England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		17 June 2015

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.

1. At the heart of the challenges is the proper interpretation of the Town and Country Planning (General Permitted Development) Order 1995 as it applied to the construction of basements beneath residential properties.
2. Paragraph A.1(f) of Part 1 of Schedule 2 to the General Permitted Development Order ("GPDO") 1995 limited permitted development rights otherwise granted by Class A for the "enlargement, improvement or other alterations of a dwelling house".
3. I propose to structure this judgment to deal with the interpretation of the GPDO and then deal with the claim for judicial review. Before doing so, I would just like to record two preliminary matters.
4. First, I would like to record my gratitude to all counsel for the expeditious way in which they have dealt with all issues. The spirit of collaboration in what was referred to as issue 2 in particular is to be highly commended.
5. Second, the GPDO has been replaced by a revised version which came into effect on 15 April 2015. There is, however, I am told, no change in the wording of the material part relating to dwelling house enlargement, improvement or alterations.

The factual background

(1): CO/1323/1320, 6 Colbeck Mews

6. On 24 January 2013 the Second Defendant, Colbeck Properties Limited, sought to establish whether the excavation and formation of a single storey basement which extended beneath the entire footprint of an existing two storey dwelling house at 6 Colbeck Mews, SW7 4LX would benefit from permitted development rights under Class A of Part 1 of Schedule 2 of the GPDO 1995.
7. The basement was to be 3.2 metres in depth with no part extending beyond any part of the perimeter of the existing dwelling house. With the basement constructed, the existing house will have three storeys. There is no rear garden at 6 Colbeck Mews so that the development would be up to the rear wall of the dwelling house and rear boundary of the dwelling house.
8. In a delegated decision dated 17 January 2014, the Claimant refused the application for a Certificate of Lawful Use and Development on the basis that the enlarged part of the dwelling house would have more than one storey and be within 7 metres of the boundary of the curtilage opposite the rear wall of the dwelling house such that it failed to meet the criteria A.1(f)(ii) of the GPDO.
9. The Second Defendant appealed that decision. The Second Defendant referred to an earlier decision at 12 Colbeck Mews which the Claimant had determined in July 2012. That development had been described as a single storey basement level beneath the footprint of that house. It was to be 3.2 metres high with no part externally visible. The Claimant had determined that was within Class A.1 and issued a Certificate of Lawful Development.
10. The Claimant changed its interpretation of the GPDO in November 2013. Until then it had taken "the enlarged part of the dwelling house" to be only the basement and provided that was single storey held that was within permitted development provisions.
11. At the appeal the Claimant had argued that the term "more than one storey" applied to the dwelling house being enlarged through permitted development. In a decision letter dated 19 February 2015, the Inspector allowed the appeal and held at paragraphs 13 and 14:

"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."

12. In a separate decision letter of 19 February 2015, the Inspector awarded costs in favour of the Second Defendant and against the Claimant. That decision is the one which is the subject of the third challenge by way of judicial review in these combined proceedings.

(2): CO/740/2015: 85 Princes Gate Mews

13. On 24 January 2014 the Second and Third Defendants, Messrs C and G Hanbury, sought a Certificate of Lawful Development under section 191 of the Town and Country Planning Act to ascertain whether the excavation and formation of a single storey basement under an existing three storey dwelling house at 85 Princes Gate Mews, SW9 2PS would benefit from permitted development rights.
14. The proposed development was single storey and no part would extend beyond the perimeter of the existing dwelling house. When constructed, the dwelling house would have four storeys including the basement and would be some 5.4 metres away from the rear boundary of the curtilage of the dwelling house. Adjoining the property to the rear is the Royal College of Art.
15. The application was refused on 24 March 2014. The report for the delegated decision concluded that the proposed basement did not represent permitted development as it failed to meet criterion (f)(ii) of Schedule 2 Part 1 Class A.1 of the Town and Country Planning (General Permitted Development) (Amendment) (No 2) (England) Order 2008. It continued that the enlarged part of the dwelling house would have more than one storey and would be within 7 metres of the rear boundary of the site. The refusal was appealed.
16. On 8 January 2015 a decision letter was issued in which the Inspector allowed that appeal. The Inspector defined the main issue as being whether the Council's refusal to issue a Certificate of Lawful Development was well-founded. The Inspector held as follows:

"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)

17. Planning permission is required for the development of land: see the Town and Country Planning Act section 57(1). Development is defined in section 55 of the Town and Country Planning Act as meaning:

"The carrying out of building, engineering, mining or other operations in, on, over or under land..."

