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 WC2A 2LL
		7th December 2007

SIR GEORGE NEWMAN:

1. This is an application under section 288 of the Town and Country Planning Act 1990 in respect of a decision of the Secretary of State's Inspector dated 24th November 2006. The Inspector dismissed an appeal under section 78 of the Town and Country Planning Act against a refusal of planning permission by the second defendant, the Forest of Dean District Council, for alteration and extension of a dwelling house known as Honeysuckle Cottage, Edge Hills Little Dean, Gloucestershire.
2. The claimant, Mr Wright, sought planning permission to alter and extend his dwelling known as Honeysuckle Cottage on 29th June 2005. The alterations and extensions sought to provide living accommodation and office space. Planning permission was refused by a notice from the Forest of Dean District Council in September 2005. The view of the Council was that the proposed extension:

" . . . by virtue of its size and location would be detrimental to the character and appearance of the property which was converted as a rural building."

3. The property itself has a little planning history. The position in 1996 was established by way of a grant of permission for this non-residential building (namely a barn) to be used as a residential building. Subsequently, work was done on the building which became subject to enforcement proceedings. In its most material respect, the work which had taken place to the existing building was to raise the height of the pitch of the roof, but there are other matters too which were raised by the enforcement notice. In the proceedings against the enforcement notice, it is to be noted -- and is indeed relied upon by Miss Fernandes who has appeared for the claimant today -- that permission was granted for the pitch of the roof to be at the height which the claimant had placed it. I will return to that again as part of the argument later.
4. The appeal on this occasion was dealt with by the Inspector at a hearing held on 7th November 2006. The claimant was present at the hearing but he also had the advantage of being represented by Mr John Kendrick, a planning consultant. It was an informal hearing which took some two hours in the offices of the Council.
5. The decision letter which is under challenge in this application is commendably short, but then it can be said that the issues which were before the Inspector were not particularly complicated. The sweep of the complaint in general terms is against the succinctness of the appeal decision, it being said that in various respects the reasoning of the Inspector is not sufficiently apparent and that it is not clear that he has taken account of matters which it is said he should have taken account of. In fact, the Inspector identified the main issue in the appeal. He said it was "the effect of the proposal on the character and appearance of the existing building and the surrounding area." He described the site of the building, which the court has seen by way of reference to photographs, as follows:

"Honeysuckle Cottage stands within a well-wooded area on the side of a valley complex where signs of past industrial and mineral extraction activity are evident. It is within a well-scattered group of cottages of varying sizes and assorted outbuildings."

One of the complaints made by Miss Fernandes today directly touches upon the existence of other cottages of varying sizes and of assorted outbuildings in the area. I shall come back to that later.

6. The key findings of the Inspector were:

"The terrain and the pattern of woodland limits the extent to which each building, including the appeal property, is visible from public places and other dwellings, especially in the leafy months. Nevertheless, I consider it important that the appearance of buildings in the area, even if only glimpsed, should be compatible with the with the character and form of their surroundings. A planning appeal in 1996 determined that the appeal structure was at that time a rural building without existing residential use, but which was capable of adaptation, without extension or undue alteration, to provide modest but acceptable living accommodation for that appellant and his partner."

The Inspector then went on to consider the position since 1996. He went on as follows:

"That decision and others in the intervening period have consistently found it important to preserve the appearance and form of the original structure as a modest rural building. No permitted changes of significance have taken place in the surrounding area since 1996. As well as conforming with the ongoing policy to limit changes to such buildings, the retention of the small scale and outline of this structure allow it to fit into its surroundings with the limited impact consistent with a building of its type. Furthermore, the accommodation currently provided has the effect of restricting the impact of its residential use on the countryside in terms of the domestic features, paraphernalia and general activity likely to be generated. Altogether, therefore, I should have no reason to differ in this respect from previous decision-makers."

In paragraph 6 of the decision letter, one can identify the essence of the decision; the reasons which the Inspector is providing to the claimant for the dismissal of the appeal. The paragraph reads:

"The proposal would approximately double the footprint of the existing building. Its ridge would be level with and at right angles to that of the existing roof. Consequently, the proposed extension would dominate, rather than respect its scale of, the original structure. It would change its character and appearance from that of a modest rural building to that of a rather substantial house, clearly independent from any other dwellings in the vicinity. Regardless of the present intentions of the appellant, with five habitable rooms and an integral garage capable of adaptation, the proposal would allow a much higher potential occupancy, bringing with it the additional impact on the surroundings I have identified."

