Lovelock, R (on the application of) v Surrey Heath District Council [2006] EWHC 2423 (Admin)

Case No CO/1572/2006[2006] EWHC 2423 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 20 September 2006
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE GILBART QC
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF MICHAEL ROBIN LOVELOCKClaimant-v-
Between
THE FIRST SECRETARY OF STATEDefendantSURREY HEATH DISTRICT COUNCILInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR JEREMY PIKE (instructed by Michael Lovelock) appeared for CLAIMANTMR CHARLES BOURNE AND MR PAUL GREATOREX (Judgment Only) (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]THE DEPUTY JUDGE: In this matter, the claimant challenges a decision of the inspector of the First Secretary of State to dismiss his appeal against the refusal of Surrey Heath Borough Council to permit the sub-division of an existing dwelling at 42 Dawsmere Close, Camberley, Surrey into two self-contained dwellings. The decision was given by a decision letter on 11 January 2006 after an exchange of written representations. The challenge is of course made under section 288 of the Town and Country Planning Act 1990.[2]There was one reason for refusal given by the local planning authority (which was the second defendant, but has, as is quite usual, elected not to appear). That reason for refusal was as follows. Had it determined it, it would have refused it because - "The proposal does not afford the occupiers of the new unit a car parking space. Given the suburban location of the site which is distant from public transport interchanges, in which a degree of car usage is likely to be required, the amenities of the occupiers of the new unit are likely to be prejudiced by the absence of a car parking space. As such the proposal is contrary to the objectives of policy M7 of the Surrey Heath Local Plan 2000." I say that is the reason it would have given, but it had in fact not determined the application. There was no objection from the Highway Authority.[3]On the appeal, a ground argued by the appellant (now the claimant), and thoroughly so, related to the weight that should be given to that development plan policy in the light of subsequent national and structure plan policy. Policy M7 in the local plan had been adopted in 2000, but had set out on its statutory path through consultation and adoption in 1996. The policy is to the effect that parking provision must be made in accordance with standards of 1.55 spaces per dwelling, which can be reduced if there is satisfactory alternative transport, or if a contribution is made towards transport related facilities, or if the development will not lead to highway safety or environmental problems, and if requirements for the disabled are met. That approach of minimum standards reflected what might be called the traditional approach to parking provision.[4]In March 2001, Planning Policy Guidance Note 13 was published in updated and amended form. Paragraph 4 of the PPG reads:
"The objectives of this guidance are to integrate planning and transport at the national, regional, strategic and local level to: • promote more sustainable transport choices for both people and for moving freight; • promote accessibility to jobs, shopping, leisure facilities and services by public transport, walking and cycling, and • reduce the need to travel, especially by car. 5. This guidance sets out the circumstances where it is appropriate to change the emphasis on priorities in provision between different transport modes, in pursuit of wider Government objectives. The car will continue to have an important part to play and for some journeys, particularly in rural areas, it will remain the only real option for travel."
