QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Deputy High Court Judge
| The Queen on the application of JANICE HEMMS
|- and -
| BATH AND NORTH EAST SOMERSET COUNCIL
- and –
KATHERINE BARNES (instructed by Bath and North East Somerset Council Legal Department) for the Defendant
Hearing dates: 6 October 2020
Crown Copyright ©
Sir Ross Cranston:
"In my view the reduced visual impact, the localised nature of any harm and the existence of permitted development rights weigh against making a s.102 Order."
Council's November 2019 Report
"Given the limited scale and magnitude of the harm set out above, it is considered grossly disproportionate and indeed unreasonable for the Council to intervene and issue a s 102 Order requiring the removal or alteration of a lawful fence, when weighed against the disadvantages of doing so as set out above. It is therefore determined that the Council will not issue a s102 Order in this case."
Council's February 2020 Addendum Report
"The change in physical circumstances resulting from the passage of time is a material consideration to which the Council affords considerable weight and which ultimately has led the Council to reach a different conclusion to that of the inspector… The actual impact of two years' worth of weathering has been seen and assessed by the Council and the Council has legitimately, given this material change in circumstances, reached a different conclusion in respect of the impact of the fence on character and appearance."
Ground 1: material considerations and/or irrationality in Council's approach to impact on character and appearance
Ground 2: Breach of Article 8 ECHR and A1P1
Ground 3: Improper delegation