Taussig, R (on the application of) v First Secretary of State & Ors [2003] EWHC 3281 (Admin)

Case No CO/2083/2003[2003] EWHC 3281 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 12th September 2003
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE RICH QC
Between
THE QUEEN ON THE APPLICATION OF HANNA TAUSSIGClaimant-v-
Between
FIRST SECRETARY OF STATEDefendantMR BERGDefendantMRS BERGDefendantLONDON BOROUGH OF HARINGEYDefendant
MISS N LIEVEN (instructed by LEIGH DAY & CO) appeared for CLAIMANTMR J STRACHAN (instructed by THE TREASURY SOLICITOR) appeared for FIRST DEFENDANT
J U D G M E N TFriday, 12th September 2003

JUDGE RICH:

[1]This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of the first defendant's inspector, dated 19th March 2003. By that decision she allowed an appeal by the second and third defendants, against the decision of the fourth defendant, refusing permission for a development consisting of the erection of a conservatory at the rear of their ground floor flat, at 28 Southwood Lawn Road.[2]The application to this court is made by the owner of the flat above that of the appellant's, who had made representations in the course of the appeal which was conducted by way of written representations. On her behalf two grounds are relied upon to impugn the decision of the Inspector.[3]Firstly, it is said that she failed to apply a policy in the Unitary Development Plan, HSG 2.9. Secondly, it is said that she failed to have regard to some advice contained in a Supplementary Planning Guidance issued by the local planning authority.[4]Policy HSG 2.9, in the local plan, reads:
"Applications to extend converted properties will normally be refused unless exceptional circumstances can be demonstrated."
As is apparent from the fact that the parties have flats one above another, the building in which they are contained, originally erected as a single, large, Victorian dwelling house, has been converted, as I understand, into seven separate flats.[5]This policy was recited almost word for word in paragraph 3 of the Inspector's appeal decision letter. She wrote:
"In recognition of the detriment to neighbours' amenity that may result from overintensive use of a converted property, Policy HSG 2.9 states that extensions to converted properties will normally be refused unless exceptional circumstances can be demonstrated."
In spite of having so recited the policy, it is said, however, that the decision letter failed to identify any exceptional circumstances which had been demonstrated to justify the granting of a permission to extend this converted property which otherwise, in accordance with the policy, should normally be refused.[6]Mr Strachan, for the Secretary of State, accepts that the decision letter does not, in terms, identify any exceptional circumstances. But, he says, and of course it is right, this court should not take a legalistic view of the form of the decision letter. There is no single required method of setting out a decision, and providing this court can be satisfied that the Inspector asked herself the right question, her decision on what is after all a matter of planning judgment, namely whether or not exceptional circumstances did exist, is not to be impugned.[7]I do not wish to be gratuitously offensive to the local planning authority, but I think it is fair to say of the Inspector's decision letter, that it was not helped by the form in which the local planning authority had made its decision, or in which it made its representations in support of its decision. The grounds of refusal adopted by the local planning authority were directed to the appearance of the proposed conservatory and relied upon certain policies, particularly those referring to alterations and extensions in conservation areas (the appeal site was in the Highgate Conservation Area) and not to the policies which were referred to in paragraph 3 of the decision letter.[8]As to the appearance of the proposed conservatory and its effect upon the conservation area, the Inspector was satisfied. Nothing arises upon that part of her decision so far as this court is concerned.[9]On the basis, however, of the present applicant's representations, the Inspector referred to another aspect of policy, namely the impact of the proposed development on the living conditions of occupiers of adjoining premises. There were two such policies: the one HSG 2.9 which I have already read, and another policy DES 1.9 of which the Inspector said at paragraph 3:
"[It] aims to protect the privacy and amenity of neighbouring residents."
[10]DES 1.9 provides that:
"In order to protect the reasonable amenity of neighbours, planning permission for development or change of use should meet the following criteria: 1. The scheme would not be unacceptably detrimental to the amenity of adjacent users, residents and occupiers, or the surrounding area in general."
The other matters to which consideration has to be given in respect of policy DES 1.9 need not concern the court.[11]The Inspector dealt with that policy in paragraphs 10 and 11 of her decision letter in the following terms:
"As requested, I viewed the appeal site from the flat immediately above it, no. 28C, [that is to say, the present applicant's flat] which is the flat most likely to be affected by the proposal. During my visit I saw that the proposed conservatory would be directly below the main living room window, although the ridge of the roof would not extend as far upwards as the window ledge. To anyone standing at the window, the roof of the conservatory would be clearly visible but it would fill only a small proportion of the existing open and extensive view down the rear gardens of the houses in Southwood Avenue and Southwood Lawn Road. Moving only one step back from the window would further reduce the extent of roof which would be visible. In my opinion the proposed conservatory would not result in an unacceptable degree of visual intrusion to the occupiers of no. 28C or to any of the other adjoining neighbours. "
