QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
| THE QUEEN
On the application of
- and –
|ROCHFORD DISTRICT COUNCIL
Charles Streeten (instructed by Legal Services, Rochford District Council)
for the First Defendant
(The Interested Party did not appear and was not represented)
Hearing date: 8 November 2018
Crown Copyright ©
THE DEPUTY JUDGE (David Elvin QC):
"further impinge on my enjoyment of my property because the building shown as Block B has been has been moved closer to my house increasing the impact on my property in terms of it being dominant and overbearing… In addition, a first floor balcony has been added, which will directly overlook my side garden, rear garden and rear patio doors and windows in my house, having an adverse impact on my privacy."
"I would have said that my objection was maintained, and that the impact of the revised plans had worsened the impact on my property due to the building being moved close to my house and overlooking from the new first floor balcony resulting loss of privacy."
1. The development proposes the demolition of a row of single storey garages occupying part of a car park which is located to the rear of Althorne Way to make way for a modest residential development comprising 6 flats. The flats will be arranged in two blocks served by frontage parking. Block A (providing 4 flats) will be located within that area currently occupied by the garages to be demolished with its rear elevation orientated towards the Canewdon Community Association Hall whilst its front elevation will be orientated towards the current vehicular access point which serves the existing car park.
2. Block B which is the smaller of the blocks, providing 2 flats will be located at the southern extremity of the site served by rear and side communal amenity space. This block will be finished in render appears as one dwelling served by a chimney on either end of a uniform roof ridge line. The height of this building which has a continuous roof ridge as opposed to being staggered is approximately 8.5 metres.
3. The elevation plans have been revised to create more visual interest to the built form and propose a staggered roof line incorporating chimneys of a brick construction to match the brick outer finish which will be the predominant visible feature to the rear and side elevation of Block A. The height of this block will be approximately 8.7 metres with two rear first floor balconies and rear out door amenity space.
4. The proposed site layout plan indicates the provision of 12 vehicular parking spaces two of which would be disabled bays. An area currently occupied by tarmac surfacing will be utilised as part of the access serving the site. An element of green verges around the built form is proposed.
5. External facing materials would include brick and render with coloured UPVC window and door frames which are intended to provide texture and complimentary visual contrast.
6. The site is a rectangular area of land which currently provides a parking area with garaging accessed via Althorne Way. The site which enjoys no other means of access and is effectively tucked to the rear and side of the existing estate development which envelopes it to the north and east whilst an area of unoccupied ground screens the site from the highway to the south.
To the east of the site is a community hall and amenity land which serves this community facility."
"Policy H1 to the Council's adopted Core Strategy states that in order to protect the character of existing settlements, the Council will resist the intensification of smaller sites within residential areas. Limited infilling will be considered acceptable provided it relates well to the existing street pattern, density and character of the locality.
11. The site is located within the settlement development limits of Canewdon and although it serves as over flow parking for residential properties on Althorne way it is not understood that a legal obligation is placed on the retention of this parking in connection with the historic consents issued in respect of developments at Althorne Way. It is not considered that further intensification of the site in the form of the development proposed would fundamentally conflict with planning policy. The development would not appear inconsistent with nor out of character with the built form within this residential setting such that it would constitute in appropriate development.
12. Policies DM1 and DM3 and guidance within SPD2 require consideration of the relationship between existing and proposed buildings. The visual appearance of the two blocks has been revised to address the concerns raised in the course of the application. The mono block design originally proposed incorporating a balcony frontage to Block A overlooking the car park has now been revised to provide built form which appears more a kin to a terraced property block. A mix of materials has been introduced as have additional windows and stepped roof lines. Block B appears more as a single dwelling rather than a set of flats."
"13. It is not considered that the revisions are significantly material (as there is no fundamental change in the location or orientation of the blocks) that a re-consultation on the revisions was considered necessary. The Local Planning Authority is satisfied on this basis that it has taken into account the advice provided by the Town and Country Development Management Procedure 2015 in arriving at its position in this context.
14. Policy DM3 requires that new dwellings have a positive relationship with nearby buildings and a scale and form appropriate to the locality. From the perspective of the design of the built form, it is not considered that the development in terms of scale will appear out of place with its wider setting, such that it can be concluded on this basis that the development is objectionable.
