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
		16 April 2008

1. MR JUSTICE COLLINS: This is a claim under section 288 of the Town and Country Planning Act 1990 by developers whose appeal against refusal of planning permission was rejected by an Inspector on 12 April 2007. There were in fact two conjoined appeals, since two applications had been made for permission for the demolition of two existing houses at 54-56 Telegraph Lane in the village of Four Marks near Alton in Hampshire, and the construction on the sites extending to their gardens, together with part of the garden of number 58 for 11 or for 14 dwellings.
2. Telegraph Lane is a long straight road with what could be called "ribbon development" on either side. They are single detached houses in fairly substantial gardens.
3. There had been an issue when consideration was given to what should be the Settlement Policy Boundary ("SPB") as to whether the boundary should extend to what is described as "backland" or "in depth" development, so that, in principle, development including what were gardens could be included.
4. The approach was indicated in March 1999 in a report to the District Council Local Plan Sub-Committee, and the basis for drawing boundaries for SPBs was set out in a number of criteria which were annexed to the report. In paragraph 2.3 of the report, this is said:

"Criteria 1 confirms that even if a settlement is identified as being appropriate for an SPB, if it does not have a discernible core around which a line can be drawn, its inclusion must be questioned. This should result in 'settlements' which are no more than scattered ribbons of development being excluded. Criteria 2 confirms that this exercise must be undertaken separately from the work on identifying housing and employment allocations, although infill site identification does form part of the process as stated in Criteria 9. Criteria 7 restrains development of rear gardens, where necessary, by drawing the line 25 metres from the rear of properties, which would be insufficient for any development in the garden."

5. Included in the criteria is number 7, which indicates that large gardens, where appropriate, could be included, because that made the best use of land within built-up areas, and it goes on thus:

"Where large gardens extend out into open areas beyond the built up area, consider appropriateness for re-development. If not appropriate then measure 25 metre from rear of buildings and draw line parallel to building. Use same considerations where boundaries vary in length, ie if appropriate for development follow natural or property boundaries where possible, if not, use most appropriate boundary features, to include enough land to enable an appropriate amount of development. If not appropriate for development then use 25 metre line. A 25 metre line will restrict backland development as this is insufficient space for any new development to satisfactorily integrate with the existing."

6. Following an inquiry in relation to the approach that should be adopted for the plans for the future, the Inspector, in dealing with this aspect, was concerned with an objection that Telegraph Lane in particular was not suitable for what is described as backland development, and it should be limited to what can be described as ribbon development only (that is, development on the frontage only). The Inspector said this in his report, and I pick it up at paragraph 2.171:

"In particular, the Four Marks Parish Council objects to the inclusion in the SPB of ribbons of development along Telegraph Lane especially south of Alton Lane and at Lymington Bottom. Despite their size of gardens, the spaciousness and the amount of trees and other vegetation, these small localities are more urban than rural in character. They adjoin other built-up parts of the settlement and are closer to the village centre than the more dispersed, outlying parts of the Parish. They are appropriately included in the SPB.

2.172 Generally, long gardens have been excluded especially those whose scale and character give them a closer affinity with the countryside and where development would intrude into it. That is the correct approach. These long gardens can be regarded as previously-developed land where they form the curtilages of the dwellings concerned, but that does not make such land suitable for development where it would damage the rural setting of the village. There is nothing necessarily illogical or otherwise wrong in including dwellings within the urban area and their long gardens outside it as, for example, at Blackberry Lane. No doubt these were considerations that the Council took into account in its preparation of this part of the SDDP. It should be congratulated for the realistic way in which it has defined the SPB for this settlement.

2.173 I support the Objectors worthy desire to discourage unsuitable development within the SPB, but the inclusion of land within a SPB is not the only consideration in assessing the suitability of a proposed scheme. There are also national and development plan policies that seek to ensure satisfactory design, appearance and layout so that any new buildings are in harmony with their neighbours and the wider surroundings. This combination of policies should provide the basis for good development within the correctly drawn SPB. It should also serve to protect the surrounding countryside beyond it from cul-de-sac or any other intrusive development."

