Case No: CO/1031/2012
Neutral Citation Number: [2013] EWHC 3527 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/11/2013

Before :

MR JUSTICE STEWART
- - - - - - - - - - - - - - - - - - - - -
Between:

	The Queen (on the application of Richard Hayden)	Claimant	
	- and -		
	Erewash Borough Council	Defendant	
	- and -		
	Simon Timothy Kelly	Interested Party	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Richard Harwood QC (instructed by Freeth Cartwright LLP) for the The Claimant
Andrew Hogan (instructed by Erewash Borough Council) for the The Defendant

Hearing date: 6 November 2013
- - - - - - - - - - - - - - - - - - - - -
Judgment
Mr Justice Stewart : 
Introduction
1.	Mr Hayden seeks to quash the Defendant’s grant of planning permission issued on 16 November 2011.  The planning permission was for the erection of a two storey side extension to the Claimant’s neighbour’s house.  That neighbour is Dr Kelly the Interested Party.
2.	Permission to apply for judicial review was refused on paper by Judge Cotter QC on 24 May 2012 and by Judge Mackie QC, after an oral hearing, on 15 October 2012.  Patten LJ granted permission on 6 February 2013.  
Outline Facts
3.	Mr Hayden’s property is 65 Stanton Road, Ilkeston.  Dr Kelly’s is No 67 Stanton Road, Ilkeston.  They are both detached houses immediately adjacent to each other.  They are sited above a coal seam in a former coal mining area.  Dr Kelly seeks to build an extension.  This would involve demolishing store buildings and the adjacent boundary wall and constructing a two storey side extension with a pitched roof.  
4.	On 26 February 2011 Mr Hayden wrote a letter of objection.  This contained six reasons.  The only one which is relevant to this application is:-
“3. Potentially cause structural damage to my house because of depth of excavation required to install foundations robust enough to support the new structure.”
5.	Planning permission was granted on 17 March 2011 by officers under delegated powers.  After judicial review proceedings by Mr Hayden this decision was quashed.
6.	Dr Kelly’s application therefore fell to be reconsidered by the Council.  In doing so they were to have regard to representations already received and any further representations.  The delegated report prior to the March 2011 grant stated:
“In acknowledging the remaining concerns of the owner at No 65 Stanton Road which relate to the potential for structural damage to the property, devaluation of property and ownership issues, it is considered prudent to attach an informative note  to advise the Applicant to obtain permission from the owner of the land for such access before beginning development.  In regard to the potential structural damage and any devaluation of property in monetary terms, both are private matters and neither of these issues could be considered material to the determination of this planning application. ”
An informative note in relation to “potential hazards arising from coal mining” was attached to the report.  
7.	On 27 September 2011 and 14 November 2011 Mr Hayden’s Solicitors made further representations.  The letter of 14 November 2011 included, as reasons for refusal of planning permission:
•	The conclusion that there is no significant difference in levels between 67 Stanton Road and the adjoining property is not correct
•	The threat towards the stability of the adjoining property (including the apparent feature of historic interest it contains) which will be caused by attempting to carry out works to construct the proposed development is not addressed adequately or at all;
Later the letter continued:
“Site levels 
The report at page 46 provides that the “variance in ground levels…is not considered significant”, but provides no reasoning or justification for this at all.  The Applicant’s land is in fact approximately 4ft lower than the adjoining property and the Applicant should have submitted information as to how the difference in levels will be dealt with.  In our opinion this is a significant difference which would lead to difficulties during and post construction.  
In order to be lawfully built the proposed extension would need solid strata to support it, which in order to provide would require extensive excavation to approximately 1.5 metres in depth and piling.  This would be dangerous to attempt given the difference in site levels and would undermine and threaten the stability of the adjoining property and its garden.  The potential implications to the adjoining property are considered unacceptable.
Potential Heritage Interest
In addition we are instructed that the part of the adjoining property in proximity to the boundary with No 67 Stanton Road incorporates an air raid shelter (which Mr Hayden believes may date back as far as the First World War era).  We have had no opportunity to inspect or investigate this.  Clearly the munitions manufacture at the Stanton works in both the World Wars establishes a general context for this but we cannot comment further as it was only drawn to our attention on 11/11/11.
Clearly a threat to the stability of the ground on this boundary between No 65 and 67 would be exacerbated if it undermined the stability or other characteristics of a feature of historic interest (for all that that the extent and significance of that interest clearly merit and require further investigation).  The report includes no consideration of this historical feature.” 
8.	For the Planning Committee, in response, was prepared a Supplementary Report of the development manager dated 16 November 2011.  That response included:
“
•	The level difference between the two properties is not considered significant in the assessment of the application.  The application house is lower than the adjoining property so the levels are of benefit to the objector in terms of reducing the impact of the extension.  The concerns about the construction of the foundations are noted but are not material to the outcome of this application.  Such matters would be addressed through the Building Regulations and the Party Wall Act and should not influence the outcome of this application…
•	It is noted that the objector’s representatives were not made aware of the presence of an air raid shelter until 11 November.  Similarly, the Council was not made aware until their letter was received on 15 November.  This is the reason for it not being covered in the committee report.  Notwithstanding this, the presence of an air raid shelter in the objector’s property is not considered to constitute a material consideration of sufficient weight to delay the decision or change the recommendation and as is the case with all developments, if any damage is caused to the objector’s property during building works, this would be a matter for the two parties concerned and is not material to the determination of this application.”  
