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
		1 March 2016

1. MRS JUSTICE PATTERSON: On 14 August 2015 the Inspector appointed by the Secretary of State for Communities & Local Government, the defendant, allowed an appeal by the second defendant against a decision by the claimant, the London Borough of Kensington & Chelsea, on 20 October 2014 to refuse planning permission for the excavation of a three-storey basement beneath a residential property and its back garden at 49 Cheyne Place, London, SW3 4HL. This is a challenge made under Section 288 of the Town and Country Planning Act 1990 ("TCPA") to that decision.
2. factual Background
3. 49 Cheyne Place is the home of the second defendant. The site has the benefit of two planning permissions previously granted on 26 June 2014 and 10 July 2014 for the excavation of a two-storey basement. Both of those planning permissions were granted before the adoption of Core Strategy Policy CL7. The application for a three-storey basement extension was considered by the Planning Applications Committee on the part of the claimant on 14 October 2014. The Officer Report recommended the grant of planning permission subject to the imposition of conditions. That recommendation was on the basis of compliance with the claimant's Development Plan Policies then in force. At that time the claimant was undertaking a partial review of its core strategy in relation to basement development. Policy CL7, which is the relevant policy, had been the subject of an examination in public which had completed on 24 September 2014. The application was refused by committee on the basis of non-compliance with the emerging Core Strategy Policy CL7.
4. On 2 December 2014 the Inspector's report from the examination in public into the partial review of the Core Strategy was issued which, subject to minor amendments, found Policy CL7 to be sound. Policy CL7 was adopted on 21 January 2015. It follows that when the appeal was being considered by the Inspector, Policy CL7 was the adopted policy within the Development Plan.
5. the Inspector's Decision Letter
6. The Inspector set out the main issues to the appeal in paragraph 5:

i. "5 The main issues in this appeal are, firstly, how the proposal sits with regard to relevant planning policies that govern basement development in the local area; and secondly, whether the proposed development would preserve or enhance the character or appearance of the Royal Hospital Conservation Area."

7. His reasons for his decision commenced at paragraph 6. Those most relevant to the issues before me are as follows:

i. "7 The Council has granted planning permissions for basement extensions at the site, the most recent of which was for a 2-storey basement and alterations with excavation to a depth of about 10.3-metres. For brevity, I shall refer to this as the approved scheme. From the evidence before me, the approved scheme could be implemented and is, therefore, a realistic fall back position against which the proposal should be assessed. The appeal scheme is similar to the approved scheme but with an additional storey and excavation to an additional depth of about 4.1-metres.

ii. .....

iii. 9 CS Policy CL7 deals with basements and is central to the objections raised by the Council and others. It is a criteria-based policy with which all basement developments are required to comply.

iv. 10 The supporting text to CS Policy CL7 explains that the construction of new basements has an impact on the quality of life, traffic management and living conditions of nearby residents. It notes that the excavation process can create noise and disturbance and the removal of spoil can involve a large number of vehicle movements. By placing restrictions on the size, position and depth of basements, amongst other things, the policy aims to strike a balance between achieving acceptable basement development and limiting adverse impacts.

v. .....

vi. 14 The supporting text to CS Policy CL7 indicates that a draft CTMP will be required to be submitted with the application and that, where planning permission is granted, a condition will be imposed requiring a full CTMP. I am therefore satisfied that this matter could be satisfactorily addressed by the imposition of a condition requiring the submission of a full CTMP. This approach appears to have been taken in relation to other recent appeal cases to which the appellant has referred.

vii. 15 With a CMTP in place there would be no material conflict with criteria k. and l. of CS Policy CS7. These criteria seek to ensure that traffic and construction activity do not cause unacceptable harm to highway safety, increase traffic congestion, unreasonably inconvenience others and to keep any noise, vibration and dust to acceptable levels."