15. Concerns have been raised with regard to perception of overlooking and overbearing dominance associated with the design of Block B from a property known as Keld. However, given the orientation and the fact that the gable elevation which will be glimpsed from Keld constitutes a solid wall with no window openings it is not considered that Block B will demonstrably affect amenity of any neighbouring property.
16. The concerns raised by neighbours with regard to potential overlooking from the proposed development have been taken into account. Given the location of the two buildings relative to adjoining properties and their respective orientation and degree of physical separation it is not considered that the design in terms of window positioning and height will have any demonstrable detrimental impact upon the amenity of neighbouring properties. The gable elevation of Block A consists of solid wall such that there will be no overlooking of adjacent dwellings from internal living space. The balcony projection to the rear of block A given its position and orientation which affects outlook is not considered to demonstrably affect the amenity of any private realm space as the outlook will be towards a public amenity area which serves the Village Hall."
"49. NEIGHBOURS: A number of representations of objection have been received in relation to the application including representations from the following households:
Keld Lambourne Hall Road (SS43PG)
Issues raised include
- Squeezing in properties
- Inaccuracies in submitted Design and Access Statement and concern that aerial photographs used are out of date, inaccurate statement relating to public transport, Loss of light to property (Keld, Lambourne Hall Road as a consequence of the position of Block B as proposed
- Size and nature of block are inappropriate to existing housing supply
- Overlooking from Kitchen window of Elevation 7 Block B into a neighbouring property
- Overbearing impact of the gable elevation of block B on a neighbouring property affecting open aspects …"
"REASON FOR DECISION AND STATEMENT
The Local Planning Authority has acted positively and proactively in determining this application by assessing the proposal against the adopted Development Plan and all material considerations, including planning policies and any representations that may have been received and subsequently determining to grant planning permission in accordance with the presumption in favour of sustainable development, as set out within the National Planning Policy Framework. The proposal is considered not to cause significant demonstrable harm to any development plan interests, other material considerations, to the character and appearance of the area, to the street scene or residential amenity such as to justify refusing the application; nor to surrounding occupiers in neighbouring streets."
Grounds of challenge
i) The Council acted unlawfully in approving the amended plans without consultation (Ground 1);
ii) The Council's decision was vitiated by errors of fact (Ground 2A) which comprise erroneous descriptions of the amended proposals and conclusions that the wall which would be visible from Keld would be a "solid wall with no window openings" and would only be "glimpsed" from Keld;
iii) The Council erred in assessing the amenity impacts of the Development on the Claimant's property (Ground 2B) in that it -
a) failed to take into account the fact that the balcony on Block B of the Development would overlook Keld; and
b) irrationally concluded that the gable elevation of Block B was a solid wall and would have no demonstrable effect on amenity in circumstances where that elevation extended some 7m along the length of the boundary with Keld and there was a balcony proposed which overlooked Keld.
"Planning officers' reports to committee are not to be read with undue rigour, but with reasonable benevolence, and bearing in mind that they are written for councillors with local knowledge… Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if the members followed the officer's recommendation, they did so on the basis of the advice that he or she gave (see the judgment of Lewison L.J. in Palmer v Herefordshire Council  EWCA Civ 1061, at paragraph 7). The question for the court will always be whether, on a fair reading of the report as a whole, the officer has materially misled the members on a matter bearing upon their decision, and the error has gone uncorrected before the decision was made. Minor or inconsequential errors may be excused. It is only if the advice in the officer's report is such as to misdirect the members in a material way – so that, but for the flawed advice it was given, the committee's decision would or might have been different – that the court will be able to conclude that the decision itself was rendered unlawful by that advice."
(That passage has to be adapted to deal with the situation where the report is written for a senior officer to take a delegated decision.)
