to do. It is true that Mr Ali had in his submissions drawn attention to the sizes stipulated by the London Borough of Southwark in its supplementary planning guidance. His proposal was only marginally below that of a one-bedroom house, and it was considerably in excess of that required, for example, for a bedsit. But as the inspector properly indicated, it was a one-bedroom house that he was dealing with and not a bedsit. Equally, he properly, as I have indicated, gave greater weight to the document which had been attached to the Standards SPG.
12. The inspector, in paragraphs 14 to 19 of his decision, referred to the various measurements and to the guidance. He indicated - and it does not appear to me that it can be said that he got his figures wrong - that what was proposed did fall below that which was considered a minimum overall. In addition there was, in his view, inadequate external amenity area provided for future occupiers. It is true, as the appellant had pointed out, that a one-bedroom flat would not be likely to have a garden, and indeed not every house, I suppose, has a garden. But every house would normally be expected to have some area, whether one describes it as a garden or a yard, which could be used by its occupants, perhaps to sit in or to store things in or whatever. This proposal did not, in the inspector's view, provide sufficient in that regard.
13. Again, although I have great sympathy with Mr Ali in his assertion that this was a decision which is difficult as a matter of fact in his view to justify, I can see no error of law in the judgment that the inspector reached. It is not and cannot be, as I have said, suggested that he misunderstood the evidence or misapplied any of the relevant planning policies.
14. In those circumstances, I am afraid that I have no alternative but to dismiss this application.
15. MS BUSCH: Thank you, my Lord. I do have an application to make for our costs.
16. MR JUSTICE COLLINS: Yes. Have you produced a schedule?
17. MS BUSCH: There should be a copy on the court file.
18. MR JUSTICE COLLINS: Yes, I am not sure that it has reached me.
19. MS BUSCH: I have a spare as well. A copy has also been sent to Mr Ali.
20. MR JUSTICE COLLINS: You have received a copy of this?
21. MR ALI: I have.
22. MR JUSTICE COLLINS: There are two aspects, Mr Ali. There is a question obviously, I will hear from you in a moment, as to whether you should pay in principle and then there is the question of the amount.
23. So far as principle is concerned, as you will appreciate, the normal rule is that if you apply to the court and lose you have to pay the other side's costs. At the moment, subject obviously to any point you want to raise, I cannot see any good reason why in principle you should not pay.
24. MR ALI: My (inaudible) although - there is also an issue here of property rights. And it is possible sometimes for governments to introduce laws which do interfere with property rights.
25. MR JUSTICE COLLINS: Planning law does to some extent.
26. MR ALI: And they do. And according to either principle of natural justice or of Human Rights Act or --
27. MR JUSTICE COLLINS: Mr Ali, there has been some litigation on this issue, but the House of Lords has decided the law is that our planning system does comply with the Human Rights Act. I am afraid if you lose in planning terms, then the Human Rights Act does not help you.
28. MR ALI: It does not help. I am saying it is not only the Human Rights Act, we are talking about also natural justice.
29. MR JUSTICE COLLINS: The same applies. The planning law is there, it is necessary in the public interest to have a planning law.
30. MR ALI: In general it has to operate properly.
31. MR JUSTICE COLLINS: As you rightly say, it has to operate properly. But I have, I am afraid, decided that it has operated properly here.
32. MR ALI: (Inaudible) appeal against the wrong regulations, like for example the Circular 8/93. The decisions given here are obviously not sufficiently precise.
33. MR JUSTICE COLLINS: I am afraid....
34. MR ALI: They failed on the issue of precision.
35. MR JUSTICE COLLINS: I am afraid you failed on that issue.
36. MR ALI: Because they are not sufficiently precise. They do not identify what the actual harm is.
37. MR JUSTICE COLLINS: Mr Ali, you cannot go into that now. I am afraid I have been against you on that. The only question is whether in the circumstances you are liable to pay the other side's costs. Now in principle, I am afraid, you are.
38. MR ALI: I am.
39. MR JUSTICE COLLINS: As I think you have to recognise. The amount of them is another matter. Now you have received this schedule.
40. MR ALI: Yes.
41. MR JUSTICE COLLINS: Do you have any observations you want to make about the amount?
42. MR ALI: I could make that on the amount of work I would have to agree. On the quality of work and preparation of the skeleton arguments, I would say it does not deserve the rate.
43. MR JUSTICE COLLINS: Well....
44. MR ALI: That the rate should be halved.
45. MR JUSTICE COLLINS: So that would knock off about £280.
46. MR ALI: Because all my colleague has done, she has just cut and pasted all the arguments, then produce seven points of law, to none of which they properly referred, and then simply said that the inspector had right to look at judgment. This could be done in one page, not in --
47. MR JUSTICE COLLINS: Ms Busch, what do you have to say to that?
48. MS BUSCH: My Lord, I am put in a slightly invidious position if I have to justify the quality of my work before the court. One thing I would say is that attendance at hearing has been put down for two and a half hours. I do not know what time we started.
49. MR JUSTICE COLLINS: You have been sat here all day I know. The case itself has not lasted more than it was estimated, and I am afraid that on the whole I do not think parties should be penalised because unfortunately the court has not been able to deal with it when it should have done or when it might have done.
50. I always find this a very difficult exercise. I tend to take rather a broad-brush approach to all this. I appreciate that the Treasury Solicitor, believe it or not, is considerably cheaper on the whole than private solicitors. In fact I suspect you can well believe it. I think that overall I will be prepared to allow you the sum of £3,750. That knocks some off. I am not being specific as to what it comes off.
51. MR ALI: Okay.
52. MR JUSTICE COLLINS: Does that seem fair?
53. MR ALI: Yes.
54. MR JUSTICE COLLINS: All right, £3,750 all in. So the application is dismissed with that amount of costs.
55. Sorry, Mr Ali.
56. MR ALI: That's okay.
57. MR JUSTICE COLLINS: You live to fight another day. I am sure this is not the end of it. Maybe the end of this one, but there will be others.
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