7. Thus, the Inspector clearly had before him the objection that, if this was to be within the SPB, it should be limited in the way indicated. But his decision was clearly that it need not be so limited, but that did not give the green light to any particular development within the SPB in Telegraph Lane, as is made clear in what he said in paragraph 2.173. A qualification was imported into the 2006 plan, which is one of the relevant plans to be applied, in particular in policy GS2. Its rationale is described as pursuing the objective of "making the best use of land within the settlements defined with a settlement policy boundary with priority given to the re-use of previously development land and buildings". What it says is this:

"In its determination of an application for planning permission for development within a settlement policy boundary, the Council will have regard to the following material considerations:

a) the full and efficient use of land;

b) sympathy with the character and appearance of the area and the suitability in scale, massing, design, appearance, materials, layout and siting, both in itself and in relation to nearby buildings, spaces and views;

c) landscaping;

d) protection of the living conditions of existing and future residents from, for example, noise, dominance and loss of light and privacy;

e) safety and convenience on the public highway;

f) any other environmental matters."

8. In addition, there was a Policy H3 which dealt with residential development in urban areas and which stated:

"Within settlement policy boundaries, planning permission will be granted for residential development provided that it would comprise:

a) the re-use or redevelopment of previously-developed land or buildings;

b) the re-use of vacant or under-used land or buildings;

c) the conversion, sub-division or change of use of buildings; or

d) infilling."

9. The support for that policy was a requirement that development made efficient use of land depending on the character of the site, its surroundings and its accessibility to facilities, local services and employment. One-for-one replacements remained acceptable in principle, although encouragement would be given for the site to be developed more efficiently.
10. Accordingly, there can be no doubt but that development of the sort applied for, namely residential development, within the boundaries of the SPD was acceptable in this particular area. However, as GS2 in particular made clear, although in principle it was acceptable, it was not necessarily to be accepted if for any reason the decision-maker formed the view that it was not in keeping with the surrounding area.
11. In his decision, the Inspector referred to the various policies which he had to have regard to and which were material in accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004. He sets out in paragraphs 2 and 3 what are the relevant policies, and Mr Boyle has not suggested that he has in any way omitted an important policy or referred to one in a way which showed that he did not properly understand its relevance. He refers in paragraph 3 to GS2, which, as he puts it, advises that in determining an application for planning permission within the settlement boundary, the Council will have regard to such matters as the full and effective use of land and sympathy with the character and appearance of the area. He refers to other policies which require (and this is general) that all developments should be of a high standard and should make a worthwhile contribution to maintaining or improving the quality of the environment of the district.
12. The attack upon the Inspector's decision is based on two grounds. The first asserts that although he made reference to the fact that the land in question was within the settlement boundary, the way that he put it in his decision made it apparent that he was in fact revisiting the question as to whether such development was indeed appropriate within the boundary. He was rejecting it not because of any concern about the detail of the development, but because of concern that this was backland development in this particular area, and that was not a proper basis for refusing permission. What he in fact said, so far as material, is contained largely in paragraphs 7 to 10 of his decision. I will not cite them all, merely the relevant parts. In paragraph 7 he said that he was aware that the existing development in Telegraph Lane was included within the settlement policy boundary of Four Marks. He goes on:

"This was apparently against the wish of the Parish Council who objected to its inclusion at the Public Inquiry into the Local Plan. Nonetheless, it is now included in the adopted Local Plan and, as such, identifies those area where development would be acceptable in principle, within Four Marks and, equally, those areas outside the SPB which would fall to be considered as being within the countryside."

13. He had before him, as part of the evidence, the material to which I have already referred, and in particular the conclusions of the Inspector as to the inclusion of this area within the SPB. It seems to me, in those circumstances, it is quite unarguable to suggest that he was unaware or misdirected himself in any way as to the fact that this sort of backland development was in principle acceptable. He says exactly that in paragraph 7. Indeed, he repeats it in paragraph 8, which commences:

"There is no objection to the principle of development on the appeal site."

