Paterson, R (on the application of) v First Secretary of State [2004] EWHC 185 (Admin)

Case No CO/4522/2003[2004] EWHC 185 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 26th January 2004
Strand
London WC2
B E F O R E:
MR JUSTICE RICHARDS
Between
THE QUEEN ON THE APPLICATION OF MARK PATERSONClaimant-v-
Between
THE FIRST SECRETARY OF STATEDefendantLONDON BOROUGH OF HOUNSLOWDefendantWEXFORD RESOURCESDefendant
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)
MISS C PATRY (instructed by BURGES SALMON) appeared for CLAIMANTMR D KOLINSKY (instructed by TREASURY SOLICITORS) appeared for 1ST DEFENDANTMR T HILL (instructed by FLADGATE FIELDER SOLICITORS) appeared for 3RD DEFENDANT
J U D G M E N TMonday, 26th January 2004
[1]MR JUSTICE RICHARDS: This is an application pursuant to section 288 of the Town and Country Planning Act 1990, to quash a decision dated 30th July 2003 of an inspector appointed by the first Secretary of State to determine an appeal by Wexford Resources against a refusal of planning permission by the London Borough of Hounslow for the erection of 4 town houses and ancillary works at Hogarth Place, 12 Annandale Road, Chiswick. The Inspector allowed the appeal and granted planning permission subject to conditions.[2]The appeal site is in fact located between the rears of residential properties that front on to Annandale Road and Brackley Road. The claimant is a resident of 6 Brackley Road and appeared as an interested party at the hearing before the Inspector. He was one of a group of local residents who submitted a detailed written statement of planning issues in respect of the proposed development.[3]A number of previous applications for planning permission on the site have been refused. In particular, an application by Wexford in 2001 was refused planning permission by the council and an appeal was dismissed by an inspector in January 2002. Wexford then submitted a further application which sought to deal with the objections raised by the Inspector on the previous appeal. The council again refused the application, but, as I have indicated, planning permission was granted by the Inspector on appeal. The Inspector's Decision[4]In the decision letter the Inspector stated in paragraph 5 that he considered the main issue to be the impact the development would have on the living conditions of the occupiers of neighbouring residential properties by way of loss of privacy and visual intrusion.[5]In paragraphs 6 to 8 he described the policy background. He referred to the Hounslow Unitary Development Plan adopted in 1996 and to the emerging UDP which included policies corresponding to those in the adopted plan, though with some detailed changes of wording. He also referred to the council's Supplementary Planning Guidance on private amenity space adopted in 1997.[6]In paragraph 9 the Inspector described the location of the appeal site and referred to the background; in particular the appeal dismissed in January 2002.[7]He went on in paragraphs 10 and following to examine the main issue:
"10. As I understand was the case with the earlier appeal scheme, the main front and rear elevations of the proposed houses would be some 16 metres from the main rear elevations of the nearest neighbouring properties. Appendix 2 of the adopted UDP recommends a distance of at least 21 metres between the windows of directly facing habitable rooms. The previous Inspector noted that there would be no overlooking at ground level because of the existing boundary wall which is some 3 metres high. The wall abuts the adjoining properties on both sides, and I consider that it would prevent harmful overlooking either to or from the clear glazing proposed at this level to serve the main living accommodation within the houses, as well providing light by way of voids to the basement. The intervening boundary wall and acute viewing angles would also ensure adequate privacy in relation to the limited amount of clear glazing at basement level where kitchen, dining, bedroom and bathroom accommodation would be located. "11. At first floor level to the front, windows serving bathrooms and high level secondary bedroom windows could reasonably be required to be kept obscure and non-opening, with scope to provide ventilation by mechanical or other means. At the rear, two bedrooms in each house would be lit by way of obscure glass blocks set in triangular projections and clear windows within recesses at right angles to the rear elevation. The appellant's analysis of potential views from these windows, which in my opinion fairly excludes those at angles of less than 45 degrees as not being directly facing, demonstrates that the 21 metre standard would be met apart from a very minor breach at one point. I consider that means could be provided to open these windows for ventilation without affecting this result... "13. I acknowledge the concern regarding the relatively limited extent of clear glazing and outlook that would exist for the proposed accommodation, and the potential views between the facing two rear bedroom windows of each house. However, such features would be obvious to any incoming resident, and I consider that the living conditions created would not be so deficient as to be unacceptable. The possibility of future alterations that could threaten the privacy of neighbouring residents could in my opinion be satisfactorily addressed through planning conditions. I therefore find that the proposal would not give rise to harmful loss of privacy through overlooking, and that it complies with the adopted and emerging UDP in this respect. "14. I recognise the specific inclusion in the emerging policy H.6.3 of reference to outlook and open aspect in relation to consideration of loss of amenity, and I have already indicated that this policy attracts substantial weight. While the plans of the previously dismissed scheme are not before me, I was informed by the Council that its concern in this respect