England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 January 2014

His Honour Judge Birtles:

Introduction

1. By this application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") the Claimant, Holywell Property (St Albans) Limited, seeks to challenge a decision of Ms Sukie Tamplin Dip TPg Dip Arch Cons IHBC MRTPI ("the Inspector") sitting at as an inspector appointed by the Secretary of State for Communities and Local Government, which is contained in a decision letter dated 10 December 2012 ("the Decision Letter"). By the Decision Letter the Inspector dismissed the Claimant's appeal against a refusal of planning permission by Dacorum Borough Council ("the Council") for a residential development comprising 7 houses and garaging at a site known as "Land to the rear of 121-127 High Street, Berkhamsted, Hertfordshire, HP4 2DJ" ("the Site").
2. The Claimant is represented by Mr Jonathan Powell of counsel. The Second Defendant is represented by Mr Cain Ormondroyd of counsel. The First Defendant, the Council, did not take any part in this application. I am grateful to both counsel for their written and oral submissions.
3. I heard the application on 13 November 2013. At the conclusion of the hearing I reserved judgment.

The factual background

4. I take this from paragraphs 4-6 of the Decision Letter together with some additions.
5. The appeal site consists of a large irregularly shaped area behind buildings on the south side of the High Street opposite St Peter's Church. The bulk of the site is now surfaced car parking used by occupiers of the commercial premises within the historic buildings which separate the land from the High Street. To the west, beyond a 2m high brick boundary wall, are the gardens to a private school, beyond which stands a large traditional building and dwellings on Chesham Road. On the southern site boundary timber gates give vehicular access to a parking area for the school.
6. To the east, abutting the site is Redwood House, a large modern two storey office building with brick elevations and a slate roof with roof lights. The northern boundary comprises the varied and irregular backs of the High Street buildings. An arm of the site extends east from its north-eastern corner to Rectory Lane past parking areas served by this access but outside the application boundary. Vehicular access to the site is also available from the High Street by way of a narrow arch beneath no 125, and via a narrow gap between nos 119 and 121.
7. The site rises steadily southwards and there are level changes at some of the boundaries. Although there are no trees on the site itself there are four trees beyond but close to the western, southern and south-eastern boundaries. These include a mature beech tree in the garden of no 127 which is subject to a Tree Preservation Order. The proposals comprise two main elements, the construction of two short residential terraces in the southern portion, and the re-ordering of access arrangements for the entire site.
8. There is a useful site plan showing the proposed development, and the four trees surrounding the site at Application bundle page 115.
9. Following the submission of an application on 10 February 2011, registered as valid on 28 July 2011, an officers' report was prepared by officers of the Council. This recommended that planning permission be granted. That recommendation was not followed by the Council and on 8 December 2011 the application was refused for reasons set out in a refusal notice: Application bundle page 88. The reasons were these:

"Policies of the Development Planning to safeguard the local environment.

The site falls within Berkhamsted town centre and Conservation Area wherein residential development is acceptable providing it meets the criteria set out in Policies 11 and 120 of the Dacorum Borough Local Plan 1991-2011 (DBLP).

This application for seven terraced houses, due to its design and layout, site coverage, lack of amenity space, restricted outlook for new residents, inadequate landscaping provision and long-term detrimental impact on surrounding trees, displays a cramped form of development which constitutes overdevelopment of the site, contrary to Policy 11 of the DBLP and which fails to preserve or enhance the Conservation Area contrary to Policy 120 of the DBLP.

Furthermore, the scheme leaves inadequate and inappropriate parking provision for existing businesses that are dependent on the site for access and parking, and results in a general lack of manoeuvrability within the site exacerbated by the steep slope, with insufficient access for service and emergency vehicles within the site.

The proposal is therefore contrary to Policies 11 and 120 and Appendices 3 and 5 of the DBLP and Policies CS12 and CS27 of the pre-submission draft of the DBC Core Strategy."

Objections had been received from numerous interested parties and considered.

10. The Claimant appealed the refusal to the Secretary of State. It was decided that the appeal should be dealt with by way of written representations. The Claimant submitted written representations in support of its appeal but the Council did not submit its representations before the relevant deadline and therefore they were not accepted by the Planning Inspectorate.
11. A site visit was held on 10 December 2012. The Inspector refused the Claimant's appeal in the Decision Letter dated 31 December 2012.

