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OUTER HOUSE, COURT OF SESSION

[2008] CSOH 157

P616/08

OPINION OF LORD WOOLMAN

in the Petition of

ANDREW BAIRD and MRS. SUSAN BAIRD

First Petitioners;

and

MONTGOMERY BRADY LANGMUIR and MRS. ZOE ANNE LANGMUIR

Second Petitioners;

for

Judicial Review of a Decision of East Renfrewshire Council of 17 December 2007 to grant planning permission for a development at 12 Beauly Crescent, Newton Mearns, East Renfrewshire, G77 5UG

________________

Petitioners: Murdoch, solicitor advocate; BTO, Solicitors

Respondents: R. Crawford; Shepherd & Wedderburn, Solicitors

4 June 2008

Introduction

[1] Beauly Crescent is located in a modern residential housing estate in Newton Mearns. In October 2007, the owners of the private dwelling house at Number 12 applied for planning permission ("the Application"). They wished to build a one and a half storey extension to the rear of the property in order to increase their living and bedroom accommodation. The petitioners are the neighbours who reside in the houses on either side of number 12. They sent a number of letters of objection to the respondents. There was also a site meeting on 22 November 2007 at which their concerns were discussed. Despite the objections, the respondents granted conditional planning approval on 17 December 2007 ("the Decision").

The Nature of the Objections

[2] The first petitioners sent three letters of objection to the respondents. They focussed principally on the issue of privacy. In their letter of 5 November 2007, they mentioned a number of matters which concerned them and stated

"We fully appreciate that individuals are entitled to extend their property however we look towards the Planning Department to support valid objections to developments that will significantly impact the material issues of privacy and sunlight"

In their letter of 13 November 2007, they confirmed that "... our initial objection remains". Following the site meeting, they wrote again on 26 November 2007 and stated "... we maintain that the fundamental issue of privacy is our primary concern especially where our current privacy would not only be impacted but to the extreme where an uninterrupted viewing of our rear garden could be achieved." Reference was also made to the "strong objections based on guidance provided by the Local Plan."

[3] Mr Langmuir is a chartered surveyor. He sent three letters on behalf of himself and his family containing detailed objections to the proposed extension. His first letter of 19 October 2007 containing fourteen such objections. Several related to view and privacy, but he also referred to the major loss of garden space at No. 12. By letter dated 6 November 2007, he confirmed that he stood by the earlier objections and reiterated the adverse effect that the extension would have on his family's outlook and privacy. His letter of 24 November 2007 included a table setting out twenty two points of objection, many correlated precisely to the respondents' planning policies. He also referred to the "overdevelopment" of the property. On 14 December 2007, Mrs Langmuir sent a further letter containing six points of objection.

The East Renfrewshire Council Local Plan

[4] The East Renfrewshire Council Local Plan ("the Plan") was adopted by the respondents in November 2003. Its Key Objectives are very general in character:

"1. Provide for local needs and equality of access to housing, facilities, jobs and services, particularly to assist in social inclusion.

2. Protect and enhance heritage and environmental resources and seek to add to the quality and enjoyment of the area.

3. Reduce the overall need to travel and reduce car use."

Chapter 10 of the Plan includes several policies containing a list of criteria against which applications for planning permission require to be assessed:

Policy Heading

DC1 "All Development"

DC2 "Alterations to Existing Dwellinghouses"

DC2/1 "Extensions"

[5] Paragraph 7 of DC1 states:

"Proposals for all forms of development will generally require to conform to the following criteria:

7. Ensure that the standards for 'Open Space' are satisfied (see Appendix 1)."

Appendix 1 is headed "Open Space in New Residential Development". It states that private gardens are expected to be one and a half times the ground floor area of the house. It also states that "Rear gardens should have a depth of at least 9m from house to plot boundary in order to maintain adequate privacy."

[6] DC2 is in relatively short compass and states that extensions:

"1. Must complement the existing character of the building, particularly in terms of scale, style, form and materials.

