England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		14 January 2015

1. THE DEPUTY JUDGE: There is land at the rear of numbers 111-112 Axminster Road, London N7, on which the third defendant, Commodore Homes Ltd, proposed to build a two storey dwelling, one of the storeys being at basement level. Axminster Road is a residential street and, of great importance to the present proceedings, in the street close to the proposed development site is a tree. It is a maple about 14 metres high and with a canopy spread of about 6 metres in all directions.
2. Commodore Homes made an application for planning permission for the proposed development on 18 September 2012. The local planning authority, Islington Borough Council failed to determine it within the time allowed and the developer then appealed to the planning inspector against that failure. The Council prepared a deemed reason for refusal in which it indicated that the development would have been refused solely on the basis of the effect on the tree.
3. The planning inspector made a site visit on 6 May 2014 but determined the appeal by the written representations process. He allowed the appeal in a decision dated 13 June 2014 granting planning permission subject to conditions. The claimant, Mrs Fuller, now challenges the appeal decision under section 288 of the Town and Country Planning Act 1990 (as amended).
4. The constraints on such a challenge are well established. A challenge under section 288 is not an opportunity to re-argue the merits of the matter raised before the inspector, nor is a challenge under section 288 an opportunity to raise matters which were not raised before the inspector but could have been. Section 288 provides an opportunity for parties and other people affected by a planning decision to raise a challenge based on ordinary public law grounds, bearing in mind, however, also that matters of planning judgement are for the inspector alone and the court will not interfere with them, and that the inspector has had the opportunity to make a site visit in which he will have reached views which do not necessarily appear from the evidence before him. Subject to that, the question is whether the decision made the inspector was a lawful response to the material and arguments before him. In asking and answering that question the court does not treat the decision letter as though it were a statute needing to be interpreted word by word in a precise fashion, nor as though it were a response to an exam paper, needing to set out everything from first principles. On the contrary, it is a response by an expert tribunal to matters put to him and is addressed to the parties and others who take part in the process on the basis that they know what the issues were; and that all that is therefore required in principle is a decision which, as well as being lawful, gives them reasons which are capable of being understood for the conclusions that the inspector has reached.
5. The present application, as indeed the appeal to the inspector by the third defendant, depends crucially on the application of the Council's policy in relation to open spaces and green infrastructure. The strategic policy is policy CS15 which indicates that all existing local open spaces, including open spaces of heritage value, as well as incidental green space, trees and private gardens, are to be protected. The detailed policy is contained in policy DM6.5. The relevant parts of it for the purposes of the appeal and this challenge are as follows, DM6.5B:

"Trees shrubs and other vegetation of landscape and or environmental significance must be considered holistically as part of the landscape plan. The following requirements shall be adhered to:

i) Developments are required to minimise any impacts on trees, shrubs and other significant vegetation. Any loss of or damage to trees, or adverse effects on their growing conditions, will only be permitted where there are over-riding planning benefits, must be agreed with the council and suitably reprovided."

I do not need to read the rest of that policy.

6. The policy was, of course, cited to the inspector and it is clear from his decision letter that he was aware of it. In the letter, after setting out the basic background, he wrote the following at paragraph 3:

"Main Issue

The Council failed to determine the application within the prescribed period but has drafted a deemed reason for refusal. On the basis of this I consider that the main issue in the appeal is the effect of the proposed development on the health and survival of the street tree in Windsor Road close to the site."

7. In the subsequent paragraphs he sets out both references to policy CS15 and policy DM6.5. He indicates that he observed that the tree had a noticeable amenity value and set out the various views of the Council and the appellant before him, the developer, about the effect on the tree which would be caused by the development. At paragraph 8 he wrote this:

"8. In this situation, where there is a conflict of evidence between qualified and experienced professionals, I am disinclined to accept one version to the exclusion of the other where uncertainties inevitably remain on both sides because of the practical difficulties in establishing the true position. That said, I take the view that because policy DM6.5 comprises a relative, albeit important, constraint on harm to trees rather than an absolute preclusion of any damage or loss, the correct planning judgement in this case should be made 'in the round' and informed by pragmatism rather than principle.

9. As I have indicated above, the tree clearly provides amenity value to residents and in all probability passers-by. However there is no suggestion that it is an outstanding individual specimen of a maple or that it is in any other way unique. Furthermore, in my view the appeal scheme comprises a planning benefit in the form of an additional dwelling of good design in a sustainable location, which is capable of over-riding harm in the manner anticipated in Policy DM6. In this context I note that the Council has effectively accepted through its officers' appraisals and just the single deemed refusal reason that the proposal complies with all other aspects of the development plan and the National Planning Policy Framework 2012. This was indicated by an initial recommendation of the officers for approval.