7. In my judgment the suggestion that in some way or another it can be said that the Inspector failed to pay sufficient regard to previous planning applications in relation to this building, and has failed to pay sufficient attention to the position existing in respect of other buildings in the area simply cannot be borne out on a first and sensible reading of this part of the decision. It is perfectly clear to any reader of this decision letter, having the information which it must be assumed the informed reader would have -- when for example in paragraph 5 he states "No permitted changes of significance have taken place in the surrounding area since 1996" -- that he is making that statement upon the basis of having been provided with information as to what changes there had been in the area since 1996. Indeed, he had been provided with information as to changes in relation to three properties, one in which there had been a change prior to 1996 but two which had given rise to consents for development since 1996. True it is that the Inspector has not mentioned the names of these properties, nor has he listed them in his list of documents at the end, but, in my judgment, in so far as there is a suggestion that he had not taken account of them or had failed to have regard to what was said to be relevant consideration, the argument manifestly does not get off the ground.
8. The other way in which this part of the case was put is it was said that he had erred in concluding that the changes, such as there had been, had not been significant; namely his planning judgment was put in to the argument. His planning judgment relating to the alterations to two of the other properties was at fault because he should have regarded those changes as significant. The first thing to be said about that is that there is simply no basis set out in the grounds or in the material which is in the documents before the court which can make good that argument, because even if one has regard to certain of the references to the planning permission in relation to those properties, the court is simply involved in the impossible task of second guessing the planning judgment of the Inspector in relation to the character and extent of those changes. These matters are simply not appropriate areas upon which this court can embark in a hearing such as this.
9. In so far as the court has looked at them, I am bound to say that the first impression is that the other applications and the other grants of planning permission do not appear to be similar to the proposal which this claimant had in mind in relation to this appeal. The fundamental and clear conclusion which emerges on the facts of this case (and it is borne out by an examination of the photograph in the plan of the proposed development) is that in effect the internal dimensions of this property were going to be added to by a very substantial extension, in broad terms doubling the footprint of the property, if you exclude the area of the car port upon which the extension itself was going to rest. Also, it is quite apparent that with the pitch of the roof rising to meet the pitch of the roof as it was permitted under the 2002 decision, it was going to give rise to the appearance in the area of a substantial house rather than a modest rural building which was being occupied for residential purposes. That seems to the court a clear conclusion. It is not necessary that the court has to be in agreement with the Inspector's decision. It is certainly satisfied that there was ample material upon which the Inspector was entitled to conclude, as he did, that this building would dominate rather than respect the scale of the original structure.
10. So where does that leave the application under section 288? In essential terms I should turn to the arguments which have been advanced in connection with either misapplication of policy or failure to have regard to relevant policy. The common ground between the parties is that the claimant accepts that policies FBE.1, FBE.6 and FBE.7 were relevant policies for the Inspector to consider and for him to apply. In paragraph 7 of his decision he says:

"I conclude that the proposal would harm the character and appearance of the existing building and thus, subject to the qualifications I have considered as to its visibility, have an adverse impact on the character and appearance of the surrounding area. I therefore conclude that it would fail to comply with Local Plan Policies (R)FBE.1, (R)FBE.6 and (R)FBE.7."

11. What therefore is the claimant's point in relation to policy? Essentially, the point is that the Inspector failed to pay regard to two further relevant policies identified by their references as FH.9 and PPS 7. It is said in relation to FH.9 that whilst on the face of it it might appear that FH.9 is not relevant because it is in fact a policy drafted and applicable to development within defined settlement boundaries, nevertheless Miss Fernandes says, it was relevant despite the fact that she actually accepts that this development was outside the defined settlement boundaries because she adds "It was close to them". But she submits that more particularly it was relevant because FH.9 was referred to in the decision of the local authority which was under appeal when they refused permission, and FH.9 had been referred to in earlier planning decisions when permission had been granted in connection with this property.
12. In my judgment, the fact that the Council may have made an error (as in my judgment they obviously did) and that there may have been errors in the past cannot assist the claimant. It cannot make this a case in which in fact FH.9 is directly relevant and applicable. But even if it was something which was directly relevant and applicable, I fail to see how it advances the claimant's position on this challenge, because in general terms it states that it applies to additional self-contained accommodation, conversion of other buildings and dwellings and the conversion of existing buildings to provide such accommodation but it carries this important qualification:

"Conversions of existing dwellings will be required to retain the character of the existing building where appropriate, and must retain or provide adequate privacy and must provide suitable access."

13. The essence of the reasoning of the inspector on this occasion was, applying the relevant policy which was applicable to the property, that it did not meet the aspects of the policy which led him to conclude that it would change its character from that of a modest building to a rather substantial one and it would dominate rather than respect the scale of the structure and, more particularly, that it would have an adverse impact on the character and appearance of the surrounding area because to those looking at it it would, so far as it was seen, in the woodland appear as a substantial property rather than a modest rural property. The argument on FH.9 does not assist the claimant's case at all.
14. So far as PPS 7 is concerned, this is a part of national policy. It is that part of national policy which is directed towards sustainable development in rural areas and at paragraph 17 it does deal with the re-use of buildings in the countryside. It states what the government policy is, namely to support the re-use of appropriately located and suitably constructed existing buildings in the countryside where this would meet with sustainable development objectives. The policy sets out certain criteria which should be taken account of. It adds in paragraph 18:

"Local planning authorities should be particularly supportive of the re-use of existing buildings that are adjacent or closely related to country towns, for economic or community uses, or to provide housing in accordance with the policies in PPG 3, and subject to the policies in paragraph 7 of this PPS in relation to the retention of local services."