8. The Inspector then considered Policy CL7 and criteria a., b. and c. in particular. He dealt with that in paragraphs 20 to 28:

i. "20 As the new basement would be located under the full extent of the rear courtyard, it would conflict with criterion (a) of CS Policy CL7. This criterion states that all such development should not exceed a maximum of 50% of each garden or open part of the site. Furthermore, it would comprise more than 1-storey and would add a further basement floor where there is an extant planning permission in place for a basement. Consequently, the proposal would also contravene CS Policy CL7 (b) and (c). The site is not large and so it would not qualify as an exception under criteria (a) and (b). In addition, the appeal scheme would not include at least 1-metre of topsoil on top of the new basement beneath a garden as required by criterion CS Policy CL7 (j).

ii. 21 Even so, there are several mitigating circumstances in this case. Firstly, the footprint of the new basement and its coverage of the rear courtyard would be the same as the approved scheme that also includes a part ground floor extension that would infill part of this rear outdoor space. There an extant permission in place that involves excavation to a significant depth on the site.

iii. 22 Secondly, the Council asserts that by digging deeper than the approved scheme, the proposal would excavate more soil that, in turn, would result in more noise, dust, vibration and general disturbance, longer construction periods and increased vehicle movements. However, there is no detailed evidence before me to support this opinion. While the volume of material to be excavated will be a factor, much depends on local circumstances and effective management of the construction process. I share the appellant's opinion that there is not necessarily a direct correlation between the volume of excavated soil and the disruption caused because a deeper basement on a small site could involve less disturbance tha[n] a shallower basement on a larger site.

iv. 23 In this case, the new basement would be predominantly under the existing dwelling with a relatively modest element beneath the small courtyard at a rear corner of the site. The appellant states that the method of construction and the sequence of the works for excavating to a greater depth would be the same as the approved scheme. The potential for additional disturbance could be managed through adherence with an agreed CTMP. This approach would minimise the adverse effects of the proposal.

v. 24 Thirdly, the rear courtyard would, in effect, become a small light well surrounded on all sides by tall built form with the new development in place. This outdoor space is not linked to other areas of green space to provide a wider landscape setting. Any meaningful planting that could be supported by a topsoil cover to the new basement would be inappropriate in such a confined and restricted space that is not readily visible from public vantage points. Moreover, there is an extant planning permission that includes the same site coverage and does not include 1-metre of topsoil cover.

vi. 25 Taking all of these points into account, there would be no obvious townscape, landscaping, drainage, safety, amenity or environmental benefit achieved by rigidly applying criteria (a), (b), (c) and (j) of CS Policy CL7. Consequently, a conflict with these aspects of CS Policy CL7 would be insufficient of itself to withhold planning permission.

vii. Summary

viii. 26 Once complete, there would be no appreciable effect on the living conditions of the occupiers of nearby properties. There would be some disturbance during the construction phase. However, I am not convinced that such disturbance would necessarily be greater than that associated with the approved scheme and conditions could be imposed to mitigate this harm. That there is a conflict with four criteria of CS Policy CL7 is insufficient reason to withhold planning permission given the particular circumstances of this case. The Council raises no issue with the remaining criteria of CS Policy CL7. Therefore, I consider that the proposal is acceptable in the context of this development plan policy.

ix. 27 The Officer's report states that the appellant's Construction Method Statement (CMS) and EHPA comply with all relevant CS, saved Unitary Development Plan Policies and the Council's Supplementary Planning Document, Subterranean Development (SPD). I have no reason to disagree with that finding.

x. 28 Taking all of these matters into account, I conclude on the first main issue that the proposal sits comfortably with regard to relevant planning policies that govern basement development in the local area."

9. the Issues
10. The issues which emerge from the claimant's challenge are: (1) did the Inspector err in his approach to CL7, (a) in relation to criteria a., b. and c., and (b) in relation to criteria k. and l.?
11. Policy CL7
12. Core Strategy Policy CL7 reads, where relevant to this application:

i. "The Council will require all basement development to:

b. not exceed a maximum of 50% of each garden or open part of the site. The unaffected garden must be in a single area and where relevant should form a continuous area with other neighbouring gardens. Exceptions may be made on large sites;

c. not comprise more than one storey. Exceptions may be made on large sites;

d. not add further basement floors where there is an extant or implemented planning permission for a basement or one built through the exercise of permitted development rights;

i. .....

ii. k. ensure that traffic and construction activity do not cause unacceptable harm to pedestrian, cycle, vehicular and road safety; adversely affect bus or other transport operations (e.g. cycle hire), significantly increase traffic congestion, nor place unreasonable inconvenience on the day to day life of those living, working and visiting nearby;

iii. l. ensure that construction impacts such as noise, vibration and dust are kept to acceptable levels for the duration of the works."

