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
		31 January 2008

1. MR JUSTICE MITTING: The local planning authority for East Hampshire, East Hampshire District Council, appeals under section 288 of the Town and Country Planning Act 1990 against the decision on appeal of Mr Martin Andrews, allowing an appeal by a house owner and developer against the refusal of the local planning authority to permit development at Tiplen Green Farm House, Clanfield. The appeal decision is dated 26 June 2006.
2. Tiplen Green Farm House was originally two small cottages. It is in open countryside outside the village of Clanfield. In 1993 planning permission was given to amalgamate the two cottages and expand the floorspace of what would then become a single building. The house owners applied for planning permission to extend the building further to the rear by adding a two-storey rear extension. The number of bedrooms was not to increase, although the facilities at first-floor level would obviously be significantly enhanced. The number of living rooms on the ground floor was also not to increase, but the principal living room would have added to it a "snug", and the dining room would be extended.
3. Permission was refused on 11 February 2005 on the ground that:

"The proposal represents an unacceptable cumulative addition to this property, which has been extended in the past, representing a 68 per cent increase in floor area. This enlargement and extension itself changes the scale and character of the property and affects the successful retention of a range of dwellings of varying sizes in an area where new dwellings are not permitted contrary to Policy H16 of the East Hampshire District Local Plan: First Review."

4. Subsequent to that decision the policy was revised and updated, but was, in relation to this appeal, to all intents and purposes the same. The relevant policy was H16.2, which provided:

"Where the original dwelling had a total floorspace between 67 sq m and 266 sq m inclusive, the resultant dwelling size does not exceed the original dwelling size by more than 50 per cent. Subsequent extensions which would result in an increase in floorspace beyond this limit will not be permitted."

5. The prohibition was accordingly absolute and unqualified. The objectives to be served by this policy were set out in the explanatory notes in the development plan, in particular paragraphs 5.182, 5.183 and 5.184, the relevant parts of which provide:

"It is important to maintain the variety of existing dwelling types and sizes in accordance with Government Policy. The trend of replacing and extending dwellings outside settlement policy boundaries creates larger and larger dwellings which could ultimately result in a very limited range of dwelling types being available. The Policy applies development restrictions to dwellings outside settlement policy boundaries to ensure that the existing variety in the housing stock is not diminished through excessive replacement and extension of dwellings.

5.183. Over the last few decades there has been a clear trend towards larger properties in the countryside, many of which were created by the expansion of smaller properties at a time when the District-wide housing needs surveys identify a continuing need for smaller, less expensive accommodation.

5.184. It is critical that a range of dwelling types and sizes should be available within settlement policy boundaries."

6. Both the appellant (the interested party in these proceedings) and the local planning authority submitted to the Inspector that the sole issue was whether or not policy H16.2 was outweighed by material considerations. Both sides accepted that the policy was breached. Consequently the appeal turned on the issue which both had identified.
7. The basic ground of appeal in this case by the local planning authority is that the Inspector did not in fact carry out the exercise required by (then) section 54A of the Town and Country Planning Act 1990. It provided:

"Where in making any determination under the Planning Acts regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

8. That is a provision of long standing in planning law. It would be truly remarkable, given the submissions made to him, if the Inspector had not had in mind that that was the decisive issue in the appeal.
9. As well as extending the footprint of the building, the development proposed a radical alteration in the roof line. Before the development allowed on appeal, the roof line had the appearance of a pitched roof but contained at its centre a flat roof. The existing pitched roof might be thought to be disproportionate to the house underneath it as it had been extended, and the flat roof undoubtedly created problems of drainage of surface water.
10. In his appeal decision, the Inspector noted Policy H16 of the development plan, set it out accurately in paragraph 2, having set out in paragraph 1 what the issue in the appeal was:

"I therefore consider that the main issue in this appeal is whether the proposed extension would be acceptable in the light of the Council's policy to maintain a range of dwelling types in the countryside taking into account other material considerations."

11. However the remaining paragraphs of the decision letter may be couched, there can, in my view, be no doubt that the Inspector had in mind what the principal issue was, and having directed himself correctly as to what it was in paragraph 1 of his decision letter, he summarised the arguments in paragraph 3:

"The appellants accept that the proposed extension would be in breach of Policy H16 of the Second Review of the Local Plan but argue that other material considerations outweigh any harm thereby caused. However in the Council's view the policy and its limitations of floorspace increases should prevail."

12. He went on to state in the opening sentence of paragraph 4 that in his view:

"... the arguments of the Council and the appellants in this appeal are finely balanced."

13. Mr Burns, who appears for the local planning authority, submits that he thereby demonstrates that he approached the decisive issue on the basis of a fundamental misunderstanding as to his task. In my view, that sentence displays no such error. What he was summarising there was simply that the argument posed by section 54A, upholding the development plan against the existence of material considerations, resulted in a decision which was finely balanced.
14. He went on in paragraph 4 to remind himself of the relevant parts of the notes to H16, which set out its purposes, which I have already cited. He acknowledged that they contained a laudable aim, and "if it is to be effective, then clearly the policy needs consistent support, including at appeal". There can accordingly be no doubt that he gave proper consideration and weight to the policy.
15. In paragraphs 5, 6 and 7 he decided that he should not, in this instance, apply it. His reasons were as follows:

"5. That said, I endorse the appellants' view that the proposed extension would not, as a matter of fact, result in Tiplen Green Farm House moving from one 'class' or type of dwelling house to another. There would be no increase in the number of bedrooms on the first floor or in receptions rooms on the ground floor. With a current open market value of between £500,000 and £550,000 the appellants have valuation advice that this price range would not be affected by the proposed alterations. And whilst the relatively modest additional space would no doubt somewhat enhance the already high standards of accommodation, I essentially agree with the appellants' argument that it would not materially affect the character or type of dwelling. I have taken note of the cumulative element of the policy but whilst previous extensions may have altered the dwelling's status, this one does not.