2. Not dominate the existing building in terms of size, scale or height.

3. Incorporate a pitched roof where exposed to public view, with roof tiles or slates to match existing.

4. Side extensions should not create an unbroken or terraced appearance along the street frontage.

5. Avoid major loss of existing garden space.

6. Dormer windows should not in general dominate the existing roof profile, nor rise above or break the existing ridgeline or hip of the roof, nor occur above first floor level, and should be finished in materials to match existing roof finishes."

The Planning Application Recommendation

[7] The Decision followed a recommendation prepared by the respondents' planning department ("the Recommendation"). It stated that "This proposal requires to be assessed against policies DC1 and DC2/1 of the East Renfrewshire Council Local Plan" and continued:

"The design and external appearance of the extension is considered to reflect the character of the existing house. The extension would be readily accommodated within the rear garden and would not result in overdevelopment. There are a variety of extensions within the surrounding area. It is considered that that the proposed extension is acceptable at this location."

[8] The Recommendation addressed the petitioners' objections as follows:

"Objections have been received from 10 and 14 Beauly Crescent and the grounds of objection relate to the privacy and overlooking, overshadowing, overdevelopment of the site, visual appearance, loss of views inclusion of the underbuilding that creates a 3 storey extension and height of the extension. Although the extension includes rooflights on the roof slopes facing onto the adjacent properties they are sufficiently high enough up the roof as to not result in uninterrupted views into the rear gardens of the neighbouring properties. An overshadowing calculation has been carried out and this does not result in a significant amount of shadowing that would affect their amenity. An assessment of the scale and external appearance of the extension has been made above and the effect on views is not a material consideration in determining this application. It is acknowledged that the profile of the house would be altered as a result of this development, however this is considered acceptable because of its position, size and relationship to the boundaries of the site. The inclusion of the underbuilding does not result in the extension being above the ridgeline of the existing house and the underbuilding would not be readily visible from outwith the site."

The Grounds of Review

[9] In this application for judicial review, the petitioners challenge the Decision on three grounds. They contend (a) that it was ultra vires; (b) that it ignored a material consideration; and (c) that it was unreasonable, irrational and perverse. As the petitioners' argument developed at the hearing, there appeared to be a significant measure of overlap among these grounds. The petitioners seek declarator that the Decision is invalid, or alternatively its reduction. The respondents maintain that the Decision is valid and should stand.

Ultra Vires

Petitioners' Submissions

[10] On behalf of the petitioners, Mr. Murdoch began by stating that all planning applications had to be determined in accordance with the relevant development plan (sec. 25 of the Town and Country Planning (Scotland) Act 1997). He said that when assessing the Application, the respondents should have had regard not only to the criteria set out in DC1 and DC2/1, but also to those in Appendix 1. Mr Murdoch submitted that the "private open space and gardens" requirements in Appendix 1 were entirely appropriate here. He contended that the Application contravened those requirements in terms of size, scale and design. He also said that it would result in significantly less garden ground at No. 12. It would no longer be one and a half times the ground floor area of the house. Further, the depth of the rear garden would be less than nine metres from the house to the plot boundary.

[11] As there is no reference to Appendix 1 in the Recommendation, Mr. Murdoch submitted that the respondents did not take it into account. Accordingly, they had failed to consider all the relevant documents. As the Decision did not meet the requirements of the Plan, it should have been refused. He cited City of Edinburgh Council v The Secretary of State for Scotland 1998 SC (HL) 33, where Lord Clyde said:

"... the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is thought to be useful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission. ... if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted." (43G-44A)

Respondents' Submissions

[12] Miss Crawford began by stating three propositions of general relevance to decision-making in this field of law. She submitted that the planning authority must:

a. determine the planning application in accordance with the development plan, unless material considerations indicate otherwise;

b. identify the relevant development plan policies, interpret them, then assess the development against those policies or not; and

c. consider what material considerations exist and to consider the development in light of those material considerations.

