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
		25 January 2008

SIR MICHAEL HARRISON:

Introduction

1. This is an application under section 288 of the Town and Country Planning Act 1990 to quash the decisions of an Inspector appointed by the first defendant in a decision letter dated 19 September 2006, whereby he dismissed the claimant's appeals under section 78 of the Town and Country Planning Act 1990 and under Regulation 15 of the Town and Country Planning (Control of Advertisements) Regulations 1992 against the decisions of the second defendant to refuse planning permission and express advertising consent for the development of an office building with LED screen advertising panels on land adjoining the A4 Great West Road, the elevated section of the M4 Motorway and the North Circular Road at Chiswick Roundabout, London W4.
2. The claimant contends that the decisions of the first defendant's Inspector to dismiss the appeals were not within the powers conferred by the 1990 Act and that there was a failure to take account of relevant considerations and/or a failure to give adequate reasons for the decisions.

Description of site

3. The site is a vacant parcel of land some 0.23ha in size and roughly triangular in shape which is currently used for the display of advertising hoardings pursuant to a consent granted on appeal in 2003. It has been described as being at a strategic gateway location to London, and as being at the head of the commercial corridor that runs along the Great West Road, historically known as "The Golden Mile". The site has been clear of buildings since 1998. The planning history since then shows that it has been accepted as being a site where a prominent landmark building would be appropriate.

Planning history

4. In January 2000, the second defendant, the local planning authority, resolved to approve a 120 metre high office re-development on the site which was known as the Pinnacle, although that application was "called in" by the first defendant and was later withdrawn. There then followed three planning decisions relating to proposed developments, which were all known as the Citadel. In April 2001, planning permission was refused by the second defendant for Citadel 1, which was an office building 52 metres high, on the ground that it did not achieve "a major prominent landmark of outstanding architectural and urban design quality for this important strategic gateway to London". In January 2002, planning permission was granted for Citadel 2, an office building 54 metres high. In September 2002, planning permission was granted for Citadel 3, an office building 59 metres high.
5. None of those permissions have been implemented. That was said, in the statement accompanying the present planning application, to be due to a lack of financial viability for a large office building having regard to existing market conditions, rentals and building costs.

Description of development

6. The proposed development in this case comprises an office building of five floors, including a semi-basement, with a net office floor area of 1,690m². However, the most significant part of the development consists of 13 vertical planes of different sizes, shapes, colours and orientation, all of which, except one, rise above the building to various heights. Seven of the planes contain light emitting diode (LED) screens of varying size which would display advertisements which would be static and would be changed once every 24 hours.

Inspector's decision letter

7. In his decision letter, the Inspector dealt first with the principle of the development. He stated in paragraph 8:

"The development plan for the area comprises the London Plan and the London Borough of Hounslow Unitary Development Plan. Both Policy 3B.1 of the former and policy IMP 4.1 of the latter seek to promote sustainable economic development, and the site falls within Proposal Site E10, the Great West Road Key Employment Location, whereby it is suitable for flexible Class B1 uses and for the development of large freestanding, high quality office buildings. Hence the Council granted planning permission for the erection of 18,518m² (gross) office floor-space on this site in the form of a thirteen storey building some 55m high in 2002. Permission was granted because it was a very attractive, well-proportioned building in a location that is suitable for a prominent landmark building, and the development would be likely to have a very positive effect on achieving regeneration and economic development in Brentford and along the Great West Road, as well as making a contribution to the competitive position of London. I find that these sentiments still apply, in that the principle of a landmark development on this site that achieves regeneration and economic benefits is acceptable."

8. Mr Corner QC, who appeared on behalf of the claimant, made some submissions relating to that paragraph, but before dealing with those submissions, it would be appropriate first of all to refer to the Inspector's identification of the main issues and the way in which he dealt with them.
9. In paragraph 9 of the decision letter, he identified the main issues in the appeals as being, first, the effect of the proposed development and the advertisements on the character, appearance and the amenity of the surrounding area, and second, the effect of the advertisements on highway safety.
10. Dealing with the first main issue, he described the proposed development in paragraph 14 as imaginative and ingenious, and as seeking to reflect the tradition of modern, innovative designs that have taken place over the years along the Great West Road and along the M4 Motorway. He did not consider the office building itself to be particularly inspiring or innovative, and it seemed to him that the main purpose of the development was to display advertisements in a novel way on a very prominent site.
11. Paragraph 15 of the decision letter is important and I should quote it in full. The Inspector stated:

"The advertisements would be of a clean, modern design using the latest technology, and would reflect the design of the panels in which they would be contained. However, the height of the development, its position on one of the main routes in and out of London, the bright, garishly coloured panels, and what I consider to be a discordant and the visually unresolved relationship of the panels to one another, set on and about the building, combine to produce a structure that lacks sophistication and sensitivity. As such the development would bear no relationship to the surrounding urban context. It would be a dominant, alien and incongruous feature."

12. In paragraph 16, the Inspector considered views of the structure and its advertisements from the motorway, and at paragraph 17 he considered views from ground level in the area nearby. That is a paragraph that was the subject of a submission by Mr Corner so I should quote it in full. The Inspector stated:

"At ground level the proposal would monopolise the roundabout through its siting and its size. Notwithstanding the unprepossessing nature of the B&Q store, the car showroom, and the petrol filling station, this would be a much larger, more visible structure, which would be seen from the residential properties in the Wellesley Road and Thorney Hedge Conservation Areas. It would also appear as a dominant and discordant feature from the cemetery. The net result would be a diminution in the character and appearance of those areas."

13. The Inspector then concluded in paragraph 18 as follows:

"Altogether, I find the development and the advertisement panels would have a significant and unacceptable impact on views along the M4 in both directions, and at ground level in the vicinity of the roundabout, contrary to the provisions of the development plan."

14. Having concluded in paragraph 19 that there would be no diminution in the character and appearance in the longer views from other sensitive areas, he then went on to consider the effect on amenity from light pollution which, he said, needed to be examined in terms of light trespass, sky glow and glare. His conclusions on light pollution are contained in paragraph 21 of the decision letter. That is another paragraph that is criticised by the claimant and I should therefore quote it in full. The Inspector stated:

"I note that there is no longer an issue between the parties on light trespass. And with sky glow, I note that the changes proposed by the appellant in removing the lighting from the top edges of the panels, by placing visors on the LEDs at the sides, and tilting the LED nodes downwards could bring the installation within the requisite guidelines. Even so, with regard to sensitivity of the area, I consider the introduction of these illuminated panels through their clarity and high quality images would increase the perception of light pollution in the vicinity, especially by nearby residents, thus augmenting the effect of the scheme in amenity terms."

15. The Inspector then concluded on the first main issue in paragraph 22 as follows:

"I conclude, therefore, that the proposed building and advertisements would have an adverse effect on the character and appearance and amenity of the surrounding area, and as such run counter to the relevant policies of the development plan."

16. The second main issue deals with a quite separate matter. It is therefore convenient at this stage to deal with the submissions that were made by the claimant relating to the parts of the Inspector's decision letter which I have summarised and quoted thus far.

