Lough & Ors v First Secretary of State [2004] EWHC 23 (Admin)

Case No CO/3394/2003[2004] EWHC 23 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday 21 January 2004
Strand,
London, WC2A 2LL
Before
The H on Mr. Justice COLLINS
Between
LOUGH & OrsFirst Secretary of State
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Richard Clayton Q.C. & Christiaan Zwart (instructed by Mischon de Reya) for ClaimantsNathalie Lieven & James Maurici (instructed by The Treasury Solicitor) for RespondentHarry Wolton Q.C. & Mark Lowe Q.C.(instructed by Goodman Derrick) for Bankside Developments Ltd, an Interested Party
Judgment
[1]The claimants are the representatives of an unincorporated association called the Bankside Residents for Appropriate Development which goes under the acronym of BROAD. It was formed to oppose the proposed development of a site at 44 Hopton Street on Bankside immediately to the west of the building which used to be the Bankside Power Station and which now has been converted to house the Tate Gallery of Modern Art (Tate Modern).[2]The site itself has an area of approximately 0.1 hectare. It was occupied by an industrial building, latterly used by a paper merchant, which was originally constructed in the 19th Century. Following acquisition of the site by developers, now Bankside Developments Ltd., in May 2001 that building has been partially demolished. In August 2001 a planning application to construct a 32 storey tower on the site was submitted to the London Borough of Southwark, the planning authority. It was this that led to the formation of BROAD. The majority of members of BROAD are residents of two blocks of flats. Falcon Point, a 1970s development, is situated to the north of the site on the other side of Hopton Street. It has a maximum height of 9 storeys. Bankside Lofts is a 1990s development immediately to the west of the site. It includes what is known as the Millennium Tower which rises to 16 storeys and which is faced with glass so that residents can have an extensive view and there is at present no need to have concerns about being overlooked. A small number of members live in almshouses which will also be affected by the new building.[3]It became clear to the developers that their application would not be likely to obtain approval. The building was too high and would not have fitted into the townscape. Accordingly, that application was withdrawn and the application which is the subject of this appeal was submitted on 13 June 2002. It involves a 20 storey building comprising accommodation above 3 floors of commercial use with two levels for car parking below ground. The top 5 storeys have a sloping design which reduces the floor area of the accommodation. The building is to be set back from the boundaries of the site and will be faced primarily with glass of differing types mixed with powder coated aluminium sections.[4]Southwark refused planning permission on 16 October 2002. Notice of that refusal was given on 18 October 2002. I shall have to consider the refusal in more detail since one of the grounds relied on by the claimants is founded upon errors said to have been made by Southwark in identifying the reasons for it. The developers appealed. The appeal was heard by an inspector, to whom the power to grant or refuse permission was delegated. He held a public enquiry over 6 days in May 2003. On 9 June 2003 he issued his decision letter allowing the appeal and granting planning permission for the development subject to a number of conditions. This claim under s.288 of the Town and Country Planning Act 1990 was issued on 18 July 2003 by the three claimants who are acting on behalf of themselves and of BROAD.[5]This claim is based on error of law. It is not possible to attempt to reargue the merits or to question the planning judgment of the inspector. The inspector’s decision letter is not to be treated as if it were a statute and subjected to detailed analysis and criticism. It must be read fairly and remembering that it is addressing those who were making representations at the inquiry and so will be expected to be aware of the issues which were raised. I have had more material put before me than was necessary to determine the points which have been raised. That, I fear, is a trend which is all too common in these cases: it only serves to increase the costs of litigation unnecessarily and those responsible for putting these claims together must focus on what material is really needed to be put before the judge. Only that should be copied; the balance, should, of course, be disclosed to the other parties if it might be material, but need only be available at court in case it is required.[6]The relevant development plan for the purposes of s.54A of the 1990 Act was the adopted Southwark Unitary Development Plan (UDP). Two policies were of relevance. These were first E.2.3 which, so far as material, reads:- “All new developments … will be expected to display a high standard of design having particular regard to –(i) established horizontal and vertical visual rhythms;(ii) providing facades reflecting features of nearby buildings where appropriate;(iii) use of good quality materials appropriate to the location … The reason for this policy is stated to be:- “Developing sites piecemeal with little regard to the form of the surrounding development has, in many cases, led to a poor and incoherent urban form. The erection of buildings of good and imaginative design will result in a more attractive environment for Southwark’s residents, workers and visitors”. The second relevant policy is E.3.1 which provides:- “Planning permission for any development or change of use will not normally be granted where it would involve nuisance or loss of amenity to adjacent users, residents and occupiers or the surrounding area. The reason for this policy is obvious.[7]The report of the officers to Southwark’s Planning committee recommended that planning permission be granted subject to conditions and, following discussions with the GLA, to the provision of 9 units of affordable housing and of financial contribution to various environmental improvements. However, the Committee decided that permission should be refused. There has been considerable confusion in relation to the reasons upon which that refusal was based and Southwark has not displayed that competence which is expected of a local authority. It started badly by sending a letter to an objector of 22 October 2002 saying that permission had been granted, but this was corrected five days later. The decision notice of 18 October 2002 gives the following reasons for refusal:- “1. The proposed building by virtue of its height and location would have a visually oppressive relationship to the main entrance to the Tate Gallery of Modern Art and would give rise to overshadowing of the external public areas at the western end of the building detrimental to the enjoyment, by the public, of this important national institution. As such it would be contrary to Policy E.3.1 of the [UDP]. 2. The proposed building, by virtue of its height and proximity to neighbouring residential buildings, would be over dominant in its relationship to them and result in an oppressive outlook and an unacceptable degree of loss of privacy and natural lighting to their residents. As such it would be contrary to Policy E.3.1 of the [UDP]”.