"Although, therefore, Mr. Harper and Mr. Sullivan put forward a number of propositions, in the end I do not think that they differ markedly from each other on the essential principles governing the question of when conditions can be regarded as intra vires. … the question here is whether it is permissible to grant a planning permission subject to a condition that only what I may call a "reduced development" is carried out. Both counsel, I think, accept that it is permissible to grant planning permission subject to such a condition; both, I think, would seek to limit such conditions to those that do not alter the substance of the application; and both agree that in considering whether it is right to grant planning permission subject to such a condition the planning authority should, among other things, have regard to one of the underlying purposes of Part III of the Act of 1971, which is to ensure that before planning permission is granted there should be adequate consultation with the appropriate authorities and a proper opportunity for public comment and participation. The broad proposition, therefore, as I see it, to which both counsel would give assent is that a condition the effect of which is to allow the development but which amounts to a reduction on that proposed in the application can legitimately be imposed so long as it does not alter the substance of the development for which permission was applied for. If it does alter the substance, the argument goes on, it cannot legitimately be imposed, because there has been no opportunity for consultation and so on about what would be a substantially different proposal. Parliament cannot have intended conditional planning permission to be used to circumvent the provisions for consultation and public participation contained in this Part of the Act.
I should add a rider. The true test is, I feel sure, that accepted by both counsel: is the effect of the conditional planning permission to allow development that is in substance not that which was applied for? Of course, in deciding whether or not there is a substantial difference the local planning authority or the Secretary of State will be exercising a judgment, and a judgment with which the courts will not ordinarily interfere unless it is manifestly unreasonably exercised. The main, but not the only, criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation, and I use these words to cover all the matters of this kind with which Part III of the Act of 1971 deals."
"77 The purpose of the relevant requirements for consultation in this case is not only to contribute to better decision-making when that application is considered, by ensuring that the decision-maker receives all relevant information, but it is also to ensure procedural fairness for those whose interests may be adversely affected by any grant of planning permission and to provide for public participation and involvement in decision-making on applications for such permission.
78 In considering whether it is unfair not to reconsult, in my judgment it is necessary to consider whether not doing so deprives those who were entitled to be consulted on the application of the opportunity to make any representations that, given the nature and extent of the changes proposed, they may have wanted to make on the application as amended.
79 I do not accept that the test for whether reconsultation is required if an amendment is proposed to an application for planning permission is whether it involves a "fundamental change" and involves a "substantial difference" to the application or whether it results in a development that is in substance different from that applied for. These are three potentially different tests that have been suggested as stating the substantive constraint on what changes are impermissible. Depending on how each is interpreted, it is possible that the test would indicate reconsultation was not required when fairness would require it. As I have explained, even if the proposed amendment was not of any these types, a person may still have representations that he or she may want to make about the changes, given their nature and extent, if given the opportunity. In my judgment it is preferable to ask what fairness requires in the circumstances."
"12 A planning inspector (or a planning authority) is entitled to grant planning permission which is different to that sought, provided that it does not result in a development which is substantially or significantly different from that which the application envisaged: see Bernard Wheatcroft Ltd v Secretary of State for the Environment (1980) 43 P & CR 233 . The Planning Inspectorate has indicated that its inspectors will take account of the Wheatcroft principles when deciding if proposed amendments will be accepted: see Planning Inspectorate Procedural Guide – Planning Appeals (England) 2018, Annex M, at paragraph M 2.2.
13 However, even if proposed changes to the application do not appear to involve a substantial or significant difference, procedural fairness may still require that persons other than the applicant be consulted upon and afforded a reasonable opportunity to make representations about them. The importance of not conflating the substantive and procedural constraints upon the powers of a local planning authority (or an inspector on an appeal) was emphasised by John Howells QC in R (Holborn Studios Ltd) v Hackney London Borough Council  EWHC 2823 (Admin) at  and ."
"it is not sufficient to establish that a decision is unlawful merely to show that it would have been better or fairer for there to have been reconsultation. "The test is whether the process has been so unfair as to be unlawful": see the Keep Wythenshawe Special case 148 BMLR 1 , paras 77 and 87, per Dove J; and R (West Berkshire District Council) v Secretary of State for Communities and Local Government  PTSR 982, para 60."
"41 In summary, procedural unfairness is well-established and well-understood. Substantive unfairness on the other hand—or, in Lord Dyson MR's words  Bus LR 1200, para 53, "whether there has been unfairness on the part of the authority having regard to all the circumstances"—is not a distinct legal criterion. Nor is it made so by the addition of terms such as "conspicuous" or "abuse of power". Such language adds nothing to the ordinary principles of judicial review, notably in the present context irrationality and legitimate expectation. It is by reference to those principles that cases such as the present must be judged."