Submissions and conclusions relating to first main issue

i) Policy and viability

17. The claimant's first submission arose out of paragraph 8 of the decision letter, quoted above, in which the Inspector stated that the principle of a landmark development on this site that achieves regeneration and economic benefits was acceptable. The point that was made was that it was more than just acceptable, it was positively encouraged by policy IMP 4.2 of the London Borough of Hounslow Unitary Development Plan to help secure the economic regeneration of the Great West Road area. It was submitted, correctly, that the Inspector had not referred to policy IMP 4.2 in his decision letter, although it was a policy which specifically deals with the Great West Road area.
18. It was accepted that the Inspector had referred to policy EMP 4.1, but it was pointed out that that was a policy dealing with a sequential approach for economic development to be located in areas such as the Great West Road only if suitable sites were not available in town centres. It was not a policy promoting regeneration of the Great West Road area.
19. The claimant had made the point at the inquiry that the previously permitted schemes had not been implemented due to lack of financial viability which this scheme was designed to overcome, and that, if it were not permitted, the site would be consigned to a period of further dereliction of unknown length. It was therefore submitted on behalf of the claimant that the Inspector had failed to take into account the policy of encouragement of economic development and regeneration in the Great West Road area, and that he failed to deal with the viability issue and the consequences if permission for this development were refused.
20. Finally, it was said that the Inspector should have weighed the harm he identified against the positive policy support for regeneration and the consequences of a refusal.
21. I have to say that the Inspector's failure to refer to policy IMP 4.2 is surprising because it is a policy dealing with the Great West Road area. A failure to mention a specific policy will, however, not be fatal if its underlying principles have been taken into account (per Hoffmann LJ, as he then was, in South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR 80 at p86). It is therefore necessary to see whether the Inspector took into account the policy of encouragement of economic development and regeneration in the Great West Road area that arises under policy IMP 4.2.
22. In paragraph 8 of the decision letter, the Inspector referred to policy IMP 4.1 as seeking to "promote" sustainable economic development and, in the same sentence, he referred to the site falling within Proposals Site E10, the Great West Road Key Employment Location. Whilst I accept that policy IMP 4.1 is dealing with a sequential approach to economic development, the promotion of economic development is also an ingredient of policy IMP 4.2 in the sense of encouraging such development.
23. Furthermore, in paragraph 8 of the decision letter, the Inspector stated that one of the reasons why permission had been granted for the Citadel development was that it was likely to have a very positive impact on achieving regeneration and economic development in Brentford and along the Great West Road. He then stated that those sentiments still apply. The achievement of regeneration and economic development along the Great West Road is precisely what policy IMP 4.2 seeks to achieve, subject to the criteria in that policy. It seems to me, therefore, that the Inspector was applying the underlying objective of policy IMP 4.2. I see nothing wrong with the Inspector's use of the word "acceptable" at the end of that paragraph. He could have said "to be encouraged" but it was not necessary for him to do so.
24. It is to be noted that in paragraph 13 of the decision letter, which I have not quoted, the Inspector said that he felt that any development on the site "should equate the needs of the policies that promote good design and regeneration with the need to preserve what is good in the environment". Not only is that a recognition of the policy to promote regeneration on the appeal site, but it is also a recognition that the effect of the development on the local environment must also be taken into account. That, of course, is one of the matters that has to be taken into account under policy IMP 4.2.
25. My conclusion on this aspect is that, although it is surprising that the Inspector did not expressly refer to policy IMP 4.2, I am satisfied, reading the decision letter as a whole, that his approach to the matter was consistent with the underlying principles of that policy.
26. It is right to say that the Inspector did not expressly deal with the consequences of a refusal of planning permission that had been suggested by the claimant, namely a further period of dereliction of an unknown length due to the lack of viability of alternative developments. However, I am not persuaded that it was necessary for him to do so in the circumstances of this case. The Inspector was concerned with the acceptability or otherwise of the proposed building, not the viability of an alternative building, and, in any event, such evidence as there was before the Inspector on viability was insubstantial, and the consequences of a refusal was a matter only dealt with by counsel for the claimant at the very end of his closing submissions under the heading of "Other Matters". Even if I were wrong about that, it is inconceivable, in the light of the Inspector's trenchant criticisms of the proposed development in paragraph 15 and the subsequent paragraphs of the decision letter, that his decision would have been any different if he had expressly taken that aspect into account.

ii) Design

27. The next bunch of submissions made on behalf of the claimant related to the Inspector's conclusions on the design of the building in paragraph 15 of the decision letter. Firstly, in relation to his reference to the height of the building, it was said that it was inevitable that a prominent landmark building would be high and that the Inspector failed to take into account that this proposed building, with a height of 44.75 metres, was lower than that which had previously been permitted.
28. I do not consider that there is any force in that submission. The Inspector was well aware that the Citadel building was higher than the proposed building because he expressly referred to its height as being 55 metres in paragraph 8 of the decision letter. Furthermore, it was not just a matter of height; it was height in conjunction with what he considered to be bright garishly-coloured panels constituting a dominant, alien and incongruous feature.
29. Secondly, it was submitted that, in referring to the bright garishly-coloured panels, the discordant and visually unresolved relationship of the panels to each other and a structure that lacked sophistication and sensitivity, the Inspector failed to take account of the design rationale and philosophy for those matters as explained in the material put before the Inspector.
30. I am afraid I cannot accept that submission. There is no reason to think that the Inspector did not take the design rationale into account - indeed, he accepted in paragraph 14 that it was an imaginative and ingenious development - but, more importantly, the fact of the matter is that, whatever the rationale for the design may have been, it resulted in a building which he considered to be inappropriate because it was dominant, alien and incongruous in that location. That was a subjective judgment which he was entitled to make.
31. Thirdly, reliance was placed on the view expressed by the Mayor of London in his consultation reply dated 7 June 2006 when he said:

"... The design, incorporating freestanding advertising panels and LEDs, is both unusual and distinctive making the development a potential landmark building in this part of London. Subject to further discussion, the Mayor would like to see this building approved."