[8]Notes made by an objector who attended the meeting of the Committee on 16 October record that a Councillor proposed an amendment that refusal should be based not only on Policy E.3.1 but also on Policy E.2.3 because of the impact on the surrounding buildings including Tate Modern. That amendment was carried so that both policies should have been referred to in the notice. Reason 1 may possibly be considered be relate more appropriately to Policy 2.3 than to Policy 3.1, but the impact on the Tate Modern in particular of the proposed building was regarded as a reason to refuse and so the architectural merit of the building was in issue. The minutes, which were approved as correct, record:- “That planning permission be refused on the grounds of loss of amenity and the impact it would have on neighbouring properties. As such the policy is contrary to Policy E.2.3 (Aesthetic Control) of the Southwark [UDP]”. Thus was confusion compounded since loss of amenity is covered by E.3.1 not by E.2.3. The claimants tried to clarify the obvious confusion but got nowhere. Their request to see a copy of the Clerk’s notes of the meeting was refused on the ground that the notes were considered personal and were not for general public inspection. I find that attitude extraordinary since it was clear that the minute was not accurate. Apart from anything else, it conflicted with the notice of 18 October 2002.[9]Whatever may have been the precise reasons, so far as the developers were concerned, their application had been refused and so they were entitled to appeal. They cannot be criticised for so doing. The appeal lay pursuant to s.78 of the 1990 Act. S.79(1) of the Act provides as far as material:- “On an appeal under s.78 the Secretary of State … may deal with the application as if it had been made to him in the first instance”. This means that whatever may have been the reasons given by the planning authority for refusing the application, any other reason may be raised before and considered by the inspector. Southwark did not in its Rule 6 statement seek to rely on Policy E.2.3, but there was nothing to prevent BROAD raising it and calling such evidence as it considered appropriate to deal with it.[10]At the commencement of the inquiry, Counsel for BROAD submitted that the decision notice of 18 October 2002 did not refer to all the matters on which the refusal was based and so was ultra vires. Accordingly there was no valid appeal. This submission was clearly bad having regard to s.79(1). Furthermore, the inspector indicated that he would consider aesthetic control in addition to the issues raised in the formal decision notice and he proceeded to do so. No application for an adjournment was made so that further evidence could be adduced by BROAD on this issue.[11]Mr. Clayton recognised the difficulties in his path in pursuing this ground. His complaint was that the claimants were prejudiced because they expected Southwark to produce evidence from an architect to support the breach of E.2.3 and they had not the means to undertake that exercise themselves. It is clear that the Committee’s reliance on E.2.3 was not based on any architectural evidence. In any event, when it comes to an appeal, a planning authority may well decide not to rely on a matter which persuaded it to refuse. It is vulnerable to an award of costs if it takes obviously bad points. Thus BROAD could not reasonably have expected that Southwark would necessarily put forward any architectural evidence or would rely on E.2.3; indeed, they were aware from the Rule 6 statement that Southwark did not propose to present any such evidence. While I recognise the problems which face those who come together to oppose a proposed development in terms of costs, they must decide what evidence they wish to adduce and on what issues they will do battle. They cannot rely on the planning authority or, indeed, anyone else to cover all the points they may regard as important.[12]Mr. Clayton suggested the inspector should have granted an adjournment. Since none was requested, that suggestion faces considerable difficulties. In any event, I would have been surprised if the inspector had acceded to such an application had it been made. BROAD had had ample time to produce their own evidence. It is also to be noted that BROAD did call a distinguished architect, Dr. Jan Gehl. It is said on behalf of the claimants that Dr. Gehl’s evidence was concentrated on urban design issues, not architectural merit, and that he “appeared as an ‘independent witness in his own right’ that is, not under the control of BROAD”. The fact is he was called by BROAD’s counsel and he could have been asked to deal with architectural merit. The inspector noted that the GLA, English Heritage and the Commission for Architecture and the Built Environment (CABE) all took the view that the proposed building had architectural merit. CABE’s view was that:- “… this proposal is an elegant and thoughtful response to the various concerns expressed about the previous version of the scheme by the local authority and others”.[13]The inspector concluded that the proposed development would result in the insertion of a building of considerable quality into a rather nondescript setting. He considered that it would contribute positively to the character of the South Bank when viewed across the river in the manner of the exciting building forms in the City when seen from the southern embankment of the Thames in the vicinity of the site. He regarded it as a building of outstanding design. That was a judgment he was entitled to form.[14]It is submitted that the inspector acted irrationally in concluding that the building had architectural merit because he imposed a number of conditions which required the provision of various details before work was commenced. This it is said was inconsistent with the conclusion that the building had merit since the inspector was imposing conditions to ensure that it did have merit. It is normal to impose conditions to ensure that a proposed building does reach the necessary standards. The suggestion that the inspector was thereby acknowledging that he had no evidence to confirm his conclusion concerning the architectural merit of the proposed building is impossible to maintain.[15]The inspector was pressed with the adverse impact on Tate Modern. There is before me a statement opposing the proposed development. There is also a report from English heritage lauding the quality of the building housing Tate Modern. The author had recommended listing but that had not occurred. The inspector’s view of the Tate Modern building, originally a power station designed by Sir George Gilbert Scott and built in the early 1950s of brick, was that it had:
‘become an icon of international repute, but the reputation essentially stems from the building’s use and not its appearance. The building is a former power station, and despite its fine composition and the intricate detailing of its brickwork it still presents an awesome industrial appearance’