14. In paragraph 9 he says this in regard to the submissions made by the appellant in support of the proposals, namely that they would have a frontage development which would accord with the existing pattern of development along Telegraph Lane, and they would constitute a more efficient use of the land which itself was previously developed land in a sustainable location:

"I have had careful regard to these submissions in support of the proposals by the appellant but, to my mind, they would both represent a major change to the form of development on the appeal site.

While they would both result in a more efficient use of land and there is no objection to the design of the proposed dwellings, the layout and the density of development proposed would contrast unfavourably with the spacious and established pattern of development on the appeal site and along the rest of Telegraph Lane. Each of the two proposals, by introducing a more intensive development in depth, with a cul-de-sac access to the dwellings at the rear, would be visually damaging to the nature of the appeal site and the street scene. As such they would conflict with policies HE1(b) and GS2 of the adopted Local Plan and policy UB3 of the adopted Structure Plan."

15. He then went on to point out that, in a Village Design Statement for Four Marks, the linear nature of the development in Telegraph Lane was highlighted, and the advice was that new development should respect the character and form of development in the adjoining area.
16. In paragraph 10 he says this:

"Moreover, Planning Policy Statement 3 (PPS3) 'Housing', while urging the efficient use of land makes it clear that good design is fundamental to the development of high quality new housing. In paragraph 16 it advises that when assessing design quality, this should include the extent to which the development is well integrated with and complements both the neighbouring buildings and the local area, more generally, in terms of scale, density, layout and access. In my judgement both proposals would be wholly out of keeping with the nature of the development on Telegraph Lane."

17. Mr Boyle submits that a fair reading of what the Inspector there says indicates that he was, in reality, saying that this form of development, that is to say, in depth backland development, was not acceptable in this particular locality, albeit the SPB made it clear that it was in fact development which was, in principle, acceptable.
18. In my view, a fair reading of the report does not lead to that conclusion. What the Inspector was clearly saying was that he recognised that backland or in depth development was permissible in principle, but he was entitled to, and indeed bound by Policy GS2 in particular, to have regard to the impact upon the area. He refers to it being a major change, and that the layout and density would contrast unfavourably with the spacious and established pattern, and that the proposals introduced a more intensive development in depth with a cul-de-sac access to the dwellings at the rear.
19. It seems to me that, in putting it that way, he is making it clear that the objections to these developments were based upon their intensity and upon the fact that they are out of character, inevitably, with what is there in Telegraph Lane at the moment. It must be remembered that in depth development could extend to one extra dwelling only, and it may well be that a development of less intensity could be acceptable if it did not have the damaging effect that the Inspector has indicated.
20. Mr Boyle in effect accepted, and indeed it is inevitable, that he would have to go as far as to establish that the Inspector had in reality disregarded the fact that this was within the settlement boundary and therefore in principle acceptable development in order to establish his case under this ground. The fact is that the Inspector was exercising his planning judgment on these particular developments. The fact that he does not refer to any detail of their design or intensity is nothing to the point. It would have been apparent to the appellants precisely what the developments they proposed included, and it was on the basis of them that the Inspector was reaching the conclusions that he reached in exercising his planning judgment. Accordingly, in my judgment, there is no merit in the first ground.
21. The second ground is somewhat different. This depends upon what the Inspector said in the second half of paragraph 10, which was this:

"This [that is the fact that the proposals would be wholly out of keeping with the nature of the development on Telegraph Lane] would be highlighted in views from the public footpath to the west of the site, from where the new, more intensive proposed development in each case would be prominent. It would contrast sharply with the largely concealed and spacious existing development, disclosing only limited views of the buildings among the trees and hedgerows at the rear of the properties. I, therefore, conclude that the proposed development in each case would cause unacceptable harm to the character and appearance of the surrounding area."

