QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF UMAR||Claimant|
|SHEFFIELD CITY COUNCIL||Defendant|
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Mr Moffat (instructed by Treasury Solicitor) appeared on behalf of the Defendant
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"In Housing Areas, new development or change of use will be permitted provided that:
a. new buildings and extensions are well designed and would be in scale and character with neighbouring buildings..."
There then follow in b to h various other conditions which are not material for the purposes of this claim. Then, under a subheading "and, for non-housing C3 uses":
"... provided that it would also:
l. be on a scale consistent with the residential character of the Area or meet primary local needs, or (in the case of uses other than shops) occupy an existing building set in its own grounds."
"The site would be excavated and the mosque would sit flat in the ground. Its parapet would be approximately 13.2m high at the corner, and the eaves lines of the Barnsley Road elevation would then drop in relation to the rise of the land. I realise that the proposed building would reach a similar height above street level as the existing mosque. However, because it would be dug down and its parapet would effectively correspond to the ridge of the existing (pitched roof) property, it would, in my view, have a visibly greater slab height. The parapet would also be higher than the eaves of the adjoining dwellings at 302 Barnsley Road and 4 Osgathorpe Road, although they are on raised land.
16. The minaret would rise approximately 9m and 18.5m respectively from the roof. I have no objections to these features, because they would be decorative rather than domineering. The minaret specifically would reflect the height of trees in the nearby nature reserve and appear as an elegant landmark."
She then went on to express concern that:
"... with high eaves in relation to adjoining houses, and a poor relationship to the topography of the area, the body of the mosque would appear bulky and overbearing."
"Taking its scale, siting and slab height together, I consider that the building would appear over-large, cramped within the site and unacceptably obtrusive within the street scene."
Having said that, she indicated that there were aspects of the design which were welcome, that the orientation of the mosque towards Mecca would be visibly beneficial and it would not follow the established building lines along the relevant streets but turn to address the corner, that would reinforce, as she put it, the distinctive stages of the development. But she went on to say that neither the design nor the position of the proposed mosque would mitigate or justify its excessive scale or cramped siting in relation to nearby properties, and she was concerned that the slab height would be emphasised by the fenestration, because the arched windows extending to the first and second floors would be considerably taller than the ground floor windows below. Her conclusions were as follows at paragraph 19:
"To conclude, I find that the proposed development represents a serious attempt to design a prestigious holy building. However, its quality and character would be undermined by insensitivity to the scale of nearby properties, and it would cause unacceptable harm to the character and appearance of the surrounding area."
She said that it would comply with some policies but conflict with, inter alia policy, H14, and she mentions some others, "which require development to be in scale and character with neighbouring buildings, respect skylines and roofscapes, and respect the character and appearance of Areas of Special Character", this being an area of special character. She concluded that the policy requirements should prevail. She was obliged of course by virtue of 38(6) of the 2004 Act to consider whether the application complied with relevant policies within the plan. The general approach is if it did not, an application would be likely to fail.
1. The local planning authority consider that the proposed building would be out of scale and character with the locality, which lies within an area of special character, and would detract from the amenities of local residents. Therefore such development is contrary to policy H14(a) and (l) of the Unitary Development Plan.
2. The local planning authority consider that the proposed building would be of such a scale as to generate a significant amount of traffic over and above the current level. The amount of off street car parking to be provided is considered insufficient to cater for the expected traffic generation and will lead to increased on street car parking to the detriment of pedestrian and vehicular safety. As such the proposal is contrary to policy H14(k) of the Unitary Development Plan."
I have not read that before, but it reads that the development should not lead to air pollution, noise, smell, excessive traffic levels or other nuisance or risk to health and safety of people living nearby.
"UDP Policy H14 allows for non-housing uses in housing areas which would be on a scale to meet primarily local needs. However, I have found that the proposed development would be larger than that existing, and have seen no overriding evidence that its size would be essential."
Indeed, she said in the previous paragraph that she was not convinced that the scheme represented the only viable way of providing sustainable building to meet the appellant's or the congregation's needs. It could not have been clearer to the appellants that the basis upon which she was turning down the application was because she took the view that it was essentially too large and over-powering in the immediate neighbourhood of where it was to be placed.