. He went on to express the view that the square to the west of Tate Modern did not make a significant visual contribution to the surrounding area. Those were views he was, as a matter of judgment, entitled to reach and the submission that it was irrational to conclude that Tate Modern’s reputation stemmed from its use rather than its appearance is one which cannot be accepted. Before me, reliance was placed on Sir Nicholas Serota’s observations that more than 46% of visitors cited the building as a particular motivation for their visit. He said:- “Throughout the day visitors spend time in the magnificent Turbine Hall, exposing the different levels of the building with their views out over the Thames and the City and relaxing on the lawns overlooking the bridge and the river”. It is submitted that this shows that the appearance of the building is what draws a large percentage of visitors to Tate Modern. I doubt that Sir Nicholas was saying that: if he was, I very much doubt its accuracy. When there, I am sure visitors are impressed with the building, but it is its interior and what is in it which attracts more than its exterior. In any event, whatever may be the meaning of Sir Nicholas’ observations, there is no doubt that the inspector was entitled to form his own judgment on this issue and this he has done. No error of law is shown.[16]Mr. Lough, one of the claimants, had acquired some shares in London Town Plc., which was behind the developers. As a result he submitted a statement to the inquiry in which he sought to establish that the project was not viable in that the developers would not be able to afford to construct the proposed building. The inspector pointed out that permission, if granted, would run with the land so that, if the developers decided they could not carry it out, they could sell to others who would. Thus viability evidence was not relevant and the inspector refused to admit it.[17]It is submitted that this was wrong. Whether or not a development can be carried out can be material. The financial position of an individual developer is clearly immaterial. If a development is one which makes commercial sense, another developer will be found to take over if the applicant cannot pursue it. If the development itself is not viable, it is possible that that may be relevant, but only if the consequences produce a planning deficit. The figures relied on by the claimants to establish lack of viability have been answered by the developers. Suffice it to say that it is clear that the development is viable in the sense that the return will cover the costs of development. The return value is estimated at £35.5 million and the cost of development at £23.1 million. The acquisition costs do not show that the development was not viable.[18]It was suggested that the building might be commenced but that it would not be finished. The chances of that happening are not to be given any weight since if the present developers went into liquidation there can be little doubt that another would be found to take over. It follows that the inspector was correct to refuse to take into account the viability evidence.[19]Complaint is made about the inspector’s acceptance of a unilateral s.106 obligation to provide affordable housing and that £485,000 was to be provided to and spent by the Council on environmental needs relating to the development. The objection in the end was based by Mr. Clayton on the contention that the Council could not, because of its previous incompetence in connection with the grounds for refusal of permission, be trusted to ensure that the obligations were carried out. That submission I find quite impossible to accept. The reality is that both the Council and the developers through their respective legal advisors were involved in considering the various matters in the agreement and the inspector was entitled to accept that they were satisfactory. There were some deficiencies in the initial draft but these were corrected in a resubmitted list of 21 May 2003, which, contrary to the evidence sought to be put in by the claimants, were accepted as those which applied. There are in addition some procedural complaints in that it is said the claimants were not given a proper opportunity to consider and comment on the revised list. No adjournment was sought and the complaint is groundless.[20]A further complaint is directed to the condition imposing an obligation to ensure that television reception to Falcon Point was not interfered with. The new building would have an adverse effect on reception and it is recognised that television today is something which most people want and which for some, such as the elderly, may be regarded as essential. Condition 20 deals with this. It reads:- ‘Before the development … is commenced, a report on any interference with correct levels of television reception in Falcon Point that might arise in consequence of the development hereby permitted shall be submitted to the local planning authority. If the submitted report established that it is necessary to secure works of improvement, a scheme for such works shall be submitted and approved in writing by the local planning authority within 12 months of the date of the submission of the report. The approved scheme of works shall be fully implemented prior to occupation of any part of the development hereby approved”. It is pointed out that this condition fails to deal with interference during construction and in any event it is said that there was evidence which showed that it would be very difficult to achieve satisfactory reception. The existence of high buildings in relatively close proximity in Central London is hardly unknown and the inspector was entitled to be satisfied that the problem could be overcome. It is accepted that the construction phase is not specifically covered but it is pointed out that the new building would not reach a height within 12 months which could cause any interference. It follows that this complaint has no substance.[21]That leaves what Mr. Clayton accepted was the main point. This is that the inspector has failed to consider properly the impact of the proposed development on the rights under Article 8 of and Article 1 of the First Protocol to the European Convention on Human Rights of these claimants. In the result there was, it is submitted, a breach of those rights and so the decision contravenes s.6 of the Human Rights Act 1998. Article 8, which is headed ‘Right to Respect for Private and Family Life’ reads:- “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. Article 1 of the First Protocol is prayed in aid because of the diminution in value of the claimant’s properties which is likely to result from the development in that it will affect the amenities of a number of them by reducing their light, by a degree of overlooking and by removal of a view across the River Thames. Article 1 reads:- “Every natural or legal person is entitled to peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provision shall not, however, in any way usurp the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”.