The Inspector's decision

12. In so far as this application is concerned, the relevant parts of the Inspector's decision are contained at paragraphs 7-18 and 25 of the Decision Letter. She says this:

"Living conditions

7. The proposed dwellings would be in two short terraces facing across the vehicular access to the school car park. Houses 1-3 would back onto the gardens of the school and have short enclosed yards to the front; houses 4-7 would back onto Redwood House and its curtilage. The most northerly of these (house 7) would be turned to face High Street. The terrace on the east side (houses 4-7) would not have front gardens and would be separated from the access only by a narrow strip of pebble paving.

8. The houses, all of which would provide family size accommodation, would have very short back gardens, these ranging from 5.0m long to a maximum length of 8.6m. This is considerably below the requirement in Appendix 3 of the Dacorum Borough Local Plan 1991-2011 adopted April 2004 (LP), which seeks a minimum length of 11.5m. Whilst the policy incorporates flexibility where a development would be for starter homes, the elderly or if the site is close to open space, these criteria do not apply to the appeal scheme. The gardens for units 4-7 are particularly short and, because of the shading due to the ash tree situated to the south in the school grounds, and the close proximity of Redwood House, these would not provide attractive or functional outdoor space.

9. Redwood House would be about 7.5m from houses 6 and 7 and as a result the outlook of occupiers would be poor, this would be exacerbated by the perception of overlooking from the multiple windows in the office block. It is proposed that all the upper sashes in the rear elevations of units 1-7 be obscured glazed, and whilst this would not restrict daylight, the proximity of adjacent development, in the case of houses 6-7, and the restricted ability to look out of rear bedroom windows, would result in unacceptable living conditions for the future occupants of these units. Occupiers may well wish to use such bedrooms during the day, and as the rear bedrooms would be lit by a single window in all houses, the outlook would be sky only.

10. The distance between the front elevations of the terraces is not sufficient to ensure privacy and although my attention has been drawn to three other locations where there is similar proximity, these are not comparable to the appeal proposals. This is because the latter have more generous garden length to the rear or an open outlook enabling some rooms to have an acceptable outlook and privacy. In any event, these other examples are of housing constructed prior to planning controls and in different circumstances to those before me.

11. Due to the restricted outlook and the lack of private space, the proposals would not provide acceptable living conditions for future occupants. This is in conflict with LP Appendix 3 which requires that residential development provides adequate private gardens and adequate spacing between buildings. Neither is the development compliant with a core principle of the National Planning Policy Planning Framework (the Framework) that planning should provide a good standard of amenity for all future occupants.

Character and appearance

12. The character of surrounding development in this area behind the High Street has a relatively coarse grain, unlike the development now proposed. The tightness of the development, including the pavement edge layout of units 4-7, is in sharp contrast to the large buildings such as the school and the adjacent office building. The appeal site is located in the Berkhamsted Conservation Area, and I have a statutory duty to consider the impact on the conservation area.

13. The proposed 7 houses would be concentrated in the southern part of the site and tightly constrained by existing boundaries, other developments and off-site trees. The remainder of the site, including the land between the two proposed terraces, would be entirely devoted to vehicular access, manoeuvring and parking. For these reasons, the layout does not incorporate any element of landscaping or softening of the built form other than a proposed small single tree by the bin store. The existing car park area is not attractive, but an aim of the Framework is that good design should contribute positively to making places better. The almost complete absence of landscaping together with the minimal gardens would not provide an attractive environment and would emphasise the cramped nature of the residential element of the proposed development.

14. The appellant has argued that because site coverage is less than in other streets in the central part of Berkhamsted the development should be acceptable. But those developments were constructed before planning control and are not visually linked to the appeal site. I consider that the relevant context is that adjacent to the site and this, I saw, is not so tightly developed. This adds to the harm that would arise from the development.