In my experience patio areas such as the appellant's can be used extensively for entertaining for much of the year and often have outdoor lighting installed. The enclosure of such activity and the provision of lighting within a conservatory would in my view reduce any disturbance to the adjoining residents, including noise, and would increase the privacy of all parties. I have taken into account the neighbour's comments on glare, dirt, damp, noise of rain on the roof, and security. However, none of these considerations alters my view that the proposal would not result in such an adverse impact on the living conditions of neighbouring residents that it should not be allowed." That is clearly a direct reference to the criterion 1 in DES 1.9 which I have already read.[12]The next paragraphs of the decision letter, which lead to the conclusion at paragraph 14 that the proposal would not cause significant harm to the living conditions of adjoining residents, and would not conflict with the objectives of policy DES 1.9, nor undermine the objectives of policy HSG 2.9 are, in my judgment, the critical paragraphs for determining whether or not the Inspector has satisfied the court that she did address the right question in reaching her decision.[13]Paragraph 12, in effect, recites the explanatory statement to policy HSG 2.9 which reads as follows: "3.37. Conversion of a property results in the intensification of use of the original dwelling house. Extensions, including conversions of lofts, are normally resisted when permission is sought to convert a property in order to avoid an over-intensification of use that would be detrimental to amenity of adjoining residents. It would therefore be inconsistent and inappropriate to accept extensions once a property has been converted. Exceptions to this policy may be made where an applicant can demonstrate exceptional circumstances relating to their particular case. The Council will have regard to Supplementary Planning Guidance; SPG 2.4".[14]She summarised what was there said in paragraph 12:
"Turning to the matter of the increased intensity of use of the converted building, Policy HSG 2.9. explains that conversion of one property into several units will in itself increase the intensity of use compared with a single dwelling. It suggests that extensions, either during conversion or afterwards, could result in overintensive use of a property, which would be detrimental to the amenity of adjoining neighbours."
She then sets out what I take to be her judgment on the issue raised by policy HSG 2.9 as follows:
"In this case, however, the building is considerably larger than the majority of individual dwellings in the surrounding area and it is set on a spacious plot. The appellant's flat has its own patio and garden area which could be intensively used in its current form. In my view, the patio could be considered as already forming part of the living space associated with the flat and the conservatory will do no more than enclose part of that space. I have considered above the impact of the proposal on the amenities of the occupier of the flat immediately adjacent to the proposal."
I interpolate that was her consideration of the issues arising out of policy DES 1.9 which was concerned merely as to the satisfaction of a criterion, of not being unacceptably detrimental to the amenity of adjacent users. She continues:
"The communal garden which is available for use by the residents of all 7 flats will not be affected by the proposed conservatory. As a result of these particular circumstances I do not consider that the purpose of the policy would be undermined by allowing the appeal."
[15]In Horsham District Council v Secretary of State for theEnvironment [1992] 1 PLR 81, the Court of Appeal considered a decision of an inspector when he had to consider the effect of a policy in the structure plan ENV 3. That policy is set out at page 84 of the report. It provided:
"Only in compelling circumstances will development be permitted where it would... (2) be obtrusive in or damaging to the landscape, particularly in Areas of Outstanding Natural Beauty... (8) be within a strategic gap between built up areas."
[16]The Inspector said, as reported at page 86 of the report, letter H:
"The site is designated as within both the strategic gap and the AONB, and the proposal was rejected by the council for non-compliance with the relevant policies. In those circumstances I see the question whether significant harm would result to those policy objectives as the primary issue in the case. Having posed the question, I think the answer appears readily from what I saw of the site and surroundings, particularly in the light of the ongoing or imminent changes that the extension of Crawley and the provision of the south-west by-pass will bring about. I understand the Council's concern to prevent coalescence and to protect the AONB. These are important considerations on the basis of which previous proposals for petrol filling stations and allied development along the A264 between the 2 towns have been quite properly rejected. However the site is at the very tip of the AONB, in a position where because of the landform it appeared to me very firmly visually linked to the land to the north, outside the AONB, and to the east, still within the AONB but consisting of only a small area of land soon to be severed by the by-pass, rather than to be associated with the major part of the AONB to the south and west. The prevailing character of these surroundings is therefore, and will become increasingly, one of a manmade environment with its predominance of housing development and pattern of roads and roundabout, into which I consider a service area as proposed, particularly with reasonable attention to design details, would fit quite happily without threatening the natural appearance of the remainder of the AONB. As to coalescence, it is making the same point in a different way to say, as is my view, that the scheme of development would not entail breaking out into the gap of countryside between Horsham and Crawley and would not therefore detract from the objective of that policy."
[17]Nolan LJ at page 89, letter H, said:
"The difficulty... with the Inspector's decision, is that it pays no regard at all to ENV 3(8). However limited the content of the decision-maker's duty to have regard to the policies in the development plan may be, it surely cannot allow him to ignore one of them altogether. I accept, of course, that for the purposes of ENV 6 the Secretary of State's notice of approval makes it plain that there is no presumption against the development of strategic gaps and that the only purpose of that policy is to prevent coalescence. But the council do not rely on ENV 6. They rely, and have always relied, on ENV 3. They are entitled to know whether, and if so why, that reliance is misplaced. For the sake of clarity I repeat the particular provision of ENV 3(8). It was: 'Only in compelling circumstances will development be permitted... within a strategic gap between built up areas.' Such policy being made without reference, as the AONB policy was, to its being obtrusive or damaging or any other such qualification."
[18]McCowan LJ at page 94, F, said:
