Neutral Citation Number: [2009] EWHC 1676 (Admin)
Case No: CO/1490/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/07/2009

Before :

THE HONOURABLE MR JUSTICE OWEN
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Between :

	                           GARY PHELPS
	Appellant	
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   (1)   FIRST SECRETARY OF STATE
(2)	 LONDON BOROUGH OF BROMLEY 	
1st Respondent
2nd  Respondent	

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(Transcript of the Handed Down Judgment of
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Mr Simon Strelitz (instructed by Farooq Bajwa & Co.) for the Appellant
Ms Carine Patry Hoskins (instructed by Treasury Solicitors) for the First Respondent

Hearing dates: 22 May 2009 
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Judgment
The Honourable Mr Justice Owen : 
1.	This is an appeal under section 289 of the Town and Country Planning Act 1990 against a decision of one of the first defendant’s inspectors on an enforcement notice appeal.
2.	The decision concerned a property at 10 Homefield Road, Bromley.  On 17 June 2005, the second defendant issued an enforcement notice in relation to the property, the alleged breach of planning control being the construction of a single storey extension with railings that created a balcony on its roof.  The notice required the appellant to:
“(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.”
3.	The appellant appealed against the enforcement notice.  His appeal was dismissed in a decision letter dated 20 January 2006.
4.	The appellant advanced a number of grounds in his appeal to the inspector, but his appeal to this court is concerned solely with Enforcement Ground of Appeal (C), namely that there had not been a breach of planning control.  He argued that the single storey extension had been constructed so as not to exceed the permitted development tolerances of the Town and Country Planning (General Permitted Development) Order 1995, Schedule 2 Part 1, Class A (a) (i) of which permits development within the curtilage of a dwelling house where the cubic content of a resulting building does not exceed the cubic content of the original dwelling house by more than 50 cubic metres or 10%, whichever is the greater.
5.	The inspector concluded that the overall cubic capacity of the development was significantly more than 50 cubic metres, and that in consequence “… 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.”
6.	The appellant appeals against the decision on the basis that the inspector was in error in his calculation of the overall cubic capacity of the development as exceeding 50 cubic metres, a material error of fact which amounted to an error of law.  
7.	After adjournments on 21 June 2006 and 5 March 2007, the matter came before Burton J on 26 June 2007 when he gave permission to appeal, but in addition made the following order:
“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. ”
8.	That exercise was duly carried out on 9 April 2008; and the report from the independent joint expert is now before the court. 
9.	There are essentially two grounds of appeal.  Mr Strelitz, who appeared for the appellant, submitted that there was a demonstrable error on the part of the inspector in the calculation of the cubic volume of the extension, the double counting issue, and secondly that the decision contained material errors of fact as to the dimensions of the extension, the material errors of fact issue.
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. ”
10.	At paragraph 2 the inspector corrected an arithmetical error on the part of the second defendant in relation to the cubic content on the original dwelling house, but concluded that in any event the corrected figures still indicated that the upper limit for the purposes of Class A should be taken as 50 cubic metres.  The decision then continued in the following terms:
“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.”
11.	The double counting issue
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.  
12.	Ms Patry Hoskins, who appeared for the first respondent, submitted that it is clear from the documentary material before the inspector that he was correct in taking 2.9m as the height of the extension, and that in taking that figure he was not inadvertently including the height of the upstand.  She invited my attention to the proposed rear elevation submitted in support of the appellant’s enforcement notice appeal (before me as appendix 3 to the witness statement of Emma Cawley filed on behalf of the first respondent), which shows a dimension of 0.23m as separate from, and additional to, the dimension given for the height of the building, namely 2.9m.  She also relied upon the copy of the building notice plans submitted by the appellant upon which measurements were marked, the height to the level of the railings being marked at 3.1m, i.e. close to the figure of 2.9m for the height of the extension plus 0.23m, the height of the upstand.
13.	I am satisfied that Ms Patry Hoskins analysis is correct.  I am not persuaded that the inspector inadvertently included the volume of the area enclosed by the upstand in his calculation of the cubic volume of the extension.    
14.	The material errors of fact issue
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
15.	As to the first his argument can be simply put.  The inspector worked to a figure of 2.7m for the height of the extension.  The expert measured the height to the top of the roof covering at 2.582m, and to the top of the decking at 2.687m.  Substituting those figures for the height of 2.9m used by the inspector, yields volumes of 44.221m³ and 45.915m³ respectively.  It is then necessary, following the inspector’s methodology, to add the volume of the materials of the parapet walls and railings to the figure calculated to the top of the roof covering, calculated by the expert at 1.062m³, giving a total volume for the extension of 45.182m³ or, in the case of the calculation based on the height to the top of the decking, adding the volume of the materials of the parapet walls and railings above the decking, namely 0.755m³, giving a figure of 46.675m³.  In either case the figure is well below 50m³.