Most of the catchment area of the mosque and madressa is within walking distance. The impact of visitors attending the mosque and madressa is a concentrated one on arrival and departure followed by significant lengths of time when visitor activity is in the street alone. The mosque and madressa generate significant pedestrian and local activity at such peak times. The peak times for pedestrian and vehicle activity is Friday prayers and the daily madressa finishing time [that, as I understand it, is normally about 8 o'clock in the evening]. Whilst the proposed building will replace and approve existing facilities for visitors to the mosque and madressa, the size of the proposed hall and multi-purpose room and the increased number of classrooms will increase the capacity of the facility and has the potential to attract a significant increase in visitors. It is considered that whilst the proposal has the potential to attract a significant increase in visitors to the site, the surrounding road network can accommodate the increase in associated vehicular traffic. To minimise the demand for on street parking in the locality it is considered necessary to restrict the maximum potential visitor activity to the site by attaching appropriate conditions that ensure that the main uses do not overlap."
There were other traffic calming measures suggested. In consequence, the officer said that it was considered that the proposed development was acceptable in highway terms, subject to appropriate conditions. However, it is not there suggested that there would not be the possibility of increased vehicular traffic. That, of course, was a view formed following the detailed discussions with the representatives of the appellants.
"The appellant suggests that even if capacity would increase, the number of daily worshippers or pupils would not necessarily rise. I do not see how this could be guaranteed. Other mosques in the area would stay open, but I have seen no assessment of how their facilities would compare with those proposed. The number of staff at the masjid would remain the same, but they could be assisted by volunteers, and letters supporting the proposal suggest that the congregation has grown in recent years in response to new community and educational programmes. In my view, the proposed development would consolidate the intensification in use enabled by the portakabins, if not attract new users.
26. In terms of transport implications, I realise that most religious people prefer to use a local place of worship, and this is particularly the case for Muslims, who pray fives times a day. In a supplementary statement dated September 2007, the appellant indicates that 81% of pupils live in the Burngreave and Firth Park areas, and 52% walk to the existing madressa. The proposed development would include 10 cycle parking stands and ... would be accessible by public transport. On a day-to-day basis, I consider that it would continue to primarily serve the local population, who would often travel on foot or other sustainable means.
27. However, the September 2007 statement indicates that 34% of existing pupils are brought by private transport, while the April 2008 survey shows that some people use their car when travelling for prayer or events. The letters of support and evidence from the appellant suggest that a small but material proportion of the congregation are not from the local area. Having found that the proposed masjid could intensify use of the site, I also consider that it could generate a significant increase in vehicular traffic over and above the current level."
"The question then arises as to whether overspill parking would be unacceptably harmful. Since there are several nearby roads where parking is not restricted, I consider that limited on-street parking need not cause unacceptable inconvenience or danger. However, I am concerned that, especially when evening classes finish, there would be a high influx of traffic to the area, with large numbers of drivers seeking to park as close to the site as possible, and depart within a few minutes. This could lead to indiscriminate parking, congestion, obstructions and a high risk of collisions."
Particularly in winter time when it is dark, or when the weather was inclement, it is not at all unreasonable to express the view that there was a likelihood, and certainly a real possibility, of the increased traffic to collect the children from the madressa and that that could create a problem in relation to finding somewhere to park or possibly having to leave vehicles in positions which created some real obstruction or danger. True it is, as I have said, that there has been no problem hitherto, and indeed, as far as I am aware, certainly there is no evidence of any complaint at all having been made in relation to parking. Nonetheless, as it seems to me it is not possible to say that on the material before her the Inspector was not entitled to have regard to that and to rely on it as an added ground for refusal.
"The proposed madressa could be compared to a school, and educational establishments create short-term traffic problems in many urban areas. However, this would not be a good reason to allow the appeal, and in any event most school classes end in the afternoon. When children are taken from the site, I would expect there to also be a high demand for on-street parking from local residents who are home from work."
The point she was making was, as I have already indicated, that when the children have left in the evening there would be expected to be more cars parked because residents would not have used them to get to work or to be away at work but would have them or be likely to have them parked near or outside their homes. Mr Juss submits that drawing this distinction was discriminatory against the mosque and Muslims who were attending the mosque, and he went on to suggest that there was in the circumstances a breach of Article 9 and Article 8, together with Article 2 of the First Protocol, that is the right to education, coupled with Article 14, the prohibition of discrimination.