15. There are 4 off-site trees close to the proposed residential development. Of these, the ash (T1) is located adjacent to the south-east corner of the proposed development and its canopy extends over the proposed garden of unit 4. The site layout plan shows that shading at ground level is expected over the whole of the garden of both house 4 and house 5. This is inconsistent with the tree survey report dated 31st October and at the site visit, undertaken on a sunny winter's day at around noon, I observed that the tree, even without leaves, casts shadow on the proposed garden. I consider that there would be pressure from occupiers to lop or remove the tree in the future because of the very limited garden and the overhanging branches which would extend over the gardens even further as the tree matures. Whilst I acknowledge that there are controls over works to the trees as the site is in a conservation area, such requests for tree work would be difficult to resist given the proximity of the trees to the proposed houses and their gardens. As a result I consider it likely that the appearance of the adjacent trees, which are of considerable amenity importance, would be jeopardised.

16. Similarly demand for lopping or removal would be likely in respect of the sycamores (T3 and T4) because of overhang and shading of the modest gardens proposed for units 1-3. The large beech tree located to the north of the proposed housing does not overhang gardens and would be under less pressure. Although the tree report confirms that the construction works would not, subject to appropriate protection, harm the long term health of the trees, the amenity value of the off-site trees would be threatened by the probability that future occupiers would wish to reduce the effect of overhanging branches and shading.

17. The Council does not object to the architectural styling or detailing of the individual houses and I agree that their design is of high quality. However, this does not overcome the harm that would arise from the cramped form of development, the inadequate landscaping and the potential threat to nearby trees of amenity importance.

18. LP Policy 11 requires that development respects the general character of the area in which it is set and that it retains important trees and enhances landscape, and Policy 120 requires that development should preserve or enhance the established character of the conservation area. For the reasons I have given I consider that the development would not enhance the character and appearance of the conservation area. This is because the concentration of residential development in a smaller part of the site would appear cramped and would have an adverse impact on the character and appearance of the area and lead to pressure to lop or remove trees of wider amenity value. Hence it would conflict with the LP policies and the aims of the Framework that seek development that would be locally distinctive, appropriately landscaped and improve the character of an area.

Conclusion

25. I acknowledge that the principle of residential development of the site is acceptable, that the individual design of the houses is of high quality and that there would be improved access and pedestrian safety. However, these benefits are outweighed by the harm to the living conditions of the future occupiers and the harm to the character and appearance of the conservation area by reason of cramped development. Therefore, I shall dismiss the appeal."

The legal framework

13. I gratefully adopt this from the skeleton argument of Mr Ormondroyd which I do not understand Mr Powell to disagree with.
14. The grounds on which the Court may interfere with an Inspector's decision are the conventional grounds for judicial review: per Lord Denning MR in Ashbridge Investments Ltd v. Minister of Housing and Local Government [1965] 1 WLR 1320 at 1326, dealing with the procedure for statutory challenge in compulsory purchase legislation:

"Under this section it seems to me that the court can interfere with the Minister's decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa. It is identical with the position when the Court has power to interfere with the decision of a lower tribunal which has erred in point of law."

15. The Ashbridge Investments approach has been applied to High Court planning challenges by Seddon Properties Ltd v. Secretary of State for the Environment [1978] JPL 835, which further elaborates the conventional public law grounds of challenge in this field.
16. Matters of planning judgment are within the exclusive province of the Inspector: Tesco Stores Ltd v. Secretary of State for the Environment [1995] 1 WLR 759, per Lord Keith at 764G-H and per Lord Hoffman at 780 F-H. It is a "fundamental principle of British planning law" that courts are concerned only with legality, not with the merits.
17. An application under section 288 is not an opportunity for a review of the planning merits of the Inspector's decision, and the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits. An Inspector will have conducted a site visit: see R (Newsmith Stainless Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, per Sullivan J at para 6 to 8.
18. Decision letters should be read in a straightforward down-to-earth way, without excessive legalism or exegetical sophistication: Clarke Homes v. Secretary of State for the Environment (1993) 66P & CR 263, per Sir Thomas Bingham MR at 271-272.
19. The principles on which a challenge to the reasoning in a decision letter must be assessed are set out in South Buckinghamshire DC v. Porter [2004] 1 WLR at [36]:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

