QUEEN'S BENCH DIVISION
Leeds Combined Court
1 Oxford Row
B e f o r e :
| MMF (UK) LIMITED
|- and -
SECRETARY OF STATE FOR
COMMUNITIES AND LOCAL GOVERNMENT
SUNDERLAND CITY COUNCIL
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr Ian Ponter (instructed by the Treasury Solicitor) appeared on behalf of the 1st Defendant.
The 2nd Defendant did not appear and was not represented.
Crown Copyright ©
MR JUSTICE SIMON:
…the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.
I consider the main issues to be the effect of the proposal on; 1) the character and appearance of the area, 2) the setting and the listed buildings, 3) the living conditions of future occupiers and 4) highway safety.
Items 1) and 2) were plainly relevant to one of the reserved matters, Appearance, and 3) and 4) were relevant to another, Layout. The Inspector concluded in paragraph 25:
While I find in favour of the proposal in terms of living conditions, highway safety and other matters, these considerations would not be sufficient to outweigh the harm that the proposal would cause to the character and appearance of the area and the setting of the listed buildings. Therefore, for the reasons given above I conclude that the appeal should be dismissed.
Where an application is made to the local planning authority for outline planning permission, the authority may grant permission subject to a condition specifying reserved matters for the authority's subsequent approval.
"Scale" is defined in paragraph 1(2) of the Order:
'Scale' means the height, width and length of each building proposed within the development in relation to its surroundings
"Appearance" is defined in the same paragraph as:
the aspects of a building or place within the development which determine the visual impression the building or place makes, including the external built form of the development, its architecture, materials, decoration, lighting, colour and texture.
It can be seen that the terms "Scale" and "Appearance" are concerned with different matters. Scale is concerned with the physical relationship of the proposed development to its surroundings; how does its size relate to adjacent buildings? Appearance is potentially a wider definition, and covers most physical aspects of the proposed development. The reference to "the visual impression of the building" might seem from the definition to include its physical relationship to other buildings; however, since scale covers that quality, at least as a matter of impression, Appearance must exclude issues of height, at least as far as it is concerned with the building's physical relations with its surroundings.
12. However, the proposed height, at around 16 metres and over 5 storeys, would result in a development that would be of significantly larger bulk than surrounding buildings. I note the appellant's argument that the setting back of the top storey would reduce the perceived height of the building to around 12 metres from street level and the terrace opposite sits at a higher level than the appeal site. Nevertheless, the proposal would be visually dominant when seen in wider views, particularly from the major thoroughfare of Tatham Street, from where its overall height and bulk would be all too apparent.
13. This would be contrary to the advice in the SPDF which recommends limiting the height of new development in the area to 2-4 storeys with an eaves height of between 8-12 metres. I consider that such an approach is reasonable in order that new developments might integrate themselves into the established urban grain in terms of respecting the scale and bulk of existing buildings.
15. The appeal site is situated close to the Grade II listed Bethesda Free Church and the Grade II listed terrace at 17-21 Murton Street. Given the height and bulk of the proposal as set out above, I consider it would have an overbearing presence in the streetscape. As a result it would relate poorly to the smaller scale of both the church and the terrace.
16. While the principal elevation of the church is on Tatham Street, its setting includes the view along Tatham Street Back which takes in the appeal site and the rear of the church. It forms an important visual element in this street and would be read, as it presently is, with any building that stands on the appeal site. I consider that the setting of both the church and the terrace owe their character, in no small part, to the relationship between them and surrounding buildings. The proposal would be a major design intervention within this setting as it would form an integral part of this grouping.
17. Having acknowledged that the existing buildings on the appeal site make a limited contribution to the streetscape, I nevertheless consider that the proposal, due to its scale and bulk, would fail to take the available opportunity to improve the quality and appearance of the area and would not contribute a development that would politely and harmoniously blend with the character of the nearby listed buildings, to the detriment of their settings."
Mr Cannock submitted that the Scale parameters plainly include height, as is clear both from the definition of that term and from paragraphs 52 and 90 of the June 2006 Departmental Guidance on Changes to the GDPO.
Scale: height ... is the size of a building in relation to its surroundings ... Height determines the impact of development on views, vistas and skylines.
Scale: massing -- the combined effect of the arrangement, volume and shape of a building ... in relation to other buildings.
The Council is concerned that the proposal would be an over development of the site which would be out of scale and character with the area.
MR CANNOCK: Thank you, my Lord. In those circumstances, I would ask for an order as set out, I think, in fact in the skeleton argument at paragraph 45, firstly --
MR JUSTICE SIMON: Just one moment, if you will. 45, yes. Quash the decision of the Secretary of State. Mr Ponter?
MR PONTER: I do not resist that, my Lord.
MR JUSTICE SIMON: No. Well, I will make that order. The decision
MR PONTER: 8 June --
MR CANNOCK: 18 June 2010.
MR JUSTICE SIMON: 18 June, Waterloo day, is hereby quashed. Right.
MR CANNOCK: My Lord, I was going to ask that it is remitted back to the Secretary of State for a fresh determination, but I think that follows in any event.
MR PONTER: It does, my Lord.
MR JUSTICE SIMON: Yes, I do not think that is needed.
MR CANNOCK: So secondly, my Lord, that the first defendant to pay the claimant's costs, agreed helpfully in this case, in the sum of £12,500.
MR JUSTICE SIMON: That is right, is it?
MR PONTER: It is.
MR JUSTICE SIMON: Anything else?
MR CANNOCK: No, thank you, my Lord.
MR PONTER: No, my Lord.
MR JUSTICE SIMON: Well, thank you both very much for your very helpful written submissions, your oral submissions, and your perseverance in waiting for me.