[22]The issue of alleged breaches of human rights was raised at the inquiry. It is worth noting what the claimant’s counsel submitted in relation to human rights. This is to be found in the inspector’s Note of Closing Submissions. They read:- “Articles 6, 8 and 1 of the First protocol are engaged, a fair balance must be struck – but has not been. No compensation has been offered by the appellant, a speculative purchaser who acquired the site after adoption of the UDP, during the currency of draft PPG3, and who made three applications under PPG3, and on notice (by reference to the planning register and file of the TM arbour consent and the council’s Feb 2000 letter setting out issues limiting development of the site JS App 3. By contrast, existing and harmed sample occupiers appearing at inquiry predate the UDP and PPG3 – these seek to protect from harm the status quo. The appellant offers no overriding justification for its scheme. Section 6(1) of the Human Rights Act 1998 obliges the inspector to act in a manner compatible with fair trial guarantees under Article 6(1). The Human Rights Act 1998 post dates Grampian. The issues of, for example, TV matters (and in particular not accommodated within the private law of nuisance) are plainly civil rights falling to be determined by this tribunal and not another. To leave over to another day matters of fact precludes residents a fair trial of these issues, regarded as necessary, relevant, reasonable and fairly related to this proposal (by imposing a lawful Grampian) is in breach of section 6(1) unless the inspector refuses planning permission – he would otherwise act unlawfully. Conversely, if the inspector were to grant, such a condition would itself be unlawful in this case (i.e. fail the Newbury test) for the same reason, and at common law”. As is apparent, the submissions were on a very limited basis and were directed largely at the conditions and, as I understand them, it was being said that a failure to deal explicitly with the matters and to recognise that they did amount to interferences would (unless permission were refused) amount to a breach of section 6 of the Act. Article 6 is not relied on before me: in truth, there was never any good argument based on it.[23]The inspector considered carefully the various matters which were said to constitute losses of amenity to the local residents or more general objections to the proposal. He noted and regretted the loss of views for some, but stated that that formed no basis for rejecting the appeal proposal. That coincides with the position that loss of a view is not a relevant planning objection to a development. He found that there was a breach of Policy E.3.1 in that a number of rooms in Bankside Lofts and Falcon Point would suffer losses of sunlight and daylight and would sustain overshadowing in excess of that permitted. But this would not have rendered the affected rooms incapable of continued beneficial use. He concluded that the loss of daylight and sunlight was to be regretted but he was not persuaded that the effects would be so great as to prove unacceptable. Against that, he set out what he regarded as the advantages which would result from the proposed development. These were those listed by the developers. In Paragraph 56 of his decision letter, he said this:- “Set against the effects on these neighbouring dwellings are the advantages that would stem from the proposed development. In addition to compliance with the general thrust of national, regional and local planning policies the appellants list them as:-a. the removal of an unsightly buildingb. the construction of a building of substantial design qualityc. the provision of sustainable residential developmentd. the efficient use of previously developed lande. the provision of affordable housingf. the provision of funds for environmental improvement by means of a section 106 planning obligation s. the erection, potentially, of a beautiful building that would make a positive contribution in urban design terms h. a contribution to the regeneration of this area of London. I accept that these are indeed benefits that would result from erection of the proposed building. Having weighed the degree to which the proposed development fails to comply with UDP Policy E.3.1 against all the other issues and foregoing matters, especially the advantages that would stem from the proposed development, I find that there is justification to warrant an exception to UDP Policy E.3.1. In the circumstances I am disposed to allow the appeal and to grant planning permission”. a. the removal of an unsightly building b. the construction of a building of substantial design quality c. the provision of sustainable residential development d. the efficient use of previously developed land e. the provision of affordable housing f. the provision of funds for environmental improvement by means of a section 106 planning obligation s. the erection, potentially, of a beautiful building that would make a positive contribution in urban design terms h. a contribution to the regeneration of this area of London.[24]The inspector then went on in Paragraphs 57 to 60 to deal with the issues raised by Reference to the Human Rights Act 1998. In Paragraph 57 he said this: - “In the context of this appeal BROAD asserts that Articles 1, 6 and 8 of the Human Rights Act 1998 are engaged. It points to the fact that the Appellants acquired the appeal site after adoption of the UDP and during the currency of PPG3, and were aware, or should have been aware, of the Tate Modern’s proposals for Tate Square. In contrast, those local residents opposed development and who appeared at the inquiry, resided in the area prior to adoption of the UDP. They seek to protect their amenities from harm, with the Appellants offering no overriding justification for the proposed development or no compensation”. This reference to Article 1 of the Act is an error: he was obviously referring to Article 1 of the First Protocol since that is what had been raised and Article 1 of the Convention is not contained in the Schedule to the 1998 Act. Paragraphs 58 and 59 were concerned with the argument raised under Article 6. He rightly rejected it and it has not been pursued before me. Paragraph 60 reads:- “On the matter of conditions that require submission of details and the like for approval by the local planning authority, such conditions imposed on the planning permission granted herewith follow long established practice and procedure, and accord with the advice issued by the Government. Bearing all these matters in mind I conclude that no interference with the European Convention on Human Rights have been established. Accordingly, insofar as Articles 1, 6 and 8 of the Convention are concerned, I am satisfied that the rights of the residents of Falcon Point, and also the residents of Bankside Lofts, have not been violated”. It is understandable that he should have referred to the conditions since that is, as BROAD’S Note of Closing Submissions to the inquiry, how he understood the argument to have been put.