18. Section 58 of the Town and Country Planning Act provides that planning permission may be obtained two legal routes: (1) by development order and (2) by an application to the relevant Local Planning Authority.
19. Article 3(1) of the GPDO 1995, then the relevant GPDO, grants planning permission for classes of development described in Schedule 2 of the order. Within Schedule 2 is Class A of Part 1 which provides that development is permitted for "the enlargement, improvement or other alteration of a dwelling house".
20. That is subject to exclusions set out in paragraph A.1. The relevant part is paragraph (f), which reads:

"(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."

21. The 2008 (No 2) amendment made various changes to the GPDO, but none of materiality to the issues before the court beyond recording its existence. Therefore, I make no further reference to it.

Issues

22. The issues have been agreed as (1) whether the phrase "the enlarged part of the dwelling house would have more than one storey" in paragraph A.1(f) is referring to the dwelling house as enlarged by development, i.e. to include the original dwelling house, or whether it is referring to that part of the dwelling house permission for which is given by Class A of the GPDO.
23. (2) Whether the phrase "the enlarged part of the dwelling house would be within 7 metres of any boundary of the curtilage of the dwelling house opposite the rear wall of the dwelling house" is referring to the dwelling house being developed, i.e. the application dwelling house, or to another dwelling house opposite the dwelling house being developed.
24. (3) Whether, notwithstanding any error in either Inspector's reasoning in the appeals, the Inspectors' decisions to grant Lawful Development Certificates in both cases should be upheld.

Issue 1

25. The Claimant submits that the Inspectors' reasoning in both decision letters is flawed because the enlarged part of the development would be more than one storey and so engage the restrictions in paragraph A.1(f)(ii).
26. The ordinary and natural meaning of the words in the GPDO, it is submitted, mean that paragraph A.1(f) applies where the enlarged part of the dwelling house would have more than storey wherever rooms are added to the dwelling house in such a way that there would be an increase in the storeys of the application dwelling. It makes no difference for this purpose whether the rooms added are above or below ground level.
27. The Claimant contends that the Inspectors' reasoning is strained and incorrect for the following reasons.
28. (1) The construction of a basement adds a storey to a dwelling house. There is nothing to suggest that the words of paragraph A.1(f) should not apply to storeys constructed below ground or that there should be any distinction between storeys constructed above or below ground level.
29. (2) A two storey above ground extension adjacent to the three storey dwelling would not engage, on the Inspector's interpretation, the limitations of paragraph A.1f(i) because the overall height of the dwelling house would not have increased even though the enlarged part of the development would plainly have been more than one storey.
30. (3) When the drafting of the Class is considered as a whole, the only sensible interpretation is that the draftsman intended a distinction between the words "the enlarged part" used in (f) and "it" used elsewhere within Class A. "It", it is submitted, refers to the development permitted by the GPDO and, therefore, "enlarged part" refers to something else. It is inconceivable that the draftsman would have used them to mean the same. Further, the Claimant's interpretation is sensible as it will catch incremental extensions which the Defendant's interpretation does not.

Discussion and conclusions

31. Within paragraph A.1(f) the draftsman has drawn a distinction between "the enlarged part of the dwelling house" and the "original dwelling house". That has clearly been done with a purpose and, in my judgment, is to clarify the interpretation of the paragraph.
32. They refer to two different things. The "enlarged part" is referring to the development permitted under the GPDO. The "original dwelling house" is the dwelling house as defined in accordance with Article 1 of the GPDO. "Original" is defined in Article 1 of the GPDO:

"'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."