13. ground 1
14. The Inspector found that there would be conflict with criteria a., b. and c. of CL7 in paragraph 20 of his decision later. (Hereafter, I will refer to paragraphs in the decision letter by "DL" and then the number of the relevant paragraph.) By reason of various mitigating circumstances, he concluded that there would be no obvious planning benefit achieved by rigidly applying the criteria so that the conflict would be insufficient of itself to withhold planning permission (DL 25). In particular, the Inspector found in DL 22 that there was no detailed information before him to support the council's contention that the excavation of a third storey (in addition to the two already approved) would result in more noise, dust, vibration and general disturbance, longer construction period and increased vehicle movements, and that there was not necessarily a direct correlation between the volume of excavated soil and disruption caused.
15. The claimant submits that the Inspector's reasoning as set out above is flawed.
16. The object of criteria a., b. and c. of Policy CL7 is to protect residential living conditions by limiting the extent and duration of construction and by reducing the volume of soil to be excavated as a result of basement development. Here, the previous planning permission would result in adverse residential amenity. A three-storey development would impose a further burden. The Inspector had been told explicitly that the proposed development necessitated a further 4.1-metre-depth of excavation which resulted in additional excavation volume of 570 cubic metres. On the appellant's evidence that would require an additional fifty-nine lorry-loads of waste material out of the site and fifteen additional deliveries of concrete into the site, or some seventy-four additional vehicle movements in total. It is submitted that the Inspector was wrong to identify in DL 22 that he had no detailed information from the local authority that the additional third storey would result in more disturbance. He had before him the report on case studies of basement excavation in relation to programme on vehicle movements prepared for the examination in public into CL7.
17. The claimant submits further that CL7 assumes unacceptable harm from development in conflict with its criteria and operates to protect local residents from that burden unless material considerations indicate otherwise. It is not therefore for the local authority to identify additional harm. By imposing that burden on the local authority the Inspector revealed that he had misunderstood the Development Plan and failed to apply the presumption in favour of the Development Plan. His finding that the conflict with Policy CL7 was insufficient to withhold planning permission was not the right question.
18. The report on the examination into Policy CL7 which was provided to the appeal inspector illustrated self-evident logic of the Policy. That inspector had reached the opposite conclusion to the appeal inspector. The examination inspector had concluded that there was a correlation between scale and extent of a basement excavation which led him to conclude that criteria in Policy CL7 of a., b. and c. were sound. In failing to have regard to the examining inspector's findings, in particular paragraph 66, the claimant submits that the Inspector failed to have regard to the very evidence which he found to be lacking in support of the claimant's position.
19. As to other mitigating circumstances, the fact that the footprint would remain the same could not justify any conflict with criterion b. Reliance upon a Construction Traffic Management Plan (CTMP) (DL 23) was irrational when CL7 was properly understood. The purpose of a CTMP was to ensure that such adverse impacts as do exist are managed while the purpose of policy criteria a., b. and c. is to ensure that adverse impacts are kept within acceptable and identifiable limits. A CTMP would only mitigate and so could not justify additional excavation and consequential disturbance.
20. The claimant submits there are no other material considerations referred to which justify the appeal inspector's decision. As a result, the Inspector had ignored material aspects of the rationale for imposing restrictions on the scale of basement development, including the requirement to provide clarity on the limits of basement development, and there was a need for consistency with the examination inspector.
21. In written submissions the claimant also alleged that the Inspector failed to consider the precedent effect of allowing the application only. That was an argument that was not pursued orally.
22. The defendant contends that ground 1 is misconceived. First, Section 38 (6) does not preclude an inspector from taking into account a material consideration unless there is detailed evidence available. Detailed evidence goes to the weight to be attached to any material consideration and not to its existence.
23. Second, the claimant has mischaracterised the Inspector's reasoning. The Inspector acknowledged conflict with criteria a., b. and c. of CL7 in DL 20. He identified countervailing considerations in DL 21 to 24 and the cumulative effect was that they outweighed the conflict with Policy CL7. That was a matter of planning judgment.
24. Third, the Inspector noted that the claimant had granted planning permission on the site for a basement scheme and that constituted a realistic fall-back position against which the proposal should be assessed (see DL 7). The existence and reality of the fall-back situation was not challenged by the claimant.
25. Fourth, there was evidence before the Inspector that the appeal scheme would not generate more disturbance than the improved scheme (see the appellant's statement of case and reply).
26. Fifth, a submission that the Inspector failed to have regard to the fact that criteria a., b. and c. were held to be sound by the examining inspector went nowhere. The fact that basement extensions took a considerable time to construct provided the rationale for the imposition of the CTMP condition (see DL 14).
27. Sixth, the Inspector was well aware that the proposal involved excavating a greater volume of material than the approved scheme (see DL 22).
28. Seventh, the Inspector did not ignore material aspects of the rationale for imposing restrictions on the scale of basement development (see DL 9) but he was entitled to analyse and evaluate the approved scheme and the appeal scheme. His analysis is set out in DL 25. DL 26 is where the Inspector reconciled his approach with the requirements of the Policy in a way which is unimpeachable.
29. The second defendant, in essence, adopts the arguments of the first defendant.
30. Discussion and Conclusions
31. Modification of Policy CL7 was as a result of significant development pressure within the boundaries of the claimant. In 2001 there were forty-six applications for basement extensions. By 2013 some four-hundred-and-fifty applications for basement extensions had been received. The claimant believed that the continual impact of such development was the equivalent to a permanent noisy traffic-generating industry in residential streets. The features of such development were said to be "the single greatest cause of concern our residents have expressed in living memory". The examining inspector (into the revised policy) found that an up-to-date comprehensive policy would enable necessary sustainable basement developments to be constructed in an appropriate manner from the outset. That is the background to revised policy CL7.
32. The criteria to the policy are precise. The appeal proposals were clearly in conflict with criteria a., b. and c. as the Inspector found in his decision letter at DL 20. However that is not, and never could be, the end of the matter. Having identified that conflict, the Inspector went on to consider other material considerations. That was entirely lawful and only to be expected given the wording of Section 38 (6) of the Planning and Compulsory Purchase Act 2004.
33. The appeal inspector had found that the extant planning permission for a two-storey basement extension granted in July 2014 represented a realistic fall-back position (DL 7). That is not in issue with the claimant. The implementation of that planning permission meant that there would be an adverse impact on residential amenity. The Inspector had been told by the claimant that the additional storey involved greater excavation which would create general disturbance, a longer construction period and increased vehicle movements. He concluded that there was no detailed evidence before him to support the claimant's opinion (see DL 22).
34. Meanwhile, the appellant had submitted evidence when the appeal was lodged. In paragraph 36 of its statement of case it stated:

i. "36 When the appeal was lodged, the scheme architects (Annex 7) identified that an overall project programme of 15 months (65 weeks) could be achieved for the 3-storey element, of which the basement works would comprise 12 months. This was only marginally over what is anticipated for the two-storey basement.

ii. The appellant and his lead contractor, Orbital, (who are an experienced basement contractor and member of the Considerate Contractors Scheme with considerable experience of working in the RBKC area with its relevant environmental conditions and who have successfully agreed a number of CTMPs with the Borough) have reviewed in more detail the manner in which the CTMP for the already approved 2-level basement scheme can be applied to the Appeal scheme. The contractor has confirmed that in their view the Appeal scheme could be implemented within the parameters of the s level basement CTMP, ie, the same overall construction programme, the same construction techniques, vehicles etc."

35. On reviewing the project in greater detail, the contractor, Orbital Basements, had confirmed that the appeal scheme could be implemented within the same construction programme as the two-storey scheme, using the same construction techniques, vehicles etc. That was repeated later in its statement of case. In the appellant's reply to the claimant's response, it exhibited a letter from Orbital Basements Ltd dated 17 June 2015. That said:

i. "In summary, we believe that the appeal scheme can be implemented within the same construction parameters as the approved scheme, ie. there would be no noticeable difference to neighbours in respect of, for example, overall construction programme and construction techniques .....