in relation to the current proposal arises as a result of the progress of the emerging policy towards adoption rather than a change in the nature of the proposal itself. "15. At my visit I viewed the appeal site from numbers 4 and 6 Brackley Road, which I was told are typical of the relationship of the properties in the adjoining roads to the site. From ground floor level and the gardens of these properties the boundary wall to the site is dominant in the outlook, and in my opinion the upper parts of the proposed houses would have little visual impact since these would be set back from the boundary. At first and second floors within these properties there are rear facing windows, and balconies at second floor level. I recognise that views from these would change significantly as a result of the proposal, especially having regard to its height and width by comparison with the existing presence on part of the site only of a single-storey building and use of the remainder for open car parking. However, taking into account that the maximum height of the ridged roof of the proposed buildings would not exceed that of these houses, together with the separation distance that would exist, I consider that in its context the overall impact would not be so unneighbourly as to result in an undue loss of amenity. I reach a similar conclusion in relation to outlook from the neighbouring Annandale Road properties. Although the Council also cites the residential accommodation on the second floor of 147 Chiswick High Road as of concern in the same way, this is separated by a greater distance and would face the narrower flank elevation of the proposed development, so that the impact would be considerably less. I therefore consider that the proposal would not result in an unacceptable loss of amenity by way of reduction of outlook and open aspect. In my opinion it would also not have a significant effect on daylight and sunlight to adjoining properties."
[8]This led to his conclusion on the main issue as expressed at paragraph 15 that:
"The proposal would not seriously detract from the living conditions of neighbouring residential occupiers by way of loss of privacy or visual intrusion, and... does not conflict with the adopted or emerging UDP in these respects."
[9]The Inspector then dealt with other matters, including at paragraph 19 concerns about design: "19. Concern has been raised by local residents regarding the design of the proposed houses. The enclosed nature of the site restricts its prominence in public views. In my opinion the blend of contemporary styling with more traditional features would not detract from the character and appearance of the surroundings, notwithstanding the extent of obscure glazing within the design. Although a basement has been added by comparison with the proposal previously at appeal, I consider that the density would provide for an efficient use of housing land as advocated by the Government in Planning Policy Guidance Note 3 while not being out of keeping with the character of the area".[10]Finally he dealt with the question of conditions before reaching the overall conclusion and formal decision expressed in paragraphs 26 and 27.[11]In relation to that decision there are three remaining grounds of challenge. First ground[12]This ground is based on Appendix 2 to the adopted UDP which is in materially identical terms to the corresponding appendix of the emerging plan. Appendix 2 reads: "Privacy and Spacing Between Buildings 1.0. The design and layout of a development should ensure sufficient privacy for its intended residents in the dwelling and to a smaller area of garden close to each dwelling... 2.0. A distance of at least 21m (70 ft) is recommended between the windows of habitable rooms which directly face those of another habitable room, or windows of any other premises where these give light and outlook to rooms normally occupied during the day; in the case of windows of non-habitable rooms, within 21m of another facing window, obscured glazing would be considered acceptable. 3.0. Roof terraces and balconies are not acceptable where they would directly overlook neighbouring habitable rooms or gardens. 4.0. In calculating the effects of a particular development on outlook, the natural features of the site including slope will need to be taken into account, together with the effects of existing and potential extensions".[13]The claimant's case relates to the 21 metre standard in paragraph 2 of that appendix. No complaint is made of the Inspector's findings concerning the application of that standard to the distance between the windows of the proposed houses and those of neighbouring properties. The complaint relates to the application of the standard internally, within each of the proposed houses. The point arises in this way. The design of the houses is such that the two bedrooms at the rear of each house have windows at right angles to the rear elevation within a recess, so that each bedroom has directly facing views into the other bedroom of the same house. The two facing windows are 3 to 4 metres apart across the recess. This, it is submitted, is in direct conflict with the 21 metre standard.[14]It is further submitted that the Inspector dealt with that conflict solely at paragraph 13 of the decision, where he said of the potential views between the facing two rear windows: "Such features would be obvious to any incoming resident, and I consider that the living conditions created would not be so deficient as to be unacceptable".[15]That, it is submitted, provides a wholly inadequate explanation for such a substantial departure from the 21 metre standard. The planning system, it is said, exists to ensure that certain objective standards, including those relating to the protection of privacy, are met and individual limitations to or departures from those standards cannot be justified simply on the basis that they may be acceptable to incoming residents.