The Grounds of Challenge
9.	Mr Hayden sought to challenge the Defendant’s decision on five grounds.  However he subsequently withdrew three grounds and permission has been granted on two only, these being:
“Ground 1: EBC failed to have regard to material planning considerations namely: (a) ground stability; and (b) National planning policy in respect of unstable land in Planning Policy Guidance note 14.  Further EBC failed to apply the policy in PPG 14 accordingly without giving any or any adequate reasons for departing therefrom.  Further or in the alternative, EBC’s approach towards ground stability as an issue was Wednesbury unreasonable/irrational.
…
Ground 5: EBC erred in law in failing to defer the determination of the planning application to enable the significance of the air raid shelter to be assessed.  Further EBC erred in failing to have regard to National Planning Policy in PPS5 in considering whether or not to defer the determination of the planning application for that reason.”
Policy Relied Upon by the Claimant 
10.	The policy cited by the Claimant is extensive and extracts are to be found reproduced in the Appendix to this judgment.  
11.	National Policy at the time was to be found in:
(i)	Planning Policy Guidance note 14 (PPG14) “Developments on Unstable Ground” 
(ii)	Planning Policy Statement 5 (PPS5) “Planning for the Historic Environment”.
12.	PPG14 and PPS5 have been replaced by the National Planning Policy Framework, the cited paragraphs of which are relied upon by the Claimant as indicating the Government’s view on matters within the scope of planning considerations and include “Land Instability”.
13.	Finally the Claimant relies upon the Defendant’s local plan policy DC2 and EV7 and a paragraph from their Supplementary Planning Document on “Extending Your Home.”
The Law
14.	In relation to the determination of applications, section 70(2) of the Town and Country Planning Act 1990 was in force at the time of this application. It provided:
“70(2) In dealing with such an application the Authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.”
15.	In Stringer v Minister of Housing and Local Government [1971] 1  WLR 1281 Cooke J was concerned with the precursor to section 70(2), namely section 17(1) of the 1962 Act.  That case concerned a proposed housing development which was likely to interfere with the efficient running of the Jodrell Bank Telescope in Cheshire.  The builder argued that the likelihood of the development would interfere with the work of the telescope was not a material consideration in determining whether the permission for the development should be given.  The learned judge made it clear that the considerations to which the Minister (or an Authority) must have regard must be considerations of a planning nature; he then said “it seems to me that any consideration which relates to the use and development of land is capable of being a planning consideration.” (Page 1294).  He continued on page 1294 to state:
“Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances.”
	    (My underlining).
16.	The Applicant in Stringer had argued that the Minister must only have regard to the public interest as opposed to private interest (i.e. the interests of Jodrell Bank).  The judge said (page 1295): 
“It seems to me that it would be impossible for the Minister and local planning authorities to carry out their duties as custodians of the public interest if they were precluded from considering the effects of a proposed development on a particular use of land by a particular occupier in the neighbourhood.  The public interest, as I see it, may require that the interests of individual occupiers should be considered.  The protection of the interests of individual occupiers is one aspect, and an important one, of the public interest as a whole.
17.	There are many cases which support the proposition stated by Pill LJ in West Midlands Probation Committee v Secretary of State for the Environment (1998) 76 P and CR 589; 597, namely:
“The impact of a proposed development upon the use of and activities upon neighbouring land may be a material consideration.”
In that case the Court of Appeal held that a justified fear of crime emanating from a proposed development at a bail hostel was capable of being a material planning consideration as the Inspector had found.
See also, for example, Blum v Secretary of State for the Environment [1987] JPL 278 where the court upheld the Inspector’s decision to refuse planning permission to a riding school.  Simon Brown J (as he then was) rejected the contention that it was immaterial and impermissible to have regard to the environmental impact of the development upon the visual amenities of the surrounding land.
18.	In R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council 2010 UK SC 20; 2011 1AC 437, Lord Collins of Mapesbury referred (paragraphs 63 – 68) to the earlier House of Lords case of Tesco Stores Ltd v Secretary of State for the Environment 1995 1WLR 759. Lord Collins said (66):
“…The ratio of the decision is that for the purposes of section 70(2) any benefit whose connection with the development is more than de minimis will be a material consideration, but that the weight to be given to any particular material consideration is entirely a matter for the decision maker.”
19.	A recent example of the application of the question whether a matter is capable of being material consideration, and whether the Council has acted unlawfully in deciding whether to take it into account, is to be found in R (Copeland) v London Borough of Tower Hamlets [2010] EWHC 1845 (Admin); [2011] JPL 40.  There the Claimant submitted that in approving a change of use for premises to enable a fast food takeaway to operate, the Council did not take into account the proximity of those premises to a school and its potential impact on the school’s attempts to encourage healthy eating by pupils.  The development plan contained no policies which restricted hot food takeaways because of their proximity to schools.  The Officer’s report to the Council stated “while this is a valid concern, it is not a material consideration that can have weight in determining this application against Council policy.”  Mr Harwood appeared in that case also; on that occasion for the Council.  He submitted that the planning officers were not expressing a view as to whether the issue was capable in law of being material.  They accepted the point as a valid concern and said it was not material in relation to the application (27). This was rejected on the facts by Cranston J (30), saying “…councillors were specifically advised that such matters could not be material planning considerations…it was a clear direction to the effect that the points about proximity of a fast food outlet to Bishop Challoner School could not be taken into account.  It was a recommendation that that factor could not be given any weight at all.”