ii. It is therefore not the case that, for example, a 2-level basement takes twice as long to construct as a single basement or that a 3-level basement takes 50% longer to construct than a 2-level basement. Although there is an additional floor to be installed this will be incorporated into the 'Temporary Works' design .....

iii. We therefore have the flexibility to manage the overall programme by overlapping the key construction phases wherever necessary in order that the approved programme would not need to be extended by any significant period, indeed if at all.

iv. .....

v. This would be achieved by using longer underpin sections with additional reinforcement which will reduce the amount of Temporary Works installed, and latterly dismantled once completed. This will also speed up the excavation of mass.

vi. We would potentially increase the size of the work force to facilitate a speedier completion of the underpin sections, but this would not be noticeable to neighbours in terms of on-site activity.

vii. .....

viii. The type and general frequency of vehicles would remain relatively unchanged. This would be achieved by ensuring that both incoming and outgoing materials were single-site trips. By this we mean that in many instances loading and unloading is done to several sites in one trip by a vehicle. We would increase the capacity of vehicles by booking in single-site trip visits and use the most efficient vehicle capacities without requiring differing axle loads or vehicle types to those already set out.

ix. .....

x. On this basis, we would be confident that the appeal scheme could be implemented within the overall programme assigned to the approved scheme and that there would be no perceptible change in construction processes, activity or noise for surrounding occupiers."

36. It was entirely open to the Inspector to accept that evidence. In particular, as it is notable that the claimant submitted no site-specific evidence on the construction programme, timescale or vehicle movements, it was matter entirely for the Inspector's planning judgment as to whether he accepted the evidence on behalf of the appellant - which he did. In acting as he did, it is clear that the Inspector did not misunderstand the Development Plan Policy. He was engaged in the application of the relevant statutory test under Section 38 (6). He was entitled to make the findings that he did, and to come to the conclusions that he did, on the evidence before him. Conflict with the Development Plan in itself may have been sufficient to withhold planning permission but it would always depend upon individual circumstances.
37. In this case it was the Inspector's duty to consider other material considerations and put those into the balance with any conflict which he found. In the circumstances of this case the Inspector was entirely justified in his approach.
38. The claimant contends that the appeal inspector reached the opposite conclusion to the examining inspector who had concluded that there was a correlation between scale and extent of a basement development and the disturbance caused.
39. I do not accept that submission. First, the contention is not based upon an accurate reading of the examining inspector's report. The examining inspector says, in considering criteria a. to Policy CL7 (in paragraph 48), as follows:

i. "The Council's study on construction traffic for basements showed that in general larger basements have a greater rate of excavation than small ones, that there is a good correlation between the volume of excavation and the total number of lorry movements, and that larger basements take longer to build. However, there is no clear correlation between the time taken to excavate the basement and the overall size or volume of the basement. In general, the Council said that the type of traffic required for basement construction tends to use larger vehicles, with heavier loads and in greater numbers than that required for above-ground construction. There are more concrete, reinforcement and formwork vehicle movements for basements than for above-ground extensions. I accept that within the immediate local area to a basement development these traffic movements have a high adverse impact on residents' living conditions."

40. Second, although the examining inspector said in paragraph 66 of his report:

i. "As I have said, the Council's study on construction traffic showed that in general larger basements have a greater rate of excavation than small ones, that there is a good correlation between the volume of excavation and the total number of lorry movements, and that larger basements take longer to build. This means that adverse impacts on local residents' living conditions are greater and more intense with basements of more than one storey, both from the extra amounts of construction work and traffic and/or from the length of time that residents have to endure such impacts. These impacts are sufficiently serious on their own to justify this aspect of the Policy."

