QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
In the matter of an application under section 288
of the Town and Country Planning Act 1990
| Holywell Property (St Albans) Limited
|- and -
|(1) Dacorum Borough Council
(2) The Secretary of State for Communities and Local Government
Cain Ormondroyd (instructed by The Treasury Solicitor) for the 2nd Defendant
Hearing date: 13 November 2013
Crown Copyright ©
His Honour Judge Birtles:
The factual background
"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.
The Inspector's decision
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.
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
"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."
"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."
"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
"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."
"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.
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.
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.
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.
Errors in relation to the garden length.
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.
"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.
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.
The Inspector's approach to the application within the Conservation Area was that it had to enhance the Conservation Area.
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.
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.
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.
Irrational conclusion in respect of long-term harm to trees; breach of natural justice
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.
"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."
"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."
"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."
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.
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.
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.