15. This national policy has been implemented by the District Council. It is in their local plans, to which reference has already been made and the policies set out, which represents the implementation of the national policy. There is nothing additional in the national policy which adds to the strength of the claimant's case. The claimant's case has to meet, as indeed the Inspector concluded, what is in fact in the local plan policies FEB.1, FEB.6 and FEB.7.
16. As an alternative argument, in order to quash this decision, Miss Fernandes argued that particular attention should be paid to the use in paragraph 18 of the words "particularly supportive". She submitted that these words, taken with a general reading of this national policy -- and indeed, she would submit further, even a policy of the Forest of Dean -- should have been regarded by the Inspector as indicating that there was a balance in favour of permission being granted in cases such as this.
17. I am wholly unable to accept that interpretation of the material to which she has drawn my attention. It simply states that which has been recognised in this case: that rural buildings will be capable of being converted into residential premises the position is that this claimant has permission to convert the existing building into residential accommodation. He now has -- as a result of having done it without planning permission and now has it for 2002 -- the advantage of being able to use the building as a residential building with the advantage of increased space, namely the pitch of the roof.
18. Even if there was a weighting, it is a weighting that must be subject to the essential matters which are relevant and material considerations for the Planning Inspector and the authority. They are, as has been submitted, the earlier decisions. It seems to me that the case for this Inspector being required to follow, or at least be strongly influenced by, the earlier planning decisions in respect of this property to be overwhelming. In respect of the earlier decision in 2002 where reference is also made to 1996, the following is particularly relevant:

"(24) A further condition would be necessary to bring any subsequent extension, alteration or the provision of further buildings or structures which are normally permitted by Part 1 of Schedule 2 to the GPDO under specific control for three reasons. First, such control would prevent unacceptable future harm to the landscape or character of Edge Hills that could be caused by inappropriate works. Secondly, it is necessary to ensure that the dwelling remains as a small and a relatively affordable house, one of the factors which the Inspector took into account in 1996 in reaching his decision to grant planning permission for re-use of the building. Thirdly, by restricting its size the vehicle movements likely to be associated with its normal residential use would be limited also."

19. I see strong echoes of that paragraph in the decision letter of the Inspector on this occasion. The course taken by the Inspector, I am satisfied, is plainly consistent with the earlier planning decisions in connection with this property, in connection with development in this part of the Edge Hills and the Forest of Dean, and consistent with that which had been permitted in the area. There is nothing, in my judgment, in the criticism made of the Inspector's report so far as policy considerations are concerned.
20. Finally, it is said that there were certain errors of fact and procedural irregularities which should cause this court to intervene. Against also the overall, as I said, rather overarching criticism which was made about the lack of adequate reasons. The quality of the errors which are before the court are, in my judgment, very limited. It is suggested that there was an error in the preliminary point made in the decision letter, namely that at the time of the hearing "works had been undertaken which appeared to amount to a significant commencement of a proposed development". It is said that there had not been and there is some speculation in the material before the court as to how it is that the Inspector might have reached that conclusion. But the point, true or false really, is nothing other than a preliminary observation having no bearing that I can see on the core reasoning of the Inspector in the decision to which he came.
21. The other complaint is that the Inspector states that the proposed development would double the footprint of the existing building. As I have already indicated, that really depends upon what one regards as the existing building. If you regard the existing building, namely the building which is capable of being used as a residence, excluding the area covered by the car port, the observation does not seem to be without weight and justification. It does not seem to me that it can be right that when considering the size of a development, in the context of a case such as this, it is right for the Inspector to include the car port. The car port was not being occupied as a residence and, as is apparent from the photographs, it was nothing more than an unattractive construction of stone work which provided cover at one end of the building for a motor car.
22. So far as the procedural point is concerned, the factual basis for it is that at the hearing which, as I said, was an informal hearing, the Inspector was given by Mr Hillier who appeared for the Council a copy of a decision relating to Lilac Tree Cottage. That copy was not provided to Mr Kendrick for the claimant, but in circumstances which are not clear it transpires that the decision was a refusal of an appeal for the extension to a building. The Inspector lists in his schedule of documents submitted at the hearing this document, "Document 2: Copy of Appeal Decision" submitted by the Council. Thus, it is said there has been a procedural irregularity. It is said under the Rules of the Town and Country Planning Inquiries Procedure, rule 9:

"The Inspector may allow any person to alter or add to a hearing statement received under rule 6 so far as may be necessary for the purposes of a hearing. But he shall, if necessary, by adjourning the hearing, give every other person entitled to appear who is appearing at the hearing an adequate opportunity of considering any fresh matter or a document."