41. The Inspector there was setting out his general conclusions in respect of the general evidence adduced by the claimant before him as to whether the proposed revised policy was sound. Here, before the appeal inspector, the appellant's evidence was in relation to the specific appeal scheme and specifically about the difference between the programme of works, their nature and their duration, between the permitted two-storey basement and the proposed three-storey one. The Inspector, therefore, had regard to the evidence that was particular to the case before him.
42. As to the claimant's criticisms of criteria b., the Inspector found there to be a conflict with that criteria. However, in evaluating what weight to attach to it, he compared the difference in footprint between the proposed basement extension and that permitted. He concluded in DL 21 that the footprint of the new basement and coverage of the rear courtyard would be the same as in the approved scheme. Having so concluded, the Inspector found that the potential for additional disturbance could be managed with adherence to a CTMP which would minimise the adverse effects of the disposal. The claimant submits that was irrational, that Policy CL7 was properly understood.
43. I reject that submission. The purpose of CL7 a., b. and c., in my judgment, is to ensure that impacts of basement development are kept within an acceptable and identifiable limit. That much is common ground. The difference here is that the additional storey, whilst adding to the depth of development, the Inspector found, did not add to the footprint nor, on the appellant's evidence, add to the method, time, nature of construction or sequence of works. Any potential for additional disturbance, he found, could be dealt with through an agreed CTMP. Again, that was a matter for his planning judgment. There is nothing irrational in DL 23.
44. The Inspector concluded in DL 25 that there was no benefit in applying the criteria in CL7 a., b. and c. That was appropriately reasoned in the circumstances of the case before him because of the lack of difference in terms of impact of the development proposed and that permitted.
45. Accordingly, this ground fails.
46. Ground 2: Criteria k. and l.
47. The claimant submits that the Inspector found that criteria k. and l. would be satisfied solely on the basis that a condition could be imposed requiring the submission of a full CTMP (DL 14). He was satisfied that a CTMP could manage disruption caused by noise, vibration and dust, both at the site and vehicles going to and from it, in a way that minimised disturbance to others (see DL 12). The claimant submits that that finding was flawed because, first, the Inspector conflated the purpose of the Policy requirement (that a CTMP be submitted and approved to ensure the adverse impacts were managed and mitigated) with the proposed criteria k. and l. (which were to ensure that the adverse impacts were kept within acceptable limits).
48. Second, adherence to a CTMP does not mean that the adverse impact on the development is kept to acceptable limits within criteria k. and l.
49. Third, here there was no CTMP. The Inspector relied on the fact that one had been submitted earlier in respect of the approved two-storey basement scheme. Therefore, there was no material before the Inspector on which he could rationally conclude that on and off-site traffic impacts were acceptable.
50. Fourth, the Inspector relied on the fact that in previous appeals the requirement of CL7 was met by a condition without considering whether circumstances of those appeals were applicable here and without making reference to the appeal decision referred to by the claimant which suggested that, in the absence of evidence as to how adverse impacts could appropriately be mitigated, the requirements of the Policy would not be met.
51. Fifth, in relying on the CTMP and a condition to ensure compliance with criterion l., he had failed to take into account that criterion l. was concerned solely with construction impacts on site whereas a CTMP would be concerned solely with impacts off site.
52. The defendant submits that ground 2 is parasitic on ground 1. If the host ground - that is ground 1 - fails, then so too does ground 2. Once the Inspector had concluded that the appeal scheme was not materially more harmful than the approved scheme in terms of noise, dust, vibration and traffic, he was entitled to find that any potential for additional disturbance could be managed by condition.
53. Discussion and Conclusion
54. The reasoned justification for Policy CL7 says at its third bullet point:

i. "• A draft construction traffic management plan (CTMP) will be required to be submitted with the application and where planning permission is granted the Council will attach a condition requiring a full CTMP. The CTMP will address issues relating to highway safety, the free flow of traffic, noise associated with/from construction vehicles and the availability of parking. Detailed matters will include vehicle stationing, manoeuvring and routeing, parking suspensions and issues in relation to residential and workplace disturbance, arising from vehicle stationing, loading and unloading and movement. The CTMP should take into account and allow for other active or permitted construction works nearby (including those of utility companies)."

55. The claimant in its written grounds contended that for the Inspector to take a CTMP into account was to take into account an irrelevant consideration. The contention is therefore at odds with the claimant's own published Policy. Earlier on in the reasoned justification to the adopted Policy (at paragraph 34.3.50) it was stated:

i. "33.3.50 A basement development next door has an immediacy which can have a serious impact on the quality of life, whilst the effect of multiple excavations in many streets can be the equivalent of having a permanent inappropriate use in a residential area. There are also concerns over the structural stability of adjacent property, character of rear gardens, sustainable drainage and the impact on carbon emissions. Planning deals with the use of land and it is expedient to deal with these issues proactively and address the long term harm to residents' living conditions rather than rely only on mitigation. For all these reasons the Council considers that careful control is required over the scale, form and extent of basements."