[25]Mr. Clayton submits that the adverse effects of the development consisting of loss of privacy, overlooking, loss of light, loss of a view and interference with television reception all constituted interferences with the rights established by Article 8. In addition, although he accepted that diminution in value was probably not within Article 8 following the decision of the majority in the House of Lords in London Borough of Harrow v Qazi [2003] 3 W.L.R. 792, it was, he submitted, within Article 1 of the First Protocol. The inspector did not address the question of proportionality as he should have done, but merely asserted that no interference with the Convention had been established and no rights had been violated.[26]In R (Malster) v Ipswich Borough Council [2002] P.L.C.R. 251 Sullivan J considered an issue regarding Article 8 and Article 1 of the First protocol. The case concerned the development of Ipswich Town Football Club by the construction of a new stand which local residents claimed could overshadow their properties. In Paragraph 88, Sullivan J said this:- “Whilst severe environmental pollution may result in a breach of Article 8, it is doubtful that the shadowing effect upon the claimant’s garden crosses the threshold, in view of the fact that the council’s own standards are not infringed. But if one assumes that the threshold is crossed, what then? The right to respect for private and family life and home is not absolute. Interference may be justified on the grounds set out in Article 8(2). This required the local planning authority to carry out a balancing exercise between the claimant’s interest in the enjoyment of her home (in this particular case her garden), especially during the spring and autumn, and the public interest in removing an outmoded stand and replacing it with a new one, giving improved sporting facilities and additional capacity for the Club. That is precisely what the Council did. There is no suggestion that Mr. Miller’s report omitted any relevant impact upon the claimant or that any of her concerns were ignored in the report”. Mr. Miller was the area planning officer who made the report to the Planning Committee of the Council. An application for permission to appeal to the Court of Appeal was made and refused: (see [2001] EWCA Civ 1715). In the course of giving the only reasoned judgment, Pill LJ said this at Paragraphs 25 to 27:- “25. Miss Sharpston puts the point in this way. Planning decisions are taken by public authorities in the public interest. The Convention right in Article 8.1 guarantees the right to respect for an individual’s private and family life, his home and his correspondence. Reference is then made to Article 8.2. The submission is that the balancing exercise required under planning law will not necessarily involve the same considerations as the balancing exercise required by Article 8.2. Reference was made to the case of Buckley and to the recent case in the European Court of Justice of Hatton, the case involving night flights from London Heathrow Airport. It was accepted in that case that the nuisance involved in the high volume of night flights was capable of being a breach of Article 8.1. It was also held by a majority that, in striking the balance required by Article 8, insufficient steps have been taken by the United Kingdom authorities.26. I consider that to be a very different case from the present one. I agree with the approach of the judge to this question as set out in Paragraphs 88 and 89 of his judgment. It is right to say that the Article 8 issue was raised on behalf of local residents. It is accepted that there is no express reference to Article 8 in the documents upon which the Council made their decision. It is submitted that there must be an analysis with specific reference to Article 8. I do not accept that to be an arguable submission in the circumstances of this case. The planning processes which were followed in this case plainly had regard to the right which is enshrined in Article 8 of the Convention. It is plain from a reading of the documents that the Council did have in mind the effect which the project would have upon local residents, including the effects which could potentially constitute a breach of Article 8. It is plain that they performed a balancing exercise and did so in a way which came down in favour of permitting the project.27. I add only that in most cases planning considerations, as developed in the law of England over the years by statute and by the judges, usually take account of Article 8, which of course has been in existence, though not part of English law, since 1950. I accept that there may be cases such as Hatton where, in granting a planning permission, great care is required to consider Article 8. Attention must be given to the rights of residents in all cases, but I am far from persuaded in this case that it is arguable that there is any independent and discrete remedy under Article 8 upon the facts. I should add that I have not set out the judge’s reasoning upon the first EIA issue but I agree with it”. The decision in Hatton has since been overtaken by the full Court’s determination, which adds weight to Pill LJ’s observations. In an earlier case, Buckland v Secretary of State for the Environment [2001] EWHC Admin 524, Sullivan J had considered an argument based on Article 8. The case before him concerned refusals of permission for gypsies to site caravans in the Green Belt. I should cite Paragraphs 53 to 55 of this judgment. They read:- “53. It should come as no surprise that Article 8 does not require that existing policies and procedures for dealing with green belt cases be turned on their head. Our planning system is based on the premise that land owners “properly expect to be able to use or develop their land as they judge best unless the consequences for the environment or the community would be unacceptable” (see Paragraph 36 of PPG31). Or, to use the language of the European Court of Human rights, planning permission will be granted unless there is a “pressing social need” for a refusal. 54. The planning inquiry process ensures that arguments as to whether there really is a pressing social need and whether a refusal would be proportionate can be addressed in detail in an appropriate forum. The fact that some policies are expressed in restrictive manner, for example policies relating to development in the green belt, so that the appellant is in effect required to put forward an exceptional case in order to obtain planning permission, does not mean that Article 8 is infringed. Green Belt boundaries are defined in development plans. The elaborate procedures for adopting development plans, including opportunities to make objections and representations, are sufficient to ensure that full account is taken of conflicting social needs when policies are being framed. Development is severely restricted in green belts because it has been concluded that there is, in general (subject to exceptional circumstances in any particular case), a “pressing social need” for such controls in those particular areas as defined through the development plan process. 55. Thus, there is no conflict between Article 8 and the inspector’s conventional green belt approach to this case. The question is not ether the word “proportionality” was mentioned in the decision letter, but whether the inspector in fact carried out a balancing exercise between “the general; laws intended to safeguard assets common to the hole society, such as the environment” and paying “due respect to the interests safeguarded to the individual by Article 8 (see paragraphs 92 and 96 of Chapman)”. Chapman is Chapman v United Kingdom in the ECHR.