England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/02/2007

The Honourable Mr Justice Wyn Williams :

1. The Claimants are the owners of the dwelling house known as 14 Ffordd Draenen Ddu, West Cross, Swansea.  On or about the 5^th March 2006 the owners of 11 Ffordd Draenen Ddu (Mr. and Mrs Thompson) submitted to the Defendant an application for planning permission for a single story rear extension, first floor front extension and single story front/side extension to their home.
2. On the 14^th March 2006 the Defendant notified the Claimants of the application for planning permission.  By letter dated the 5^th April 2006 the Claimants objected to the proposal.
3. On the 9^th May 2006 the relevant committee of the Defendant considered the application for permission and approved it.  The Claimants were notified of the grant of planning permission on the 15^th May 2006. 
4. By a claim form issued on the 27^th July 2006 the Claimants seek an order quashing the planning permission.  Permission to apply for that order was granted to the Claimants on the 3^rd November 2006.
5. In this judgment, for ease of reference, I shall refer to the page numbers of the Bundle supplied by the Defendant for use at the hearing.

Background

6. .         The Claimants were the only objectors to the planning application made by their neighbours.  The grounds of objection were set out in the letter of the 5^th April 2006 and they are a model of clarity.  The letter appears at page 18 of the Bundle and I set out the substance of the same in full.

            "Thank you for notification of the above planning application. We write as the owners of 14, Ffordd Draenen Ddu.

            We have examined the proposed extension in some detail, and whilst my wife and I have no objections to the single story rear and side extensions, we would like to object to the proposal for a first-floor front extension on the grounds set out below.

            We believe that the proposal will be intrusive and moreover contravenes the guidelines on the minimum distance between windows as set out in section 9.0 of the Environment Department/Planning Services/Guidance Notes/Design Guide page of the Swansea City and County web sit.

            We note that the existing situation already contravenes these guidelines in that the distance between the ground-floor bedroom to the left of the garage of No 11 is less than 18m from the dining room window to the extreme right of No 14.  How this situation has come to arise is unclear (perhaps these guidelines were not in existence at the times that the buildings were constructed, or perhaps a change of usage has occurred at No 11 – certainly there has been no change at No 14), but whatever the reason, the issue of privacy mainly affects the users of the bedroom in No 11, and does not impact significantly on the occupants of No 14.

            It is clear however that this proposed first-floor extension will have a profound effect on the occupants of No 14 resulting in both the downstairs dining room and the two upstairs bedrooms on the front of the house being overlooked.  Given the clear guidelines in the above mentioned notes and the fact that the case is not even marginal (based on the proposal, the distance between the windows of bedrooms in the two buildings would become as little at 10.5m!), we believe that this application should be rejected."

In advance of the Defendant's consideration of the application one of its officers prepared a report.  The report appears at pages 20 – 22 of the Defendant's bundle.  It is in entirely conventional form and it ended with a recommendation that the planning application should be approved subject to two conditions. 

7. Page 1 of the report contained three sections headed, respectively, relevant planning policies; relevant planning history and response to consultations.  Under the heading response to consultations the following appeared

"seven neighbouring properties were consulted and ONE LETTER OF OBJECTION has been received which is summarised as follows:

1) the first floor extension will be intrusive and moreover contravenes the guidelines on the minimum distance between the windows as set out in section 9.0 of the Environment Department/Planning Services/Guidance Notes/Design Guide page of the Swansea and City Website. 

2) it is clear that this proposed first-floor extension will have a profound effect on the occupants at number 14 resulting in both the downstairs dining room and the two upstairs bedrooms on the front of the house being overlooked.

3) extension will affect the level of privacy enjoyed by the neighbouring occupiers".        