"The authorities plainly establish that an inspector is entitled to depart from the policies of the development plan, but, if he is making such a departure, it is his duty to say so and to make his reasons clear. Mr Howell [who appeared for the Secretary of State]... felt driven to submit, as I understood him, that here the inspector had in fact made a departure from those policies. He certainly does not say that he is doing so or give any reasons for it. The truth is, in my judgment, that he thought he was applying them, but he was wrong in so thinking. He ought to have been looking to see whether there were 'compelling circumstances' for permitting this development in a strategic gap between built up areas. He found none. Indeed, he did not look for any. In those circumstances the result should, in my judgment, be that his decision is quashed."
[19]It seems to me that in paragraph 13 of this decision letter, the Inspector is asking herself not whether exceptional circumstances exist, or can be demonstrated, to justify the development, but rather whether a departure from the policy that permission will not normally be given, would "undermine the purpose of the policy."[20]Section 54A of the Act requires:
"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."
That to depart from the requirements of the plan would not undermine the purpose of the policy, might well be held to be an indication to the contrary of following the plan. The conclusion that it would not undermine the policy might therefore justify departing from the policy so as to justify the grant of planning permission. But the Inspector did not put her decision on that basis, and I think that if she had realised that it was a necessary part of her reasoning that she should treat herself as departing from the policy of the plan, she might well have reached a different conclusion as to whether planning permission ought to be granted.[21]For those reasons, following the decision of the Court of Appeal in Horsham, it appears to me that this decision ought to be quashed.[22]As appears from the explanatory statement at paragraph 3.37 of the Development Plan, the plan says that the council will have regard to the Supplementary Planning Guidance. The Inspector in her decision letter at paragraph 4 recorded:
"There is reference in some of the above policies to Supplementary Planning Guidance (SPG) but the content and status of the SPG has not been made clear. I have not therefore been able to take it into account."
[23]I do not think that she was justified in saying that the status was not made clear, because the status is in fact made apparent by the reference which I have just quoted in the explanatory statement. But she was entirely justified in saying that the contents of that SPG had not been made clear, because it had not been placed before her by the council whose duty it appears to me it was; nor by the present applicant, who, if she had wished to rely upon anything contained in the SPG, had the opportunity and could likewise have placed it before the Inspector.[24]It now appears, however, that the SPG does contain the following guidance which is specifically made with reference to HSG 2.9. It provides:
"Extensions are generally only acceptable when they are designed to improve otherwise substandard facilities of an existing flat, such as to enable a separate bathroom to be provided or to make the kitchen bigger, provided it does not harm the neighbours amenity."
[25]Clearly that is a material consideration. Although, if the proposed extension would not undermine policy 2.9, that may well be a reason, as a matter of planning judgment, for saying that transgressions against this guidance would not justify refusal of planning permission. That, however, would be a matter for the decision maker.[26]The applicant now asks this court to quash the decision also on the ground that the Inspector did not have regard to such material consideration as required by sections 79(4) and 72 of the Act.[27]I accept that the possibility of there being something material in the SPG is indicated by the reference to it in paragraph 3.37 of the Development Plan, but in a written representations appeal such as this was, Hodgson J took the view in John Taylor v Secretary of State for Wales [1985] J.P.L. 792, that the approach to the review of the inspector's task should be as follows:
"In the course of argument... the extent to which an inspector should himself initiate inquires where he deemed such inquiries necessary before he could come to a fair conclusion was debated. It was not possible to lay down any general rules. An inspector had no duty to seek to put the parties' own representations in order or to give them assistance. However, if an inspector came to the conclusion that he was unable to come to a fair decision on an issue on the basis of the material before him he [that is to say, the judge] did not think he was necessarily entitled to sit back and hold that, because of a lacuna which could easily be filled, a party has failed to fulfil a burden placed upon him."
[28]If by reason of such a lapse, on a local planning authority's part, a materially determinative provision of the Development Plan itself was not considered by the Inspector, I would feel bound to say that a decision which did not have regard to such provision was not within the Inspector's powers, even if she was in no sense at fault for not considering such provision.[29]But so far as other material considerations are concerned I would adopt Hodgson J's approach. A matter which is brought to the Inspector's attention, or which he sees on his inspection, he must, if he considers it material, have regard to. If he is unable to come to a fair decision because he does not know the answer to a material question, he must ask. But where the parties making representations before him do not treat a matter as material, it is not, in my judgment, incumbent on the Inspector to seek it out, even if he does have notice that it might be material, just in case it turns out to be so.[30]Materiality is a matter of degree. The treatment of a matter as being immaterial by the parties may, in my judgment, be relied upon by the Inspector. His disregarding such matters does not, in my judgment, make his decision beyond his powers; but even if I were wrong the court should, in my judgment, as a matter of discretion, not quash the decision so made.[31]The order is that the decision be quashed and remitted.[32]MISS LIEVEN: My Lord, in those circumstances I do ask for my costs against the First Secretary of State and I ask them --

