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
		11th February 2008

1. SIR MICHAEL HARRISON:

Introduction

2. This is an application for judicial review to quash a planning permission granted on 7th November 2007 by the defendant, the local planning authority, for a two storey rear extension of a house at 30 Rylett Road in the London Borough of Hammersmith and Fulham.
3. On 24th January 2008 Mr Supperstone QC, sitting as a Deputy High Court Judge, ordered a "rolled up" hearing of the application so that, if permission were granted, the substantive issues could be dealt with at the same time. The need for urgency arises from the fact that the work for the extension has now commenced so that an immediate hearing was required to avoid the extension having been built by the time of the hearing which, if the planning permission were quashed, might affect the defendant's decision whether to issue an enforcement notice.
4. The claimants, who are husband and wife, live at 28 Rylett Road, next door to the proposed extension at 30 Rylett Road. No 30 is a two storey semi-detached Victorian house in a Conservation Area which is attached to No 32. The claimants' house at No 28 therefore adjoins No 30 but is not attached to it. The proposed two storey extension at the rear at No 30 would extend across about 80 per cent of the width of the existing building. The wall of the proposed extension would be about 3 metres from the claimants' conservatory at the rear of their property, the rest of the rear of their property being taken up by a two storey extension covering about 60 per cent of the width of the rear of their house.
5. The sole ground of challenge in this case is that, in granting planning permission for the extension at No 30, the defendant, the Council, failed to have regard to a part of its Unitary Development Plan (UDP) which states that extensions should not comprise more than half of the width of the rear of the property, and that the Council therefore failed to take into account a relevant consideration which it was required by section 70(2) of the Town & Country Planning Act 1990, to take into account. It is submitted that, if the council had taken that matter into account, it would have realised that the proposed extension was about 80 per cent of the width of the existing building which, it is said, would have made a material difference to the outcome of its decision. That is the short point in this case.

Factual Background

6. The part of the UDP upon which reliance is placed forms part of the reasoned justification for policy EN8B which deals with the design of extensions. That policy states as follows:

"The council will require a high standard of design in all extensions and alterations to existing buildings. These should be compatible with the scale and character of existing development, its neighbours and its setting. In most cases, these will be subservient to the original building. In considering applications the council will take into account the following:

(i) scale, form, height and mass

(ii) proportion

(iii) vertical and horizontal emphasis

(iv) relationship of solid to void

(v) materials

(vi) relationship to existing building, spaces between buildings, and gardens, and

(vii) good neighbourliness."

7. The policy is followed by the heading "Justification: Design of Extensions", which is followed by paragraphs 4.81 and 4.82. It is paragraph 4.82 upon which the claimants rely but, for the sake of completeness, I should quote paragraph 4.81:

"4.81 The design of extensions or alterations to buildings is of considerable importance. Extensions and alterations can change the character of individual buildings and that of an area as a whole. This is of particular concern in terraces of uniform appearance. The council recognises the changing needs and requirements of occupiers, but seeks to ensure that extensions and alterations, even the most minor ones, do not affect the inherent qualities of existing properties.

4.82 Extensions should never dominate the parent building in bulk, scale, materials or design. Extensions should comprise no more than half the width of the rear of the property and should not rise higher than one storey beneath the original eaves or parapet line. Where a distinct rhythm of rear extensions exists any new buildings should follow the existing scale and character. With respect to local context, it will be essential that the design of the proposed extensions recognises and safeguards the amenities of the neighbouring properties, and other properties most directly affected by the proposal (see also standards S3, S6, S9, S10, S12 and S13).