20.	In the Sainsbury’s Supermarkets case, Lord Collins (65) cited the speech of Lord Keith of Kinkel in the Tesco case.  He had said:
“It is for the court, if the matter is brought before them, to decide what is a relevant consideration.  If the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again.  But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense…”
21.	As to the overlap between planning considerations and other controls, both parties were content to proceed on the basis that the principles established in a number of cases dealing with pollution control applied generally.  In summary the existence of regulatory regimes parallel to the planning regime is not a determinative factor in considering the planning merits.  It is, like other considerations, something which has to be weighed in the balance.  (Gateshead MBC v Secretary of State for the Environment 1995 Env. LR 37; Hopkins Developments Ltd v Secretary of State [2006] EWHC 3823 (Admin);  [2007] Env. L.R. 14 and Harrison v Secretary of State for Communities and Local Government (2009) EWHC 3382 (Admin); [2010] Env. L.R. 17. 
The Issues in the Appeal
22.	Therefore:
(i)	The effect of development on neighbouring land, including the potential for physical damage, is capable of being a material consideration.
(ii)	Whether other regulatory regimes may render a consideration, which is otherwise capable of being material, immaterial in the planning process depends on the circumstances of the case. 
23.	The battle ground in relation to ground 1 crystallised in the appeal, given that the Defendant concedes that the risk of subsidence is capable of being a material consideration (subject to the other regulatory regimes point).  The Defendant’s case is that in the Supplementary Report the Council were not advised that a risk of subsidence could never be a material consideration.  The Defendant’s submission is that it was not a material consideration on the facts of the instant application.  As Mr Hogan put it, the question as a point of law, is whether in the circumstances of this case, as at 15 November 2011 when the decision was made, the Defendant should have concluded that the risk of subsidence was a relevant one?  And, if so logically accord it some weight in the balance?  The Defendant submits that the answers, in the context of this application for this domestic extension, are both negative.  
24.	The Defendant relies essentially on this extract from the supplementary report:
“The concerns about the construction of foundations are noted but are not material to the outcome of this application.  Such matters would be addressed through the Building Regulations and The Party Wall Act and should not influence the outcome of this application.”
The Application of PPG 14
25.	This has been a matter of considerable dispute between the parties.  My decision on this matter and the reasons for it are as follows:
(i)	PPG14 is of some relevance but does not have the significance for which the Claimant contends.
(ii)	Because the two properties are situated in an area of historical coal mining the question of land instability is raised.  Under paragraph 38 of Annexe 2, applicants for development in such a coal mining area were required to consult the coal authority for development.  See also PPG14 paragraph 45.
(iii)	Mr Richard Snow the Development Control Manager in the planning department of the Defendant Council has provided a statement dated 12 March 2013.  This is after the event but provides some explanatory background.  He says that the Coal Authority has established a protocol which governs which consultations need to be made relation to development proposals.  The protocol refers to certain standing advice which the planning authority is asked to pass on to the recipient of planning permission.  
(iv)	The Coal Authority does not wish to be consulted on applications for householder developments, nor do they require a coal mining risk assessment for such developments.  
(v)	In this sense the Defendant Council had regard to PPG14.  The permission itself contains a relevant note to the Applicant about the coal mining.  
(vi)	Apart from the above self contained matter, PPG14 was not relevant.  It provides guidelines on planning controls “over development on land which is unstable or is potentially unstable” (paragraph 2).  Three categories of causes of instability are identified.  (Paragraph 13).  The first one of these is “the effects of underground cavities” which include mining.  The second and the one relied upon by the Claimant is “unstable slopes”.  In this regard the Claimant relies also on paragraph 17 which says that where there are reasons for suspecting instability, investigations should determine whether “the development will initiate slope instability which may threaten its neighbours.”  He relies also on paragraph 18 and 22.
(vii)	It is instructive that in paragraph 13 the explanation of unstable slopes, I accept it is not a definition, says “these may be natural, in both coastal and inland situations; or manmade, whether excavated, as in quarries or cuttings or constructed, as in tips and embankments;” this in my judgment strongly indicates the position.  That position is that PPG 14, insofar as it deals with unstable slopes, is not relevant to any threat of instability by carrying out the works of development proposed by Dr Kelly.  PPG14 applies to land which is inherently unstable or potentially so.  See also paragraphs 1, 2, 31; also A43, A46 and A48.  It is also of note that the other bullet points in paragraph 17 all clearly refer to inherently unstable land.
(viii)	Indeed it is to be noted that there is no reference to this being “development on land which is unstable or is potentially unstable” in the Claimant’s Solicitors letter of 14 November 2011 or the Claimant’s own letter 26 February 2011.  It is the risk of structural damage due to the depth of the excavation required to install foundations which is referred to.
(ix)	PPG14 has been superseded by the National Planning Policy Framework.  Although this does not fall for consideration in this judgment, I see nothing in the passages cited and contained in the Appendix which affects my decision on the applicability of PPG14 to this development.  Indeed, the paragraphs set out in the Appendix to this judgment suggest to the contrary.