JUDGE RICH: Is that in issue?

[34]MISS LIEVEN: I am not sure whether the quantum is in issue -- I do not know whether they have been agreed now.[35]MR STRACHAN: Could I just outline, briefly, three points on costs?

JUDGE RICH: Well, in principle, you accept?

[37]MR STRACHAN: My Lord, I have just raised an issue about the two issues and one -- I accept that we have to pay some costs. It is the question of the percentage and/or the quantum that I wanted to raise with your Lordship.

JUDGE RICH:

[38]Let us deal with the issue of principle and then we will come to the matters of quantum hereafter. You resist an order that the costs should be paid in totality by the Secretary of State?[39]MR STRACHAN: Yes, my Lord. I ask for an appropriate deduction, a percentage deduction, to reflect the fact that there were two grounds raised, one ground which was not successful, which required us -- on a matter of concern to the Secretary of State -- which required us to spend time and therefore I ask for a percentage reduction to reflect that the claimants have taken a point which they should not have done.

JUDGE RICH:

[40]I do not think I need to trouble you about that. It was a short part of the whole issue, it was a justifiable point to take, even if the fault lay primarily with the local authority rather than with the Secretary of State. I do not think it is any reason for giving other than the whole costs to the applicant.[41]MISS LIEVEN: I am grateful so far, my Lord. I understand that the court was sent a copy of our statement of costs. I do not know whether that has reached your Lordship, if it has not can I pass up another one now?

JUDGE RICH: I expect it probably did.

[43]MISS LIEVEN: Can I pass one up anyway, just for simplicity.

JUDGE RICH: I cannot immediately put my finger on it, is it part of the bundle?

[45]MISS LIEVEN: No, my Lord, it would not form part of the bundle. They have to be served within 24 hours before the case.

JUDGE RICH: I think, possibly, I have not, I am not sure.

[47]MISS LIEVEN: Your Lordship will see that the total figure on the second page is £9,966.58. I think, rather than seeking to justify each line to your Lordship, in my submission the total is reasonable and can I wait to hear what my learned friend is contesting before I seek to justify any particular elements?

JUDGE RICH: Yes.

[49]MR STRACHAN: Well, my Lord, I indicated that I only have three points overall. I have already raised one, I have two very brief points. My Lord, the first point is that the solicitors' costs relate throughout to a sum of £290 per hour, reflecting the partner's involvement throughout. The short point is, my Lord, that in a case such as this it is not necessary for documents, et cetera, to be compiled by the partner, and there should be a reduction to reflect that point. £290 per hour for all the works done is too much in the terms of litigation.[50]The other short point, my Lord, is just in terms of attendance at hearing. On page 1 there is a figure for 5 hours and, of course, there should be some saving to reflect the fact that it has been less than 5 hours. I said they were short points, but they are, in my submission, to reflect the true costs incurred. I suspect the 100 --

JUDGE RICH: I do not know, I am afraid, whether it will be less than 5 hours, it is now five past 4.

[52]MR STRACHAN: Well, my Lord, I understand that we have effectively been going for 3 hours.

