QUEEN v On Application of CARLTON-CONWAY [2002] EWCA Civ 927

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ORDER OF MR JUSTICE STANLEY BURNTON

[2002] EWCA Civ 927

Case No Case No C/2001/2543

Venue Royal Courts of Justice Strand, London WC2

Between

QUEEN

On Application of CARLTON-CONWAY

LONDON BOROUGH OF HARROW

Before

Lord Justice Pill

Lord Justice Robert Walker

Sir Martin Nourse

MR M EDWARDS (Instructed by Merricks of Chelmsford ) appeared on behalf of the Appellant

MR TIMOTHY STRAKER QC (Instructed by Legal Department, London Borough of Harrow) appeared on behalf of the Respondent

Date 14 June 2002

LORD JUSTICE PILL :

This

[1]is an appeal against the decision of Mr Justice Stanley Burnton given on 7 November 2001 whereby he refused an application by Denis Carlton-Conway, the appellant, to quash a grant on 6 October 2000 of planning permission by the London Borough of Harrow, the respondent, for the extension of a dwelling house at 2 Southacre Way, Pinner Hill, Pinner, Middlesex. The appellant is the owner of the neighbouring detached dwelling house at 1 Southacre Way. Both dwellings are substantial detached houses built following a planning permission granted by the Secretary of State in 1978. The decision to grant planning permission was made by the respondent's chief planning officer, Mr Graham Jones, ("the planning officer") who purported to act under delegated powers.

[2]The issue is whether the planning officer acted within the scope of the powers delegated to him by the respondent. Section 101 of the Local Government Act 1972 empowers a local authority to arrange for the discharge of any of its functions by an officer of the authority. The chief planning officer was authorised to exercise the respondent's functions in relation to applications under the Town and Country Planning Act 1990 - " ..... other than those:1.1 which, pursuant to the provisions of the Act, are required to be referred to the Secretary of State of the Environment, and the application would otherwise be dealt with under the terms of this delegation;

1.2 which, in his opinion would be refused, unless they involve minor development;

1.3 which involve a departure from the Development Plan for the time being applicable to the Borough; ..... 1.6 which involved development by another Local Authority, Statutory Undertaker or Government Department having, in his opinion, a material environmental impact; 1.7 where approval is recommended for development which, in his opinion, would have a material impact on the character of a Conservation Area; ..... 1.9 where approval of development is recommended and a written objection or objections have been received, except where the proposals do not conflict with agreed policies, standards and guidelines;"

[3]I have referred only to a sample of the scheme which is sufficient to illustrate the points raised in this appeal.

[4]The application for planning permission was made on 31 January 2000 and the description of the proposal was as a "two-storey/first floor side extension and single and two-storey rear extensions".

[5]Notice of the application was given to the appellant, the notice describing the proposal as "part two-storey/part first floor front to side, part single/part two-storey rear extensions". The appellant inspected the plans which accompanied the application and subsequently objected to the proposal giving detailed reasons. The application was amended in certain respects before the permission was granted. The document granting the permission did so using the same terminology as the application. A condition attached to the permission provided that no windows or doors other than those shown on the approved plan can be installed in the flank wall of the development without the prior permission in writing of the local planning authority. There was a further condition that the window in the flank wall should be made of obscure glass and be permanently fixed closed, below a height of 1.8 metres above finished floor level. The development is now described by counsel on behalf of the respondent as a front and side extension.

[6]The planning officer purported to act under paragraph 1.9 of the delegation scheme. The appellant's first submission is that in the absence of the expression "in his opinion", which has been included in other paragraphs of the delegation scheme, the judgment as to whether the proposal conflicted with "agreed policies, standards and guidelines" was to be made by the committee of the authority and not by the planning officer under the delegation scheme.

