Johnson v Secretary of State for Communities and Local Government [2007] EWHC 1839 (Admin)

Case No CO/7156/2006[2007] EWHC 1839 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 8th June 2007
Strand
London WC2
B E F O R E:
MR JUSTICE OUSELEY
Between
MR JOHNSONClaimant-v-
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
(Computer-Aided Transcript of the Palantype Notes ofWordwave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Claimant appeared on his own behalfMr J Auburn (instructed by Treasury Solicitors, London) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE OUSELEY: There is before the court an application under section 288 of the Town and Country Planning Act 1990 in respect of a decision of an inspector of the Secretary of State for Communities and Local Government, made on an appeal to him which he decided following a hearing, in a decision letter dated 20th July 2006.[2]The factual background to the application is a little unusual. The inspector was considering an appeal from a decision of the Derwentside District Council, which had refused permission on a single application for a development comprising the erection of a new dwelling as an extension to a detached double garage and, on the same site, the conversion of the larger building into a single four or five-bedroom dwelling, together with a single garage, from currently two dwellings.[3]The local planning authority had no objections to the conversion and alterations to the existing dwelling house on the site (that is to say, to the larger dwelling), but it did object to the proposed new dwelling being built as an extension to the detached double garage. Because it regarded the latter as the major part of the development, it refused permission for the whole, but made it clear that it would look favourably upon a separate application for the conversion of the larger existing building, its alteration and extension.[4]The claimant appealed against that refusal of permission and at the hearing contested the various reasons why the local authority objected to the extension to the detached garage. The inspector upheld the local authority's objections to that part of the development, but he too agreed with the local authority that there were no objections to the reconversion of the original dwelling back into a single house with alterations and extensions to it. Accordingly, in his decision he dismissed the appeal in relation to the creation of a new detached dwelling, and allowed the appeal granting planning permission for conversion, alterations and extensions to the existing dwelling house.[5]The unusual feature of this application by the claimant is that he seeks the quashing of the permission which he has been granted in relation to the conversion, extensions and alterations, as well as the quashing of the decision refusing the creation of the new detached dwelling.[6]I can deal with his grounds in relation to the latter quite briefly. He contended that the views which the inspector took in relation to the absence of a private rear garden, the cramped appearance of the site with two dwelling houses, the break in what the inspector regarded as the regular linear estate layout, and the intrusive impact of the new house in an area where dwellings were set back, all involved errors of law. Although Mr Johnson, who appeared in person and presented all that he had to say with moderation and sense, put forward those points as points of law, the reality is that they all represent planning judgments to which the inspector was entitled to come and no error of law can be said to arise in respect of them.[7]The real concern which Mr Johnson raises relates, unexpectedly, to the grant of permission for that part of the development which concerned the existing dwelling. Mr Johnson explained why he was concerned to quash the permission which he had been granted on part of the application. The permission was not capable of being implemented as intended, because the garage which was to be part of the conversion of the existing dwelling could not be accessed off the drive to the existing detached garage, because of a difference in levels. In order to overcome that problem, the roof of the detached garage would have to be raised by some 2 feet or so, and that would require a further planning permission.[8]However, the land tenure arrangements under which the claimant owns 31 Parklands, the development site, means that where a planning permission has been granted and enhances the value of his land, a sum of money falls to be paid to the freeholder. Thus he says he is caught in this bind: he has a permission which he cannot implement, or at least cannot implement without a further application for permission, but at the same time is being pursued for a sum of money reflecting the enhanced value of his land. That is the concern, at least in large measure, which underlies this application to the court.[9]Mr Johnson has subsequently received a planning permission for a bungalow instead of the proposed extension to the detached garage, which would have a separate drive to Parklands. If that permission and the permission which he was granted on this appeal could both be implemented together, the problems over levels would be eliminated. It is clear Mr Johnson prefers not to go down that course because there would then be two drives, which he regards as less satisfactory, and there may be problems over the implementability of both those permissions together, when neither assumed the existence of the other.[10]That is the background to the contentions which Mr Johnson then raised. He submits, first of all, that it was not lawful for the inspector to grant permission for part and refuse permission for part. He submits that the inspector ought to have given him the opportunity at the hearing to explain what the problems would be if there were to be such a split decision. All of these problems arise from the difference in levels between the existing detached garage and the proposed new garage, which is to be placed in what is currently a bedroom in the larger dwelling.[11]It is necessary to outline the factual position as it was before the inspector at the hearing. Although there was some debate about levels, that debate did not take place in the context of a split decision. There were no levels plans showing the difference between the proposed garage and existing detached garage levels.[12]I am not in a position to reach the conclusion that that difference would have been obvious to the inspector on a site visit. None of the written material produced to the inspector by Mr Johnson or by the local authority referred to a difference in levels or one which meant that the new build and the conversion had to go ahead together if the conversion were to be capable of implementation. That was not a point ever made to him by Mr Johnson or the local authority. It was not a point put to the local authority in the course of discussion about the development in any correspondence shown to the inspector. The oral debate at the hearing about the levels did not touch upon that point. I conclude, therefore, that there was nothing which would have alerted the inspector to the levels problem with a split decision.[13]But it is also the case that the inspector did not ask any party (local authority, applicant or residents) what their view would be were there to be a split decision. It is perfectly clear that the reason he did not do so is because he saw no problem with granting a split decision, either in law or on the merits. The part that was uncontroversial, namely the conversion, alterations and extensions to the larger building, could, so far as he was aware, be carried out without any other permission being granted and there was no objection to them. So there was no reason of which he was aware why a split decision should not be made, or why the benign and efficient advantages of having at least part of what he wanted granted could not be accorded to Mr Johnson. The inspector would have had no reason to suppose that the permission could not be implemented, still less, if it could not be implemented, that there would be the problem in relation to land values and payment which Mr Johnson has explained to the court for the first time.[14]Indeed, it is right to say that the application to the court does not raise the question of levels either. This problem was raised for the first time by Mr Johnson in a statement dated 10th May 2007, the original application to the court being of course made much earlier, on 23rd August 2006.[15]So far as granting permission for part of an application is concerned and refusing permission for part, the relevant statutory provision is section 79(1) of the Town and Country Planning Act 1990. That clearly permits part of an application to be permitted and part of it to be refused. It says:
"79(1) On an appeal under section 78 the Secretary of State may— (a) allow or dismiss the appeal, or (b) reverse or vary any part of the decision of the local planning authority (whether the appeal relates to that part of it or not), and may deal with the application as if it had been made to him in the first instance."
