QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| GARY PHELPS
| - and -
(1) FIRST SECRETARY OF STATE
(2) LONDON BOROUGH OF BROMLEY
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Ms Carine Patry Hoskins (instructed by Treasury Solicitors) for the First Respondent
Hearing dates: 22 May 2009
Crown Copyright ©
The Honourable Mr Justice Owen :
"(1) Remove the balcony railings at the roof of the ground floor rear extension.
(2) To cease the use of the roof of the ground floor extension as a balcony."
"2. that an independent joint expert is appointed by the claimant and second defendant to measure the width, height of the existing extension.
3. that the measurement of the height of the extension is taken by excluding the parapet and railings.
4. that the volume of the materials of the parapet and railings is calculated by the independent expert. "
But before considering those issues in greater detail it is necessary to set out the relevant parts of the inspector's decision. At paragraph 1 he described the extension and set out its dimensions in the following terms:
"It runs the full width of the three-storey end-terrace house (5.34m) and projects some 3.2m from its back wall. The end and side walls (2.9m high) are topped with an up-stand (parapet) some 0.23m above roof level to which are fixed metal railings with a timber handrail. There is no significant dispute between the parties about the relevant measurements. "
"3. From the appellant's evidence and the details shown on the plans submitted for building control purposes I take the view that the roof up-stand and railings were erected as an integral part of a single building operation, rather than discreet works carried out after the single storey extension had been completed. Therefore, the key issue was whether the cubic content of the extension as built exceeds the limitations of Class A (a) (i).
4. The council says that the extension has a cubic capacity of 63.79 cubic metres, based on its overall height (to the top of the railings). It is not disputed that without the railings and up-stand the cubic capacity would be less than 50 cubic metres (49.5 cubic metres), but argued that as these features effectively enlarge the living space available to residents of the dwelling calculation of the volume of the extension should be based on its overall height. I do not agree that this is the correct approach because in order to count against cubic capacity tolerances there must be the effect of enclosing some space and creating an identifiable volume. This is not the case with the up-stand wall and railings.
5. Consequently, whilst the materials of the up-stand and railings in themselves have some volume this is all that can realistically count towards the overall cubic content of the extension. The volume of the up-stand wall and railings is difficult to calculate accurately. However, from my observation of the materials used and the nature of construction, taken together with the 11.4m run of wall and railings, I consider that their combined volume, when added to the 49.5 cubic metres contained by the flat roof and main walls would increase the overall cubic capacity of the development to significantly more than 50 cubic metres. Therefore my conclusion is that as a matter of fact and degree the extension as built is not permitted by Class A and that the ground (c) appeal should not succeed."
Mr Strelitz argued that although the inspector adopted the correct approach, namely that the volume of the area enclosed by the up-stand and railings should not be taken into account; he did in fact erroneously take it into account in part. He argued that the figure of 49.5 cubic metres, which at paragraph 4 of the decision the inspector described as being the cubic capacity "without the railings and up-stand", is the product of the dimensions that he set out at paragraph 1, but that the height of 2.9m included the upstand, so that the figure of 49.5 cubic metres included the volume of the space within the upstand. He acknowledged that at paragraph 1 of the decision the inspector appeared to be describing the end and side walls as 2.9 metres high, with the up-stand being 0.23m above roof level. But he invited my attention to paragraph 6 of the appellant's Enforcement Ground of Appeal C in which the appellant had asserted that planning permission was not required, "… based on the fact that the overall height of the single storey extension of 2.9m including parapet, plus the railings of 0.72 metres gives an overall height of 3.6 metres". That paragraph addressed a different question, namely whether the development was permitted under Class A A.1(d), which permits development less than 4 metres in height, but says Mr Strelitz, was obviously relevant to the calculation of the cubic capacity.
There were two strands to the argument advanced by Mr Strelitz. First he submitted that it is now clear from the evidence of the independent expert jointly instructed pursuant to the order made by Burton J, that the inspector preceded upon a wholly erroneous basis as to the height of the extension, and that in consequence his calculation of the cubic volume of the extension is demonstrably incorrect. Secondly he submitted that there was a further error on the part of the inspector in that he ought to have based his calculation of the cubic volume on the height of the extension to the surface of roof covering, rather than to the upper surface of the decking laid upon it
"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory context where the parties share an interest in co-operating to achieve the correct result … without seeking to lay down a precise code … at first, there must be a mistake to an existing fact, including a mistake as to the availability of the evidence on a particular matter. Secondly the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant, (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."