"I agree with Lord Carnwath JSC's analysis of the relevant legal principles. In public law, as in most other areas of law, it is important not unnecessarily to multiply categories. It tends to undermine the coherence of the law by generating a mass of disparate special rules distinct from those applying in public law generally or those which apply to neighbouring categories."
"60 A consideration of whether a non-statutory consultation process such as this contravened the requirements of procedural fairness will always be fact and context sensitive. As Burnett LJ identified in the London Criminal Courts Solicitors Association case  1 Costs LR 7 , the test is whether the process has been so unfair as to be unlawful …"
"One of the particular questions which arises in this case is when fairness determines that there should be re-consultation by the decision-maker…"
Admissibility of Ms Rodgers and Mr Evans' witness statements
"The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence – as in this case – which indicates that the real reasons were wholly different from the stated reasons."
"35. As the authorities show, the court should always be cautious in admitting evidence which, in response to a challenge to a grant of planning permission, elaborates on the advice given by a planning officer in his report to committee—the more so when it expands at length on the advice in the report, or even differs from it. This is not simply because an attempt to reinforce the advice given in the report may only strengthen the argument that the advice fell short of what was required, or was such as to mislead the committee. It is also for the more basic and no less obvious reason that the committee considered the proposal in the light of the advice the officer gave, not the advice he might now wish to have given having seen the claim for judicial review. Of course, evidence in a planning officer's witness statement cannot correct an error of law in the assessment of the proposal on which the committee relied when it made its decision. In some cases, however, it can shed useful light on the advice he gave to the members in his report."
"42 Those principles allow for the admission of evidence to elucidate but only exceptionally to correct, or to add to, the reasons required to be produced. The examples of the corrections which may be exceptionally be considered (which do not amount to an impermissible contradiction or alteration) include errors in transcription or expression and words inadvertently omitted. An example of an addition that may be permitted exceptionally is where the language used may be lacking in clarity in some way: see Ex p Ermakov  2 All ER 302 , 315. Such corrections or additions ought now to emerge in any event before any claim for judicial review is brought if the pre-action protocol is complied with."
Grounds of Challenge
i) The plans were not put on the Council's website until Permission was granted, which meant that members of the public could not even see them until it was too late to raise concerns;
ii) The revised plans were clearly sent to the County Council since I have seen a letter from "Place Services" of the County Council dated 9 March 2018 and they are referred to in the OR at paras. 36 ("the updated plans create a better form than the earlier submissions") and 37 (reference to the removal of the windows from the west elevation of Block B and the privacy screen);
iii) The treatment of overlooking in the OR refers exclusively to the removal of the windows from the western elevation of Block B at para. 15 with no reference to the balcony, in terms that make it clear that the OR considered this change resolved the concerns of overlooking and privacy. No mention is made of the issue of the privacy screen except at para. 37 when summarising the representations from the County Council;
iv) The reference to "glimpses" in the case of the balcony is not a reasonable judgment to make and is something that would have been addressed in substance by the Claimant if she had been consulted;
v) Mr Evans seeks in paras. 13 and 14 to add to the reasoning he set out in the OR adding points about the switching of the balcony (though I note he fails to refer to the differences in construction and design) and the privacy screen which he says "would guard against potential for direct overlooking to the adjoining property Keld". I note that he does not
a) comment on the greater proximity of the balcony to Keld in the revision;
b) explain why the reference to the omission of windows from the gable does not refer to the addition of the balcony and its potential to overlook. This was obviously a concern since there would be no reason otherwise to require an opaque glazed screen to be provided;
c) explain why there is no reference to the reasoning set out in para. 13 regarding the balcony and the screen in the OR.
i) Took proper account of the revised plans;
ii) Understood the revised layout and design;
iii) Was aware of the change in design of Block B including the removal of windows from the western elevation and the substitution of the balcony with privacy panel (specifically mentioned at para. 37).
"115 For the reasons given above, in my judgment the public generally, including Mr Brenner, and Holborn Studios were deprived of a fair opportunity to make such representations as they might have wanted to make on the amendments to the planning application made in May 2016.
116 Both claimants have provided evidence of matters on which they could have made representations. Moreover a person may be substantially prejudiced by a failure to give appropriate notice which might have attracted other potential objectors to his or her cause: see Wilson v Secretary of State for the Environment  1 WLR 1083, 1096D–E, per Browne J; and Walton v Scottish Ministers  PTSR 51, para 110, per Lord Carnwath JSC.
