Spa Properties Ltd., R (on the application of) v First Secretary of State & Anor [2003] EWHC 2103 (Admin)

Case No CO/1802/2003[2003] EWHC 2103 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 1 September 2003
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE RICH QC
(sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF SPA PROPERTIES LIMITEDClaimant-v-
Between
THE FIRST SECRETARY OF STATEDefendant&DefendantELMBRIDGE BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR WALD (instructed by LARKIN & JAMES) appeared for CLAIMANTMISS DAVIES (instructed by TREASURY SOLICITOR) appeared for 1st DEFENDANT for The 2nd DEFENDANT did not attend and was not represented
J U D G M E N T
[1]THE DEPUTY JUDGE: This is an appeal under section 288 of the Town and Country Planning Act 1990 against the decision of the first respondent's inspector, whereby he dismissed an appeal against the failure of the second respondent to determine an application for planning permission in respect of a site at Walton Road in Elmbridge. The site is, in old fashioned language, a little over an acre. It has a frontage to Walton Road. The house which is sought to be replaced by the proposed development is, however, well set back from that road, and there has been included with the site some land not in the curtilage of that house, no. 272 Walton Road, which gives access on to an adjoining road, Langton Road. The proposal consisted of some flats to be placed on the Walton Road frontage, and on the rear of the site, three terraces of three dwellings, each of which was to contain, as I understand it, four bedrooms or the equivalent accommodation. The proposal for the flats on the Walton Road was not controversial and was accepted by the inspector. But the houses he found unacceptable, and refused permission for the application accordingly.[2]The appellant had been careful in designing the layout of those houses to respect guidance given in the local plan as to the distances to be maintained between dwellings and the size of gardens. Nonetheless, the inspector concluded that the proposal had a harmful effect upon the character and appearance of the area and upon residential amenity by way of overlooking and the creation of an overbearing effect. For that reason, there was a conflict with the aims of the development plan policy and permission was refused.[3]The appeal to the Court was made on grounds set out by, I think, a director of the appellant company. He alleged bias against the inspector on grounds which are apparent from a particular paragraph of the decision letter, which I shall read shortly. I should say at once that that allegation was not maintained by Mr Wald, who instead has argued what I think can be identified as six separate points as to why the inspector's decision should be quashed.[4]The paragraph giving rise to the allegation of bias reads as follows:
"Mr McArthur maintains that the proposal complies with the relevant policies in the development plan, and the advice in the SPG, including detailed requirements regarding garden length etc. However, mere compliance with a set of guidelines does not make for good design. Paragraph 4 of the introduction to the SPG describes the guidance as being intended as a useful source of information to all involved in the development process. It is not intended to be a textbook, and cannot be a substitute for the use of qualified architects, planners and designers."
This was misconstrued as indicating a bias against those who did not employ qualified architects, planners and designers, although I am told that the plans which were submitted with this proposal were in fact drawn with the assistance of such qualified practitioners. It was, however, a direct quotation from the Elmbridge Residential Design Guidance, not the SPG, which used those precise words in paragraph 4, explaining that the guide sets out principles within which design creativity can be encouraged.[5]Mr Wald suggests that the inspector was in this paragraph indicating a reliance upon an irrelevant consideration, namely whether or not the application plans had been professionally drawn. Once one realises that the paragraph is indeed merely quoting the explanation in the guidelines which form part of the development plan as to why they are to be treated as guidelines, and once one understands that the inspector was in fact considering not the source of the plans but whether or not they displayed, in his judgment, creativity in design, or such quality of design as was the essential, rather than mere compliance with the specific criteria of distances and the like set out in the guidelines, one finds that the paragraph is not objectionable. It does not indicate any failure on the inspector's part, providing that he thereafter goes on to consider whether the proposal matches up to those qualities of good design which the guidelines were established to ensure. That, in my judgment, is what he does succeed in doing in the following passages of his decision letter, leading to the conclusion, which I have already read, that the impact upon residential amenity by way of overlooking and the creation of an overbearing effect is the result of the particular design proposed by the appellant.[6]That, however, Mr Wald says -- and this is his second point -- arises from a misunderstanding by the inspector as to the nature of the proposal. He suggests that the inspector mistook his proposal so far as the houses are concerned, which was for floor space on three floors, as being a "3-storey" proposal, although the third floor was encompassed within the roof space with dormer windows.[7]In my judgment that suggestion is clearly wrong. The inspector said that the two house types proposed each "have so much accommodation within the roof space that they are effectively 3-storey buildings with large areas of flat roof". That is clearly an accurate description of what was proposed, with an element of judgment contained within it: namely, that the provision of the accommodation within the roof space created something which was, in the inspector's judgment, "effectively 3-storey buildings". He made his judgment on the impact of the proposed development on that basis. In doing so, he noted firstly that their design was not compatible with the predominantly 2-storey housing development which adjoins the site. Secondly, there had recently been 3-storey developments in Walton Road, and on an adjoining site fronting Walton Road a development incorporating a flat roof had been accepted. That development incorporating a flat roof he describes as "this 2-storey building", but he observed, in paragraph 13 of his decision letter, that that 2-storey building:
"... would not be so conspicuous as these visually isolated rows of houses, which, I believe, would appear incongruous in this setting."
