QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|ROYAL BOROUGH OF KENSINGTON AND CHELSEA||Claimant|
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT||Defendant|
WordWave International Ltd (a Merrill Corporation Company)
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Mr P Coppel QC and Mr R Kohli (instructed by GLD) appeared on behalf of the Defendant
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1. MRS JUSTICE PATTERSON: There are three claims before the court. Two are brought under section 288 of the Town and Country Planning Act and the third is claim for judicial review of a decision of costs in respect of one of those claims. That is listed for a rolled up hearing.
The factual background
(1): CO/1323/1320, 6 Colbeck Mews
"13. In this instance the basement would increase the number of storeys within the building, as the Council contend, but not in a manner which the GPDO provisions seek to address through that element of control. The overall height of the dwellinghouse, as enlarged, would be no different in relation to neighbouring properties than the existing building. Consequently, I conclude that the interpretation adopted by the Council is incorrect as it applies to this case.
14. Since I have concluded that the proposed basement would not have more than one storey, the further limitation contained in paragraph A.1(f)(ii) which is also relied upon by the Council, namely that it would be within 7m of any boundary does not fall to be considered."
(2): CO/740/2015: 85 Princes Gate Mews
"6. Therefore, although the proposed basement would result in development comprising more than one storey, as referred to in A.1(f), it would not be within 7 metres of any boundary of the curtilage of the dwellinghouse opposite the rear wall as this adjoining property is not a dwellinghouse but is part of the institutional use of the Royal College of Art.
7. The Council says that the enlarged part of the dwellinghouse would be within 7 metres of the boundary of the application dwellinghouse opposite the rear wall of the application dwellinghouse. That is, that the dwellinghouse referred to is the appeal site itself. However, this interpretation relies on inserting the words I have put in italic above and these simply do not exist in the GPDO and the words that are used in the Order must be given their ordinary meaning. Further, in the part of the TG relevant to Class A and the conditions specified in A.1, the guidance says that the enlarged part of the house "must be a minimum of seven metres away from the boundary of the land surrounding any house opposite". The accompanying diagrams on page 19 of the TG indicate that it is the boundary of the land surrounding 'any house opposite' that is critical and not just the distance of the enlarge part of the dwellinghouse to the boundary.
8. Overall, in the specific circumstances of this site, I find that the limitation in A.1(f) does not apply, as although the enlarged part of the dwellinghouse would have more than one storey, it would not be within 7 metres of the boundary of the curtilage of a dwellinghouse opposite the rear wall of the dwelling house as there is no dwellinghouse in that position. The work in forming the basement as proposed therefore satisfies the terms of PD set out in Class A."
GPDO 1995 and 2008 (No 2) (Amendment)
"The carrying out of building, engineering, mining or other operations in, on, over or under land..."
"(f) Subject to paragraph (g), the enlarged part of the dwellinghouse would have a single storey and -
(i) extend beyond the rear wall of the original dwellinghouse by more than 4 metres in the case of a detached dwellinghouse, or 3 metres in the case of any other dwellinghouse, or
(ii) exceed 4 metres in height."
Discussion and conclusions
"'Original' means, in relation to a building existing on 1st July 1948, as existing on that date and, in relation to a building built on or after 1st July 1948, as so built."
Discussion and conclusions
"The consultation proposed that the volume allowance for rear extensions should be replaced with limits on how far an extension could extend from the rear wall of the property."
"6. The Council contends that the determination of the application merely represents its opinion on the matter. This is correct. However, when the Council has changed its approach and diverged from that adopted by other Council's [sic], that must call into question whether such a change was reasonable without due precautions.
7. The Council have not indicated any clear cause for this change in approach to the interpretation of the GPDO, save for a point of consistency, which is not entirely clear, and which, in my appeal decision, I have not accepted for reasons given there.
8. For the above reasons I find the Council's change of course to be inconsistent with its own former actions, those currently adopted by other Council's [sic], and unsupported by any legal authority or appeal determination. Accordingly, I find the action to constitute unreasonable behaviour as defined in guidance. That action resulted in an appeal to achieve a decision which, until recently, would have been the same one as the Council would have arrived at. The process has incurred the Appellant in unnecessary and wasted expense. Accordingly, the application for a full award of costs succeeds."