8. It is the second sentence of paragraph 4.82 upon which reliance is placed, namely "Extensions should comprise no more than half the width of the rear of the property..."
9. In order to consider whether that aspect was taken into account by the Council, it is necessary to look at such documentary evidence as there is relating to the decision making exercise.
10. This was a decision which was taken by a planning officer under delegated powers. She was Miss Smyth, who is an Area Team Leader in the Planning Division of the Council. She was assisted by Mr Kolaszewski, another planning officer, who carried out two site visits and who compiled the officer's report in this case.
11. The officer's report is an important document. It is, therefore, necessary to refer to the relevant parts of it. Section 2 of the reports summarises the consultation responses. The claimants had both written letters of objection which did not refer to policy EN8B because they were unaware of it at the time, although the first claimant's letter did refer, amongst many other points, to their own extension being much narrower whereas the proposed extension was across almost the whole width of the back garden, moving the rear wall much closer to their garden.
12. Section 3 of the report deals with planning issues. Paragraph 3.1 is headed "Planning Policy." It states as follows:

"The main planning considerations in this case are the acceptability of the proposed extensions in terms of visual amenity including the impact on the character and appearance of the conservation area and the impact of the proposals on the residential amenities of adjoining properties, having regard to the policies and standards of the Unitary Development Plan (UDP).

Policy EN2 of the UDP states that development within conservation areas will only be permitted if the character and appearance of the conservation area is preserved or enhanced. Particular regard will be given in the design of new developments to details such as the scale, massing, bulk, height, materials, colour, vertical and horizontal emphasis and the relationship to adjoining buildings. Policy EN8B states that extensions and alterations should be compatible with the scale and character of existing development, its neighbours and setting.

The scale and bulk of the extensions would not overly dominate the parent building. The design of the proposed two storey extension includes the pitched hipped roof, the set-ins from the boundaries with nos 28 and 32, the design of the fenestration and the use of secondhand stock brick to facing materials ensures that the proposal fits in with the existing building and surroundings and protects the character of the Conservation Area. The proposed dormer window is to be set within the roof slope of the main roof and will be clad in slate to match the existing roof. As such it will be in[sic] preserve the character of the conservation area. The proposal is therefore considered to comply with policies EN2 and EN8."

13. There then followed a paragraph dealing with a BRE assessment of the impact of the proposed development on existing daylight levels, concluding that the dining room window of 28 Rylett Road would still receive acceptable levels of daylight. Paragraph 3.1 then concluded:

"The proposal will therefore comply with policies EN2, EN8 and EN8B of the UDP".

I should mention that policy EN2 deals with development in Conversation Areas. Policy EN8 deals with design of new developments and policy EN8B deals with the design of extensions.

14. Paragraph 3.2 of the officer's report is headed "Standards (including impact on neighbours)" The first paragraph under that heading states:

"The depth of the extension at 6.6m from the original rear wall of the property exceeds the normally permitted depth in standard S63 of the UDP. However, the proposal would meet the other two criteria of the standard in that it would not be within 4 metres of the rear boundary or cover more than half the rear garden area. Given the size of the application site's garden and the proportion of it that will remain, and the pattern of development in the adjoining properties, officers are satisfied that the proposals will not result in an over development of the property or impact on the sense of openness to the rear. There are extensions of varying heights and depths in this locality, such that there is no real consistency in form. The current proposal would not be incompatible with the pattern of some existing residential development which has occurred at Rylett Road identified by officers."

15. The recommendation of the report was that planning permission should be granted. Planning permission was approved on 7th November 2007 subject to conditions. The planning permission contained a paragraph headed "Justification for a approving application" which stated:

"It is considered that the proposal would not have a significant effect on the residential amenity of adjoining occupiers and would be of an acceptable visual appearance. The proposal would preserve the character and appearance of the conservation area. In this respect the proposal complies with Policies EN2 and EN8B and Standard S6 of the Hammersmith and Fulham Unitary Development Plan 2003 as amended by the Direction under Paragraph 1(3) of Schedule 8 to the Planning and Compulsory Purchase Act 2004 dated 27 September 2007."

16. The claimants became aware of the grant of planning permission on 17th November 2007, following which they discovered from the council's website the existence of policy EN8B and the reasoned justification for it. On 20th November 2007 they wrote a pre-action protocol letter to the Council raising four issues. The fourth issue was that the grant of planning permission was in contravention of paragraph 4.82 of the UDP because the extension comprised more than half of the width of the rear of the property. In elaboration of that issue, the pre-action protocol letter stated:

"The Council's Planning Officer's Notes say that the proposal will comply with policy EN8B of the UDP but they do not explain why, bearing in mind (a) para 4.82 of the justification for that policy states that extensions should comprise no more than half the width of the rear of the property 'and should not rise higher than one storey beneath the original main eaves or parapet...' but (b) this proposal does both. If for some reason the Council considered that its own justification was inapplicable in this case there ought to have been an explanation of this in the Planning Officer's Notes dated 7 November 2007 but there is none. It seems that the Council simply failed to apply its own justification."