20. The requirements of fairness and natural justice demand that each party to a planning appeal should have a 'fair crack of the whip'; i.e. an opportunity to present his case. Challenges based on a breach of these requirements will hinge on their own facts. In assessing them, however, it must be remembered that the inspector is an expert tribunal and is able to supply deficiencies in a party's evidence from his own knowledge and experience: Fairmount Ltd v. Secretary of State for the Environment [1976] 1 WLR 1255 per Lord Russell at p 1265-1266.
21. Natural justice does not import any requirement for an inspector to provide his draft conclusions to the parties so that they may have the opportunity of commenting on them: Bleaklow Industries Ltd v. SSCLG [2009] EWCA Civ 206 at [43], citing the following words of Lord Diplock with approval in this context:

"Even in judicial proceedings in a court of law, once a fair hearing has been given to the rival cases presented by the parties the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

The grounds of challenge

22. Before turning to the specific grounds of challenge I should deal with some preliminary points. The first preliminary point relates to the status of Appendix 3 to Policy 11. The last sentence of Policy 11 says this:

"Reference should also be made to Appendices 3-8 of this Plan and to supplementary planning guidance covering Environmental Guidelines. Policy 11 is at Application bundle pages 42-44. Appendix 3 is at Application bundle pages 50-51. The Environmental Guidelines are at Application bundle pages 209-211."

23. Mr Powell submits that Policies 11 and 120 were saved by the Secretary of State's Direction under paragraph 1(3) of Schedule 8 to the Planning and Compulsory Purchase Act 2004: Application bundle pages 54-61. Mr Powell submits that Appendix 3 is not part of the Local Plan and there was therefore no reason to read it into Policy 11. The Inspector clearly took it into account: see paragraphs 8 and 11 of the Decision Letter. He refers me to the decision of Mr Justice Haddon-Cave in R (on the application of Cherkley Campaign Limited) v. (1) Mole Valley District Council (2) Longshot Cherkley Court Limited [2013] EWHC 2582 (Admin) and particularly paragraphs 15; 79-88. Mr Powell submits that the Inspector has therefore taken an irrelevant consideration into account and the Claimant could not deal with this point because of the written representation procedure adopted and no draft Decision Letter was sent to the parties before it was issued.
24. Mr Ormondroyd submits that although Policy 11 is a saved policy, Appendix 3 is not a policy: Cherkley at paragraph 64; 74-75. However he submits that it is saved because it is specifically referred to at the end of Policy 11 and he relies on Cherkley at paragraphs 79-81. Finally, he submits that it is a material consideration and he refers me to Cherkley at paragraphs 81 and 88.
25. In my judgment the short answer to this is (a) that Appendix 3 is not a policy but is explanatory material as explained by the last sentence of Policy 11 and by Haddon-Cave J in Cherkley at paragraphs 64; 74-75. Second, it has not been saved by the Direction of the Secretary of State. That is clear from the wording of the Direction itself and also in the Explanatory Note published by the Council which says this:

"By direction of the Secretary of State all the policies in the Adopted Local Plan (except Policy 27, Gypsy Sites) have been saved i.e. they continue to apply.

The supporting material in the Local Plan (e.g. reasoned justification) remains important and relevant and will continue to be used. The Appendices and Schedules of Proposal Sites (and Schemes), which are cross-referred from the numbered policies, remain very important material planning considerations and will continue to be firmly applied by the Council."

(c) Appendix 3 is quite clearly a material consideration. The passage I have just read from the Council's Explanatory Note makes that crystal clear. See also Cherkley at paragraphs 81 and 88.