[7]The second submission is that the planning officer could not, in the circumstances, reasonably decide that the case came within the exception in paragraph 1.9. The "agreed policies, standards and guidelines" relevant to the present proposal are policy E45 of the respondent's Unitary Development Plan, Part 4 of the respondent's UDP Supplementary Planning Guidance and the respondent's Guidelines on House Extensions, paragraph C9. Those are the policies which have been the subject of consideration; first, in a report of the planning officer to which I will refer and, secondly, in the arguments before the judge and his judgment. Policy E45 provides insofar as is material:

"Developers shall provide a high quality of design and layout in new residential development and extensions. In considering proposals the council will take into account the character of the Borough, the surrounding residential district and locality in which the development site is located and the development site itself, together with the design and layout of the proposed development, and will require that the proposal: (A) respects the scale, massing, siting, size, height, character spacing, form, intensity and use of buildings in the district and locality; (B) provide space around buildings which reflect the setting and character of neighbouring buildings and the district and locality, protects the privacy and amenities of the occupiers of adjoining properties and the occupiers of proposed buildings ..... "

[8]Notes to that policy explain its effect:

"2.122 The council wishes to ensure that new development and extensions respect the established setting and character of neighbouring buildings and the locality. An important element of this character is the amount of space around, and the distance between, buildings ..... 2.123 Consideration should be given to the visual impact of a new development or extensions on neighbouring properties, particularly near site boundaries. Such impact is perceived from within the existing building and from the rear gardens of the properties ..... The Council will also issue supplementary planning guidance notes on matters such as design, to illustrate good planning practice."

[9]The respondent also issued the following supplementary planning guidance. Part 4:

"In addition to the above, the relationship between buildings is also important, particularly the visual impact of new development or extensions on neighbouring properties, particularly near site boundaries. In respect of new dwellings or extensions: (1) ..... (2) The visual impact of the flank wall of a new building (or extension) alongside the rear flank boundary of an existing property should be reduced by ensuring that the building is not sited directly against the boundary. (3) Two-storey or first floor extensions to semi-detached or detached dwellings should not detract from the existing character or create terracing effects. Normally, the impact of such extensions should be reduced by setting back the front and/or side walls of the extension by one metre and provision of a subordinate roof. The council will, as appropriate, issue planning guidance notes on matters such as design, to illustrate good planning practice."

[10]Paragraph C9 of the respondent's Guidelines on House Extensions provides:

"There will be a general presumption against two-storey rear extensions abutting a side boundary because of the excessive bulk and loss of light and consequent damage to the amenity of the adjoining residents. Where appropriate the forty-five degree Code will be used in conjunction with site considerations to govern the depth of extension."

[11]The planning officer did not, before deciding to exercise his powers and grant permission, prepare a document setting out the relevant considerations. He would have had before him a report of a case officer. There is no evidence as to what that report contained. There is no contemporaneous statement by the planning officer setting out the considerations he had in mind in deciding to exercise his delegated powers or in making his decision.

[12]Following the grant of permission to apply for judicial review on 20 June 2001, the planning officer and the solicitor to the council prepared lengthy and comprehensive joint reports for submission to the planning committee dealing with the grant of permission which had been made. The reports run to 36 pages, including appendices. I accept the submission that they are of a nature and in a form which one would expect a report of chief officers to a council or committee although they are a good deal longer and more complex than I would expect normally to occur when there is an application for a house extension. The purpose of the first report is stated to be - "to seek the committee's views in the abstract, on whether the application would have been acceptable had it been reported to the Committee and, if so, whether the Committee would also ratify the Chief Planning Officer's decision to grant planning permission. The Committee's views are required in advance of the judicial review hearing on 30 October 2001."

[13]The purpose of the second report was stated to be - " ..... to seek the Committee's view on whether the application was properly determined in accordance with the terms of the delegated powers of the Chief Planning Officer, whether it would have been acceptable if it had been reported to the Planning Committee and, if so, whether the Committee would also ratify the Chief Planning Officer's decision to grant planning permission."

[14]The officers recommended to the committee that they should confirm that the decision to grant planning permission was properly made under the delegated powers of the planning officer and they recommended that the committee should ratify his decision to grant planning permission. The committee were also recommended to confirm - "that the application would have been granted planning permission had it been reported to Committee."

[15]In a statement prepared for the purpose of the present proceedings the planning officer has said that the question whether a development conflicts with E45 is a matter of subjective planning judgment and that it was his professional judgment that the application complied fully with the policy. He stated that he now considered that the grant of planning permission was erroneous in referring to "two-storey rear" because no part of the first floor extension extended beyond the rearmost wall at first floor level of the existing property. He also stated that Part 4 (2) of the respondent's Supplementary Planning Guidance was in error in that the word "flank" should not appear in the expression "rear flank boundary of an existing property". He accepted that the paragraph in the guidance could be confusing.