10. My view of the appropriate approach to the appeal application does not alter the principle that every effort should be made to ensure that any potential harm to the tree is identified at the earliest opportunity. Similarly, I consider it essential that the appeal scheme is undertaken in a way that both limits the harm and introduces mitigation measures that take into account both the short and the long term implications for the tree's health and survival."

He goes on in that paragraph and the next to elaborate on the condition which he has decided should be imposed in relation to the tree. That is a condition which precludes commencement of the development until an Arboricultural Method Assessment (AMA) has been agreed between the appellant and the Council.

8. The condition which is scheduled to the decision letter indicates that a number of matters will need to be contained in the AMA or Arboricultural Method Statement (AMS) and that amongst them will be the possibility of replacement of the tree if it becomes unviable.
9. At paragraph 12, the inspector writes this:

"Provided that permission is subject to this condition and other conditions suggested by the Council I consider that the development would not be in harmful conflict with Policies CS15 and DM6.5. This is on the basis that although the principle of the dwelling on the site is acceptable, the safeguarding of the health and survival of the tree during and after its construction would still be of the highest priority."

10. The inspector then went on to deal with a number of other matters which had been raised by the claimant and other residents. In relation to that he wrote this:

"13. In my appraisal of this appeal I have also given careful consideration to a number of concerns raised by local residents, including in a petition with a large number of signatories. Amongst other matters these concerns relate to the loss of garden land, the effect on the character and appearance of the area, the effect on immediately adjoining properties, the design of the building and daylight and sunlight.

14. However, from all that I have seen and read, including written officer appraisals, the documents relating to the previous applications on the site, and the Council's evidence in this appeal, I am satisfied that there are insufficient grounds in respect of the current scheme to withhold permission on any of the matters raised, subject to the development being carefully regulated by a number of conditions."

The rest of the paragraphs of the decision letter relate to the other conditions apart from that relating to the AMA which the inspector imposed.