8. .         The second page of the report consists of the officer's appraisal of the application. Paragraph 3 under the heading "Appraisal" identifies the main issues for consideration.  Those issues include

"…. The impact on the amenities of neighbouring residents ….. having regard to ….. the supplementary planning guidance document entitled 'Household Extensions – A Design Guide' "

The last paragraph of the appraisal on that page deals exclusively with residential amenities.  It reads:-

"… the proposed extensions complied with the Councils 45-degree code and as such will not unacceptably affect the amount of light enjoyed by the neighbouring occupiers.  The developments will not encroach on the boundaries with the neighbouring properties and as such they will not prove overbearing or overshadowing upon the private amenity space of the neighbouring dwellings.  In terms of privacy the single storey extensions will cause no overlooking issue.  The first floor front extension will incorporate two dormer windows which will overlook the front gardens of numbers 12 and 14 Ffordd Draenen Ddu.  However it is considered that the distance of approximately 12 metres is sufficient to ensure that the level of privacy enjoyed by the neighbouring dwellings remain.  Also the siting of number 11 at an oblique angle to numbers 12 and 14 will combine to ensure the privacy in the adjacent bedrooms remains.  It is therefore considered that the proposed developments will not result in an unacceptable overbearing impact on the private amenity space of the adjacent dwellings.  Therefore the proposal complies with policy BE2 of the Swansea Local Plan Review No. 1 and the supplementary planning guidance document entitled Household Extensions – a Design Guide".

9. .        In these proceedings the Claimants assert that the report prepared for the planning committee failed to include material facts and observations.  Those alleged deficiencies are set out on page 7 of the Defendant's bundle.  In his oral submissions, Mr Jones crystallised the points as follows.  Firstly, the document entitled Household Extension – a Design Guide is intended to lay down clear guidelines about distances between windows of habitable rooms.  In this case, according to Mr Jones, the minimum distance between the existing relevant windows of his home and the proposed windows within the extension should have been 18 metres.  Secondly, on any view, the distance between the relevant windows is much less than 18 metres.  Thirdly, as is common ground, no attempt was made in the report to committee to specify what the distances should have been under the guidelines and compare that with the actual distances. 

The Planning Background

10. There is no dispute but that the Defendant had in mind the relevant policies of its local plan.  The most pertinent policy was policy H11 which laid down criteria against which proposals for extensions and alterations to existing residential dwellings would be measured.  One of the criteria specifically mentioned by policy H11 was the effect on neighbouring properties with particular reference to physical impact, overshadowing/loss of light and privacy. 
11. Policy H11 makes specific reference to the Household Extension Design Guide.  It informs readers that the Guide was adopted in 1985 and it forms supplementary planning guidance to the local plan.  The local plan then continues.

"every application will be considered in relation to the guidelines, the main purpose of which is to set out the acceptable standards for rear extensions……."

12. The guidelines themselves are introduced with the statement that they are aimed at providing advice to householders and developers who are considering small house extensions "by setting out clearly and simply the criteria against which the planning applications will be considered".  It should also be borne in mind that they include a statement to the effect that each proposal will be considered in relation to the guidelines (see paras 1.1 and paragraph 1.4 bundle page 29). As everyone agrees, the most pertinent part of the guidelines is to be found in section 9 which is headed "Distances Between Windows".  Section 9.3 contains a table which demonstrates the minimum distances between habitable windows depending upon the angle between those windows.  As the table shows the angles are expressed in bands of 10 degrees but at the foot of the table there appears the sentence:

"distances shall be interpolated for intermediate angles"

The Law 

13. Since, in effect, the Claimants' complaint is of a failure by the Defendant to take into account material considerations it suffices to remind myself and refer to the decision of the Court of Appeal in Bolton Metropolitan Borough Council the Secretary of State for The Environment and another 61 P&CR 343.  In the course of his judgment Glidewell LJ laid down the following principles:

"1.      the expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant, which is the formulation for instance in Forbes J judgment in Seddon Properties, or that he has failed to take into account matters which he ought to take into account, which is the way that Lord Greene put it in Wednesbury and Lord Denning in Ashbridge Investments, have the same meaning.

2.       The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account.  Such a matter is relevant to his decision making process.  By the verb "might", I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.

3.      If a matter is trivial or small in importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and that it is not a matter which the decision maker ought to take into account.

4.      As Hodgson J said, there is clearly a distinction between matters which a decision maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and the matter in question.  I refer back to the "Creed N.Z." case.

5.       If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account. 

6.      If the judge concludes that the matter was "fundamental to the decision" or that it is clear that there is the real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold the decision was not validly made.  But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision making process, then he does not have before him the material necessary for him to conclude that the decision was invalid.

7.     (Though this does not arise in the circumstances of this case).  Even if the judge has concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief"

In my judgment the passage quoted above contains the principles which are relevant to my consideration of this case.