[16]In a second statement the planning officer stated that it was decided to place the whole matter before the full planning committee "in order to allay concerns that the [appellant] may have in this respect". The statement also includes a description of what happened at the committee on 9th October:

"The committee resolved that it would be minded to grant permission on the merits of the planning application if it were to come before them as a proper application. Six members voted in favour of the resolution, two voted against and two abstained. One member abstained although he did not ask for his vote to be recorded."

[17]The committee also resolved to amend paragraph 4.2 of the Supplementary Guidance by deleting the word "flank". The judge held -(1) it was for the planning officer acting reasonably to determine whether or not there was a conflict with planning policies and if he determined that there was no such conflict he could validly grant planning permission;

(2) the planning officer reasonably concluded that the proposals did not conflict with the policies "as reasonably interpreted by him";

(3) the planning officer correctly interpreted 4 (2) of the supplementary guidance by deleting the word "flank" before the word "boundary" because the word had been inserted in error. It followed that the statement had no application to the case.

(4) The planning officer was entitled reasonably to conclude that the proposed extension was not a two-storey extension within the meaning of paragraph C9.

[18]I do not fully accept the appellant's first submission. The absence of the words "in his opinion" in paragraph 1.9 of the scheme of delegation does not remove entirely from the planningofficer the power to exercise a judgment as to whether the proposal conflicts with "agreed policies, standards and guidelines". Indeed, a judgment must necessarily be exercised if the exception in paragraph 1.9 is ever to apply. A judgment also needs to be exercised under paragraph 1.3 where the expression "in his opinion" equally does not appear.

[19]The issue as stated by Mr Straker QC, on behalf of the respondent, is whether the planning officer could reasonably decide that the application did accord with the policies. Mr Straker submits that the test to be applied is the same test as is applied when a court has to consider whether a decision maker has properly granted planning permission and a question arises on the construction of a planning policy. There are parallel situations, submits Mr Straker, for example, under the Town and Country Planning (Development Plans and Consultation) (Departures) Directive 1999 where questions arise as to a notification to the Secretary of State and when a judgment has to be made by a planning authority as to whether an environmental impact assessment under the EC Directive is to be conducted. Mr Straker submits that provided the planning officer could reasonably arrive at the view that the application was not in conflict with the relevant policies the court will not interfere. The court should approach the question in the same way as if the decision were the pl;anning authority's. The same considerations bear upon his decision as upon a decision of a planning committee.

[20]On an analysis of the material, it is submitted, there is no conflict between the application and the relevant policies. Such analysis has been conducted in the lengthy post-decision report to which I have referred. It is not enough, submits Mr Straker, and on this point I agree with him, for an objector to raise a point of substance. The objector may raise an important point but that does not of itself require the planning officer to refer the matter to a committee. The language of 1.9 is plain, it is submitted. The planning officer decided that the application was not in conflict with relevant policies and it was not an unreasonable decision to make. Mr Straker refers to the emphasis on speed which is now important in the consideration of planning applications and hence the importance of the exercise of the delegated powers.

[21]Paragraph 1.9 is, in my judgment, to be construed against a background that it is plainly the policy of the relevant statutory material and the circulars that there should be public participation in planning decisions, including participation by those who are affected by them. Where powers are delegated to a single individual the scope of those powers must be considered carefully. It is important that a planning officer purporting to exercise delegated powers should give careful and genuine consideration to the question whether the particular application with which he is concerned comes within the delegation. The purpose of the exception in paragraph 1.9, when a written objection has been made, is that cases may be dealt with where the relevant policies are clear and the relevant facts are clear. The policies can be applied in a straightforward manner to the facts of the particular case. The exception can only apply, in my judgment, where there is clarity as to the facts and as to the policies.

[22]In my judgment, on neither count was the situation clear in this case. The description of the extension in the grant of planning permission, as in the application, was erroneous as is now accepted on behalf of the respondent. The permission involved a serious misdescription of the development. (It is right to add that the plan which accompanied it does not compound that misdescription.) That led to an obvious difficulty in considering which of the detailed policies to which we have been referred applied to the particular facts. The policies of the council are complex and subtle with respect to extensions of buildings in areas such as this. That is not a criticism of them, but it is necessary for a planning officer to have regard to that complexity and subtlety in deciding whether the application is one which accords with the policies. Judgments as to whether a proposal conflicts with policies will often be difficult and making them should not be treated by a planning officer who has delegated powers as merely routine. The fact that a lengthy and elaborate explanation of those policies was thought appropriate by the planning officer in jusitfying his conduct in his subsequent report indicates that this was not the straightforward case that the exception in paragraph 1.9 covered. The planning officer has accepted that one of the policies "could be confusing". He took it upon himself to decide that another relevant policy was in error in a material respect.