17. The Council replied to the pre-action protocol letter by letter dated 3rd December 2007. Dealing with the fourth issue, it stated that it considered the ground misconceived for the following reasons:

"(1) As recognised in the pre-action letter, the passages quoted are not from the UDP policy but from the text which is supplementary to that policy.

(2) The officer's report clearly sets out that in Mr Kolaszewksi's view the proposed [sic] is acceptable in terms of policy EN8B and the reasons for reaching that view.

(3) In any event, in terms of the supplementary text, in addition to those words quoted in the pre-action letter there appears the following: 'Where a distinct rhythm of rear extensions exists any new proposals should follow the existing scale and character."

It is clearly a material consideration that there is a particular style of extension already present locally. This is the case on this side of Rylett Road where a number of extensions exist, including the one at number 28 Rylett Road, which are both more than half the width and higher than one storey beneath the original eaves of the parent property. The approved extension at number 30 follows the existing scale and character of extensions in the immediate area, including the one at number 28 Rylett Road."

Submissions

18. The claimants' main point is that there is no mention in the officer's report, in the planning permission itself or in the council's answer to the pre-action protocol letter of the fact that the width of the extension significantly exceeds half the rear of the property, in contravention of paragraph 4.82 of the UDP. It is therefore submitted that the Council failed to take that material consideration into account. The claimants refer to a number of matters in support of that submission.
19. Firstly, they compare the way in which the Council replied to the first issue raised in the pre-action protocol letter with the way in which it replied to the fourth issue. The first issue related to an alleged failure to take into account the interference with privacy inside the conservatory at No 28 Rylett Road. In its reply, the Council conceded that the issue was not specifically referred to in the officer's report but it stated that the matter was comprehensively discussed between the report writer and the decision maker before the decision was made, and its letter set out the points on which their consideration was based. The claimants say that, if the width point under paragraph 4.82 of the UDP had been considered, this was the obvious opportunity to say so, in the same way as the Council had stated that the point raised in the first issue had been discussed and considered by the officers.
20. Secondly, the claimants refer to the first sentence of the third subparagraph under paragraph 3.1 of the officer's report, where it is stated that the scale and bulk of the extension would not overly dominate the parent building. The point is made that that sentence is dealing with the first sentence of paragraph 4.82 of the UDP which states that extensions should never dominate the parent building. By contrast, the claimants point to the conspicuous silence in the officer's report on the width issue that arises in the next sentence of paragraph 4.82.
21. Thirdly, reliance is placed on the fact that paragraph 3.2 of the officer's report accepts that the depth of the extension exceeds the normally permitted depth in standard S6.3 of the UDP but goes on to explain why that is acceptable in this case, whereas there is no mention of the width of the extension exceeding that stated in paragraph 4.82 of the UDP or any explanation why it was nevertheless considered to be acceptable.
22. The claimants rely on all these matters as showing that the Council simply failed to take into account the width issue under paragraph 4.82.
23. The Council have now produced witness statements from Mr Kolaszewski, the report writer, and Miss Smyth, the decision maker, to seek to show that they did take the width issue into account.
24. Mr Kolaszewski states in his witness statement that he "had in mind" the paragraphs in the justification to policy EN8B and that he "was aware" of the guidance in relation to the width and height of the proposed extensions. Miss Smyth states that, in making her assessment, she was "aware of, and had regard to" the justification for policy EN8B. She states that she was aware that the proposed extension would take up a large proportion of the width of the existing building and that she was aware of other extensions in the local area which are over half the width of the main building. Finally, she states that she was satisfied that the proposal met the requirements of policy EN8B and that, in reaching her decision, she had regard to the relevant parts of the justification for the policy.
25. I have heard submissions about whether I should take those witness statement into account. Mr Booth, who appeared for the claimants, referred me to a number of authorities on the point, in particular, R (D) v the Secretary of State for the Home Department [2003] EWHC 155 where Maurice Kay J (as he then was) stated at paragraph 18:

"It is well established that the court should exercise extreme caution before accepting reasons for a decision which were not articulated at the time of the decision but were only expressed later, in particular after the commencement of proceedings: (see, for example, Nash v Chelsea College of Art and Design (2001) EWHC Admin 538 at paragraph 34 per Stanley Burnton J)."