26. Finally, I should add that I cannot read paragraphs 8 and 11 of the Decision Letter as the Inspector saying that Appendix 3 is a policy. In my judgment she is treating Appendix 3 as no more than a material consideration.
27. The second preliminary point relates to Policy 120 together with (a) the Conservation Area Character Appraisal for Berkhamsted and (b) the document entitled Development in Conservation Areas or Affecting Listed Buildings. The documents are respectively at Application bundle pages 45-47 (Policy 12); 183-207 (Conservation Area Character Appraisals and Policy Statements); and 209-211 (Developments in Conservation Areas or Affecting Listed Buildings).
28. Mr Powell submits that these were not before the Inspector and the Inspector should have obtained them before issuing her Decision Letter. Her omission to take them into account was an error of law. He relies on what Mr Justice Ousley said in R (on the application of St. James Homes Limited) v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 30 paragraphs 47-49.
29. Mr Ormondroyd submits that first, neither document forms part of the Development Plan. Second, he submits that the Claimant in its written submissions did not refer to the Development Guideline document and only once to the Conservation Area Appraisal. The Council sent in its submissions late and they were excluded. In those circumstances the Inspector was entitled to proceed on the basis that the two documents had little relevance to what she had to decide. Third, Mr Ormondroyd submits that even if there was a technical error of law then I should exercise my residual discretion against the Claimant: see the St. James Homes case at paragraph 49.
30. I agree with Mr Ormondroyd's submissions. In addition the reference to the Conservation Area Character Appraisal and Policy Statement in paragraph 6.2 of the Claimant's written submissions to the Inspector are general in nature. It would have been perfectly possible for the writer to attach a copy of that document if considered relevant beyond that single reference. The development document is not specifically referred to at all in the Claimant's written submissions to the Inspector. In my judgment there is no error of law in the Inspector not calling for copies of those two documents.
31. I now turn to the grounds of appeal in detail.

Ground 1

In reaching her decision the Inspector has misdirected herself and has therefore reached a conclusion that she could not reasonably have come to in respect of the application made by dealing with the effect on the living conditions of future occupiers as being a distinct and separate issue from the effect on the character and appearance of the Conservation Area.

32. Mr Powell submits that the Inspector dealt with the living conditions for future occupiers as a stand alone issue not connected with the character and appearance of the Conservation Area. As such she failed to have any or any sufficient regard to the context of the Conservation Area when considering the possible effect of the living conditions arising from the development of this Site for residential purposes which it is accepted is acceptable. He refers me to paragraph 8 of the document Development in Conservation Areas or Affecting a Listed Building: Application bundle page 210.
33. I agree with Mr Ormondroyd that the answer to this ground is that the issues of (a) the adequacy of the living conditions provided by development for future occupiers and (b) the effect of a development on a Conservation Area are separate issues. Each has its own policy framework and relevant considerations and the Inspector was correct to consider them separately. It was for her to decide how to approach the issues to be considered: Edinburgh City Council v. Secretary of State for Scotland [1997] 1 WLR 1447 at 1458G-1460D. Furthermore, there is no policy justification for the proposition that a lower standard of living conditions is generally acceptable in a Conservation Area. Plainly, in this case the Inspector made a clear finding that the development would cause harm to the Conservation Area: Decision Letter paragraph 17, 18 and 25.

Ground 2(1)

In reaching her decision in respect of the first issue, namely the living conditions, the Inspector has erred in law, has misdirected herself and has reached a conclusion that she could not reasonably come to.

34. Mr Powell submits that the Inspector treated the 11.5 metre back garden length in Appendix 3 to Policy 11 as giving rise to a policy requirement. Mr Powell submits that that approach is wrong because it arises from Appendix 3 which has not been saved as a policy although the Council has retained it as a material consideration. As such it does not have the same status and the Inspector applied it in an incorrect way. Finally, Mr Powell submits that the Inspector failed to have regard to the Conservation Area Character Appraisal for Berkhamsted and the document entitled Development in Conservation Areas or Affecting Listed Buildings because those documents were not before her.
35. I have already dealt with these issues under the heading of preliminary points. For the reasons I have there given I am satisfied that Appendix 3 was a highly relevant material consideration which the Inspector was entitled to take into account. Furthermore, the Inspector did not err in law in not taking account of the two other documents.

Ground 2(2)

In addition, in applying that 11.5 metre requirement the Inspector rejected the need to apply it flexibly in circumstances where the site is close to open space without any evidence being before her to identify where such open space provision existed and the extent of it. Mr Powell's complaint is effectively that the Claimant did not have the opportunity to respond to that consideration. He submits that the Inspector drew a conclusion without evidence to support it and contrary to evidence that could have been supplied.

36. I agree with Mr Ormondroyd that the reason for refusal by the Council relies on a lack of amenity space: Application bundle page 88. Paragraph A3.6(2) ("Gardens and Amenity Space") refers to the relevance of nearby open space if gardens of less than 11.5 metres are sought to be justified: Application bundle page 51. The question of nearby open space was thus before the Inspector. The Claimant made no attempt to justify the undersized gardens in its development design and did not do so except by reference to other existing gardens which were smaller.
37. The Inspector is an expert tribunal who had the benefit of a site visit. She is entitled, in the absence of evidence from the parties, to make her own assessment of the availability of nearby open space. There is no error of law.