75. MR COPPEL: Very grateful, my Lady.
78. MRS JUSTICE PATTERSON: I have, Mr Coppel, but what I was not sure upon in the costs schedule was whether this was on the basis of this hearing taking a day or whether it was based, because it is headed, on two days --
79. MR COPPEL: It is.
80. MRS JUSTICE PATTERSON: -- as it was originally listed.
81. MR COPPEL: A subtraction needs to be made --
82. MRS JUSTICE PATTERSON: Right.
83. MR COPPEL: -- from the figures there to reflect the fact that we have been so economic.
84. MRS JUSTICE PATTERSON: Yes. Absolutely commendable.
86. MR COPPEL: I will just double check, but your Ladyship will see that there are two schedules, one for each case. They approximately come to the same figure.
88. MRS JUSTICE PATTERSON: Yes.
89. MR COPPEL: So I suggest we strike off one of those and subtract.
92. MRS JUSTICE PATTERSON: Yes, of course do.
93. MR LOWE: I am quite happy to leave the matter to my friend and his learned junior. I am sure we can agree them. I do not see --
94. MRS JUSTICE PATTERSON: Well, if you are happy with that, Mr Lowe, that is very good. I just did not want to ask you for your position until you knew what their final figure was. But if you are content you can agree it outside court, then --
95. MR LOWE: I am sure it should not take us a moment.
97. MRS JUSTICE PATTERSON: Yes.
98. MR LOWE: I say that for a number of reasons.
100. MRS JUSTICE PATTERSON: You have.
101. MR LOWE: Ground 2 was, from the skeletons, the lengthier point --
102. MRS JUSTICE PATTERSON: The lengthier.
103. MR LOWE: -- certainly on the amount of paper it took up. I am sure it is the large part of the reason why this has been listed originally for one and a half days.
107. MRS JUSTICE PATTERSON: Right. So you said you might need to turn and take instructions. Perhaps you would like to do that so I know your position on costs. You are seeking some proportion of reduction.
108. MR LOWE: I am seeking appropriate reduction --
109. MRS JUSTICE PATTERSON: Yes.
110. MR LOWE: -- in terms of a proportion, my Lady.
111. MRS JUSTICE PATTERSON: Yes, I know, but you know I am going to ask you what sort of proportion.
112. MR LOWE: My Lady, right.
113. MR COPPEL: Well, my Lady, while my learned friend does that, I wonder if we could have a little bit of time outside before your Ladyship returns. It may be that we come up with a single figure which reflects what my learned friend has just said as well as does something about the fact that we have managed to complete it in less time that it had been listed for and save your Ladyship the difficulty of grappling with percentages.
114. MRS JUSTICE PATTERSON: Well, like you I was optimistic there might be an agreed percentage. But if you feel that time is going to be more fruitful, if I rise and give you five minutes --
115. MR COPPEL: I think it might be.
116. MRS JUSTICE PATTERSON: -- then I am very happy to do that.
117. MR COPPEL: I think it might.
118. MRS JUSTICE PATTERSON: Right.
119. MR COPPEL: We have managed to agree more difficult things than this in these proceedings.
120. MRS JUSTICE PATTERSON: Yes, all right. Let us do that then.
121. MR COPPEL: I am very grateful.
122. MRS JUSTICE PATTERSON: I will come back at a quarter past.
123. MR COPPEL: My Lady, I am happy to tell you that we have reached agreement; summarily assessed in the sum of £18,000.
124. MRS JUSTICE PATTERSON: Yes, right. Thank you both very much for that.
127. MR COPPEL: My junior is.
128. MRS JUSTICE PATTERSON: I am told that your junior is saved, Mr Coppel. The associate is offering to draw it up.
129. MR COPPEL: My junior is grateful.
130. MRS JUSTICE PATTERSON: Thank you all very much.
131. MR LOWE: Thank you, my Lady.