56. That is the rationale for restricting the extent of basement excavation. Traffic and construction activity are clearly not within that description.
57. In its submissions in its statement of case on the appeal, the claimant submitted:

i. "6.1 Policy CL7 places an onus on the applicant to sensitively manage the impacts of construction and demonstrate that they will be acceptable at application stage. Basement development has been the subject of considerable concern to residents for a number of years due to the general noise and disturbance that can occur during construction. The impact of construction vehicles and their management during the course of a development in a dense urban environment which is largely residential in character can result in considerable harm to the living conditions of nearby residents, often over prolonged periods of time. As such, the impact of traffic generated during the construction period and associated noise and disturbance are relevant material considerations in the determination of proposals involving subterranean development. Policy CL7 places an onus on the applicant to sensitively manage those impacts and demonstrate they will be acceptable to the existing living conditions of residents."

58. The claimant's case, therefore, was that the onus was on the applicant to manage the impact of construction and traffic. It is inconsistent to say now that the aspects of Policy CL7 dealing with construction and management could not be managed through a CTMP. The claimant then submits that because the Inspector concluded that in the interests of fairness he should not consider the second defendant's up-dated CTMP there was no material before him upon which he could rationally base a conclusion that off-site traffic and disruption impacts were acceptable.
59. As set out in the claimant's own reasoned justification to Policy CL7 at paragraph 34.3.31, it is clear that if planning permission is granted a condition will be attached which will require a full CTMP. The second defendant did submit a draft CTMP with its appeal documentation. It was not for the Inspector to vet that document. His conclusion therefore in DL 14 is entirely consistent with Policy CL7.
60. The claimant then complains that the Inspector did not refer expressly to one of the planning appeal decisions to which the claimant had referred. The Inspector dealt with the reference made to other appeal decision letters in DL 32 where he said:

i. "32 Reference is also made to several appeal decisions that involve basement developments. While I have had regard to these decisions, I have assessed the proposal on its own merits, as I am required to do."

61. That was entirely sufficient, reading the decision letter as a whole and on the understanding that it was to informed parties to know that the Inspector had taken into account a decision letter the claimant had pressed upon him. An inspector is not obliged to deal with every single matter raised by a party to an appeal. He is only under a duty to consider the principal controversial issues raised.
62. The claimant further complains that the Inspector failed to take into account that criterion l. was concerned solely with construction impacts on the site whereas the CTMP would be solely concerned with construction impacts off site.
63. Criterion l. is not concerned simply with the impacts on immediate neighbours or on-site impacts. It refers, in my judgment, to construction impacts in general of the development proposed. Understanding that is consistent with the reasoned justification to the Policy itself in paragraph 33.3.49 which states:

i. "34.3.49 In the Royal Borough, the construction of new basements has an impact on the quality of life, traffic management and the living conditions of nearby residents and is a material planning consideration. This is because the Borough is very densely developed and populated. It has the second highest population density and the highest household density per square km in England and Wales. Tight knit streets of terraced and semi-detached houses can have several basement developments under way at any one time. The excavation process can create noise and disturbance and the removal of spoil can involve a large number of vehicle movements."

64. That means that a CTMP will be very relevant. The Policy is directed to controlling the adverse impacts on the quality of life of those living in the vicinity of a basement development. Criterion l. is seeking to deal with construction impacts of those who live in the area. It follows that on this ground also the Inspector understood the Policy correctly and applied it correctly to the facts before him and took into account all relevant material considerations.
65. This ground fails also.
66. Accordingly, the application fails.
67. MR COPPEL: I am grateful. Can I ask for the court to make a formal order that the claim be dismissed?
68. MRS JUSTICE PATTERSON: Yes.
69. MR COPPEL: My friend and I have discussed the issue of costs and we are in agreement here. So I would ask that the claimant do pay the first defendant's costs summarily assessed in the sum of £14,886.
70. MRS JUSTICE PATTERSON: Certainly. This claim is dismissed, and the claimant shall pay the defendant's costs summarily assessed in the sum of £14,886.