JUDGE RICH:

[53]Well, the charges for travel and waiting, I am afraid, are the same price as the attendance in court, and I am afraid that what was a justifiable court business has altered the programme so that there was rather more waiting than there might otherwise have been. But I will -- you make --[54]MR STRACHAN: My Lord, the first point I made was that in cases of this kind it is simply not appropriate to have a partner to do every piece of work at that rate, and, my Lord, putting documents together et cetera is a matter that can be dealt with on any reasonable basis, given the nature of the case, by someone of a lower rate. That is why there are fee structures, my Lord.[55]MISS LIEVEN: Just two short points on that. In a relatively short case such as this my instructions are, and it accords with common sense, it is in fact more efficient to have one person dealing with the totality, rather than have the partner supervising somebody else to do some parts. Perhaps that is borne out by the fact that on my learned friend's statement of costs, which you may not have seen, somebody at the same hourly rate of £150 an hour, albeit a government employee so the rate is lower, but it has been one person throughout. In my submission, on a short case such as this, it does not make sense to have, as it were, a trainee doing certain parts. That becomes efficient when you have a larger case.[56]My Lord, associated with that, it is noteworthy that the total number of hours claimed by my instructing solicitors is 20.5 hours. The total number of hours which would have been claimed by the Treasury Solicitors is indeed 26.1 hours. So one does, to some degree, gain by having one person work on it. Normally you would expect the claimant's number of hours to be significantly larger than that of the respondent, because of the preparation of documents and bundles and so on. So, in my submission, a very reasonable approach to costs has been shown in this case. Ultimately, my Lord, that is shown by the bottom line figure, which is very reasonable in the context of this court for a one day hearing. Your Lordship will be extremely familiar with very, very much larger bills for cases of this kind.[57]So, in my submission, my instructing solicitors dealt with the matter reasonably, and the difference in the ultimate figures is because £290 is a higher rate than a Treasury Solicitor would bill for. But, my Lord, that is not a question in issue, that is, as I understand it, accepted.[58]So, my Lord, in my submission, I think the only point that is between us is whether a trainee or associate solicitor should have been used for some part, and, in my submission, that would not have been an efficient use of time on the facts of this case. All one would have is more hours at a lower rate. So I would ask your Lordship to make the order in the sum sought.

JUDGE RICH:

[59]What is, "Work on documents" in a case of this sort? It is presumably putting together the documents which is a reasonably mechanical task, is it not?[60]MISS LIEVEN: My Lord, I understand it is not just that. For one thing my instructing solicitor, who is very experienced in this area of law, spent a considerable time going through the UDP checking relevant policies and facts and so on. Then, of course, there is the drawing up of the witness statement and compiling of the bundle. There was actually research to be done, and your Lordship may have noted, "Time/Attendance on Opponents." A good deal of time was spent on conversation with Mr and Mrs Berg and Haringey and getting appropriate information from them.[61]So as far as the work on documents is concerned it is not really a mechanical task for somebody of the expertise of Mr Stein. This is not a case where Mr Stein simply, as it were, put a back sheet on and sent the papers down to counsel.

JUDGE RICH:

[62]Thank you very much, I accept those submissions. Assess costs at £9,966.58. Is there anything else I should deal with?[63]MR STRACHAN: My Lord, just very briefly, it is always invidious to have to ask for permission to appeal on the basis that I might have reasonable prospects of persuading the Court of Appeal otherwise, but I do make that application to your Lordship. Simply on the basis that I put my interpretation of the decision letter, your Lordship has taken a contrary view, but I do submit that I do have reasonable prospects of persuading the Court of Appeal to the contrary and ask for permission on that basis. Could I -- perhaps I will wait until your Lordship --

JUDGE RICH:

[64]These are always matters of impression, so it is a little hard to say there is no prospect of another judge taking a different view, but I did think that the matter was sufficiently clear for it to be appropriate, I think, to say no reasonable prospect of success. If the member of the Court of Appeal takes a different view he no doubt will do so.[65]MR STRACHAN: I am grateful, my Lord. On that issue could I just ask, because it makes matters a lot easier deciding whether or not to appeal --

JUDGE RICH: You want 14 days from the date of --

[67]MR STRACHAN: An extension of time for --

JUDGE RICH: Yes, that cannot be objected to.

[69]MISS LIEVEN: I do not object to that, my Lord.

JUDGE RICH:

[70]Very well then. I will extend time for application to 14 days after the transcript becomes available.[71]MR STRACHAN: I am very grateful, my Lord.

JUDGE RICH: Thank you very much, both of you, for your considerable assistance.