[5]In paragraph 49, in a section under the heading, "Managing Travel Demand", the following appears:
"49. The availability of car parking has a major influence on the means of transport people choose for their journeys. Some studies suggest that levels of parking can be more significant than levels of public transport provision in determining means of travel (particularly for the journey to work) even for locations very well served by public transport. Car parking also takes up a large amount of space in development, is costly to business and reduces densities. Reducing the amount of parking in new development (and in the expansion and change of use in existing development) is essential, as part of a package of planning and transport measures to promote sustainable travel choices. At the same time, the amount of good quality cycle parking in developments should be increased to promote more cycle use. 50. A consistent approach on parking should be set out in the RTS [Regional Transport Strategy] to avoid wasteful competition between different locations based around the supply or cost of parking, to the detriment of sustainable development. Policies on parking should be coordinated with parking controls and charging set out in the local transport plan, and should complement planning policies on the location of development. 51. In developing and implementing policies on parking, local authorities should: • ensure that, as part of the package of planning and transport measures, levels of parking provided in association with development will promote sustainable transport choices; • not require developers to provide more spaces than they themselves wish, other than in exceptional circumstances which might include for example where there is significant implications for road safety which cannot be resolved through the introduction or enforcement of on-street parking patrols; ... "
Paragraph 52 sets out the requirement for maximum parking standards.[6]The Secretary of State also published and revised an updated Planning Policy Guidance Note 3 relating to housing (counsel could not tell me the date, but it is either 2000 or 2001 -- it does not matter for the purposes of this judgment):
"59. Local authority requirements for car parking, especially off-street car parking, are also a significant determinant of the amount of land required for new housing. 60. Car parking standards for housing have become increasingly demanding and have been applied too rigidly, often as minimum standards. Developers should not be required to provide more car parking than they or potential occupiers might want, nor to provide off-street parking when there is no need, particularly in urban areas where public transport is available or where there is a demand for car-free housing ... [Parking policies] should not be expressed as minimum standards. 61. Local authorities should revise their parking standards to allow for significantly lower levels of off-street parking provision, particularly for developments: ... • involving the conversion of housing or non-residential buildings where off-street parking is less likely to be successfully designed into the scheme. 62. Car parking standards that result, on average, in development with more than 1.5 off-street car parking spaces per dwelling are unlikely to reflect the Government's emphasis on securing sustainable residential environments. Policies which would result in higher levels of off-street parking, especially in urban areas, should not be adopted."
[7]In Surrey, the position had also changed. In March 2003, the County Council, which is the strategic planning authority and highway authority, issued revised parking standards. They no longer required particular provision for developments of below 20 houses, and advocated flexibility in smaller developments. The Surrey Structure Plan, which was approved in 2004, sets maximum rather than minimum parking standards.[8]The claimant argued to the inspector that it followed from the above that all policy, both at the local and national level, had adopted a very different emphasis to that contained in the local plan. By contrast, the local planning authority contended that policy M7 applied. In its representations to the inspector, it identified policy M7 as seeking to ensure that new development provides parking in accordance with adopted standards. It then addressed the issues in the report: firstly, the question of detriment to residential amenity -- it concluded that there would not be any; secondly, whether there would be sufficient amenity space for the proposed occupiers -- it concluded that there would be; and thirdly, whether the parking provision is acceptable in terms of highway safety and adequate to meet the needs of future residents. So far as that is concerned, it referred to the Highway Authority's lack of objection, it referred to PPG 3, and it referred to PPG 13. It described the links between residential units, public transport and local shops, in its words, as "relatively well served", but considered that the site was distant from public transport interchanges, and in its words: "the degree of car usage would be necessary for a residential unit in this area".[9]It contended that at least one car parking space would be required. It contended that there would be no allocated car parking space, and that which could be used would block the garage next door. It contended that space would not be available on an adjoining car park. It concluded:
"... the proposal does not provide sufficient car parking to serve the needs of the residents of the new unit, to the detriment of the amenities that they my reasonably expect to enjoy. The proposal is therefore considered to be in conflict with Development Plan policy and supplementary planning guidance and is recommended for refusal."