[27]Mr. Clayton submits that it is wrong to look for a threshold. There is none. If there is an interference with the right to privacy, there must be a justification within Article 8(2). That means that proportionality must be considered. The less serious the interference the easier it will be to say that there is no breach. The cases which have reached Strasbourg do involve serious interference but that, he submits, is inevitable since only in such cases will it be possible sensibly to argue that the breach was disproportionate. The only case he could find (and I accept that his knowledge of the Strasbourg jurisprudence is second to none) in which the concept of a threshold for Article 8 was raised is Costello Roberts v United Kingdom (1995) 19 E.H.H.R. 112. That case concerned corporal punishment imposed on a 7 year old at a boarding school, described as ‘three “whacks” of the slipper on his clothed buttocks’. At Paragraph 36, the Court said this:- “Measures taken in the field of education may, in certain circumstances, affect the right to respect for private life, but not every act or measure which may be said to affect adversely the physical or moral integrity of a person necessarily gives rise to such an interference”. The Court then stated that the disciplinary measures were not severe enough to breach Article 3. It continued:- “The Court does not exclude the possibility that there might be circumstances in which Article 8 could be regarded as affording in relation to disciplinary measures a protection which goes beyond that given by Article 3. It having regard, however, to the purpose and aim of the Convention taken as a whole, and bearing in mind that the sending of a child to school necessarily involves some degree of interference with his or her private life, the Court considers that the treatment complained of by the applicant did not entail adverse effects for his physical or moral integrity sufficient to bring it within the scope of the prohibition contained in Article 8”.28. A balance has to be struck in planning decisions such as the present between the rights of the developer and the rights of those affected by the proposed development. If an adjoining occupier seeks to build on or change the use of his land, an individual is likely to be affected and his enjoyment of his property may be interfered with. In addition, the public generally may be affected if, for example, conservation areas or the green belt is affected. These various matters have all to be weighed and that is what a local planning authority or an inspector will do. In the vast majority of cases, that exercise will deal with all matters which are relevant in deciding proportionality within the meaning of Article 8 or Article 1 of the First Protocol. Pill LJ in Malster makes that very point. While no doubt it would be sensible to refer explicitly to proportionality so as to avoid challenges such as this, it is not in my view necessary provided it is clear that all relevant factors have indeed been considered and the result would not be any different.29. It is difficult not to sympathise with the claimants. Those who live in Falcon Point have had to put up with the disruption of the building of Bankside Lofts and the construction work at Tate Modern. Their amenities will be adversely affected. But in an urban setting it must be anticipated that development may take place and that high rise buildings are inevitable having regard to building costs and the value of city centre land. Further, it is in the public interest that residential developments take place in urban areas if possible. It is clear that the inspector did consider the advantages of the proposed development against the disadvantages to the claimants. It is inconceivable that he would have reached any different conclusion if he had specifically dealt with proportionality. The obstruction of views for some and any diminution in value would not have affected the position having regard to the inspector’s findings in relation to the desirability of this development. In reality, the inclusion of Article 1 of the First Protocol adds nothing since any diminution in value is an effect of the loss of amenity: see Malster at Paragraph 89 per Sullivan J.30. While it may be correct to say that it is unnecessary to look for a threshold, it makes no difference in practice. If the interference is slight, it will be very easy to show that it is proportionate. The inspector has not erred in his approach to the balancing exercise required by the planning legislation. There is no possibility that he would or should have reached a different conclusion had he specifically referred to proportionality.31. Accordingly, this claim fails and must be dismissed. - - - - - - - - - - - - - - - - - - - - - MR JUSTICE COLLINS: Yes, I am grateful for the observations on various typos in other areas. I have spotted a few more. On the front page, I am not sure that "Otrs" is an abbreviation for "Others", should it not be "Ors" or "Others"? I do not think it matters which, either delete the "t" or add an "he". It is Mischon de Reya, not Muschon, so that should be amended. Paragraph 7, in the quotation, the third last line, the word "enforcement", I have not actually rechecked this, but that must be "enjoinment" I think, because "enforcement" simply does not make sense, does it? It must be, "enjoinment, by the public..." MISS LIEVEN: Yes, my Lord, I would have thought that. MR JUSTICE COLLINS: I am afraid my clerk could not read my writing and I missed that on checking it. Paragraph 25, in the fourth line I talk about, "interference with the right to privacy." I am not sure that the words "to privacy" should be there. I think simply that, "...the rights established by Article 8." It does not strictly establish the right to privacy although it is arguable that it achieves that result. I think I better delete the words "to privacy". Protocol in the fourth last line should, I think, have a capital "p". Finally, on the next paragraph, but over the page, in the quotation it is Miss Sharpston, not Sharpton, is it not? That is all I have spotted in addition to those which I am grateful for having had drawn to my attention. I have, I think, incorporated, without going into any detail, the point that the statement of Sir Nicholas was not actually before the Inspector, simply by saying it was before me. It does not really matter whether it was or was not in the way I have approached it. I have not gone into the details of whether it should have been taken into account. Subject to those amendments, this claim is dismissed. MISS LIEVEN: My Lord, in those circumstances may I ask that the claimant pay the first respondent's costs, to be assessed if not agreed? It was a more than one day hearing so no summary assessment. MR JUSTICE COLLINS: Yes. I do not think you can resist that, can you? MR CLAYTON: No, we do not. MR JUSTICE COLLINS: Mr Wolton told me that he was not applying. Indeed, he would not have got anything if he had applied. Yes, just one lot of costs to the Secretary of State. MR CLAYTON: Thank you, my