117 In my judgment the claimants would not have suffered material prejudice if whatever they might have said, and whatever support they might have received (had there been a fair opportunity for the public to make representations on the amendments made in May 2016 to the 2015 application), would inevitably have made no difference to the decision of the planning subcommittee.
118 For the reasons given above in my judgment what Holborn Studios could have said given the opportunity might have made a difference to that decision. If only on that basis, it has been substantially prejudiced."
"73 One of the particular questions which arises in this case is when fairness determines that there should be re-consultation by the decision-maker. When do circumstances exist which give rise to a legal requirement that there should be a further round of consultation? This issue arose before Silber J in the case of Smith v East Kent Hospital NHS Trust  EWHC 2640 (Admin). From paragraph 43 onwards he reached the following conclusions:
"43 A matter of crucial importance in determining whether the defendants in this case should have re-consulted on the proposals under challenge was the nature and extent of the difference between what was consulted on in the consultation paper and the proposal accepted in the March 2002 decision. Clearly, if all the fundamental aspects of the decision under challenge had not been consulted on but ought to have been, that would indicate a breach of the duty to consult, whilst at the other extreme, trivial changes do not require further consideration. In approaching this issue, it is necessary to bear in mind not only the strong obligation of the defendants to consult, but also the dangers and consequences of too readily requiring re-consultation, as those dangers also flow from the underlying concept of fairness, which underpins the duty to consult.
44 As Schiemann J, as he then was, (with whom Lloyd LJ agreed) pointed out in explaining these dangers in R v Shropshire Health Authority ex p Duffus  1 Med LR 119 at p223:
"A consultation procedure, if it is to be as full and fair as it ought to be, takes considerable time and meanwhile the underlying facts and projections are changing all the time. It is not just a question of an iterative process which can speedily be run through a computer. Each consultation process if it produces any changes has the potential to give rise to an expectation in others, that they will be consulted about any changes. If the courts are to be too liberal in the use of their power of judicial review to compel consultation on any change, there is a danger that the process will prevent any change-either in the sense that the authority will be disinclined to make any change because of the repeated consultation process which this might engender, or in the sense that no decision gets taken because consultation never comes to an end. One must not forget there are those with legitimate expectations that decisions will be taken."
45 So I approach the issue of whether there should have been re-consultation by the defendants in this case, on the proposals now under challenge on the basis that the defendants had a strong obligation to consult with all parts of the community. The concept of fairness should determine whether there is a need to re-consult if the decision-maker wishes to accept a fresh proposal but the courts should not be too liberal in the use of its power of judicial review to compel further consultation on any change. In determining whether there should be further re-consultation, a proper balance has to be struck between the strong obligation to consult on the part of the health authority and the need for decisions to be taken that affect the running of the health service. This means that there should only be re-consultation if there is a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt."
74 During the course of the argument on this point both parties, and in particular the defendants and those defending the decision, emphasised the phrase "fundamental difference" in their submissions. As the argument developed, it appeared to me that this phrase was in danger of having more rhetorical force than substantive content, and in and of itself providing limited assistance in determining when re-consultation might be required. In my view that phrase cannot be detached from the clear and undoubtedly accurate conclusion reached by Silber J that any consideration of the need to re-consult will be determined by the concept of fairness.
75 The requirements of fairness in considering whether or not to re-consult must start from an understanding of any differences between the proposal and material consulted upon and the decision that the public body in fact intends to proceed to make. This is because there will have already been consultation. The issue is, then, whether it is fair to proceed to make the decision without consultation on the differences, which will therefore be heavily influenced in this particular context by the nature and extent of the differences. Whilst it is not possible to produce any exhaustive list of the kind of matters that would need to be considered (alongside all the other legal principles set out above) to determine whether re-consultation is required, some illustrations may assist. Examples would include where it has been determined that it is necessary to re-open key decisions in a staged decision-making process which had already been settled prior to consultation occurring; or where the key criteria set out for determining the decision and against which the consultation occurred have been changed; or where a central or vital evidential premise of the proposed decision on which the consultation was based has been completely falsified. These examples serve to illustrate the very high order of the significance of any difference which would warrant re-consultation."