(x)	In the intervening period between the granting of planning permission and the judicial review proceedings, a structural inspection report dated 24 September 2012 has been produced on behalf of the Claimant.  I shall refer to it later, but in my judgment it does not in any way undermine my conclusion.  Indeed, rather the contrary.  
The Erewash Local Plan
26.	The Claimant submits that Policy DC2 is concerned with the amenities of neighbouring residents; further that these will be affected if their building starts to collapse or work has to be carried out to protect it.  The Claimant submits that an amenity impact would include anything which affects the comfort and enjoyment of the occupiers.  This reliance on paragraph 2 of Policy DC2 must be seen in context.  Paragraphs 9.11 – 9.13 which precede Policy DC2 provide that context.  I determine that it does not have the effect for which the Claimant contends.  The same goes for the “Extending Your Home” Supplementary Planning Document paragraph 2.6.  
Material Planning Consideration
27.	The Claimant’s case is that the Defendant’s Committee proceeded on the basis that stability could not be considered.  I have set out in paragraph 8 above the relevant extracts from the Supplementary Report.  Nowhere in that report is it stated that the potential instability caused by the excavation on Dr Kelly’s land was not capable of being a material planning consideration.  It is said that the level difference between the two properties “is not considered significant in the assessment of the application.”  Later it is said that the concerns about the construction of foundations are noted “but are not material to the outcome of this application.”  The Court must be very cautious in construing a document such as the Supplementary Report.  It is not a legal document and was being addressed to Lay Councillors.  In my judgment what it conveyed was that, in the circumstances of this application, these concerns were not “material.” This was because they would be addressed through the Building Regulations and the Party Wall Act.  
28.	This is not the same situation as in the case of Copeland (above).  There the report stated “while this is a valid concern, it is not a material consideration that can have weight in determining this application against Council Policy.” (My underlining).  In those circumstances Cranston J found that the Planning Committee Councillors had been specifically advised “that such matters could not be material planning considerations…it was a clear direction to the effect that the points about proximity of fast food outlet to Bishop Challoner School could not be taken into account.  It was a recommendation that that factor could not be given any weight at all.”  By contrast the Supplementary Report in the present case does not say that the potential structural difficulties “could” not influence the outcome of the application but that they “should” not influence its outcome.  This is my judgment was not an error of law.  The Supplementary Report was merely recommending that, in particular circumstances of the application, the consideration was not material (cf passage cited in Stringer’s case, above – paragraph 15).
29.	Was there any error in the Supplementary Report in recommending that, in the circumstances of the application, the considerations were not “material”?  Whether or not a consideration is material depends upon whether it is relevant and this is a point of law.  (See the Sainsbury’s Supermarket case paragraphs 65 and 66).  The weight to be given to any material consideration is not a matter for the Court.  
30.	In my judgment it is clear from the Supplementary Report that the recommendation was that the concerns about the construction of the foundations were not material in relation to this particular application, since they would be addressed through the Building Regulations and the Party Wall Act.  Albeit sparing with words, what in effect was being said was that:
(i)	The concerns were capable of being a material planning consideration.
(ii)	They were not such in relation to the particular application for the reasons given.
31.	I have already set out the summary of the legal position in relation to the existence and operations of other controls (see paragraph 21 above).  As was said in the Hopkins case (paragraph 11) “The impact of air emissions from a proposed development is capable of being material planning consideration, but in considering that issue the Planning Authority is entitled to take into account the pollution control regime.”  In the present case the Supplementary Report advised that, because of the other controls, the concerns about the construction foundations should not actually be regarded as material.  This necessarily implied that they were capable of being so.  
32.	The Building Regulations 2010 Schedule 1 paragraph A1(1)(b) and A2 provide:
“Loading 
A1(1) The building shall be constructed so that the combined dead, imposed and wind loads are sustained and transmitted by it to the ground – 
(a)	safely; and
(b)	  without causing such deflection or deformation of any part of the building, or such movement of the ground, as will impair the stability of any part of another building. 
….
Ground Movement
A2. the building shall be constructed so that ground movement caused by –
(a) …
(b) land-slip or subsidence …
   will not impair the stability of any part of the building.”
33.	The Claimant makes the point that, although Building Regulations do consider whether the loads imposed by the new building will impair the stability of another building, ground movement caused by land slip or subsidence is assessed only insofar as it would impair the stability of the new building.  
34.	This may be so in theory. In the circumstances of the particular case there is a witness statement from Kevin Renshaw dated 12 March 2013.  Again this is after the event but it explains the practical reality of Building Regulation control in a case such as the present.  He is a Senior Building Control Officer in the employ of the Defendant.  He says that, in circumstances where there is a concern about subsidence, sectional foundations would usually be the technique that is employed.  Foundations are constructed in sections so that there is no scope for sudden collapse of the development as constructed.  He also says that sectional foundations “will certainly safeguard the position of both the existing house and neighbouring house.” (Paragraphs 9 and 12).
The Party Wall Act 1996
35.	It is common ground that this Act creates a framework within which one person may carry out works to construct new party walls which interfere with another’s property (section 1) and enables excavation in the vicinity of another’s property.  It provides safeguards for adjoining owners and a mechanism for dispute resolution under section 10.  This dispute resolution involves the appointment of one or more surveyors.  Under sub-section 10(12) the surveyor’s award may determine:
(a)	the right to execute any work;
(b)	the time and manner of executing any work;
(c)	any other matter arising out of or incidental to the dispute including the costs of making the award…
36.	Mr Renshaw says (paragraph 23) that the surveyors “agree a safe method of working which would not prejudice the integrity of either part property and I would suspect that in this case they would agree on sectioning the foundations as the necessary precaution to be undertaken”
Summary on Controls
37.	In the above circumstances, in my judgment there was no error of law in the Supplementary Report stating that the concerns about the construction of foundations were not material to the outcome of this application since they would be addressed through the Building Regulations and the Party Wall Act.  
38.	It is interesting to note that there is nothing in the Claimant’s September 2012 Structural Inspection Report which runs counter to any of this.  In the Executive Summary are the following paragraphs:
“5. It would be expected that competent designers and builders would understand the potential risks to Mr Hayden’s property and would take appropriate measures to mitigate against them.  However if a less experienced designer or builder were appointed and did not appreciate their significance, it is possible that the proposed works could compromise the integrity of 65 Stanton Road.
6. The proposed works are also covered by the Party Wall Act 1996 which requires the owner of 67 Stanton Road to serve a notice of the proposed work on Mr Hayden and to demonstrate what measures will be taken to strengthen or safeguard the foundations of Mr Hayden’s house.
7. The most important consideration is to ensure that excavation work below the 45 degree cut line is done in short lengths and quickly concreted so that there is no significant loss of support of the foundations of Mr Hayden’s property.  This will require careful control and sequencing.  It should be possible to do most of the below ground work inside the boundary of No 67 without access onto Mr Hayden’s land but some reinstatement of the edge of Mr Hayden’s path is likely to be required.  The work above ground will probably require erection of scaffolding on Mr Hayden’s property. ”
(It was not disputed that the reinstatement of the path is capable of being properly addressed under the Party Wall Act.) 
The Air Raid Shelter
39.	The Claimant says that the planning application should have been deferred to enable the significance of the air raid shelter to be assessed.  I disagree for the following reasons which are taken from the Grounds of Resistance:
(i)	The Defendant noted that no evidence or information was submitted to support the claim that this was an important heritage asset and at that time the Claimant’s advisors had not inspected the structure, having themselves only had it brought to their attention on 11 November 2011.
(ii)	No evidence, either of fact or archaeological expertise, has been lodged in support of this claim to demonstrate that the air raid shelter is a heritage asset of significance.
(iii)	The air raid shelter was not identified in the application, in any designation records, in any historic environment records, through the outcome of the usual consultation with interested parties, nor any other records as a heritage asset.
(iv)	The Claimant’s opinion on its heritage value was not supported by any evidence whether photographic, descriptive, in plan form, from historic maps or from any other source.  
40.	In PPS5 a heritage asset is defined as “a building, monument …positively identified as having a degree of significance meriting consideration in planning decisions.”  There was and is nothing, save for the Claimant’s assertion, to support such a degree of significance.  
In those circumstances, in my judgment neither PPS5 or Local Plan Policy EV7 was engaged.  
41.	Therefore, the Supplementary Report was justified in stating that the air raid shelter “is not considered to constitute a material consideration of sufficient weight to delay the decision or change the recommendation.”
42.	The Supplementary Report did go on to say “and as is the case with all development, if any damage is caused to the objector’s property during building works, this would be a matter for the two parties concerned and is not material to the determination of this application.” As to this:
(i)	this must be seen in context.  Earlier in the report the matters to which I have referred above had been set out.  These dealt with the concerns about the construction of foundations.  Therefore, even if PPS5 and EV7 had potentially been engaged, the air raid shelter would not have been affected by the planning proposal by reason of any instability.
(ii)	The comment that it would be a matter for the two parties concerned must mean therefore that if, notwithstanding the above, any damage was caused to the air raid shelter then, because there is no evidence that it was a heritage asset, this would be a matter between the Claimant and the Interested Party.  There is nothing wrong with that statement.  It is a logical consequence across the development as a whole.  If any damage was caused, despite the Building Regulations and the Party Wall Act then that is a matter for the parties.  cf my note in parentheses at the end of paragraph 38 above.
Summary 
43.	For the above reasons the claim must fail.  
Discretion
44.1 Assuming I am wrong in my above decision, the question would then arise as to whether the stability issue might have altered the Council’s consideration of the application.  In Smith v North Eastern Derbyshire Primary Care Trust [2006] EWCA Civ. 1291, May LJ said:-
“10. ….Probability is not enough.  The Defendants would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of the decision.”
44.2 The Claimant submits that the decision might be different because:-
(a) the Structural Inspection report shows that some reinstatement of Mr Hayden’s path is likely to be required
(b) the Council may, if they have to have regard to subsidence issues as a material planning consideration, refuse permission or grant it subject to further planning conditions.
44.3  I disagree with the Claimant’s submission.  I consider it inevitable that the Council would come to the same conclusion given the relevance of the Building Regulations, the Party Wall Act and the contents of the Structural Inspection report.  The stark reality is that these works, if properly done (which can and will be safeguarded) will result in no damage apart from the probable reinstatement of the edge of Mr Hayden’s path. 