[23]Reference has been made to the fact that the emphasis has been upon the policies dealing with "rear" extensions when, as now emerges, this extension was a front and side extension. Mr Straker has said that what the respondent has dealt with is the policy actually raised, which deals with rear extensions. That, in my judgment, is no answer to the complaint made. The situation has to be considered as at the time of the decision that the application came within the delegated powers. It was for the officer at that stage to determine what were the relevant policies applying on these particular facts and whether there was accord with them. On the material before the court it is not clear that the facts were established at that time, and there is no evidence that consideration was given to which of the council's policies should be applied to them. There are detailed policies dealing with side and front extensions and we have been referred to them.

[24]In my judgment, this was not the type of case which the exception in paragraph 1.9 contemplated. It is not for the court to make planning judgments, as Mr Straker has rightly reminded us. However on the material before the court, I am satisfied that the planning officer acted beyond his powers in deciding to grant permission. The complexities present were such that the planning officer could not reasonably act upon the exception in paragraph1.9. The only rational decision would have been to refer the application to the committee to make the appropriate planning judgments in this case.

[25]Public policy requires, in my judgment, that the planning officer should be circumspect in exercising powers delegated in the terms they were in this case. When there are real issues as to the meaning of planning polices and as to their application to the facts of the case, reference to the appropriate committee is required.

[26]In his second submission, Mr Straker submits that in the exercise of its discretion the court should not grant relief in this case. He relies upon the fact that the committee have, by a majority, stated that they approve the conduct of the planning officer and, moreover, they would have granted permission had the matter been submitted to them. Mr Straker does not suggest that in the resolutions subsequently adopted there has been a fresh grant of planning permission. He accepts that if the grant now challenged is ultra vires, there is no planning permission. That is the effect of the decision in Co-operative Retail Services Ltd v Taff-Ely BC

[1979] 39 P & CR 223

(Court of Appeal affirmed in the House of Lords).

[27]I reject the argumetn on discretion. In my judgment, the appellant is entitled to a fresh consideration of the application by the planning committee. There is a real risk that in taking the decisions they did in October 2001 there was a potential motivation, as would be perceived by a fair-minded member of the public, that a wish to support their chief planning officer and to avoid the possibility of judicial review were factors which led to the relevant decisions. I stress that it is a potential risk. There is no evidence that there was improper motivation.

[28]In my judgment, an appellant who has established what this appellant has established is entitled to a fresh consideration by a committee which is not burdened by the possibility of the extraneous factors to which I have referred. Upon a fresh application the procedures of the respondent permit the appellant to address them orally for a period of up to three minutes. That is a right which he should have the opportunity to exercise. Wisely, in my view, the appellant was advised to have nothing to do with the procedures which the council proposed to follow on 6 October 2001.

[29]I only add that I regard it as unfortunate in this case that the planning officer did not set out in writing the factors which led him to the decision he took which has led to the quashing of the planning permission. Anyone who has been involved in decision making knows that it is a valuable guide to clarity to set out the factors which are relevant before taking the decision.

[30]I do not consider a procedure satisfactory whereby, after the event, considerable resources have been expended by the respondent in preparing the long reports to which I have referred. It would have been much better had the issues been set out in writing beforehand. Great detail will often not be required. Where an officer is empowered to take decisions such as this, it is important for the reasons I have given that it is clear why he did so.

[31]For the reasons I have given I would allow this appeal and quash the planning permission.

LORD JUSTICE ROBERT WALKER : I agree.

SIR MARTIN NOURSE : I also agree.

Order

Appeal allowed with the costs here and below. The sum paid by way of costs by the appellant below to be repaid within 14 days; if interest is payable thereon, the sum to be agreed if possible; if there is dispute as to date or rate written submissions to be sent to the court within 14 days and a written decision be given

Cited in 13 later judgments

and 4 more of the most senior