6. As the proposed extension would not in my view conflict with the objectives of policy H16, I am unable to accept the Council's view that the breach of the 50 per cent floorspace limit in this particular case would be harmful. Furthermore I am reinforced in this opinion by the fact that the re-designed roof would be more proportionate to the dwellings as a whole, thereby improving its appearance. The alterations would also address the somewhat intractable problem of water penetration by the removal of an existing central area of flat roof that currently forms part of the dwelling's design.

7. I acknowledge that in reaching this conclusion my decision in this case does not provide the consistency that the Council would like in the implementation of its policy. But as the numerous other appeal decisions produced by the appellants show, the use of an arbitrary floorspace limit is quite often only an effective tool when it can be used as a quantitative illustration that in a particular case the objectives of the policy would have been undermined. And as I conclude on this occasion that overall the proposal would not be in harmful conflict with Local Plan Policy H16, I consider that the only logical and indeed equitable course of action is for me to allow the appeal."

16. It is self-evident that in paragraphs 6 and 7 the Inspector did not in terms redirect himself, as he had in paragraph 1, to consider expressly the material considerations which might lead to departing from Policy H16. But on no sensible reading of paragraphs 6 and 7 can he be taken to be doing anything else.
17. Mr Burns accepts that the three factors identified in paragraph 6 are capable of being material considerations: first that the extension would not undermine the policy objectives; secondly that it would improve the appearance of the house; and thirdly that it would deal with a problem of water penetration. Given that concession, and given a benevolent construction of the decision of the Inspector, it seems to me that it is impossible to identify any error of law in his decision which could justify my overturning it. What the Inspector, on a benevolent reading of his decision, has done is that which he is required to do by section 54A: to set out the policy; to give priority to it, save where it is outweighed by material considerations. He has identified the material considerations. Having done so, he has exercised his planning judgment, with which it is not for me to interfere.
18. For those simple reasons this appeal cannot succeed, and I reject it.
19. MR MOFFETT: My Lord, I am grateful for that. In the light of your Lordship's judgment, I would ask for the Secretary of State's costs. I do not know if your Lordship has a schedule of costs.
20. MR JUSTICE MITTING: Yes, I do.
21. MR MOFFETT: I do not know if my learned friend proposes to take any point on the sum. I would simply say that, as one might perhaps expect with two public authority litigants, the costs are very similar indeed on both sides.
22. MR JUSTICE MITTING: Yes.
23. MR BURNS: Your Lordship, I cannot oppose a costs order against my client, but I do ask you to consider the sum. It is not sufficient to say that they are similar, although as it happens the respondent's costs are some £500 higher than my schedule. One has to look at the work involved. We have had the carriage of this application and had to serve the other respondents and deal with them. The Treasury Solicitor for the Secretary of State has not had the carriage of it. The one matter I do draw attention to is the second page, "Work on documents". There are very, very few documents. If you add up those figures in the first box, you will see that over 30 hours on documents has been claimed at a cost of exceeding £4,000. I say that is simply far too much. The only visible documents in this case emanating from the Secretary of State have been my learned friend's skeleton argument and his bundle of authorities, the cost of which could be included within his brief fees. There is a conspicuous lack of any substantial documents which would justify this very significant amount of time, and I respectfully request you to mark that down somewhat.
24. MR JUSTICE MITTING: What do you suggest is a reasonable period to spend on documents?
25. MR BURNS: Given the lack of documentation -- it is hard to say, but I would have thought five hours at the outside because there does not seem to be any documentation to explain all this time.
26. MR JUSTICE MITTING: Mr Moffett?
27. MR MOFFETT: All I would say in relation to that is that does not relate to the generation of documents. As your Lordship may well be aware, the Treasury Solicitor receives the appeal and provides substantive advice to the Planning Inspectorate when an appeal is received, and the time taken includes the time taken to provide that advice. Also I am instructed that unfortunately in this case, because of the passage of time since the appeal has been lodged, the case had to be handed from one case officer --
28. MR JUSTICE MITTING: So the work has been duplicated?
29. MR MOFFETT: I am not saying that, but that has perhaps contributed --
30. MR JUSTICE MITTING: Something along those lines must have occurred. 30 hours is not required for this case.
31. MR MOFFETT: I cannot say any more than that. All I would say in relation to the sum is that I do note that the appellant's time spent on documents was ten hours.
32. MR JUSTICE MITTING: Yes, that strikes me as a more reasonable figure.
33. The appellant will pay the respondent's costs, which I assess in the sum of £8,542 less £2,800. 30 hours approximately are claimed for the costs of work done on documents at a total cost of about £4,200. On any view that is an excessive amount of time to prepare a planning appeal, let alone this modest planning appeal. The appellant has spent ten hours on documents. That seems to me to be a reasonable amount of time for both sides to spend. Accordingly, I reduce the sum claimed for work on documents by two thirds in the approximate sum of £2,800.
34. MR MOFFETT: My arithmetic tells me, I hope this is right, that is £7,742.
35. MR JUSTICE MITTING: It is not right.
36. MR BURNS: £5,742.
37. MR JUSTICE MITTING: I assess costs in the sum of £5,742. Thank you both.