11. In challenging that letter as a lawful response to the material before him and the task which the inspector had to undertake, Mr Comyn's principal argument on behalf of the claimant is simply that the inspector was not entitled to fail to determine what the effect on the tree would be. The inspector had, in Mr Comyn's submission, correctly indicated (but, whether correctly or not, he had indicated that from his point of view) 'the main issue in the appeal' -- those were his words -- is the effect of the proposed development on the health and survival of the street tree. If that was the main issue in the appeal, the inspector was not entitled to decline to decide it but instead to substitute the imposition of a condition which would enable the Council in the end to make its determination as to whether the development should proceed.
12. In support of his submission on that point, Mr Comyn cites in particular Christchurch Borough Council v Secretary of State for the Environment [1994] 68 P&CR 116. That was a case in which, in the judgment of the Court of Appeal, although the inspector's duty was to decide whether the application should be granted or refused on the basis of the evidence before him, he had failed to complete his task because it was crucial for those who were dealing with the site in question to know whether there would continue to be formal or informal free access by members of the public to the site. Thus there was, as well as the primary task which the inspector had to perform a secondary task which he was not only expected to perform but which was a crucial feature of the decision which he had to make.
13. I have not found the citation of the Christchurch case particularly helpful in assessing Mr Comyn's submissions. The reason for that is this. The present decision letter, the decision letter under challenge, is not a decision letter that fails to make a decision about the evidence in relation to the tree, nor, obviously, does it forget to make a decision about the evidence in relation to the tree. It makes a decision about it. The decision is that no decision needs to be made. That, it seems to me, is capable of being a proper approach by the inspector to evidence of the sort that he describes in paragraph 8 of the decision.
14. Clearly, if the matter needed to be decided in order for the inspector to perform his primary task of deciding whether planning permission should be granted, then it would be a failure, and a challengeable failure, not to make that decision. But it does not seem to me to follow from the inspector's identification of the issue as the main one in relation to which the parties were in dispute that he necessarily needed to decide it in order to perform his primary function of deciding whether planning permission should be granted.
15. What he needed to do, as he recognised, and as the parties before me have recognised, was to determine the extent to which planning permission should be granted, bearing in mind policy DM6.5. DM6.5 has a number of elements. The first part of the extract which I have already cited indicates that trees and other landscape features have to be considered holistically as part of the landscape plan. The requirement which follows is a requirement to minimise any impact on trees, shrubs and other significant vegetation. There is then a further requirement that any loss of or damage to trees will only be permitted where there are overriding planning benefits.
16. There is a general statement of the importance to the landscape and townscape of trees. There is a requirement to minimise any damage and there is an indication of the conditions under which development will be permitted if damage is going to occur.
17. The inspector's decision in relation to the tree was, as I have indicated, that sufficient protection was provided by the imposition of a condition, but that, as Mr Comyn points out, is going to the end of the question rather than the beginning because the condition would only be imposed if planning permission were being granted, and planning permission only could be granted if the inspector had reached the view that the planning benefits of the proposal overrode any loss or damage to the tree.
18. The question then is whether the inspector did undertake the balancing task that policy DM6.5 required. I have to say that I have not found that question an entirely easy one to answer but, applying the principles which I have set out, bearing in mind that the inspector is to be regarded as an expert tribunal reaching his view on the material before him and bearing in mind also that it is perfectly clear that the inspector had at the front of his mind, all the time he was drafting his decision, policy DM6.5 and its terms, I have concluded that it is right to say, as the defendants say, that paragraph 9 contains the assessment of the question posed by the policy.
19. At the beginning of paragraph 9, the inspector indicates again that the tree has an amenity value. He goes on to say that it is not an outstanding specimen or in any other way unique. That would be a factor which would only be of relevance if he was weighing the value of the tree and possible damage to it and the value of the development. He goes on to say furthermore the appeal scheme comprises a planning benefit in the form of an additional dwelling of good design in a sustainable location. That is a planning benefit that he describes as capable overriding harm in the manner anticipated in policy DM6.5. And by the time that he begins paragraph 10, it is clear that the decision has been made because paragraph 10 is the introduction to the treatment of the condition which is only applicable if permission is being granted.
20. What he has done in paragraph 9 in my view, (although, as Ms Sheikh QC in particular readily admitted it could have been more clearly expressed) is to indicate that there is a planning benefit and he must be read as having concluded that it would override any harm. Save with that interpretation the inspector's processes, and in particular his references to the policy, make no sense at all, and I see no basis for deliberately reading his words as making no sense at all when sense can be attributed to them.
21. It is clear from the terms of the condition that the inspector did envisage the possibility that replanting would be necessary, that is to say that the tree would be lost and have to be replaced. And it follows from that that the inspector's conclusion overall was that the tree, albeit of importance as a tree, was not of such importance that its continued existence would not be outweighed by the planning benefit of the development proposed.
22. The inspector's decision needs to be read as a whole, and when it is read as a whole, one sees that he is attempting to decide first of all the extent to which he needs to make a decision in relation to the evidence about the future of tree, then looking to see whether in any event the tree is one the continued existence of which ought to be allowed to prevent the development, and then going on to conclude, in the words "My view of the appropriate approach to the appeal application does not alter the principle" and so on, that what he should do is give proper value to the continued health of the tree so far as possible by means of the condition whilst nevertheless recognising that the benefit of the development overrides the importance of this amenity tree.