Appendix
National Policy: Planning Policy Guidance Note 14.
 “Introduction
…difficulties have been experienced in developing land in areas of past and present mining and in other areas where land is unstable or potentially unstable.  Public concern has been highlighted by recent experience in the West Midlands, where old lime stone workings have caused problems and in other parts of the country where properties have been damaged following development.  Given proper safeguards, however, land which has been damaged by mining or other industrial activities or which is naturally unstable can often be put to appropriate use…”
“Purpose of the Guidelines
2. The purpose of these guidelines is principally to advise local authorities, land owners and developers on the exercise of planning controls over developments on land which is unstable or is potentially unstable.  The aim is not to prevent the development of such land, though in some cases that maybe the appropriate response.  Rather it is to ensure the development is suitable and the physical constraints on land are taken into account at all stages of planning.
…
Causes of Instability
13. Ground movements vary in intensity and extent and thus in their effects on surface land use… the causes of instability may be placed in three broad categories:

1.	The effects of underground cavities; these may be of natural origin or due to mining or to civil engineering works; 
2. Unstable slopes; these may be natural, in both coastal and inland situations; or manmade, whether excavated as in quarries or cuttings or constructed, as in tips and embankments; 
3. Ground compression; this may be of natural origin due to peat, alluvial, estuarine or marine soil; or due to human activities, eg. made ground, land fill or restored open case mines; and ground subject to movement due to shrinking and swelling clays.
….
Responsibilities of the different parties to the development
16. The responsibility for determining whether land is suitable for a particular purpose rests primarily with the developer… 
17. Where there are reasons for suspecting instability, the developer should determine by appropriate site investigations and geo technical appraisal whether:
- land is capable of supporting the loads to be   imposed; 
- the development will be threatened by unstable slopes on or adjacent to the site; 
- the development will initiate slope instability which may threaten its neighbours;
- the site could be affected by ground movements due to natural cavities; and 
- the site could be affected by ground movement due to past, present or foreseeable future mining activities.
18. If this investigation and appraisal indicates that the ground is unstable or maybe come unstable due to the development proposed or for any other reason, the developer and/or his consultants should then assess the suitability and sufficiency of the proposed precautions to overcome the actual or potential instability.  The provisions of the Coal Mining (Subsidence) Act 1957 and the Coal Industry Act 1975 relating to preventive work on existing buildings and precautionary foundation measures for new developments will require consultation with the British Coal Corporation in appropriate areas… 
20. It is not the responsibility of the Local Authority to investigate the ground conditions of any particular development site unless they propose to develop it.  They are however empowered under the Town and Country Planning Act 1971 to control most forms of development and are responsible under the Building Regulations and the Housing Acts for controlling particular aspects of development.  When reaching decisions on development proposals, Local Planning Authorities have a duty to take all material considerations into account.  The stability of the ground insofar as it affects land use is a material consideration which should be taken into account when deciding a planning application.
21. The principle aims of considering land instability at the planning stage are:
- to minimise the risks and effects of land instability on property, infrastructure and the public;
- to help to ensure that various types of development should not be placed in unstable locations without appropriate precautions; 
…
to assist in safeguarding public and private investment by a proper appreciation of site conditions and necessary precautionary measures.
22. A planning authority does not have a duty of care to individual landowners when granting applications for planning permission and accordingly is not liable for loss caused to an adjoining land owner by permitting development.  Nevertheless, where development is proposed on land which the planning authority knows is unstable or potentially unstable, it should ensure that the following issues are properly addressed by the development proposed:
- the physical capability of the land to be developed;
- possible adverse effects of instability on                   
  developments;
- possible effects on local amenities and conservation interests of the development and of any remedial or precautionary measures proposed.