32. It was submitted on behalf of the claimant that the Inspector should have made specific reference to the Mayor's support for the design of the building and that he should have dealt with it.
33. In my view, it would have been more appropriate if the Inspector had referred to the view expressed by the Mayor of London as the strategic planning authority, but the fact that he did not mention it does not mean that he did not take it into account, and even if he had mentioned it, all he could have done was to say that he disagreed with it. It was a matter on which subjective judgments may validly differ.

iii) Effect on the surrounding area

34. The next ground of this application related to the Inspector's consideration of the effect of the development on the immediately surrounding area as expressed in paragraph 17 of the decision letter, which I have already quoted. The point that is made relates to the sentence where the Inspector stated:

"... this would be a much larger, more visible structure which would be seen from the residential properties in the Wellesley Road and Thorney Hedge Conservation Areas."

The claimant's point was that the Inspector referred to "the" residential properties in those Conservation Areas, rather than to "some" of those properties, thus appearing to say that the structure would be seen from all of those properties whereas the undisputed evidence at the inquiry was that it would only be seen from the fringes of those Conservation Areas.

35. The answer to this point was, in my view, satisfactorily provided by Mr Moffett on behalf of the first defendant when he submitted that, as there was no dispute between the parties where the structure could be seen from, and as the decision letter must be read in the light of the fact that it is addressed to the parties who know the issues, there is no reason to think that the Inspector meant anything else than that this structure could be seen from the locations that had been agreed between the parties. In my view, that is a commonsense, straightforward reading of the paragraph in the light of the knowledge of what had been agreed between the parties. It follows that I do not accept the claimant's submission on this point.

iv) Light pollution

36. The next submission made on behalf of the claimant related to the Inspector's conclusion in the last sentence of paragraph 21 of the decision letter relating to light pollution. I have already referred to the fact that the Inspector had stated in paragraph 20 that light pollution needed to be examined in terms of light trespass, sky glow and glare. I was told that glare is defined as uncomfortable brightness of a light source when viewed against a dark background. I have already quoted paragraph 21 of the decision letter in which the Inspector records that there was no longer an issue between the parties on light trespass, and that, with changes proposed by the claimant, the installation was within the guidelines relating to sky glow. In the last sentence of paragraph 21, the Inspector stated:

"Even so, with regard to sensitivity of the area, I consider the introduction of these illuminated panels, through their clarity and high quality images, would increase the perception of light pollution in the vicinity, especially by nearby residents, thus augmenting the effect of the scheme in amenity terms."

37. Mr Corner submitted that, although it was not clear, it was likely that the Inspector was dealing in that last sentence of paragraph 21 with the issue of glare because there was no remaining issue relating to the other two of the three issues mentioned in paragraph 20 relating to light pollution, namely light trespass and sky glow. There were two issues relating to glare at the public inquiry: first, whether it was right to apply the building illumination guidelines; and second, how the source intensity guidelines should be applied. On the latter of those two issues, the second defendant's expert witness agreed that he could not suggest refusal of permission on that point, so the remaining issue on glare was whether it was right to apply the building illumination guidelines. It was submitted that, if the Inspector was dealing with glare in the last sentence of paragraph 21, it is not clear what he was saying about it - it is unintelligible. If he was not dealing with glare, then he had failed to deal with one of the three issues which he had said was relevant.
38. Whilst I would accept that, reading paragraphs 20 and 21 together, one would expect the Inspector to be dealing with the issue of glare in the last sentence of paragraph 21, it seems to me to be tolerably clear that he was not. The Inspector was saying that, even though the advertising panels could be brought within the requisite guidelines, bearing in mind the sensitivity of the area, there would still be an increase in the perception of light pollution, especially by nearby residents, having regard to the clarity and high quality of the images. In other words, there would still be a subjective perception of light pollution despite compliance with the guidelines. The Inspector must, I think, be taken to be referring to the guidelines relating to sky glow. That means that he has not expressly dealt with the issue of glare. Whilst that is an omission, it is an omission in the claimant's favour in that he has not found against the claimant on that issue in respect of which there was, in any event, only a limited area of dispute. Even if he had expressly found in favour of the claimant on the issue of glare, it plainly would not have affected the point about the subjective perception of light pollution that he was making. For all those reasons, I do not consider that this is a matter on which it would be appropriate to grant relief.