Those are matters of judgment for the decision-maker. They contain, in my judgment, no error that entitles or constrains the court to interfere.[8]The appellant had been careful to present his proposal in a manner which would minimise its potential impact upon the adjoining housing development. He thereby acknowledged the sensitivity of the site developed behind housing fronting the adjoining roads. He had said, therefore, in submitting his application that:
"Screening is present round the 272 site and visibility from Langton Road will be well screened, we will retain the boundary planting and mature screening."
[9]The inspector, however, thought that that aim was unlikely to be achievable. Mr Wald's third point is that he, in so concluding, was disregarding what was proposed in the application. When one reads his decision letter, however, it appears to me that that suggestion is unsustainable. What the inspector in fact wrote was that the loss of much of the existing screen of trees and shrubs around the edge would accentuate its intrusive effect which he thought derived from the provision of a third floor within the roof space. As to that existing screen of trees et cetera, he said:
"This is vulnerable due to the proximity of the main access roadway to the western boundary."
He then went boundary by boundary to show how tightly against the boundaries hard development was proposed:
"The middle block would be only between 1 and 2 metres away from the ends of the gardens of the Seymour Road houses [that is to say, the houses on the eastern side of the development]."
And he concluded that:
"... it would be difficult to retain any of the existing screen of trees and shrubs or establish any new planting that would soften the impact of the flank wall."
Attention had apparently been directed specifically to the western boundary, where one of the blocks would be between 1.5 metres and 2.1 metres from the boundary. The appellants therefore provided an illustration of how they would propose landscaping, with "fir trees and honeysuckle on a trellis". The inspector, having considered that proposal, concluded that:
"The difficulty of integrating the development into its setting by either retaining existing vegetation or allowing sufficient space for replacement planting adds weight to my conclusion that it would be harmful to the character and appearance of the area."
[10]That, in my judgment, was a plain judgment which he was entitled to make, and does not fall into the error alleged of having disregarded that which the appellant had proposed.[11]Mr Wald's fourth point is that such a conclusion is inconsistent with the fact that some screening exists around the boundaries of the 272 site, although apparently -- this is what one gleans from the plan -- the house to be demolished, known as 272 Walton Road, approaches as close, or closer in some places, to the boundary of the appeal site as development was proposed to approach in the appellant's application.[12]The inspector made no such comparison, but the appellant in the representations made to the inspector founded no argument upon what could be derived from the survival of whatever screening does exist around the building. It was not therefore, in my judgment, incumbent upon the inspector in giving his reasons specifically to address this question. It is only if I could be satisfied that no inspector could possibly have reached the conclusion that he did, namely that the difficulty of integrating the development by retention or planting of screening adds weight to a conclusion that he had already derived from his consideration of the bulk of the proposed houses, that I would be entitled or constrained to interfere with his decision on this ground.[13]The fifth matter that I will deal with is a complaint that Mr Wald did not develop in the course of his oral argument but set out in his skeleton. That is a complaint that the inspector had been concerned not merely with loss of privacy, but the perception of loss of privacy. This is a criticism of a paragraph which reads as follows:
"The two southern blocks of houses have been orientated to avoid direct overlooking of the houses and gardens to the east and west, but both buildings are close to the site boundaries. The side windows would be obscure glazed, but overlooking of gardens would not be eliminated, as the first and second floor bedroom windows are so close to the boundaries. These are not habitable rooms, but their proximity would be likely to give rise to a perception of loss of privacy in my opinion."