Ground 2(3)

Errors in relation to the garden length.

38. Mr Powell submits that first, the Inspector failed to take into account that gardens shorter than 11.5 metres were not uncommon in the Conservation Area and second, that new developments have come forward with garden lengths shorter than that. Mr Powell submits that the Inspector rejected the relevance of the situation before planning control and that was irrational. Her failure to take into account the fact that new development has come forward with gardens of lengths shorter than 11.5 metres meant that she had failed to take into account a material consideration. Finally, Mr Powell criticises the Inspector for not giving the Claimant the opportunity to place before her evidence of permissions granted within the Conservation Area for new developments where garden lengths are shorter than 11.5 metres. There is a short answer to this ground. In so far as arguments effectively repeat ground 1 I reject them for the reasons I have given. In so far as the natural justice argument is concerned I reject it. It is open to an appellant against the refusal of planning permission to put whatever evidence it wishes in front of the Inspector. In this case the Claimant did not choose to do so. It cannot now complain. There is no duty to circulate a draft Decision Letter.

Ground 2(4)

The Inspector's finding that some of the gardens would not be attractive or functional was made without the appellants being able to present any view in relation to it or refer her to similar situations in the area. The Inspector again relied on Appendix 3. This is a natural justice argument.

39. The short answer to this ground is that it is not correct given that these matters were addressed in the Claimant's representations at paragraph 6.14 of its representations to the Inspector: Application bundle page 133. It says this:

"6.14 The rear garden areas of the appeal proposal vary in width between 5.3m and 9.2m and in depth between 5.0m and 8.6m. Houses 1 to 3 also have a small gated frontage area. Whilst modest in size all the gardens are private, would receive adequate daylight and provide adequate amenity given the town centre location of the appeal site. Cycle storage is provided communally, as is bin storage."

See also paragraph 6.15 which makes the comparison with other small gardens in the Conservation Area.

40. These representations were not accepted by the Inspector at paragraph 8 of her Decision Letter. The Claimant had adequate opportunity to advance any other relevant matters in relation to rear garden size but chose not to do so. There is no breach of natural justice and no error of law.

Ground 2.5

41. This ground of appeal was withdrawn.

Ground 2.6

The Inspector failed to take into account the fact that the front to front dimensions were consistent with other locations and characteristic of the Conservation Area by rejecting the scheme on privacy grounds.

42. This refers to Decision Letter paragraph 10. Mr Powell submits that the Inspector's rejection of these examples is irrational in that she refers to the length of back gardens which, he submits, has no obvious relationship to the question of privacy to the front of the property, and also to the reference to an open outlook which also could not relate to the front to front dimensions.
43. In my judgment there is no irrationality in looking at the living conditions provided by a dwelling as a whole when making comparisons between dwellings. Neither is there any irrationality in finding that houses constructed before the advent of planning control with poor standards of privacy do not serve as a precedent for the grant of planning permission for houses with a poor standard of privacy. There is no error of law.

Ground 3(1)

The Inspector's approach to the application within the Conservation Area was that it had to enhance the Conservation Area.

44. Mr Powell submits that that is wrong in law and what is required is to show that the proposals avoid harm to the Conservation Area. He criticises the Inspector's reasoning at paragraph 18 and her conclusion at paragraph 25 of the Decision Letter.
45. The short answer to this point is that because the Inspector found harm/adverse impact on the character and appearance of the Conservation Area (Decision Letter paragraph 17, 18 and 25) she was entitled to reject the Claimant's case that the development would "enhance" the Conservation Area: Decision Letter paragraph 18. On my reading of the Decision Letter there is no reason to conclude that she regarded enhancement as being necessary before the development could be permitted.

Ground 3(2)

The Inspector failed to have regard to the fact that the scheme was designed to reflect those existing residential developments within the Conservation Area that are characteristic of it. It was a failure to have regard to a material consideration.