Submissions and conclusions relating to second main issue

i) Inspector's decision letter

39. The second main issue identified by the Inspector was the effect of the advertisements on highway safety. I have not yet referred to the relevant paragraphs of the decision letter relating to that issue. They are paragraphs 23, 24 and 25, where the Inspector stated:

"23. I note that the M4 in the vicinity of the appeals site has a higher than average accident rate for a motorway, being some 15 PIAs (Personal Injury Accidents) per 100 million vehicle kilometres, compared with the national motorway average of 10 PIAs. Whilst this figure is not high compared with the national average for all roads at some 41 PIAs, it is 50 per cent more than the motorway average. The appellant's proposition is that this part of the M4 should be treated as an urban dual carriageway. However, it would be improper and inequitable for me to do so. The road is classed as a motorway by the appropriate authorities and it is on this basis that highway matters should properly be considered.

24. The elevated section of the M4 next to the site has two lanes in each direction and is subject to a 40mph speed restriction. There are also slip roads to and from the motorway, and a little to the west the road bends quite sharply. Added to this are heavy volumes of traffic, a significant proportion of which could well be visitors that use the road infrequently. Furthermore, because of the busy nature of the road I observed frequent braking and sudden manoeuvres as drivers negotiate either the end or the beginning of the motorway and seek to read the overhead gantry signs. It is clearly a situation that should not be worsened by the introduction of potential hazards.

25. Hence to introduce the proposed advertisements that would be changed once every twenty four hours and that would be positioned in the line of the driver's eye on a building that is highly individual and unusual would, I consider, distract drivers. They would be sufficiently distracted such that they could miss the appropriate signs, introducing the potential for late manoeuvres and the possibility of collisions. This potential hazard on this difficult stretch of heavily trafficked motorway would introduce an additional public safety risk, contrary to Policies T.4.4 and ENV-B.1.4 of the UDP, which deal with the requirements of advertisements and highway safety matters respectively."

ii) Submissions and conclusions

40. The claimant's first submission on this subject related to the Inspector's conclusion in paragraph 23 that the accident record should be considered on the basis that this section of the M4 is classed as a motorway. It was submitted that, simply to say that the accident rate should be considered on that basis because the road was classified as a motorway, failed to take account of the particular characteristics of this stretch of road where there is no hard shoulder and where the horizontal alignment is such that the speed limit is 40mph. The point was made that the Inspector's conclusion on this aspect set the context for his judgment on the matters referred to in paragraphs 24 and 25, and that if he had considered the accident record on the basis that this stretch of land was an urban dual carriageway, it could well have affected the conclusions he reached in those paragraphs.
41. In my judgment, the Inspector was technically correct to deal with this matter on the basis that this stretch of road should be treated as a motorway because that is how it is classified by the appropriate authorities. The important point is what use is made of that conclusion. If it had been used as a reason for refusal without consideration of the characteristics of the stretch of road, there could be justifiable ground for complaint, but it is quite clear that the Inspector was well aware of the characteristics of this stretch of road, and that he did not refuse the application on the basis of a motorway accident record. He based his conclusions on what he saw in relation to the characteristics of this stretch of road and in relation to driver behaviour on it, both of those matters being referred to by him in paragraph 24. It was on that basis that he concluded that the situation should not be worsened by the introduction of potential hazards. I do not therefore consider that the Inspector can be criticised for his conclusion in paragraph 23, or by the way that he approached the issue of highway safety in having regard to the particular characteristics of this stretch of road and driver behaviour on it.
42. The claimant's second submission on the subject of highway safety was that the Inspector failed to take into account the evidence of the claimant's expert witness relating to highway issues, which included points such as that there was less likelihood of safety problems from advertisements within this commercial or industrial location where advertisements were already a common feature, and that forward visibility and the position of the overhead gantries were sufficient to avoid surprise for decisions on lane selection. It was submitted that paragraphs 24 and 25 of the decision letter contained subjective observations untutored by the claimant's expert evidence.
43. I do not consider that there is any force in that submission. The fact that the Inspector did not set out those aspects of the claimant's expert evidence does not mean that he did not take them into account. This was a case where the Inspector reached clear and unequivocal conclusions on highway safety. Having decided, for reasons which I have already mentioned, that the situation on this stretch of road should not be worsened by the introduction of potential hazards, he concluded in paragraph 25 that the advertisements, positioned in line of the driver's eye on a highly individual and unusual building, would distract drivers sufficiently that they could miss the appropriate signs, with the consequential potential for late manoeuvres and the possibility of collisions. He therefore concluded that that potential hazard on this difficult stretch of heavily trafficked motorway would introduce an additional safety risk contrary to UDP policies. In the light of those clearly expressed conclusions, it was not necessary for him to traverse the claimant's expert evidence.