[14]I think it is fair to say that in these sentences the inspector has followed a less than entirely logical sequence of thought, but I do not think that the reader has any difficulty in understanding what he is saying, certainly not if the reader informs himself as to what are the windows which are in non-habitable rooms, which can be obscure glazed (those are the windows of bathrooms, both on the first and second floor). The first and second floor bedroom windows to which the inspector makes reference are not, of course, the windows of non-habitable rooms. It is they which face to the front and rear of the buildings but, as the inspector said, of buildings close to the site boundaries, and so close, as he says, that overlooking of gardens would not be eliminated. So he is making two points in regard to overlooking, both of which seem to me to be perfectly proper points for him to make within the bounds of his judgment: firstly, that obscured windows looking directly over the adjoining gardens give a perception of overlooking; and secondly, windows which are very close to the boundary although orientated other than directly over the adjoining gardens nonetheless do not eliminate actual overlooking. All those matters appear to me proper matters for the inspector to have taken into account and he, in my judgment, has properly done so in arriving at his decision.[15]Nevertheless -- and this is the sixth and final point that Mr Wald makes -- it is complained that the form of the decision letter is inadequate because the reasons are inadequate. The nub of the complaint which Mr Wald makes is that overall the decision letter fails to inform the appellant as to how he may best proceed hereafter to obtain a planning permission consistent with the approach which the inspector has adopted.[16]A number of things are perfectly clear, and indeed not controversial, so far as the appeal was concerned. Development of the site for housing is accepted. The frontage development by flats is accepted. It is in accordance with planning policy, and was not disputed so far as the appeal was concerned, that an intensification of density measured in terms of houses per hectare is to be welcomed and indeed might even be insisted upon. Nevertheless, and this is where the nub of the inspector's reasoning appears, the development proposed by the appellant appeared to the inspector to be in conflict with the aims of the development plan policy because of the harmful effect of the proposal upon the character and appearance of the area and upon residential amenity by way of overlooking and the creation of an overbearing effect. How those adverse effects were to be avoided is explained, in my judgment, by the analysis of them in the course of the decision letter, and the conclusion at which the inspector then arrives:
"In my view it would not be a productive exercise to attempt to adapt these particular proposals."
The advice to the appellant is that the proposals on the scale made in this application are unacceptable, and the manner of its unacceptability is then explained in the next sentence of the decision letter:
"As the Council suggests, a similar density [that is to say number of houses on the site] could be achieved by proposing smaller house types."
That is to say, if you want that number of houses, they must be smaller houses. It may be, and this is not a matter to which the inspector has directed himself, that it would be acceptable to have that size of house but a smaller number. But what the inspector's guidance points to is a similar number of smaller houses because this, he says, "would enable more flexibility in the layout, and the aims of the policies in the development plan, as elaborated in the SPG could be more easily met".[17]In my judgment that summary is sufficient summary of the reasons which have already been incorporated in the decision letter to provide that guidance to the appellant which is the object of the decision letter. This sixth ground of appeal must also be rejected.[18]The appeal is therefore dismissed.[19]MISS DAVIES: I have an application for costs to make. My learned friend has seen a schedule of costs, the sum of which is agreed.[20]THE DEPUTY JUDGE: If it is not in dispute you can just tell me the sum at which I should assess the costs.[21]MISS DAVIES: It is £3,410.[22]THE DEPUTY JUDGE: The respondent's costs are assessed at £3,410. I want to thank you both for your assistance.