23. The short answer is that Mr Kendrick was there, as was the claimant. The document was put in. It was obviously open to Mr Kendrick, if he wished to ask for a copy of the document or for sight of the document, for him to do so. It seems to me further wholly speculative to suggest that the refusal of or dismissal of this appeal was in any way driven by that result. It is certainly impossible to make that submission simply upon the basis that it was listed as a document which was submitted at the hearing. The fact of the matter is it was submitted at the hearing. No reference is made to it and I am not satisfied that any prejudice has been sustained by the claimant by the admission of this document, which seems to have no bearing on what the Inspector decided at all.
24. For all those reasons, this application under section 288 must be dismissed.
25. Any other applications?
26. MISS GREANEY: Yes, I make an application for costs, my Lord.
27. SIR GEORGE NEWMAN: Have you produced a schedule or not?
28. MISS GREANEY: I have but I will hand it up. Unfortunately the figure that was produced did not actually include my fees. I have just updated it.
29. SIR GEORGE NEWMAN: I bet they are the most substantial element.
30. MISS GREANEY: I do not think they are, my Lord. It was simply in terms of hours. My learned friend does have a copy of the schedule. (Handed).
31. SIR GEORGE NEWMAN: Thank you. Yes. Do you want to make any submissions on costs, Miss Fernandes?
32. MISS FERNANDES: Yes, my Lord. I would say that the issues in this matter were fairly simple for the defendant to respond to. In light of that we have 13 hours plus 5 hours spent on documents and we have two fee earners and I would say that was excessive and unreasonable.
33. SIR GEORGE NEWMAN: Sorry, two fee earners?
34. MISS FERNANDES: Yes.
35. SIR GEORGE NEWMAN: But they are not duplicating their work.
36. MISS GREANEY: I can assist on that, my Lord. The second fee earner, you can see it is the work done on documents, 5.6 hours. That is involved in copying documents and the lower grade fee earner is used to save costs. It was not a duplication. The reason for 13.7 hours for work done on documents is my instructing solicitor prepared an advice before I came into the case. Then I was asked for advice. That was the reason why.
37. SIR GEORGE NEWMAN: Thank you. What else would you like to say, Miss Fernandes?
38. MISS FERNANDES: I would say that given the fact that no new documents were submitted by the defendant (the bundle was all prepared by the claimant but there were some documents which were submitted for this hearing as well) there was nothing additional above and beyond what was prepared by the claimant. That amount would be too much.
39. MISS GREANEY: Just on that point, my Lord, we did put together the supplementary bundle because the claimant was obviously making a case out of the similarity of the other properties but did not actually produce any of the plans. My instructing solicitor did that. I would also make global point. We have received the claimant's schedule in a sum of £16,880. In the global question of proportionality I would say our costs are very modest in comparison.
40. SIR GEORGE NEWMAN: Can I have a look at that?
41. MISS GREANEY: I will hand it up. (Handed).
42. SIR GEORGE NEWMAN: A fee earner at £160 an hour. Do you want to say anything about these?
43. MISS FERNANDES: That is case which has been prepared from scratch by the claimant and of course additional effort is required on that count. I would say that is why the extra is justified.
44. SIR GEORGE NEWMAN: I am not satisfied that, having regard to the contents and time taken in the statement of costs which is in from the claimant, when one looks at the number of hours taken there, namely 14, 2 hours at £160 an hour and the total number of hours -- at the same rate, work done on documents -- by the defendant's fee earner that there is any reason to conclude that there should be any substantial reduction as suggested in connection with the defendant's costs. Indeed, it is notable that other work was done on the documents so that the total work done on the documents before counsel's fees was £8,000 odd in connection with the sum of £3,000 or more on work done on the documents by the defendant. That is the only point which is taken in connection with the schedule. It seems to me that the schedule is substantially fair which has been provided by the defendant. Does it take account of VAT or not, Miss Greaney? I do not think it does, does it?
45. MISS GREANEY: Actually, that is a point. There is no VAT claimed on my solicitor's fee but they should contain VAT for my fees and it does not. That is an error. I apologise for that, my Lord.
46. SIR GEORGE NEWMAN: Do not worry about the calculation now. Somebody can do it. In my judgment, the defendant should have their costs in the sum of £6,000 plus VAT. The figures that I see for counsel's fees, for Miss Greaney, are the figures which should be taken as the basis upon which VAT should be calculated.
47. MISS GREANEY: I am grateful, my Lord.
48. SIR GEORGE NEWMAN: Thank you both very much.