22. The Council had not, in their written material, made any point about the damage caused because of the effect on the countryside of the proposed development. Indeed, the only place from which ordinary members of the public would be able to see the development would be from a footpath which ran some 300 or so metres behind the property in question. In fact, there was a substantial paddock in the form of a large field at the rear, running in effect between it and the footpath to which I have referred, although the footpath was considerably further back.
23. The question of the form and pattern of the proposed development was raised in the District Council's written observations or statement of case for the purpose of the inquiry at paragraph 5.3, where they said this:

"The planning authority will draw attention to the existing form and pattern of the development and will set this in contrast to the appeal proposal. It will be argued that the form of the proposed development would be unique in this part of Telegraph Lane, along which development is of spacious linear form with undeveloped countryside to the rear, and that the proposed development, involving a cul-de-sac layout leading development to the rear towards the countryside would not only be at variance to the existing form, but harmful to the semi-rural setting."

24. In response to that, the developers, through their solicitors, said this:

"The Council also argue in paragraph 5.3 that the rear properties will lead to development spreading towards the countryside which would be harmful to the semi-rural setting. In should be noted that the whole of the site is within the SPB, and that the rear gardens relate more to Four Marks than the countryside, as detailed by the Local Plan Inspector. In any event, properties are positioned away from the site's rear boundary and views of the site from countryside to the south west will be very limited. The nearest public vantage point is from a footpath approximately 300 metres away (to the south west) from which the site is well screened by field boundaries made up of extensive hedgerows and mature trees and the existing vegetation on the site's rear boundary. Supplementary planting of the site's rear boundary will help to further minimise any visual impact from the countryside."