Ground 3(3)

The Inspector failed to have regard to the effect of the scheme in strengthening and enhancing the Conservation Area compared with the existing development. On ground 3(3) Mr Powell also submitted that the Inspector acted irrationally.

46. In my judgment it is clear from the Inspector's reasoning that she did have regard to the matters raised in grounds 3(2) and 3(3) but decided that they did not justify the specific development proposed in the specific context of the site for the reasons she gave in the Decision Letter paragraphs 13-14. She was required to judge the effect of the proposed development on the character and appearance of the Conservation Area in the context of the site.

Ground 3(4)

This ground criticises the Inspector's rejection of the relevance of existing development in the Conservation Area on the basis that it was constructed before planning control and not visually linked to the site.

47. Mr Powell submits that this was to ignore a relevant consideration given that those developments are part of the character and appearance of the Conservation Area. Such a rejection is also irrational.
48. The Inspector's reasons need to be read in a straightforward way and they are addressed to parties familiar with the issues. This remark followed her finding at Decision Letter paragraph 13 that the development proposal was unacceptably cramped. The fact that there are other cramped developments constructed before planning control was introduced cannot logically serve as a precedent for future cramped development. The Inspector was not ruling out any building created before planning control as irrelevant when it came to assessing the character of the Conservation Area.

Ground 3(5)

Irrational conclusion in respect of long-term harm to trees; breach of natural justice

49. Mr Powell submits that the Inspector's conclusions on trees are confusing, contrary to expert advice and irrational. He argues that the expert evidence does not indicate that trees will have to be removed as a result of the scheme proposal and that the Inspector seemed to accept that. The Inspector's concern is related to potential problems in relation to potential lopping or removal of trees. He argues that in terms of lopping the Inspector had no evidence before her to be able to distinguish between what would be needed with or without the scheme in place. There was no tree identified by the Inspector that was likely to be removed and therefore no contrary assessment in relation to it. The appellants were not asked to respond to the Inspector's concerns. She was not justified in reaching the view that the effect on trees would be sufficient to give rise to any unacceptable impact.
50. Mr Powell refers me to the Layout Plan and the Report on the Impact on Trees at pages 102-115 and especially at paragraph 05.06.
51. I reject the natural justice element of this ground as "long term detrimental impact on surrounding trees" was a part of the Council's reasons for refusal and the Claimant had an opportunity to comment on this.
52. The impact of the development on trees was considered by the Inspector as part of her consideration of its impact on the Conservation Area. Her conclusions are set out in the Decision letter at paragraph 15-16. She considered four adjoining trees. In essence she found that, although the trees could be safeguarded during the construction process, there would be long term pressure to lop or remove the ash and the two sycamores, and to a lesser extent the beech tree, because of their proximity to the proposed residential development and consequent shading/overhang. Although the Inspector refers in Decision letter paragraph 15 to T2 it is clear that this is in fact a reference to the ash tree (T1).
53. The complaint about this conclusion is that the Inspector has departed from the expert evidence in a way which has occasioned an irrational conclusion. It is therefore necessary to consider the evidence before the Inspector.
54. It is correct that the Claimant's view that the trees would not be harmed was supported by an expert report, from Mr Cromar: Application bundle pages 102-115. This concluded at para 05.06-07 that:

a. Shading by trees would not be significant;

b. All the trees would be located outside the curtilage of the properties and therefore could "reasonably be viewed as secure from proposals to fell or reduce inappropriately";

c. Due to the statutory controls in place the trees would be protected against inappropriate work.

55. It is also true that the Council had not directly produced any expert evidence of its own to contradict this. However, the comments of the Council's trees and woodlands officer are recorded in the officer's report. It was considered that the beech tree T2 could be safeguarded during construction. As for shading, reference is made to the ash tree T1 as follows:

"The question of shading to plot 4 from the off site ash has been discussed and considered a relatively minor issue certainly not one that will have much influence over the final outcome of this application. Even with pruning, the tree will continue to have some impact on the house, garden and occupants however purchasers will have to decide upon the merits of a town centre location with some shade as part of their normal considerations. [emphasis added]: Application bundle pages 67-68."