Discussion

14. .     The starting point, in my judgment, is the Claimant's letter of 5 April 2006.  It asserts, squarely, that the proposal contravenes the guidelines on the minimum distance between windows.  It does not contain an assessment by the Claimant as to the extent of such a breach (in terms of figures) but it also asserts that the "proposed first-floor extension will have a profound effect on the occupants of number 14 resulting in both the down stairs dining room and the two upstairs bedrooms on the front of the house being overlooked".
15. .     In those circumstances, in my judgement, it was incumbent upon the Local Authority to make an overall assessment which included an assessment as to whether or not the proposal contravened the guidelines for minimum distances between windows.
16. .     On any view of the evidence before me had such an assessment been undertaken a conclusion would have been reached that at least one of the proposed windows (W2) breached the guidelines by a significant distance.  As I understand it the Defendant accepts that the advisory distance between that window and the Claimant's relevant window is 13 metres whereas the actual distance is 10.3 metres.  If that assessment was carried out by the Defendant it is not apparent from the report prepared by its officer for the relevant planning committee.  The Defendant does not suggest that the planning committee themselves embarked upon such an assessment during the course of its discussions.  In my judgement, therefore, it is clear that a factor which was potentially relevant to the decision to be made was not considered by the planning committee before it approved the planning application.
17. .     Was this factor one which might have led to a different conclusion if it had been considered?  Mr Langham, Counsel for the Defendant, says no.  He submits that the true issue for the planning committee was whether or not the proposal adversely impacted upon the privacy of the occupiers of number 14.  On that issue, he argues, the planning committee received clear and sensible guidance from its planning officer and, in those circumstances, it would have been inevitable that the planning committee would have reached the same conclusion even if it had been pointed out to them that the guidelines had been breached.
18. .     I do not agree.  As is recorded in the guidelines themselves, their purpose is to provide guidance but also consistency and clarity.  On any view the distance between one of the proposed windows (W2) and the relevant window within number 14 was significantly less than the guideline distance.  I have to be satisfied only that there was a real (as opposed to fanciful) possibility that the result might have been different.  In my experience planning committees often reject proposals which are in breach of published guidelines even if a planning officer recommends approval. In my judgment there was in the instant case a real possibility of a different outcome.  Accordingly, in my judgment, the Claimants' ground of challenge is made out.
19. .     It is to be noted that the Claimants actually complain that both the proposed windows breach the guidelines.  The Defendant does not agree that one of the windows (W1) offend the guidelines.
20. .     I infer that had an assessment of angles and distances taken place prior to the decision to grant planning permission the Defendant would have maintained the stance that it was only one of the windows which breached the guidelines.  In reaching that conclusion, of course, the Claimants argue that the Defendants wrongly interpret their own guidelines.  For reasons which will become apparent, I do not think that I can arbitrate conclusively upon that point.  It is for that reason that I have focussed upon the admitted breach of the guidelines by one of the windows in reaching a conclusion that the Defendant failed to have regard to a material consideration and, had it done so, its decision might have been different.
21. .     As is apparent from the principles laid down by Glidewell LJ, however, it does not automatically follow that the grant of planning permission should be quashed.  In exceptional circumstances it is open to the court to refuse to grant relief.  In this case, the Defendant argues, strongly, that relief should not be granted.  It is to that issue that I now turn. 
22. .     Once permission to apply for judicial review in this case had been granted, the Defendant, upon legal advice, in effect considered the application afresh.  I was asked to admit evidence about what the Defendant did notwithstanding that it was served after the due date and, in the interest of justice overall, I decided to accede to that application. 
23. .     The evidence served shows that following the grant of permission in this case it was decided that the attention of the planning committee should be drawn to the fact that the distance between one of the windows in the proposed extension and an existing window in number 14 was less than the recommended guideline.  A report was prepared by the same officer who had prepared the report prior to the meeting on 9^th May 2006 (Mr. Lock).  The report contained three appendices.  The first was the report prepared for the committee on the 9^th May 2006.  The second consisted of two tables.  Table one showed the Claimants' interpretation of the distances between the relevant windows, the relevant angles and the advisory distance as laid down in the Guidelines in the opinion of the Claimants.  The second table provided the Defendant's views on those topics.  Appendix 3 was the letter of objection sent by the Defendants in April 2006. 
24. .     In the light of the information contained within the report and, also, an oral presentation by Mr Lock at the meeting the members of the committee decided to visit the site.  The visit took place on the 16^th January and on the 18^th January the members of the committee continued their debate in the light of that site visit.  The Defendant has put in evidence contemporaneous notes of what was said at the meeting of the committee.
25. .     In her witness statement Ms Townsley, a solicitor employed by the Defendant, says in paragraph 7 that she is able to confirm that at the meeting of the planning committee:-