33. The Claimant's submission that "enlarged part" incorporates the original is artificial and, in my judgment, offends the natural language used in Class A.1(f).
34. Further, when Class A is read as a whole it is clear that "it" refers either to the subject immediately preceding, i.e. the enlarged part of the dwelling house, or back to the opening words "development is not permitted by Class A1(f).
35. The purpose of the GPDO is to compare what is proposed with what existed prior to the proposal to ascertain whether the exceptions are engaged. That is why it is important to have a definition of the "original" under Article 1.
36. The Claimant contends that such an approach will not catch "piggybacking" or incremental development. I reject that submission. Article A.1(f) is dealing with the enlargement or alterations to the original dwelling house. Each step of incremental development has, therefore, to be judged against that baseline so that incremental development is caught each time it is proposed.
37. I accept the submissions of the Defendant that "part" cannot be characterised as meaning the whole of the dwelling house as enlarged. The original dwelling house and the enlarged part of the house may combine to make a dwelling house as enlarged, but they are two separate components. That interpretation has the advantage of being both straightforward and consistent with the language used.
38. The Claimant refers in its statement of facts and grounds to another decision letter which supports its interpretation and shows that decisions on the part of Inspectors have not been consistent. Whatever may have been the position, that other decision letter is clearly not determinative of the legal position.
39. The first question to be asked then in these cases was whether the enlarged part of the dwelling house once built would have more than one storey. The answer to that in both appeals, as the Defendant submits, is no. In both instances what was to be constructed was a single storey basement of 3.2 metres in depth. There is no distinction to be drawn, I accept, between storeys above or below ground.
40. The result is that what is proposed does not fall foul of A.1(f). The subsequent criteria in (f)(i) and (f)(ii) do not arise, therefore, in either appeal as a matter of statutory interpretation.
41. The Claimant changed its interpretation from that which I have set out above in November 2013. Previously it had adopted the interpretation which I have found to be correct. Their later interpretation, which is the effect that a decision maker has to consider is that the enlarged dwelling house is the same as the enlarged part of a dwelling house, is, in my judgment, entirely artificial.
42. The example which the Claimant gives in paragraph 34 of its skeleton is not on the point at all. It is dealing with a two storey extension, which both developments concerned here are not, but on the premise that the enlarged part of the dwelling house is synonymous with the enlarged dwelling house, thereby failing to draw the very distinction that the careful wording of the paragraph requires.
43. On the Claimant's approach, it is not clear whether the "enlarged part of the dwelling house" has any meaning at all, in contrast with the Defendant's submissions with which I agree.
44. The words of paragraph A.1(f) look to what has been enlarged on each occasion as a result of the planning permission granted under the GPDO. If a decision maker were to be dealing with a series of sequential and incremental developments, therefore, each one would be caught.
45. It follows that the "enlarged part of the dwelling house" is referring solely to that which is the subject of permission granted under the development order. The first issue, therefore, I determine in favour of the Defendants.

Issue 2

46. Whether the phrase in A.1(f)(ii) when it refers to the enlarged part of the dwelling house to be within 7 metres of any boundary of the curtilage of the dwelling house is referring to the application dwelling house or another dwelling house opposite the dwelling house which is being developed.
47. This issue does not arise in CO/1320/2015, namely Colbeck Mews.
48. In CO/740/2015, Princes Gate, the Inspector in his decision letter read the words as referring to the distance between the application property and another property to the rear of it. As there was no dwelling house within 7 metres of the application property, the Inspector concluded that the requirement of A.1(f)(ii) was not satisfied.
49. The Defendant does not seek to uphold the Inspector's decision on that conclusion. The Defendant says, very candidly, that the Inspector's decision on that aspect is incorrect.
50. What paragraph A.1(f)(ii) is considering is the distance between the rear wall of the application property and the boundary of the curtilage of the application property. The distance to another property, or even its existence, is irrelevant. On that aspect, therefore, the Defendant agrees with the Claimant that the words in A.1(f)(ii) aim to restrict development by reference to the boundary of the application property rather than the boundary of any dwelling house opposite.
51. Although technical guidance which has been issued takes a contrary view, the Defendant submits that that is in error.

Discussion and conclusions

52. The starting point is the ordinary meaning of the words used. There is no distinction between "dwelling house" used in A.1(f)(ii) when referring to the curtilage, nor "dwelling house" when reference is made to opposite the rear wall.
53. Had it been intended to refer to another dwelling house other than the one the subject of the application, the draftsman could have said so. He did not. Accordingly, there is nothing in the plain and ordinary use of the words used to suggest any reference to two separate dwelling houses.
54. Considering the other permissible material then. When the GPDO was revised in 2008, an explanatory memorandum was published. Changes contained in that had been set out in a White Paper in 2007, "Plans For a Sustainable Future", followed by a consultation paper entitled "Changes to Permitted Development, Consultation Paper 2: Permitted Development Rights for Householders".
55. The explanatory memorandum provides at paragraph 7.8 as follows:

"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."

56. In the annex to the explanatory memorandum, under the heading "A summary of the limits and conditions" changes are listed, one of which is two storey extensions no closer than 7 metres of the rear boundary. There is no reference to the curtilage of the dwelling house opposite within either the explanatory memorandum or its annex. Indeed, the annex is explicit that the change being introduced was to ensure that two storey extensions were no closer than 7 metres to the rear boundary of the application property.
57. It is clear then that the 2008 Order, as the 1995 Order before it, sought to control impacts without reference to neighbouring properties precisely because that had the advantage of avoiding measurements to those adjoining properties. What was being pursued, therefore, was the introduction of a simpler system.
58. It follows that the reference to 7 metres distance from the extension to the curtilage boundary is a reference to the measurement from the application dwelling house rather than to or from any other neighbouring dwelling house.
59. Technical guidance is not statutory guidance, but it is clear, in my judgment, that on analysis, in this aspect its reference to measurements from the house opposite are wrong.
60. I see, in the circumstances, no need to grant a declaration that that is the effect of the wording in A.1(f)(ii). This judgment should provide sufficient guidance.
61. That leads to issue 3.