[13] She said that in arriving at its assessment, the planning authority is accorded a wide discretion. It must exercise judgment in assessing proposed developments. She also relied upon Lord Clyde's speech in City of Edinburgh Council, where he said that the planning legislation:

"... has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it." (p 44B-D)

[14] So far as the challenge based upon ultra vires was concerned, Miss Crawford submitted that the respondents had properly carried out their task. They had identified the relevant planning policies, interpreted them, identified the material considerations and then assessed the development in light of those considerations. In other words, the respondents had asked the correct questions in law and answered them. Accordingly, there was no force in the challenge based on ultra vires.

[15] Looking at the individual policies within the Plan, Miss Crawford noted that DC1 "provides general local planning criteria" (10.1.2), and commences "Proposals for all forms of development will generally require to conform to the following criteria." That phrasing, she submitted, indicates a degree of latitude. Each individual criterion is not relevant to every development. In respect of DC1, Miss Crawford said that it refers principally to initial development. That is the theme that runs through the policy. DC2 and DC2/1 are the relevant policies here as they deal with alterations and extensions. While one may have regard to other policies, one cannot ignore the one to which the planning authority must have regard. If it was necessary for her to do so, Miss Crawford submitted that para. 7 of DC1 and Appendix 1 were not relevant to this Application.

Discussion

[16] In order to exercise their function in terms of the 1997 Act, the respondents require to take account of the Plan:

"25. Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

It is important to stress that the Plan does not lay down rigid rules: it provides guidelines.

[17] In this instance it was necessary for the respondents to identify the criteria within the Plan which were relevant to the Application. While Policy DC1 provides over-arching guidelines, it is DC2/1 which expressly applies to extensions. In my view the respondents were correct to decide that it contains the material considerations which they had to apply. Accordingly, in respect of open space, they had to address the issue of whether the construction of the extension would result in a major loss of the existing garden. That was clearly a matter which they did take into account and upon which they took an informed decision: "The extension would be readily accommodated within the rear garden and would not result in overdevelopment."

[18] With regard to Appendix 1, it is headed "Open Space in New Residential Development" (emphasis added). In my view, it is of particular significance at the stage of 'first build'. But in any event, it appears that the criteria it contains were within the mind of the respondents' planning department when they produced the Recommendation: "It is acknowledged that the profile of the house would be altered as a result of this development, however this is considered acceptable because of its position, size and relationship to the boundaries of the site." It should also be noted that if it was a rigid rule that the rear gardens of private houses had to "have a depth of at least 9m from house to plot boundary", it would prevent many extensions taking place. Accordingly, I am satisfied that the respondents carried out the correct exercise in terms of the legislation. It is my view that they did not exceed their powers. I therefore reject this ground of challenge.

Erroneous factual information

Petitioners' Submissions

[19] In the pleadings, the petitioners dispute a number of matters relied upon by the respondents in relation to the proposed extension:

· that its ridge height is only 5.9 metres high

· that the rooflights do not provide uninterrupted views into the rear gardens of the neighbouring properties

· that neither the underbuilding, nor the excavation of part of the rear garden would be readily visible from outside the site

They also queried whether the respondents had carried out an overshadowing calculation at the time of the Recommendation. Mr Murdoch accepted that as these alleged errors are denied, it was not possible to deal with them at a first hearing. He suggested, however, that if I regarded them as material, I should allow a hearing on the evidence. He said that cumulatively, they cast doubt on the respondents' decision.

Respondents' Submissions

[20] Miss Crawford submitted that this ground of challenge was without foundation. It is for the planning authority to determine questions of fact. Further, the matters upon which the petitioners rely do not involve matters of absolute fact. The determination of the ridge height, the positioning of the roof lights and the views of the garden all required the exercise of planning judgment. It was unfortunate that the written overshadowing calculation post-dated the Decision, but that did not make it invalid. She stressed that it was for the respondents, as the planning authority, to assess the legal test: did the Application accord with the Plan and which way did other considerations point? In this instance, there was a sufficient basis in fact upon which the respondents could decide that the development was acceptable. Accordingly, I should deal with the matter at this stage and no further hearing was required.