[16]Counsel for the Secretary of State and Wexford submit that the claimant's case is based on a false premise; namely, that the standard in Appendix 2 to the UDP applies to habitable rooms within the same dwelling, as well as to the distance between neighbouring properties. In their submission, the Inspector correctly understood it as applying only to the distance between neighbouring properties. He dealt with the issue of privacy within the same dwelling as a separate issue and gave adequate reasons, in paragraph 13, for concluding that the proposal was, in that respect, acceptable.[17]It proved to be common ground, in the course of argument, that the interpretation of a policy is, in the first instance, a matter for the decision maker; in this case the Inspector. The court can interfere only where the decision-maker has adopted a meaning, an interpretation, that the policy is not reasonably capable of bearing. Because of the way in which the matter arose counsel did not come equipped with authorities on the subject, but for reasons I shall explain, nothing turns in this case on the precise test formulated in the authorities, and I have not, therefore, thought it necessary to ask for copies of relevant authorities to be supplied.[18]I am satisfied that the Inspector approached the matter on the basis that the 21 metre standard applied to the distance between neighbouring properties and not to facing windows within the same dwelling. He dealt with it on that basis at paragraphs 10 and 11 of his decision. When, in paragraph 13, he addressed the issue of potential views between the bedroom windows of the same dwelling, he did so not as an issue arising under the 21 metre standard in Appendix 2, but as an altogether separate issue.[19]If he was right to adopt that approach, the reasons he gave for concluding that the proposal was acceptable cannot be criticised. It is only if they are viewed as reasons in support of a departure from a 21 metre standard that their adequacy could be called into doubt.[20]Was the Inspector entitled to take the view that the 21 metre standard did not apply? In my judgment he was. The heading to Appendix 2, "Privacy and Spacing Between Buildings", suggests that the policy is concerned with the distance between buildings rather than with the distance between windows within the same dwelling. The general thrust of the policy seems to me to be directed towards ensuring privacy from those in other buildings and privacy of those in other buildings, rather than looking at internal arrangements within a proposed dwelling.[21]I take Miss Patry's point that paragraph 3 of Appendix 2 refers to neighbouring rooms or gardens, whereas paragraph 2, which contains the 21 metre standard, contains no such reference to neighbouring properties. But one does not approach the construction of a planning policy as strictly as one approaches the construction of a statute. In my view paragraph 3 can be deployed with equal force as an indicator of the general thrust of the policy, albeit that the word "neighbouring" does not also feature in paragraph 2.[22]Moreover, it would, in my view, be very surprising to find a planning policy laying down a 21 metre standard for the distance between facing windows of the same dwelling. It would mean that breaches of the policy would arise all too easily in the case, for example, of an L shaped design, where windows of habitable rooms within the same dwelling are quite likely to face one another. To my mind, that is a further factor pointing in favour of the interpretation adopted by the Inspector.[23]It should also be noted, though this is not determinative, that there does not seem to have been any suggestion before the Inspector that the 21 metre standard applied to the facing windows of the same dwelling. It is clear that Wexford proceeded on the basis that it applied only to the distance between neighbouring properties. It can reasonably be inferred from the evidence, including the absence of any objection by reference to the 21 metre standard, that the council shared that view. I have been shown various passages in the statement of planning issues submitted by the residents' group, of which the claimant was one, and I take the view that that document too raised the 21 metre standard only in relation to neighbouring properties and not in relation to the facing rear bedroom windows within each proposed dwelling.[24]The fact that the present issue was not canvassed before the Inspector does not necessarily preclude the point being taken in a challenge under section 288. In truth the opposition to the claimant's case has not been advanced on the technical ground that this is a new point. The reference to what happened before the Inspector is relied on more as showing that the point now taken did not occur to anyone at the time, which at the very at least may be thought to cast some doubt on the correctness of the interpretation now advanced as being the only correct one.[25]In any event, I am satisfied, in all the circumstances, that the Inspector did interpret, and was reasonably entitled to interpret, Appendix 2 as laying down a 21 metre standard only in relation to the distance between neighbouring dwellings. At the very least the policy was unclear and was properly open to that interpretation. But I would, if necessary, go further and spell out that if I were deciding the matter for myself I would adopt the same interpretation as did the Inspector. The challenge under ground 1 therefore fails. Second ground[26]It is submitted on behalf of the claimant that the Inspector failed to take into account a fundamental issue raised in the statement of planning issues put in by the residents. The relevant passage came in a section of the statement headed "Design". That section started with the following general criticism of the proposal in paragraph 4.36: "In attempting to overcome the issues identified by the Inspector at the previous appeal, the design of the proposed development has changed significantly and has resulted in a proposed building that is out of character with the surrounding area and would provide unacceptable residential amenity for future occupiers".[27]Three paragraphs later, in paragraph 4.39, it is stated:
"Paragraph 2.3(3) of section 3 of the SPG states: 'dwellings should be designed so that habitable rooms overlook the front entrance and the street.' "
As noted in paragraph 4.31 above, the applicant has specifically designed the development to have no habitable rooms facing in the direction of the entrance or the street, clearly contrary to this guidance and resulting in a poorly designed building".[28]The reference to the SPG is to the council's Supplementary Planning Guidance which has a section, section 3, headed "Safety & Security Guidelines". It lays down by way of general criteria in paragraph 1.1 that:
"All new development and refurbishment schemes should be designed in order to help create a safe and secure environment"
. It contains numerous detailed guidelines including that at 2.3(3) quoted in the residents' statement.[29]It is submitted by Miss Patry that the design of the proposed houses is such that no habitable rooms overlook the front entrance or the street at all, and that the Inspector has failed to deal at all with the issue raised with regard to paragraph 2.3(3). That, it is said, supports the inference that he failed to apply his mind to the issue.[30]Counsel for the Secretary of State and Wexford challenge the factual premise to the submission. It seems clear from the plan that each of the dwellings does in fact have a habitable room, with a clear glazed window, at ground floor level, overlooking the street. On the other hand, because some of the front windows are slightly set back it is doubtful whether they could be said to overlook the front entrance. I am therefore not sure that the factual point raised is a complete answer to this ground of challenge, though it does seem to me substantially to reduce any force that the ground might otherwise have.[31]In case the factual point is well-founded, Miss Patry sought to argue that on the proper interpretation of paragraph 2.3(3) all the habitable rooms, or at least the preponderance of them, have to overlook the entrance and the street. To my mind that is a plainly unsustainable proposition. It smacks somewhat of desperation. I do not need to dwell further on this factual issue.[32]It is fair to say that the main submissions for the Secretary of State and Wexford have been directed to the legal issue raised on the assumption that the factual premise is correct. It is submitted that there is no basis for concluding that the Inspector failed to have regard to the application of the relevant paragraph of the Supplementary Planning Guidance. The Inspector was obliged to state his conclusions only on the principal, important, controversial issues (see Bolton MDC v Secretary of State for theEnvironment [1995] 3 PLR 37). The broad points made under the heading of "Design" in the statement put in by the residents were those summarised in paragraph 4.36; namely, that the proposed building was out of character with the surrounding area and would provide unacceptable residential amenity for future occupiers. Those, it is accepted, could properly be said to have been important controversial issues, but it is submitted that the Inspector set out his conclusions on them, in particular in paragraphs 13 and 19 of the decision. He was not required to give more detailed reasons than he did. The particular point raised in paragraph 4.39 of the residents' statement, which was really a design issue and raised under the sub-heading "Design", was not itself a principal, important, controversial issue and did not have to be dealt with specifically by the Inspector.[33]I accept those submissions. In my judgment the point made at paragraph 4.39 of the residents' statement was not, and did not become, in itself a principal, important, controversial issue. It was not something on which the Inspector was required to state a specific conclusion, though his consideration of it was encompassed within the conclusions he did express on the broad issues of design and residential amenity of future occupiers.[34]His failure to make express reference to the specific point in the decision letter cannot support an inference that he failed to take it into account. It is clear that he had the Supplementary Planning Guidance in mind. He referred to it as part of the policy background in paragraph 8. It is clear that he directed his attention to the representations that were put in on behalf of the residents. I see no basis for concluding that he failed to have regard to this particular, and in truth very narrow, issue arising under paragraph 2.3(3) of the Supplementary Planning Guidance. I therefore reject the second ground. Third ground[35]The third ground as addressed orally before me is in fact ground 4 in the claim form, ground 3 in the claim form not having been pursued. The ground relates to what was said by the Inspector in paragraphs 14 and 15 of the decision, about the application of emerging policy H.6.3 and whether there would be an unacceptable reduction of outlook and open aspect to neighbouring properties. The Inspector concluded that there would be no such unacceptable reduction.[36]It is submitted for the claimant that the Inspector simply did not have sufficient evidence upon which to base such a conclusion. He had some plans, a site survey and the results of his own site visit, but he should have obtained further evidence from the parties. It is pointed out that paragraph 4 of Appendix 2 to the UDP states that:
"In calculating the effects of a particular development on outlook, the natural features of the site including slope will need to be taken into account, together with the effects of existing and potential extensions."