23. It is the function of the planning system to determine, taking account material considerations of which instability is only one, whether a proposed development should proceed.  Having made that decision, for certain types of development, it is the function of Building Regulations to determine whether the detailed design of buildings and their foundations will allow the buildings to be constructed and used safely.
Planning Control
24. It is important that the stability of the ground is considered at all stages of the planning process.  It therefore needs to be given due consideration in development plans as well as in decisions on individual planning applications.  
2. Development Control
31. The handling of individual applications for development on land which is known or suspected to be unstable or potentially unstable will need to take account of the potential hazard that such instability could create both to the development itself and to the neighbouring area…
(b) The Decision and the Use of Conditions.
36. In some cases, the developer’s specialist, investigation and assessment may demonstrate that the development will not be adversely affected by instability and will not adversely affect the stability of neighbouring land.  In such circumstances, assuming other planning criteria are satisfied, the authority may grant planning permission without conditions relating to instability as the need for special precautions will have been demonstrated to be absent. 
37. At the opposite extreme, the instability may be such that it cannot satisfactorily be overcome and the authority may have no option but to refuse planning permission on the grounds that fundamental and stability of the ground renders it unsuitable for the development proposed…
38. If, however, the developer’s specialist investigations and assessment and any consultations by the local planning authority show that instability can be satisfactorily overcome, planning permission may be granted subject to conditions specifying the measures to be carried out in order to overcome such instability.  It would be open to the Local Planning Authority to impose any conditions it felt necessary granting permission, including any relating to precautionary measures, where such conditions are expedient on planning grounds…
39. Guidance of the use of conditions in planning permission is published in DOE Circular 1/85…if a problem cannot satisfactorily be resolved by imposing a planning condition, it may be possible to do so by concluding a voluntary agreement…
40. Circumstances may arise in which the information available to the Local Planning Authority is insufficient to fully resolve any questions of ground stability…
41. In some cases the information available will be sufficient to resolve the main issues regarding stability from a planning point of view but insufficient to resolve specific details.  It may then be appropriate to grant planning permission subject to conditions that the development will not be permitted to start until an adequate site investigation and assessment has been carried out and that the development will need to incorporate all the measures shown in that assessment be necessary.  Such circumstances might arise for example where the expectation is of general subsidence from deep mine workings or settlement due to foundation conditions; the latter will in any case need to be investigated in order to satisfy the requirements of the Building Regulations.
42. In other cases, however, the information will be insufficient to resolve the primary issue as to whether the development should proceed or not…a permission conditional on site investigation would in those cases be inappropriate, and permission should therefore be refused or, with the agreement of the applicant, deferred pending resolution of the stability issue. 
45. When planning permission is granted, a notice should be issued to the Applicant informing him that the responsibility and subsequent liability for safe development and secure occupancy of the site rests with the developer and/or landowner.  It should also advise the applicant that although the local planning authority had used its best endeavours to determine the application on the basis of the information available to it, this does not mean that the land is free from instability…
Appendix A
2. Unstable slopes
A.43 both natural and manmade slopes may be subject to instability due to land sliding…land slides are mass movements of soil and/or rock under the influences of gravity…
A.46 Land slide movements maybe initiated by natural processes or by human activities…movement can be initiated by changes in any of these factors individually or in combination.  For example, undercutting of slopes by coastal or river erosion or by excavation remove support from the foot of the slope and thus reduces the resistance to movement…
A.48…the main cause of land slide movement, both in terms of first time movement and reactivation of ancient land slides, is human activity  