26. In the Nash, case Stanley Burnton J set out a number of considerations relating to the caution needed in accepting late reasons, including whether the new reasons are consistent with the original reasons, and the delay before the later reasons were put forward. He stated that reasons put forward after the commencement of proceedings must be treated especially carefully.
27. Mr Booth submitted that the witness statements contained in ex post facto reasoning to which I should not attach any weight, especially bearing in mind that it was not stated in the Council's response to the pre-action protocol letter that the width issue had been considered by the officers.
28. Mr Ground, who appeared for the Council, submitted, on the other hand, that, although I should exercise caution, I should give some weight to the witnesses statements because there was no great departure from what was said before, it was a decision by a planning officer and not by a planning committee, there should be some latitude when considering reasons given by non lawyer, and there was no suggestion of bad faith.
29. I should also refer to Mr Ground's submissions on the main issues. His main submission was that the absence of reference to the width issue in the officer's report does not mean that it was not considered. He relied on the dictum of Lord Lloyd in Bolton Metropolitan District Council v Secretary of State for the Environment (1996) 71 P & CR 309, when he stated, at page 314:

"What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the 'principle important controversial issues'. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden."

30. Mr Ground submitted that the officer's report had identified the principal controversial issue in the first sub-paragraph of paragraph 3.1 of the report as including the impact of the proposals on the residential amenities of adjoining properties. It had identified the relevant issue under policy EN8B in the last sentence of the next sub-paragraph under paragraph 3.1, namely that extensions should be compatible with the scale and character of the existing development, its neighbours and setting, which is contained in the second sentence of policy EN8B, and it had concluded that the proposed development complied with that policy. That, said Mr Ground, was an end of the matter and the Court should not speculate what subsidiary issues had or had not been taken into account because, if it was to be inferred that an issue had not been taken in to consideration simply because it was not mentioned, it would be necessary to refer to all material considerations. He submitted there was nothing unusual or important about the sentence dealing with width in paragraph 4.82 such as to give rise to a suspicion that it was not taken into account. It should be inferred from the fact that policy EN8B and the first sentence of paragraph 4.82 dealing with the issue of dominance of the parent building had both been considered, that the proposed development had been considered in its context. Finally, Mr Ground took issue with Mr Booth's description of the sentence relating to the width issue in paragraph 4.82 as being mandatory. He described it as a benchmark and submitted that policy EN8B is informed by the reason justification but, in effect, not dictated by it.
31. In response, Mr Booth agreed that the policy test must be informed by the reason justification, in this case that the extension should be no more than half the width of the property, but he submitted that, if it was "not so informed", the policy had not been properly applied. He contended that there was a need to mention a material consideration about which there was an element of controversy.

Conclusions

32. I start my consideration of all those submission by reminding myself of section 38(6) of the Planning and Compulsory Purchase Act 2004 which provides:

"If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."