16.	Accordingly Mr Strelitz contended there was a material error made by the inspector, such as to amount to an error of law.  He added that as the appeal process was undertaken by way of written representations and not by a hearing, the error could not be drawn to the attention of the inspector before his decision was made.
17.	Ms Patry Hoskins submitted that the inspector was fully entitled to arrive at the decision that he did on the material before him; and that the appellant has failed to establish any material error of fact.  She relied upon the judgment of Carnwarth LJ in E and R v SSHD [2004] EWCA Civ 49, the leading authority on the law as it currently stands in relation to errors of fact amounting to errors of law.  At paragraph 66 he said:
“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.”  
18.	She accepted on behalf of the first respondent that the planning appeal process is part of a statutory context where the parties share an interest in co-operating to achieve the correct result.  She further accepted that if the appellant is correct in his submissions, then the mistake made by the inspector may have played a decisive part in his reasoning.
19.	But she submitted that there was neither a mistake as to an existing fact, nor that the fact now relied upon by the appellant is ‘established’, i.e. uncontentious and objectively verifiable.
20.	As to whether there was a factual mistake, she invited my attention to the evidence before the inspector in the form of the written representations made by the second respondent to the Planning Inspectorate.  Paragraphs 3.7 and paragraph 3.8 state that the second respondent initially reported the matter to the Plans Sub-Committee on 6 January 2005 when the matter was deferred for measurement of the extension and balcony on site.  The resulting measurements were then set out, the depth of the extension being measured at 3.220m, the height of the extension to the top of the railings 3.71m, the height of the parapet wall (the upstand) 0.23m, and the height of the railings 0.6m.  Subtracting the height of the parapet and the railings gives a height for the extension of 2.88m, very close to the figure used by the inspector of 2.9m.
21.	Ms Patry Hoskins also relied in this context upon the drawing in appendix 3 to the Written Statement submitted in support of the enforcement appeal on behalf of the appellant by a Town and Country planning consultant.  It is annotated in handwriting indicating a height of 2.9m for the extension, above it a measurement of 0.23m that must refer to the height of the upstand, and above that the figure of 0.72m, which appears to relate to the height of the railings, although that does not coincide with the measurement taken on site by the second respondent.  Be that as it may, she submitted that the drawing plainly indicated agreement by the appellant with the figure advanced by the second respondent.  She sought to derive further support from the sections and elevations of the proposed extension as originally submitted to the second respondent by the appellant, now to be found in appendix 2 to the second respondent’s written representations to the Planning Inspectorate.  They are annotated by hand with measurements consistent with a height of 2.7m for the extension.
22.	There are two points to be made as to that evidence.  First if error there was on the part of the Inspector, it was an error for which the appellant was himself as responsible as the second respondent.  Secondly the appellant has not established an un-contentious error of fact, as it is not accepted by the first respondent that the measurement of 2.9m for the height of the extension based on both the measurement by the second respondent, and on the appellant’s planning application and Written Statement in support of the enforcement appeal, is incorrect.
23.	Ms Patry Hoskins therefore submitted that the appellant has failed to establish an error of fact such as to bring himself within the principles articulated by Carnwarth LJ in E and R.  I agree.   
24.	The second strand to the submission advanced by Mr Strelitz is that the inspector was in error in calculating the height of the extension to the upper surface of the decking installed on its roof, rather than to the upper surface of the roof covering.  The decking has subsequently been removed as can be seen from the photographs contained in the appellant’s bundle.  The significance of the point is that if the height is taken to the upper surface of the roof covering, rather than the decking, then on the evidence from the joint expert, the cubic volume does not exceed 50m3.  
25.	Mr Strelitz sought to argue that the inspector must have been intending to work to the height of the roof covering, but in error worked to the height of the upper surface of the decking.  The inspector did not make any express reference to the decking; but Mr Strelitz argued that that must follow from the phraseology of paragraph 1 of the decision, where he describes the end and side walls as 2.9m high, and topped with the parapet, that he was intending to work to the height of the roof covering.  I do not consider that it is possible to draw such an inference from his decision.  But in any event the question of whether or not he was correct in working to a measurement to the top of the decking is contentious.  Ms Patry Hoskins argued that the decking was an integral part of the extension, and that the correct approach would have been to measure to its upper surface.  She again submitted in this context that the appellant has not established an error of fact on the part of the inspector meeting the criteria advanced by Carnwarth LJ in E and R.  Again I agree.  The appellant has not established an uncontentious error of fact, and secondly he was as responsible as the second respondent for the measurements to which the inspector worked. 
26.	It follows that this appeal must be dismissed.