[37]It is submitted that more information was required in this case on the natural features of the site and that detailed calculations were required about the slope of the land, the height of the buildings, and so forth. A reasonable decision-maker, it is said, would not have proceeded to a decision without seeking additional information of that kind.[38]I find that submission impossible to accept. The difficulties facing anyone seeking to advance a case that a planning judgment was unreasonable in the Wednesbury sense are well known. My attention has been drawn, for example, to what was said by Sullivan J in Newsmith Stainless Ltd vSecretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74, at paragraphs 7 and 8, which are an elegant and emphatic restatement of well established principles: "7. In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable. "8. Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task".[39]It seems to me that precisely the same considerations apply to an argument of the kind advanced here. Whether a decision-maker has enough material upon which to proceed to a decision is a matter of judgment for that decision-maker. It will take a lot to persuade a court that it was unreasonable to proceed to a decision. That applies with particular force in this kind of planning context.[40]The Inspector had a large number of plans, including sections drawn to scale through the line of the existing properties and of the proposed development. He is, of course, an expert at evaluating such material and at assessing what a development built in accordance with the plans will look like and what effect it will have on neighbouring properties. He has the benefit of the written representations and of what was said at the hearing. He has the particular benefit of a site inspection. I note that the site visit here included a visit to this claimant's own house.[41]There is simply no basis upon which it could be said that an inspector armed with all of that information was unable to make a proper assessment of relevant planning issues such as that raised here, so as to make it unreasonable for him to proceed without requiring further information. Accordingly I have no hesitation in rejecting this third ground as well.[42]For the reasons I have given the application fails and the claim is dismissed.[43]MR KOLINSKY: I am grateful to his Lordship for his judgment. I am instructed to make an application for the Secretary of State's costs. My Lord, I would submit this is a matter suitable for determination by summary assessment. An appropriate schedule has been served on my learned friend's solicitors, although I am not sure whether --

MR JUSTICE RICHARDS: I have not seen it.

[45]MR KOLINSKY: My Lord, may I hand one up?

MR JUSTICE RICHARDS: Certainly.

[47]MR KOLINSKY: My Lord, the total figure on the schedule as served was £4,655. My Lord, an additional manuscript amendment to add £120 for, rather embarrassingly, my fees for advice, has been added. I am not sure if that has been missed off.[48]MR JUSTICE RICHARDS: Well spotted. Yes, I see.[49]MR KOLINSKY: My Lord, I will respond to any points made, but I would submit that we are dealing with this as a global matter, it is appropriate for summary assessment, and the figures claimed are entirely appropriate for the nature of the case.[50]MR JUSTICE RICHARDS: Thank you. There is no application, I take it, from --[51]MR HILL: There is not.[52]MR JUSTICE RICHARDS: Good, thank you. Yes?[53]MISS PATRY: My Lord, I think it is most helpful for me to simply say that I do not resist costs either in principle or amount.[54]MR JUSTICE RICHARDS: That is very helpful and very sensible. They all look perfectly reasonable. I will therefore make an order that the claimant pays the Secretary of State's costs, summarily assessed in the sum of £4,775.[55]MR KOLINSKY: Thank you, my Lord.[56]MR HILL: I simply wish to ask whether your Lordship wishes to relieve himself of the bundle?[57]MR JUSTICE RICHARDS: I quoted from Newsmith. I will leave that with the papers, otherwise you can have the bundle back. I am grateful for the loan.[58]Thank you all very much.