Discussion

[21] The petitioners invite the court to engage in a fact finding exercise. However, they do not argue is that there is no factual basis for the Decision. In those circumstances, I believe that the approach they suggest is inappropriate. The issues in question are truly questions of planning judgement. In my view they are, in Lord Clyde's phrase, "within the jurisdiction of the decision maker". As there was a foundation for the primary facts found by the respondents, I reject this ground of challenge. It appeared to me that this line of argument was being used to preface the third ground of challenge, to which I now turn.

Unreasonableness

Petitioners' Submissions

[22] Mr. Murdoch said that so far as the Decision was properly made, the court could not interfere. But in this case, there were a number of factors (including the factual errors) which had a material and adverse impact on its reliability and quality. In that situation, the court could interfere. He submitted that the respondents' decision-making process was so flawed that it amounted to Wednesbury unreasonableness [1948] 1 KB 223. I should therefore grant reduction.

[23] Mr Murdoch submitted that there had been a failure to deal with the petitioners' objections. He accepted that the Recommendation was not intended to provide a detailed and exhaustive analysis of every consideration. It had been prepared for the use of councillors who-in theory at least-should have some knowledge of planning matters. However, he argued that objections of particular significance should have been recorded and assessed in the Recommendation. He stated that the treatment of the objections was superficial and unsatisfactory. Mr Murdoch reiterated that these were thorough objections and that this meant that the local authority had to take them into account. He characterised the Decision as unreasonable, irrational and perverse.

Respondents' Submissions

[24] Miss Crawford submitted that this ground was the true basis of the petitioners' challenge to the Decision. She said that it was understandable that the petitioners were concerned about the Decision and the effect it would have on the amenity of their own properties. However, she said that any challenge on this ground had to be carefully scrutinised. She relied on three propositions, derived from Bowman v West Lothian District Council 1997 SLT 398, 400-403:

a. The court may examine the activities of a public body to see if its decision is so unreasonable that no public body could have reached it.

b. Before interfering with a decision, the court must be satisfied that the decision is perverse.

c. The court requires to exercise restraint in overturning administrative decisions and should only do so on clear, cogent and substantial grounds.

[25] Miss Crawford submitted that the petitioners had not demonstrated that the Decision was unreasonable, in the sense of verging on an absurdity (per Lord Brightman in Puhlofer). In this case, the argument did no more than state that the petitioners took a different view regarding the interpretation of the facts and the acceptability of the development. She cited Freeport Leisure plc v West Lothian Council 1999/98 SC 215, 224G, where the Second Division referred to:

"... what was said by Lord Brightman in R v Hillingdon London Borough Council ex parte Puhlhofer at p 518. His Lordship there says that he is troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the statute which was in issue in that case. After making a number of observations upon the matter, his Lordship says: "Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power, save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

Discussion

[26] In my view, it cannot be said that no planning authority could have reached the decision that the respondents reached. The respondents identified the nature of the assessment that they required to undertake. They stated in terms that the Application fell to be determined in accordance with policies DC1 and DC2/1. It follows that the decision cannot be characterised as unreasonable. Further, they addressed the points of objection raised by the petitioners. I do not regard the reasons they provided as inadequate. As was stated in City of Edinburgh:

"... the pursuit of a full and detailed exposition of the reporter's whole process of reasoning is wholly inappropriate. It involves a misconception of the standard to be expected of a decision letter in a planning appeal of this kind. As Lord President Emslie observed in Wordie Property Co Ltd at p 348: 'The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it'." (49E-F)

[27] In this instance, the response to the objections was succinct but cogent.

In my view the petitioners were left in no doubt that the respondents had addressed the substantial points which they had raised. In particular, they dealt with the questions of privacy and over-hanging, over-development, loss of use and height. In my view, it would be burdensome and impracticable to require a planning authority to go further and respond to all objections in detail. I therefore also reject this ground of challenge.

Conclusion

[28] In the whole circumstances I sustain the first and second pleas-in-law for the respondents and refuse the orders sought in the petition.