56. On this basis the advice was that "[m]atters relating to trees and this proposed development have now been adequately dealt with". This advice formed the basis for the planning officer's views expressed in the committee report. On the Conservation Area it states (insofar as is relevant)

"It is recognised that the amount of general landscaping is clearly minimal, although this does not take into account the individual small private gardens. However, in this town centre location it is not considered feasible to provide landscaping providing the existing trees surrounding the site are safeguarded [emphasis added]: Application bundle page 72."

57. In a separate section headed 'impact on trees' the report notes that the measures outlined in Mr Cromer's report are sufficient to ensure the protection of the trees during the works of construction. It goes on to address the long term situation of the ash tree T1 and the sycamores T3 and T4 as follows:

"In terms of the Ash tree… Some pruning would allow for more light to enter the rear garden and the rear windows to House 4, although an additional side window has now been introduced in order to afford more light. Any further pruning would be entirely up [to] the school to agree to. There may [be] some pressure in the future to manage the growth of the two sycamore trees through pruning: Application bundle 74-75."

58. It appears therefore that the conclusions of the planning officer were that:

a. In terms of the conservation area, the scheme had adequate landscaping providing the existing trees could be safeguarded;

b. The existing trees could be safeguarded through the construction process;

c. There might be pressure in the future to prune T1, T3 and T4, but not so much as to cause concern.

59. The view in sub-para (c) above does not appear to have been shared by the Council. The application was refused in part for the reason cited above relating to long term detrimental impact on trees. It appears that councillors disagreed with their professional officers as to the likely extent of pressure for pruning of the trees.
60. Furthermore, there was expert evidence before the Inspector from a consultant engaged by third party objectors. This consultant was Dr P.J. Biddle OBE MA DPhil FArborA: Application bundle page 74.
61. Dr Biddle's expert view is set out in two letters. The first is dated 17 August 2011: Application bundle page CB xxxvi. The second was a response to Mr Cromar's report dated 14 November 2011: Application bundle page CB xliv. Both were before the Inspector, having been sent with the questionnaire to the Claimant and the Planning Inspectorate.
62. The second letter specifically dealt with the question of shading by trees 1, 3 and 4 (i.e. the ash and the two sycamores about which the Inspector was concerned) in the light of Mr Cromar's report. It states that these trees have the potential to grow much larger than they are at present leading to "inevitable" demands for them to be cut back if the development is permitted. In the light of this, the conclusion in Mr Cromar's report that statutory controls would protect the trees from inappropriate pruning is described as "grossly misleading".
63. There was therefore expert evidence before the Inspector which clearly supported a finding that there would or might be harm to the trees in the long term.
64. Even if there had not been, however, that would not have rendered the decision unlawful. It is true that the Inspector was not an arboricultural expert. However, the conclusions in her decision letter are based on the future impact of the trees on residential amenity and the likely consequences of that impact. This is a matter of planning judgment as to what occupiers are likely to tolerate, a question well within the Inspector's expertise. She was accordingly entitled to find that there would be pressure for inappropriate works to the trees, and therefore an impact on the conservation area, even without the benefit of expert evidence.
65. This ground of challenge therefore does not disclose any error of law.

Ground 3(6)

The Inspector applied Policy 11 without any reference to the location of the site as being within a Conservation Area where special controls and considerations apply. That amounts to failure to take account of a material consideration.

66. Mr Powell also submitted that in relation to Policy 11 the Inspector misdirected herself given that the proposal does respect the general character of the Conservation Area albeit that it is different in this part of the Conservation Area where the special characteristics are not present. It does not retain trees on the basis of the evidence available and it enhances the landscape in so far as that is capable within the urban setting.
67. The Inspector applied Policy 11 (a general policy on the quality of development) alongside Policy 120 (relating specifically to Conservation Areas). In my judgment that was an entirely proper approach to take. This challenge amounts to a disagreement with the Inspector's findings. There is no error of law.

Ground 3(7)

The finding that the development is cramped is to ignore the fact that the proposal for the site reflects the development pattern of other similar terraced Victorian streets within the Conservation Area and there has been therefore a failure to take that material consideration into account.

68. In my judgment this is really no more than a disagreement with the Inspector's professional judgment that the development proposed would harm the character and appearance of the Conservation Area. For the reasons I have given under grounds 3(2) – 3(4) I reject this ground.

Conclusion

69. For these reasons the application is dismissed.