33. By virtue of section 70 of the Town and Country Planning Act 1990, regard has had to be had to the development plan when considering a planning application. It follows that the determination of this planning application has to be made in accordance with the development plan unless material considerations indicate otherwise.
34. In my view, the development plan consists of the policies and the reasoned justification for them. The policies are of primary importance but they are informed by the reasoned justification for them. They are both capable of being material considerations of differing importance depending on the context.
35. In the context of this case, I consider that the sentence in paragraph 4.82 stating that an extension should comprise no more than half the width of the rear of the property is a material consideration. I do not think there is any real dispute about that. As a material consideration, it should have been taken into account. The next question is: was it taken into account? That, in turn, gives rise to the question whether it should be inferred from the fact that it was not mentioned in the contemporaneous documents that it was not taken into account.
36. It is in common between the parties that the decision maker does not have to refer to all the material considerations. Is the width issue a material consideration which the decision maker should reasonably be expected to deal with when considering one of the principal controversial issues, namely the impact of the proposal on the residential amenities of adjoining properties? In considering that issue, it seems to me that the width, depth and height of the proposed extension are important, even fundamental, considerations in assessing the impact on the residential amenities of adjoining properties. The width of the proposed extension in this case affects how close the side wall comes to No 28, the claimants' property, and consequentially the degree to which the amenities of the claimants' property are affected. In those circumstances, where there is a statement in the reasoned justification that the extension should not be more than half the width of the property, but where the proposed extension covers about 80 per cent of the width of the property, I consider that it is reasonable to expect the officer's report to have dealt with that issue because it is one of the important considerations affecting the residential amenity of an adjoining property in circumstances where the proposal falls foul of the guideline in paragraph 4.82.
37. I mention at this point that I do not consider it to be appropriate to describe the relevant sentence in paragraph 4.82 as mandatory in the sense that it has to be followed. Mr Ground referred to it as a benchmark. I prefer to refer to it as a guideline when applying policy EN8B which does not have to be followed but where, if it is not followed, one would expect to find an explanation why it was not followed.
38. Having concluded that it would be reasonable to expect the officer's report to have dealt with the width issue relating to the proposed extension, it is apparent that it was not mentioned at all in the officer's report, or in the justification in the planning permission. I next have to consider whether I should infer from that omission that there was a failure to take it into consideration.
39. On any reasonable analysis, one would expect the effect of the depth and the width of extension to be assessed in relation to any available guideline. It is significant that the officer's report dealt with the depth of the extension, stating that it exceeded the normally permitted depth in standard S6.3 but explaining why that was acceptable, but did not deal with the width of the extension although it exceeded the guideline in paragraph 4.82. I appreciate that standard S6.3 has the status of policy rather than reasoned justification, but both the depth and the width of the extension are equally important in the context of this case, and the fact that the depth was dealt with but the width was not suggests to me that there was a failure to consider the width issue.
40. Furthermore, if the width issue had been considered, there was an obvious opportunity to say so in reply to the claimants' pre-action protocol letter in which this point was expressly raised. There is, however, no statement in the Council's reply that the width issue had been considered by the officers although in relation to the first issue raised in the pre-action protocol letter, the Council did specifically state that, although that issue had not been mentioned in the officer's report, it had been considered by the officers, giving their reasons relating to it. The fact that the Council's reply did not deal with the width issue in that way and did not state that it had been considered by the officers is, in my view, another indication that there was a failure to consider that issue.
41. My conclusion therefore is that all the contemporaneous documents and the Council's reply to the pre-action protocol letter before these proceedings were commenced indicate to me that the width issue was not taken into consideration when this application was considered.
42. Should that conclusion be affected by the witness statements made by the planning officers since these proceedings were launched? I have already referred to the line of authorities to the effect that the court should exercise extreme caution before accepting reasons for a decision which were expressed after the decision. That is particularly so where they are expressed after the commencement of proceedings. The danger is that, even acting in good faith, a witness may attempt to rationalise a decision in such a way as to meet a question which has arisen in relation to the decision.
43. I have already summarised the relevant parts of the witness statements made by the planning officers. Not only were they made after the commencement of these proceedings, but they were made in circumstances where their content relating to the width issue was conspicuously absent from the council's reply to the pre-action protocol letter. Furthermore, the content of the witness statements on this issue are far from compelling. Mr Kolaszewski merely stated that he was aware of the guidance relating to the width of extensions, and Miss Smyth stated that she was aware of and had regard to the relevant parts of the justification for policy EN8B. Whilst, of course, that justification includes the width issue, neither of the officers specifically state that they had regard to the width issue. I would have expected both of them to have expressly stated that they took into account the guidance in the second sentence of paragraph 4.82 relating to the width of proposed extensions, and to have given the reasons why they concluded that it should not be followed in this case. I do not in any way question the good faith of the officers, but it seems to me that there is a very real danger of ex post facto rationalisation in this case. Bearing in mind the caution that should be exercised in relation to those statements, their content and their inconsistency with the council's pre-action protocol letter, I have concluded that I should not attach any significant weight to them.
44. In those circumstances, I reach the conclusion that there was a failure to take into consideration the guideline in the second sentence of paragraph 4.82 of the UDP that extensions should comprise no more than half the width of the rear of the property, and a consequential failure to take into account or explain why that guidance should not be followed in this case.
45. The final question for me to decide is whether I should quash the decision in the light of that failure, or whether I should exercise my discretion not to quash the decision on the basis that the decision would have been the same even if the width issue had been taken into account.
46. Both parties agree that the test I should apply is whether there is a real possibility that the Council would reach a different conclusion if it did take the width issue into account (see Glidewell LJ in Metropolitan Borough Council v the Secretary of State for the Environment and Greater Manchester Waste Disposal Authority 61 P&CR 343 at p 352).
47. Mr Ground submitted that there was no real possibility that the Council would reach a different conclusion because, as was clear from Miss Smyth's witness statement, there was compliance with the policy test. Mr Booth, on the other hand, said that it would be strange if she had said anything else in the context of these proceedings. He submitted that I should not assume that she would take the decision if the Council had to reconsider the application, in fact he suggested that I ought to advise that she should not do so. He contended that there was a real possibility that the Council would reach a different conclusion if it took the width issue into account.
48. I have to say that I find this aspect of the decision to be finely balanced. I recognise the force of the argument that Miss Smyth concluded that there was compliance with policy EN8B and that it is clear from her witness statement that, if she had to reconsider the matter, she would reach the same conclusion again. However, on my finding, her decision was not a conclusion informed by the guidance in paragraph 4.82 of the UDP that extensions should comprise no more than half the width of the rear of the property. The evidence before me suggests that the proposed extension would cover about 80 per cent of the rear of the property and that there may not be any existing extensions of that width in the local area. It seems to me that there is a real possibility that a new decision maker, considering this matter for the first time, uninfluenced by knowledge of the previous decision, and informed by the width issue in paragraph 4.82 might reach a different conclusion. In my view, this is a case where I ought to exercise my discretion to quash the planning permission. It also seems to me that it would be inappropriate for Miss Smyth to be the decision maker on the reconsidered application because, with the best will in the world, it would be very difficult for her to approach the matter uninfluenced by her previous decision.
49. Although it was a decision taken under delegated powers, the Council may well think it appropriate in the circumstances of this case that the new decision should now be taken by members rather than by a planning officer under delegated powers. It would also be appropriate for the Council to give the claimants and other interested parties an opportunity to make further representations about the planning application before the fresh decision is made.