[10]The inspector, by a decision letter which is short but is not to be criticised for that, dealt with the appeal. She identified the main issue as the question of M7. She referred in paragraph 3 of her decision letter to the contentions of local residents that unallocated spaces were often insufficient for the number of vehicles to be provided. She concluded that there was significant pressure on parking in the residential area in which the appeal property is located. She concluded that it may be acceptable for a car to be parked outside the adjoining garage, but not if two separate households were concerned. She said this at the end of paragraph 4:
"4. I have not been provided with any evidence that a guaranteed, designated parking space would be available in one of the common car parks for the proposed new dwelling. I am not persuaded that a possible parking space in an unallocated car park would be proper provision as required by policy M7 of the local plan. 5. It may well be that the overall parking provided in the residential area equates to 1.5 spaces per dwelling. However, from what I saw on my visit and from the evidence provided by the parties, it appears that each dwelling has an allocated parking space, either in a garage or an open car park. The proposed dwelling would not have an allocated space and the occupiers would have to rely on the possibility of a space being available which, given the pressure on parking for both residents and their visitors, may not always be available. In my view, this would be detrimental to the occupiers of the proposed dwelling" [I interpose to note that she is concerned with the question of the amenities of the proposed occupiers]. "
Both local plan policy and national guidance, including Planning Policy Guidance Note 3 ... and Planning Policy Guidance Note 13 ... seek to reduce dependence on the private motor car and so parking requirements should be reduced in certain circumstances, for example, the provision of satisfactory alternative public transport. The area is served by a bus service during the day but I note from the timetable that the service in the evenings and on Sundays is very limited. I accept that the occupier of a one bedroom house may not own a car and that PPG 13 advises that a developer should not be required to provide more spaces than they themselves wish. But given the suburban nature of the area and its distance from local centres, I consider that it would be more than likely that the occupiers of the two proposed houses would have cars. It would not be possible in this case to impose a planning condition that the proposal would be a car-free development which would be, in my opinion, the only way to discourage the use of the private car in the circumstances of this appeal. I believe that the provision of an additional space for the new dwelling would therefore be essential in terms of local plan policy M7."[11]In paragraph 7, she concluded that other matters raised did not outweigh those conclusions. She dismissed the appeal.[12]The duty of the inspector was, first of all, to determine the application for permission, having regard to the development plan and all material considerations (section 70(1) of the Town and Country Planning Act 1990). Secondly, pursuant to section 38 of the Planning and Compulsory Purchase Act 2004, by sub-section (6) she had to act as follows:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
It is a matter of trite law, to be found in, for example, the well-known case of Gransden v Secretary of State [1985] 54 P&CR 86 per Woolf J (as he then was), and in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953; [2004] UKHL 33, that firstly, so far as national policy was concerned, she was bound to interpret it properly, apply it, or if not applying it, give reasons for not doing so. Secondly, she had to give adequate and intelligible reasons for her decision which dealt with the principal issues.[13]In my judgment, the terms of PPG 13 and PPG 3 are intended to use the absence of parking provision as a way of driving down demand for travel by car: see paragraph 49 of PPG 13. Thus it is that the policy does not expect minimum standards, but does seek maximum standards (see paragraph 52 for example). Given that the mechanism adopted is to make travel by car less attractive, it follows that, absent a wish by the developers to provide any parking, the PPG is seeking to discourage provision unless the circumstances are exceptional, and paragraph 51 indicates the type of case that must exist for an exception to be made. If in fact the grant of permission for a development required that parking spaces (or in this case a space) were or was made available on a site or on the highway, the purpose of the policy would not be achieved.[14]Now, it may be that in some cases the detrimental effect of the lack of provision would outweigh the policy objectives. If, for example, the evidence were that failure to make provision could lead to on-street parking which would affect the appearance of a conservation area, or if there were evidence that it could lead to parking in a location which would cause harm to amenity to others, that might be the type of case where the effects could outweigh them. But, absent the highway safety issue (such as arguments that congestion might occur to an unacceptable degree), it is hard to see how a decision that the occupier of the new dwelling would be so disadvantaged by not having a car parking space that permission for a dwelling should be refused could be consistent with the thrust of PPG 13 and PPG 3. Indeed, the provision of a space to meet the potential desire of a future occupier would be impossible to reconcile with those policy statements.[15]I should add for completeness that, absent a highway objection, the case for refusal on parking grounds when the issue concerns one space must be difficult to bring within any reasonable interpretation of PPG 3 and PPG 13.[16]I also consider that the inspector has made a serious error in her summary of the effect of the policy in PPG 13 and PPG 3. It will be recalled from what I have set out above that she stated that those policy guidance notes seek reduction - "... in certain circumstances, for example, the provision of satisfactory alternative public transport." She has treated that as defining the circumstances in which reduction should occur. That is itself a misinterpretation of PPG 13 and PPG 3. No such test appears in either document. Indeed, in PPG 3, while reductions are encouraged in particular circumstances, they include:
"• involving the conversion of housing or non-residential buildings where off-street parking is less likely to be successfully designed into the scheme."