Lord. We do have an application, however. MR JUSTICE COLLINS: You surprise me. MR CLAYTON: The application is for permission to appeal. It is in relation to one point only, the human rights point. MR JUSTICE COLLINS: Yes. MR CLAYTON: I make the application on two bases, cumulatively and separately on real prospects of success and/or in the general public interest. My Lord, I have produced a very short summary of submissions which I wonder if I might hand up. MR JUSTICE COLLINS: Yes, that is very helpful, thank you. MR CLAYTON: My Lord, I would be grateful if I may take your Lordship through the submissions quickly and develop them if it is necessary. My Lord, I take the starting point as being the holding in paragraph 29 of your Lordship's judgment. MR JUSTICE COLLINS: Yes. MR CLAYTON: The points we make are these: in this particular case the interferences with Article 8 are significant. We say that because of the breach of policy in relation to overshadowing the daylight, the diminution in value and the loss of television -- MR JUSTICE COLLINS: Diminution in value you say is 20 percent, that is in issue. I have not gone into the details of that because it did not seem to me to be necessary to do so, but I was clearly told that it was not accepted that the diminution was necessarily as much as 20 per cent. But I accept that that does not detract from your point, whether or not it is up to 20 per cent it is a substantial diminution in value. MR CLAYTON: I am obliged. My Lord, the next point we want to make is that the suggestion that all relevant issues were considered by the Inspector is gainsaid, we would respectfully submit, by at least two matters. Firstly, the Inspector expressly said, in paragraph 64, that matters of property valuation were not to be considered because they were not material considerations. Therefore the significance of the drop in property was not a matter being expressly considered. Secondly, he did not, at any stage, expressly consider the interference with television reception and whilst appreciating the submissions made by my friend, Miss Lieven, in relation to those, we take the view that for these particular residents it is important. The next point we move on to is that a balancing exercise under section 54A is not equivalent to proportionality; first, because of the points just made; the balancing exercise excluding important factors which have to be taken into the balance; secondly, importantly, in our submission, the proportionality test formulated by Lord Steyn in Daly is very different from a general balance test. In particular the third requirement, necessity of minimum impairment, is significantly different. I think what it really comes to is this: we would say that although the issue of policy might be a starting point, it is not necessarily an end point in a fact specific question. MR JUSTICE COLLINS: No MR CLAYTON: We then observe that the proportionality test was not expressly considered by the Inspector and therefore we wish to test your Lordship's conclusion that the failure to consider proportionality may do difference to the result. Dealing briefly, if I may, with the authorities. We would respectfully submit that they do not illuminate this issue to any significant degree for these reasons. The discussion of proportionality in Buckland was pre Daly. That is quite important because your Lordship will remember with Mahmood and Isiko there was some uncertainty, in the early days of the Human Rights Act, as to what proportionality was specifically involved. We also make the point that Malster, which I hope is correctly spelt, is of limited significance for two reasons essentially. Firstly, because of the decision of Sullivan J, I think I am right in saying, was again pre Daly. Secondly, the findings of the Court of Appeal, which were in any event again, I think, pre Samaroo, dealt with it on the facts, and on the facts, as your Lordship accepted, the garden overshading in Malster was -- MR JUSTICE COLLINS: It was not a very serious interference on the face of it. MR CLAYTON: We would make the point that as far as there is a spectrum our case is rather further away. MR JUSTICE COLLINS: Yes. MR CLAYTON: The next point we make is that so far as we are aware, and here we are in the (inaudible) of the Secretary of State, all the post Samaroo decisions, which really is the last important analysis of proportionality as matters presently stand, expressly consider proportionality. What is more, that having been done, having asked the question, the court in those instances went on to evaluate whether it had been properly applied. In our respectful submission that is some distance from the more summary conclusion your Lordship reaches, which is that you do not, in some cases, need to do that. MR JUSTICE COLLINS: I made it clear, I hope, that it would be sensible to do it. Well, I have said that. MR CLAYTON: Yes. MR JUSTICE COLLINS: The question is whether in any individual case on the facts it would make any difference, I think. MR CLAYTON: Yes. Just to deal with that point, we would say on the facts here, we are (a) dealing with what we would call significant interference. MR JUSTICE COLLINS: I understand that. MR CLAYTON: And (b), because the proportionality test is more nuanced, particularly the minimal impairment question, it is difficult to say that the Inspector was bound to reach the conclusion it was. A fortiori, we say, because there were certain factors which he did not consider in any event, which, in our respectful submission, support the suggestion that he would not necessarily have reached -- or at least an inspector properly directing himself to the law, would not have considered it. We therefore rely, just to conclude the point on the authorities, on a post Samaroo authority in saying that there is a considerable virtue in cases where it matters for proportionality to be expressly considered. We say on the facts of our case that this is such a case. So, in those circumstances, the first submission we make in relation to permission is that there are realistic prospects of success. We say that against the background of the authorities as they presently stand and the fact that the Secretary of State has succeeded in a submission which can be contrasted with those more later cases. We also make the point that in any event this is a case of real public importance, in the sense that because there is a sensible and substantial case on the facts, the legal question, of what position to place and significance to attach to the proportionality principle, has obviously general implications beyond this case. We acknowledge that and indeed I am sure the Secretary of State likewise acknowledges that. My Lord, those are the submissions which occur to us at this stage. We would be grateful if your Lordship would grant us permission on those grounds. Unless I can assist you further. MR JUSTICE COLLINS: No, thank you. MISS LIEVEN: My Lord, the Secretary of State is not resisting permission to appeal in this case for this reason: we can see some benefit in having a judgment from the Court of Appeal that finally settles the question of what inspectors have to do on Article 8 cases. In our view this is an appropriate