23. For those reasons the principal challenge to the decision must fail. The inspector was not obliged to make a decision in relation to the harm to the tree. He had decided that he did not need to make a decision because of the approach that he took to the application as a whole; and in taking the approach that he did to take to the application as a whole he clearly took into account the policy and, in paragraph 9 in particular of the decision letter, must be taken to have applied it. His conclusion therefore was that the benefit of the development was one which overrode any loss of or damage to this tree but nevertheless also took the view that it would not be right to stop there but that because of the requirement to minimise any impact on trees the condition should be imposed so that from the earliest possible stage any prospective damage to the tree could be identified and mitigated.
24. Mr Comyn also raised a submission that in paragraph 9 of the decision letter the inspector had done something that he was not entitled to do, which was to impose an additional requirement on a tree before it fell within policy DM6.5. The submission was that the words used by the inspector almost indicated that he thought that as the tree was not one which was suitable for preservation in its own right, it did not fall to be counted as a tree within the policy at all. That submission appears to me to be simply wrong. The inspector was indicating his view of the positive qualities of the tree: it has amenity value but that is, broadly speaking, all. It is not a particularly special maple tree. If it had been, that would have been a further factor to take into account against the development. That it is not, is a further factor to take into account in favour of the development. No proper criticism can be offered of the inspector's treatment of the qualities of the tree in the context in which he referred to them.
25. It follows also that I reject Mr Comyn's submission that the inspector had, as he put it in his written skeleton, found that the policy only applied to trees that were either outstanding specimens or unique. That is not what the inspector was doing. His description of the tree is as clear evidence as there could be of his undertaking a balancing process.
26. Mr Comyn also raised as a ground of challenge that the inspector was not entitled to impose conditions unless they were clearly necessary and relevant to the planning and to the development to be permitted: "enforceable, precise and reasonable in all other respects". That is a quotation from the guidance on imposing conditions contained in the National Planning Policy Framework in the section after paragraph 206.
27. Mr Comyn's principal submission on this was that as the inspector did not know and had declined to decide whether the tree would survive at all it was inappropriate to make conditions relating to its health. But that is to fail to appreciate the richness either of the policy itself or of the inspector's decision. The policy does not only provide a condition under which only development will be permitted: it also requires that any impact is minimised. The inspector, whilst recognising that in the application of the policy the development could be permitted, recognised also the need to minimise the impact upon the tree. Thus it appears to me that the condition was wholly necessary in the light of the policy requirement to minimise damage, clearly relevant to the development in question, and nobody has suggested that it was not enforceable or precise or, save as otherwise criticised, reasonable.
28. I turn then to the final ground of challenge. The final ground is that paragraphs 13 and 14, which I have already cited, are simply not sufficient as a response to the members of the public, neighbours and otherwise, who had made extensive submissions and done extensive work in order to oppose this application for the benefit, no doubt partly of themselves, but also of the general community sense and environment. I am conscious that there are a number of them in court today. The submission is that the reference to their submissions under a number of heads and the wholesale rejection of them, in the words used by the inspector, was unlawful. It leaves those who made those submissions unclear about the reasons for which the inspector reached his view on them. Mr Comyn elaborated that argument with reference to some of the evidence provided, in particular by Mr Fuller, in relation to the tree, in which he criticised the methodology of the investigation undertaken by the developer.
29. It may well be that the inspector could have spent more time dealing with the concerns of local residents. It might even be thought that his dealing with them so curtly was impolite. But I am not persuaded that it was unlawful. He mentioned that he had given consideration to the concerns including those which he listed. He said that he had seen and read a great deal of material on them. The reason that he gave for rejecting them as relevant to the consideration which he was doing was simply that he was satisfied that there were insufficient grounds to withhold permission on any of the matters raised. That is a lawful, albeit brief, response. There is no reason to suppose that he failed to have regard to everything that was before him. The reasons that he gave for rejecting the various submissions is, are, as I say, adequate, albeit brief.
30. So far as the additional factors referred to by Mr Comyn in particular in relation to the evidence about the tree are concerned, it does seem to me that the question relating to that evidence is wholly subsumed in his treatment of the question relating more generally to the tree. If he had purported to decide the health and future of the tree without taking into account all the evidence before him, that, no doubt, would have been a matter on which he could properly have been challenged. But as he had decided that the evidence did not permit him properly to make a decision, but that instead the appropriate way forward was by the condition he imposed, it seems to me that the presence or absence of any further evidence about the tree and its future was simply beside the point. It made no difference at all to the matters which he determined and which he determined that he had to determine.
31. For those reasons all the grounds of challenge to this decision letter fail, and there will be an order accordingly.
32. MR KOHLI: My Lord, I rise to ask for the costs of the Secretary of State in resisting this challenge. Those who instruct me are just making an alteration to the schedule, altering it lower than it was previously because I am attended not by my instructing solicitor but by her trainee, so the rate is just being amended.
33. THE DEPUTY JUDGE: While that is being done, Ms Sheikh, were you proposing to make any application?
34. MS SHEIKH: My Lord, much as I would like to, I am aware of the authority on the subject.
35. THE DEPUTY JUDGE: Thank you. Mr Comyn, can you resist an order for costs in principle?
36. MR COMYN: No. I am instructed I can't so I won't.
37. THE DEPUTY JUDGE: We will wait and see what the amount is then.
38. MR KOHLI: I do apologise, my Lord.
39. THE DEPUTY JUDGE: The principal amendment is on the top of page 3 and everything else follows through from that; is that right?
40. MR KOHLI: My Lord, yes.
41. MR COMYN: My Lord, we don't resist an order for costs in that sum.
42. THE DEPUTY JUDGE: Thank you very much. There will be an order that the claimant pays the costs of the first defendant summarily assessed at £5,322.
43. MR COMYN: My Lord, I have no application.
44. THE DEPUTY JUDGE: Thank you very much.