That is precisely apt to this proposal and she makes no reference to it in her decision letter.[17]Perhaps the most telling sign that she has misunderstood and misapplied PPG 13 and PPG 3 is her conclusion in the first sentence of paragraph 6 that local plan policy and PPG 3 and PPG 13 were to similar effect.[18]I therefore regard her interpretation of the two planning policy guidance notes to be inadequate and incorrect, and they fall outside the range of reasonable interpretations.[19]Under section 38(6), she was required to ask herself if material considerations indicated that the decision should not be made in accordance with M7. To answer that question, it was incumbent upon her to interpret PPG 3 and PPG 13 properly, and then ask whether the exceptional circumstances existed here to insist on minimum standards. If she chose not to follow PPG 3 and PPG 13, she then had to give reasons for her departure from the policy.[20]Mr Bourne has urged on me that, although he accepts that paragraph 6 is poorly drafted, its meaning is clear that the inspector has had regard to PPG 13 and PPG 3, and has found that there was an exceptional case. I am unable to accept that. The starting point for considering an exception -- either within the policy, or as an exception to the policy -- is that one interprets the policy properly. I am satisfied that she did not do so.[21]There will be judgment for the claimant and the decision will be quashed.[22]MR PIKE: My Lord, I am grateful. In those circumstances, I do ask for the claimant's costs, which are in the sum of --[23]THE DEPUTY JUDGE: Is there agreement on the figures?[24]MR PIKE: My Lord, I am not entirely sure.[25]MR GREATOREX: No, there is not, my Lord.[26]THE DEPUTY JUDGE: Did you show it beforehand?[27]MR PIKE: My Lord, yes. In fairness to my learned friend, quite briefly beforehand.[28]THE DEPUTY JUDGE: You mean this morning?[29]MR PIKE: Yes, my Lord.[30]THE DEPUTY JUDGE: Not yesterday?[31]MR PIKE: No, my Lord.[32]THE DEPUTY JUDGE: The rules are quite clear. It is £647?[33]MR PIKE: No, my Lord, it is £6,471.50.[34]MR GREATOREX: My Lord, there is no issue on the principle of costs.[35]THE DEPUTY JUDGE: I am going to make a summary assessment and the two of you can sort it out. I do not want to cause more expense by putting it off to another day.[36]MR GREATOREX: My Lord, I was not going to suggest otherwise. I was simply going to make brief submissions on the quantum.[37]THE DEPUTY JUDGE: No, you discuss it first and you can come back and mention it before lunch.[38]MR GREATOREX: My Lord, I am grateful. My Lord, there is going to be an application for permission to appeal. Would your Lordship rather hear it now or when we come back?[39]THE DEPUTY JUDGE: I will hear it now.[40]MR GREATOREX: My Lord, I will be as brief as I can. The permission is on the grounds that there is a realistic prospect that the Court of Appeal will come to a different view to your Lordship on this issue, essentially for the reasons summarised by your Lordship just now in the judgment with regard to Mr Bourne's submissions that your Lordship heard yesterday. I can expand if your Lordship wishes.[41]THE DEPUTY JUDGE: I consider that there is no realistic prospect of a successful appeal in this case. The issue is a very straightforward one, to which the answer was very straightforward. If you want to make an application for permission to appeal, you will have to go to the Court of Appeal. Short Adjournment[42]THE DEPUTY JUDGE: I see you have come to terms.[43]MR PIKE: My Lord, yes, in the sum of £6,500.[44]THE DEPUTY JUDGE: Right, very good. Thank you, gentlemen, for doing so. It saves a lot of time and unnecessary argument.

Cited in 1 later judgment