case. Having said which, we make no concessions about the realism of any prospect of success. We leave it entirely to your Lordship's judgment. MR JUSTICE COLLINS: Yes. MR WOLTON: My Lord, we, as interested party, would strongly oppose a request for permission. We would suggest that the application for permission is opportunistic. If I may respectfully refer your Lordship to your own conclusions as to the difference between the submissions that were made on human rights issues at the enquiry and those that were before the Inspector, as compared with what has happened in your Lordship's court. Quite clearly there are these, if I may say so, with respect to my learned friend, minor matters relative to the issue as a whole. The failure to use the word "proportionality" is indeed covered by your Lordship, I would suggest, with respect, very adequately by the reference to the Inspector's conclusions which amount to the same test. To say that there are matters that have not been considered within that band is really to suggest that there is something omitted from the report, from the Inspector's decision letter, which has not been established as a matter of fact. The difficulties, of course, if this matter is progressed further, are legion, as far as the commerciality of the proposal to develop is concerned. It is an extraordinarily cheap exercise for objectors to pursue and an extraordinarily expensive -- MR JUSTICE COLLINS: Well, I see the concern. The difficulty is this, is it not, Mr Wolton, if I say no, I think it is almost inevitable that they will go to the Court of Appeal, they will have the defendant/respondent saying we do not oppose the grant of leave to appeal. In which case -- MR WOLTON: That is a considerable blow, I have to concede. MR JUSTICE COLLINS: This is the difficulty. I would not have granted leave to appeal, I am bound to say, but I am concerned at the attitude of the respondent. The result of which, I suspect, will almost certainly be that if there was an application to the Court of Appeal it would be granted. MR WOLTON: Yes. MR JUSTICE COLLINS: In which case all I would be doing is to add some extra costs and some extra delay by refusing leave to appeal. MR WOLTON: My Lord, I accept entirely what your Lordship's says, but I would raise the point as to whether or not this is the right case to be tested in that way. MR JUSTICE COLLINS: That may well be correct, particularly having regard to the submissions that were made by counsel at the hearing, but we have heard what the Secretary of State has to say about it. MR WOLTON: That has come as a surprise. MR JUSTICE COLLINS: It has rather cut the ground from under your feet, I think, has it not? MR WOLTON: Absolutely, my Lord. I can say no more, but only ask your Lordship that if that is the conclusion then can we perhaps seek an expedited hearing? MR JUSTICE COLLINS: Yes, I mean, whatever power I have in that regard, I am not sure it is a great deal, but it is obviously desirable that it should be dealt with as quickly as possible. Certainly I can put the claimants on terms as to when they should lodge their application. How long do you have normally, 14 days, is it? MR CLAYTON: I think it is 14 days. MR JUSTICE COLLINS: Or is it 28? MR CLAYTON: It is 28 for notice of appeal. MR JUSTICE COLLINS: 28 for notice of appeal. If I were to -- MR WOLTON: It is 28, my Lord. MR JUSTICE COLLINS: It is 28, yes. I am bound to say I am sympathetic, Mr Wolton, because, as I indicated, I would not have granted leave to appeal. I think this does depend on its facts and is covered by ample earlier authority and the approach of the Court of Appeal, even though there are detailed differences following Samaroo. It does make it, I think, clear that it would be, not only sensible, but probably desirable, for inspectors always to refer specifically to proportionality if the issue is raised, and sometimes even if it is not expressly raised where it might be relevant. The same, of course, applies to officers writing reports to planning committees. It is difficult to know where to draw the line, but I suspect, and indeed it is obvious, that in the vast majority of cases the result will not be any different whether proportionality is specifically referred to or not. I do not think there is any doubt about that. The question is whether this is a case where it might have made a difference. MR WOLTON: My Lord, just as a final effort, if I may, if I could take your Lordship to paragraph 23 of your Lordship's judgment? MR JUSTICE COLLINS: Yes. MR WOLTON: The question of the minimal test as to the interference. In the first part of that paragraph, five or six lines up from the end:
"He concluded that the loss of daylight and sunlight was to be regretted but he was not persuaded that the effects would be so great as to prove unacceptable."
He certainly did go to the issue of the extent of the problem and considered in the balance -- MR JUSTICE COLLINS: I entirely agree. This is why I am not sure this is the right case on the facts, but -- MR WOLTON: Well, my Lord, I can say no more. MR JUSTICE COLLINS: Fortunately there is no opposition from the defendant, in which case, reluctantly, because otherwise, as I have said, I would not have granted leave to appeal, it seems to me that if I refuse leave to appeal it will only add to the costs because it will make it necessary to go to the Court of Appeal for leave. If the attitude is the same, as no doubt it will be, and even if it is not they will be in difficulty in changing it because you will say what they said to me, I think I will, in that case, grant leave to appeal. MR CLAYTON: I am obliged. MR JUSTICE COLLINS: Not because I think there is any reasonable prospect of success, but because the view is taken that it is desirable, and I can see the force of this, that the Court of Appeal has the opportunity, post Samaroo, to give an indication as to what inspectors -- and indeed it would extend beyond inspectors to those writing reports to committees of the local planning authorities -- should do in relation to Article 8, particularly as there are some aspects which are not directly covered by the planning matters, such as loss of a view, which is not directly covered, and possibly loss of diminution of value, although I am not very persuaded on that because that seems to me to be an effect of another loss or another loss of amenity of one sort of another. MR CLAYTON: Yes. MR JUSTICE COLLINS: I am very far from persuaded that Article 1 of the First Protocol actually adds a thing. MR CLAYTON: Yes. MR JUSTICE COLLINS: But that is no doubt a matter that can be gone into if it has to be in due course. It is very important that this is dealt with quickly. MR CLAYTON: We do not resist that. MR JUSTICE COLLINS: No, well, I understand that. I do not see any reason why you should not put your application in within 14 days. Assuming I have power to do so I will direct that you must put it in within 14 days. Thereafter it is a matter for the Court of Appeal, of course, to sort out the timing. But I would urge them, insofar as I am able, to make sure that it is dealt with speedily. MR WOLTON: I am obliged, my Lord. MR CLAYTON: My Lord. MR JUSTICE COLLINS: Thank you.