Overall conclusion

44. Having therefore considered the various points advanced on behalf of the claimant, I am not persuaded that there was any error of law involved in this decision such as to require the decision to be quashed. The Inspector's conclusions were essentially matters of planning judgment with which this court should not interfere. I am satisfied that the Inspector was entitled to reach those conclusions, and that he gave adequate reasons for doing so. It follows that this application must be dismissed.
45. MR MOFFETT: My Lord, I am very grateful for that. My Lord, given your Lordship's judgment I would ask for the Secretary of State's costs.
46. SIR MICHAEL HARRISON: Yes, thank you very much. Mr Anderson, can you resist that?
47. MR ANDERSON: My Lord, no.
48. SIR MICHAEL HARRISON: Thank you very much. I will make an order that the claimant should pay the first defendant's costs, to be assessed if not agreed.
49. MR ANDERSON: My Lord, the claimant does seek leave to appeal from your decision in this matter in relation to both of the main issues in the Inspector's determination. My Lord, coming to the first of those, where the claimant would depart from your Lordship's judgment is in respect of the approach taken by the Inspector to the fact that a landmark development for economic regeneration was necessary on the site, and the Inspector should have considered that in view of the potential continued dereliction on the site of this proposal is not accepted. I would submit that while it is correct to say that where an Inspector considers the background policies -- this inference to specific policy -- reference to that specific policy may not always be necessary. However, in this case, given that that policy specifically concerned the area in question and is, the claimant would submit, quite different from the sequential policy on economic regeneration to which the Inspector did refer, it is not clear that the Inspector, in applying his mind to the arguments based upon economic regeneration and the need for a landmark building, was properly considering the policy considerations most applicable to the development before him, and I would submit, my Lord, that that is a question potentially of some general importance as to the approach that an Inspector should take to addressing such a development and also the approach that he should take to addressing submissions based upon the risk of a site highlighted as one for economic regeneration remaining derelict over a long period of time, which goes to the heart of the claimant's case in this matter and which the Inspector does not address head on. In light of that I submit that it cannot be clear that it would not have made a difference to his decision.
50. SIR MICHAEL HARRISON: All right.
51. MR ANDERSON: And then, my Lord, in relation to the point about whether the matter is considered a motorway or as an urban dual carriageway, again, my Lord, I would submit that it cannot be clear, without the Inspector having faced head on the arguments put forward in the claimant's expert evidence, that the Inspector's conclusions, which may have been clearly expressed, were based upon a proper reasoning taking into account all of the evidence that was before him. Those are the matters on which I would invite the court to depart from the judgment.
52. SIR MICHAEL HARRISON: Thank you. Mr Moffett, what do you have to say about it?
53. MR MOFFETT: Your Lordship reached very clear conclusions on those two issues. With respect, I would say your Lordship is plainly right, and in any event these are not matters which would be suitable for the Court of Appeal. There is no issue of public importance raised here. They are merely a reiteration, if I may say so, of the submissions made on this particular decision letter.
54. SIR MICHAEL HARRISON: Thank you very much. Mr Anderson, I am not prepared to grant leave to appeal.