Overall Conclusion

50. My overall conclusion in this case is that, for the reasons I have given, this application for judicial review should succeed. I will therefore grant permission and order that the planning permission should be quashed.
51. MR JUSTICE HARRISON: Yes, Mr Booth?
52. MR BOOTH: In light of your finding on the application, I make an application for the claimant's costs in this matter. A schedule of costs has been provided to the defendant authority, and my understanding is that there is no argument on quantum. I do not know if your Lordship has a copy of the schedule.
53. MR JUSTICE HARRISON: I have not seen that. (Same handed).
54. MR BOOTH: I have made a manuscript addition which I also brought to attention of those instructing my learned friend which takes account of the fact that I am attending today. My brief for today. (Pause)
55. MR JUSTICE HARRISON: Yes, thank you very much. Mr Ground, first of all, is there any dispute on the principle?
56. MR GROUND: No dispute on the principle or on the quantum. The quantum presumably is £4031.26.
57. MR JUSTICE HARRISON: Has there been an incorrect addition?
58. MR BOOTH: My Lord, £4083.76.
59. MR JUSTICE HARRISON: £4083.76.
60. MR GROUND: There is no dispute over that quantum.
61. MR JUSTICE HARRISON: I make an order that the defendant should pay the claimants costs of £4083.76. I hand that back.
62. MR GROUND: The other matter, an abundance of caution, perhaps apply for permission to appeal and obviously clearly instructions have not been taken on your careful judgment but, my Lord, in abundance of caution should it be said better that I should have asked now, I ask for permission to appeal, I formally ask for that.
63. MR JUSTICE HARRISON: I can see no good reason why I should grant permission to appeal, so I am afraid I will not grant it. Thank you very much.