25. In the course of the inquiry, Mr Boyle informs me that the planning officer who gave evidence on behalf of the Council, Mr Oliver, began to raise matters which were not contained specifically in his proof of evidence. One such matter was a concern about the impact upon the countryside, and in particular on the footpath to which reference has been made. However, in the course of his cross-examination in relation to the matters which he had raised, he accepted that none of them, in his view, had or should have any impact upon whether the proposed development was or was not acceptable. In those circumstances, Mr Boyle did not cross-examine him about this matter. However, he tells me that he did raise with the Inspector the question whether the Inspector wished any evidence to be given on this particular aspect and whether he was concerned about it. He indicated at that stage that he did not need any evidence to be given.
26. The point made by Mr Boyle is that what could have been said, if he had appreciated that this was a matter which was going to be considered to be material, was that the paddock behind the development site was in fact owned by the owner of the site, or at least a part of that site, and so there could be extra planting not only along the boundary of the proposed development, but also in the paddock itself so that there could be a much more substantial screening of the proposed development. That is not something which was referred to in response to the Council's statement of case, to which I have already referred, although no doubt it could have been, and was not a matter which was specifically before the Inspector. However, Mr Boyle believed that he had no need to put in any such material, which he could easily have elicited from his own witness, because the Inspector appeared to be indicating that this was not a matter which he would regard as material. However, it is plain that when he went on his view, he must have gone on to the footpath in question because he then refers to the point he was making about the inappropriateness of this particular development in the area and was highlighted because of the views from the public footpath.
27. It is fair to say that it was unfortunate that the matter was not pursued at the time. I attribute no blame to anyone. It is, one knows, something which can happen. It may be that, with hindsight, the Inspector, if he had appreciated the importance that was going to be placed upon this, could have come back in writing to the appellants to say that this was a point that he had spotted on his view and did they wish to pursue the matter at all or to make any observations about it. It may be that that is a counsel of perfection. The question I have to ask myself is whether what happened can be said to amount to unfairness to an extent which would justify finding that there was therefore an error of law.
28. Mr Forsdick makes the point that the appellants themselves had obviously recognised the possible materiality of the view from the footpath, and they should, in those circumstances, and could, have raised that matter at any stage of the inquiry, and in those circumstances it would have been before the Inspector. Indeed, its potential relevance was obvious if one looks at the photographs that were produced showing the view from the footpath.
29. In addition, he submits that, in any event, the Inspector was perfectly entitled to say that, in the course of the hearing before he carried out a view, it would not be necessary to hear any evidence about it. The fact that he considered that it would not be necessary does not mean that the developers themselves might have taken the view that it would be desirable and sensible to have raised any matters in advance which could have had any effect upon what otherwise might be seen from looking at the proposed development site as a possible reason for saying that its impact was unacceptable. But what the Inspector was effectively doing was no more than saying: "I have looked at it; I have used my eyes, and this is what my eyes tell me", and as a matter of principle, that is an approach which an Inspector is entitled to take -- indeed, not only entitled, but bound to take; that is largely what he is there to do. This is not a matter which can properly be regarded as additional evidence which requires some reference back to the parties to enable the relevant party to comment upon it.
30. Mr Forsdick has referred me to two authorities which he submits point in that direction. First, a decision of the Court of Appeal: Winchester City Council v the Secretary of State for Environment [1979] P&CR at page 1. The argument there related to the Inspector's view that the quality of a particular house, which was relevant in relation to a proposed development which would have had an impact upon it, was something which called for expert evidence. As Lord Denning pointed out, this was not a technical or scientific point on which evidence was necessary or even desirable; it was a matter of aesthetic taste or commonsense. He said that anyone with reasonable intelligence going to see this house could tell for himself whether it was suitable to be extended and made into a bigger house or not, or whether it would spoil it to try to add to it. It did not need skilled architects to give evidence about it.
31. This approach was applied by Sullivan J, who had, as it happened, been counsel on the wrong side in the Winchester case, in R(Casey) v First Secretary of State [2006] EWHC 2918 Admin That case concerned barking of dogs and the effect that such barking would be likely to have upon nearby residents. Apparently it was suggested by counsel that there was a need for expert evidence by someone used to dealing with decibels. Sullivan J, unsurprisingly, took the view that an Inspector was perfectly capable of going and listening for himself and judging what the effect of the barking would be.
32. I am not sure that those cases are directly in point, but they do at least show that this is the sort of thing which an Inspector is entitled to judge for himself. However, the point made by Mr Boyle is that there was positive evidence which could have been put before him relating to the possibility of planting on the paddock which would have had an effect, which otherwise the Inspector was not aware of. However, as it seems to me, even if there were any possible merit in the suggestion that this was something which should have been put to the developers, it is clear that this was used by the Inspector merely as an additional matter which confirmed the view that he had formed that this was out of keeping with the nature of the area. The way he constructs his paragraph 10 makes that clear, because before going on to discuss the question of the view from the footpath, he says in terms that both proposals would be wholly out of keeping with the nature of the development in Telegraph Lane. He then uses the word "highlighted" in relation to the view from the footpath.
33. It is, in my judgment, fanciful to suppose that he would have reached a different conclusion, or even that he might have reached a different conclusion, if he had not taken account of the view from the footpath. It is apparent from his reasoning that he would have, and indeed had, reached the judgment that this was unacceptable development without that additional plan.
34. Accordingly, I take the view that neither of the grounds relied on by Mr Boyle have been established. There was therefore no error of law in the decision of the Inspector, and this claim must be dismissed.
35. MR FORSDICK: My Lord, I am grateful. In those circumstances, I ask for a summary assessment of the Secretary of State's costs.
36. MR JUSTICE COLLINS: Yes, I do not think I have seen the schedule.
37. MR FORSDICK: I do apologise. I seem to have lost my copy.
38. MR JUSTICE COLLINS: Mr Boyle, you have seen it?
39. MR BOYLE: I have been informed as to the amount.
40. MR JUSTICE COLLINS: You have not seen the break-down?
41. MR BOYLE: If I can indicate, my Lord, that my instructions are that we have no difficulty with either the principle or the amount.
42. MR JUSTICE COLLINS: Knowing the amounts that tend to come from the Treasury and those which tend to come from developers, that is frankly not surprising. How much is it?
43. MR FORSDICK: £6,288.
44. MR JUSTICE COLLINS: In that case I can say that the claim is dismissed, with costs assessed in the sum of £6,288.
45. MR FORSDICK: I am grateful, my Lord.
46. MR JUSTICE COLLINS: Thank you both.