PLANNING POLICY STATEMENT 5 | Planning for the Historic Environment

ANNEX 2: TERMINOLOGY

HERITAGE ASSET
A building, monument, site, place, area or landscape positively identified as having a degree of significance meriting consideration in planning decisions. Heritage assets are the valued components of the historic environment. They include designated heritage assets (as defined in this PPS) and assets identified by the local planning authority during the process of decision-making or through the plan-making process (including local listing).

Policy HE7: Policy principles guiding the
determination of applications for consent
relating to all heritage assets

HE7.1 In decision-making12 local planning authorities should seek to identify and assess the particular significance of any element of the historic environment that may be affected by the relevant proposal (including by development affecting the setting of a heritage asset) taking account of:
…………

(v) the outcome of the usual consultations with interested parties; and
(vi) where appropriate and when the need to understand the significance of the
heritage asset demands it, expert advice …….

HE7.2 In considering the impact of a proposal on any heritage asset, local planning
authorities should take into account the particular nature of the significance of the
heritage asset and the value that it holds for this and future generations. This
understanding should be used by the local planning authority to avoid or minimise
conflict between the heritage asset’s conservation and any aspect of the proposals.

Policy HE8: Additional policy principle guiding the consideration of applications for consent relating to heritage assets that are not covered by policy HE 9

HE8.1 The effect of an application on the significance of such a heritage asset or its setting is a material consideration in determining the application. When identifying such heritage assets during the planning process, a local planning authority should be clear that the asset meets the heritage asset criteria set out in Annex 2. Where a
development proposal is subject to detailed pre-application discussions (including,
where appropriate, archaeological evaluation (see HE6.1)) with the local planning
authority, there is a general presumption that identification of any previously
unidentified heritage assets will take place during this pre-application stage.
Otherwise the local planning authority should assist applicants in identifying such
assets at the earliest opportunity.

The National Planning Policy Framework

109. The planning system should contribute to and enhance the natural and local environment by:

………….

* preventing both new and existing development from contributing to or
being put at unacceptable risk from, or being adversely affected by
unacceptable levels of soil, air, water or noise pollution or land instability;

………………..

120. To prevent unacceptable risks from pollution and land instability, planning policies and decisions should ensure that new development is appropriate for its location. The effects (including cumulative effects) of pollution on health, the natural environment or general amenity, and the potential sensitivity of the area or proposed development to adverse effects from pollution, should be taken into account. Where a site is affected by contamination or land stability issues, responsibility for securing a safe development rests with the developer and/or landowner.

121. Planning policies and decisions should also ensure that:

* the site is suitable for its new use taking account of ground conditions and
land instability, including from natural hazards or former activities such as
mining….

* adequate site investigation information, prepared by a competent person,
is presented.

…………….

135. The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In
weighing applications that affect directly or indirectly non designated
heritage assets, a balanced judgement will be required having regard to the
scale of any harm or loss and the significance of the heritage asset.

EREWASH LOCAL PLAN

Extensions to Dwellings
9.10 There are a number of reasons why a householder may wish to extend
his/her dwelling but this usually arises out of a requirement to provide
additional family accommodation.

9.11 Irrespective of the size of the extension, good design is crucial to
achieving a successful development. A well designed extension, in
keeping and in scale with the original house will not only look better, but it
will add value to the property. Often it will be easier and cheaper to
maintain than a poorly designed one. A poorly designed scheme however
can spoil not just the house to which it is attached, but the surrounding
area too.

9.12 Extensions to dwellings will be permitted provided that they relate well to
existing and neighbouring dwellings and do not have an adverse impact
on the street scene. Extensions should be constructed using appropriate
building materials and in the case of side extensions should avoid a
terracing effect on the street scene

9.13 In the interest of preserving the character of the street and good design
practice, two storey extensions (and where possible single storey
extensions) are normally required to have a pitched roof. Flat roofed
extensions will only be considered on single storey extensions to the rear
of an existing dwelling, where it is not generally visible or where a flat roof
is integral to the original design.

9.14 Extensions to dwellings in conservation areas, to listed buildings, or in
green belt areas are dealt with elsewhere in the Plan.

POLICY DC2 - EXTENSIONS TO DWELLINGS

EXTENSIONS TO DWELLINGS WILL BE PERMITTED SUBJECT TO THE
FOLLOWING CRITERIA BEING SATISFIED:

……………………

2. THE PROPOSED EXTENSION WOULD NOT HARM THE
AMENITIES OF NEARBY RESIDENTS;

………………..

Buildings of Local Interest

6.10 Across the Borough, there are many buildings that are not protected by
statutory designations because they are currently determined as being of
insufficient quality, but are nevertheless worthy of preservation. It may be
the case that some buildings, not currently listed, become listed and
therefore it is important to protect buildings of local interest as they may be
the heritage of the future.

POLICY EV7 - BUILDINGS OF LOCAL INTEREST

APPLICATIONS AFFECTING BUILDINGS OF LOCAL INTEREST OR
ARCHITECTURAL INTEREST WILL BE CONSIDERED AGAINST THE
FOLLOWING CRITERIA:

1. THE PROPOSAL SHOULD BE SYMPATHETIC TO THE DESIGN
AND CHARACTER OF THE EXISTING BUILDING;
2. MATERIALS;
3. SCALE AND PROPORTION OF THE DEVELOPMENT;
4. THE SETTING OF THE EXISTING BUILDING.

EREWASH: The adopted Extending Your Home Supplementary Planning Document

2.6. In dealing with proposals for house extensions, our aim is to make sure that the
extension is in keeping with the existing property and the surrounding area and to
minimise any adverse affect on neighbours.