a.       I repeated my legal advice at the start of the meeting that Councillors had to consider the matter with an entirely open mind, disregarding the fact that the existing decision was the subject of judicial review proceedings.

b.       It was made perfectly clear to the Councillors that, in respect of Window 2, the separation distance was 10.3m and so was less than the distance advised in the Guide (13m).  This point was made both in the report and orally by John Lock.

c.       The sense of the point recorded in the penultimate line of the comments of John Lock ("proposal window distance less than guidance is justification was considered") was that it was considered that there is justification for permitting the proposal with a distance that was less than that required by the guidelines.

d.       Councillors had a full understanding of the relative position of the relevant windows.  They had seen the site, and therefore the Claimant's house.  The coloured plan clearly showed this relationship

[Reference to the coloured plan is reference to a plan which was prepared by Mr Lock and which was displayed at the meeting].

26. .     As Ms Townsley records in her evidence the Councillors decided to confirm their earlier decision to grant planning permission.
27.   In my judgment it is necessary to exercise a degree of caution when a local authority (or for that matter any other public body) embarks upon a reconsideration of a decision in the light of threatened or actual proceedings for judicial review.  That said, however, the evidence in this case demonstrates, to my mind, that the Defendant embarked on its reconsideration with an open mind and, on any view, had before them all that was relevant.
28. .     It is true that Mr Lock's report proceeded on the basis that only one of the windows was below the recommended guideline distance whereas the Claimants were asserting that both proposed windows were less than the recommended distance from their existing window.  Further, argue the Claimants, Mr Lock misunderstood the guidelines and he was erroneous in suggesting that only one of the windows was less than the recommended distance.
29. .     I do not think that it was ever intended that these guidelines should be approached with the mathematical precision which the Claimants suggest.  After all, they were intended to be guidelines – no more and no less.  They, themselves, recognise that they need to be approached with a degree of flexibility.  In my judgment nothing in the approach of either the planning officer, but more importantly the planning committee, suggests that their approach to their own guidelines was unlawful. I appreciate the Claimants' interpretation of the guidelines is a possible one. That does not mean, however, that the Defendant's approach is wrong.
30. .     In any event, I accept the submission of Mr Langham that what is obviously crucial in this reconsideration is that the members of the committee decided to view the building for themselves.  In that way they were in the best possible position to inform themselves upon the substance of the Claimants' objection.
31. .     Mr Langham says that in the light of this careful reconsideration it would not be appropriate to grant relief.  As I have indicated in exceptional circumstances and in the exercise of my discretion I am entitled to withhold relief notwithstanding my view as to the validity of the decision made on the 9^th May 2006.  In my judgment the reappraisal undertaken by the Defendant does constitute a compelling reason why relief should not be granted in the context of this case.  A quashing order would simply mean that the application for planning permission would have to be considered yet again by the Defendant.  In the light of its consideration of this application between the 9^th and 18^th January 2007 it is virtually inconceivable that the Defendant would do other than grant planning permission.  In those circumstances nothing whatsoever would be achieved by a quashing order. 
32. .     At the conclusion of the hearing in Cardiff I gave the parties an indication of my view as to likely orders to cost.  Now that I have delivered my judgment in draft I repeat my provisional view that in the unusual circumstances of this case the just order may be that there should be no order as to costs.  That is not said to preclude the Defendant from seeking an order if it considers that it has substantial arguments which I have not anticipated.  If that is not the case, however, and the parties can agree an appropriate order for costs then there need be no attendance at the handing down of this judgment.  If the Claimants are contemplating making an application for permission to appeal against this judgment the normal practice is they first seek my permission.  If they wish to do that they should appear to make their application orally.  However, I do not wish to mislead.  I have provided that information to the Claimants because it is my duty to do so.  They should not think that I am encouraging them to make an application for permission to appeal.