Issue 3

62. The Defendant submits that it is well-established that if the Secretary of State can demonstrate the Inspector's decision would have been the same despite some mistake in the Inspector's reasoning process then relief should be refused.
63. He relies upon the well-known case of Simplex GE (Holdings) v Secretary of State for the Environment [1989] 57 C & PR 306 at 322 and R (Smith) v North East Derbyshire PCT [2006] 1 WLR 3315 at 3321A.
64. That, it is submitted, is the position here because the delegated officer report in both claims records that all other relevant conditions of Class A of the GPDO were satisfied. It follows that the grant of the Lawful Development Certificate was inevitable and the errors in the Inspector's decision letter are immaterial.
65. The Claimant makes no substantive submissions in relation to this issue. In conclusion, I agree with the arguments and submissions of the Defendant precisely for the reasons which are the subject of those submissions.
66. I turn then to deal with the claim for judicial review of the costs decision in the Colbeck Mews appeal.
67. Despite elegant submissions from Mr Lowe QC, counsel for the Claimant, I regard this challenge as straightforward. The Defendant has succeeded in the interpretation of "enlarged part".
68. In the case of Colbeck Mews, there was a material error in the interpretation of the remaining words of A.1(f)(ii). The Inspector did not need to embark upon the consideration of the balance of the paragraph given his finding and he did not do so.
69. The question then is whether the award of costs against the Claimant was so unreasonable as to be the subject of challenge on judicial review principles.
70. By reason of his conclusion in the separate costs decision letter, the Inspector accepted that the Claimant was entitled to change his mind, as indeed it was, about the interpretation of the GPDO. But he was concerned and recorded his concerns that such a course had been followed without any consultation and had been undertaken unilaterally. He was surprised that the changed approach of the Claimant was not subjected to wider scrutiny before being adopted.
71. He continued as follows:

"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."

72. In the circumstances, I can find no error in the Inspector's reasoning as set out. He provided reasons for finding the Claimant's conduct was unreasonable by reference to the appropriate guidance on the award of costs. His decision, therefore, cannot be faulted.
73. In the circumstances, I would have granted permission to the Claimant to bring judicial review proceedings in this matter but dismissed the substantive application for the reasons that I have set out.

75. MR COPPEL: Very grateful, my Lady.

74. Could I then ask formally for both claims under section 288 to be dismissed and the judicial review to be dismissed?
75. Could I also ask your Ladyship to order that the Claimant pay the Defendant's costs in three proceedings? Your Ladyship should have a --

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.

76. So what is the subtracted figure?

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.

77. But looking at page 3, your Ladyship sees that the attendance is given on each as 6, supposing that it runs for two days.

88. MRS JUSTICE PATTERSON: Yes.

89. MR COPPEL: So I suggest we strike off one of those and subtract.

78. I am told it is on the basis of one and a half days, but in any event, we have been short even on one day. So I think it fair for one of those 960 figures to be struck out.
79. I will need to turn round and ask, if I might be excused, my Lady.

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.

80. I would just like to ask the court's indulgence just to consider whether in these particular circumstances I should bear the whole of the Defendant's costs.

97. MRS JUSTICE PATTERSON: Yes.

98. MR LOWE: I say that for a number of reasons.

81. Firstly, I have succeeded on the ground 2.

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.

82. It was not until the submission of their skeleton last Friday that we were aware of that. I am grateful for it, very realistic. But it nevertheless should not be reflected, we suggest, in the order for costs.
83. Secondly, because they have at the same time indicated their intention not to support either decision by reference to the decisions reached by the Inspectors, but, for the reasons that have been advanced before my Lady, will not find the reasoning, given as advanced in my learned friend's skeleton, in either of those decisions as being the reasoning that persuaded either Inspector to reach the conclusions that they did.
84. Finally, I would hope that authorities struggling in this area are given a little sympathy, having regard to the fact that there have been acknowledged difficulties since 2008 and yet no guidance on Class has ever been published by the Defendants.

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.

(A short adjournment)

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.

85. So the order will be that all claims are dismissed. The Claimant to pay the Defendant's costs summarily assessed in the sum of £18,000.
86. Now, who is going to draw up the order?

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.