[16]So there is no doubt about the jurisdiction of an inspector to grant permission for part and to refuse permission for part. It is a discretionary power. Indeed, Mr Johnson did not dispute that the jurisdiction existed in reality, reflecting his experience as a planning professional.[17]The principles which have to be considered in relation to such a step have been considered in a number of cases. In Kent County Council v Secretary of State for the Environment (1976) 33 P&CR 70, Sir Douglas Frank QC, sitting as a deputy High Court judge, held that the test was one of severability: could the part of the development being permitted be severed from the rest of the application which was being refused? If it could be so separated, then the power in section 79 (as it now is) could be exercised.[18]In Bernard Wheatcroft Ltd v Secretary of State for the Environment (1982) 42 P&CR 233 Forbes J held that the severability test was not the test at all. He said that the question was whether the permission granted was not in substance that for which permission had been sought; this was to be measured by asking whether the development had been so changed that the grant deprived those who would have been consulted on the changed development of the opportunity of consultation. Where, as in that case, a development was reduced by condition at the invitation of the developer from 420 houses to 250 houses on a significantly smaller site, everybody had had the chance to express their root and branch opposition to any development. There was no substantive difference.[19]In Carelink Ltd v Secretary of State for the Environment (1989) 2 PLR 47, Mr Malcolm Spence QC, sitting as a deputy High Court judge, expressed the view that there would be few cases where it would be unlawful to permit less than that which had been applied for, where what is to be permitted fell within the ambit of the application, however small it would be, and where those consulted had already made their objections known to the whole or lesser part of the scheme, and to whom re-consultation could make no difference.[20]In each of those cases, however, the question of whether a split decision of that sort should have been made was known to the developer and the other parties, and they had in reality the opportunity to make their representations upon the implications of the reduced permission being granted.[21]The first issue is whether the inspector here entirely inadvertently, and with the most benign and efficient of intentions, failed to accord to Mr Johnson the procedural fairness to which he was entitled. I have come to the conclusion that the inspector did act fairly. There was no material at all to alert the inspector to any problem in the way of the grant of permission for the works to the existing dwelling. The levels issue was not raised; the degree of dependence between the two parts of the scheme was not raised; no party referred to it; there was nothing in the representations or the nature of the site to lead an inspector to suppose that there might be any basis for any objection at all to such a decision.[22]It is my judgment that if it is to be said that there was some unfairness in the inspector not raising the question of a split decision, there had to be something, whether in representations or on the ground, to alert him to the fact that what might otherwise be a perfectly sensible, unobjectionable course could give rise to difficulties, and indeed give rise to difficulties to the person who, on the face of it, was being benefited. There was nothing before him which would have had that effect. I do not think it can in those circumstances be said, after the event, that it was unfair for the inspector not to give Mr Johnson the opportunity of saying that he did not want the uncontentious part of the permission to be granted.[23]Mr Johnson is a planning professional in addition, and would have been (and indeed was) aware that sometimes such split decisions are granted. Bearing in mind the attitude which the local authority had expressed towards the larger building and maintained at the hearing, it must have been on the cards that a split decision would be made. It was in my judgment incumbent on Mr Johnson to raise in some form or other something which would have alerted the inspector to the fact that such a decision could be a problem, e.g. saying that the scheme was an integrated whole for certain reasons.[24]The second issue is whether the fact that the levels would preclude the implementation of the permitted part of the scheme without a further permission, means that the exercise of the discretionary power in section 79 to grant permission for part only of the development was unlawful.[25]The existing authorities contain a number of tests, all of which have their place because they relate to factors that an inspector should bear in mind, whilst none of them are necessarily decisive by themselves. Each is endeavouring to express the concern that a permission granted in part only should not be significantly different, in its context were it to be implemented, from the basis upon which it was applied for, consulted upon and considered.[26]I do not suggest that that is the only consideration which should preclude the exercise of the discretionary power to grant permission for part only of that which is applied for, still less that that is the only relevant consideration. The authorities have been too prescriptive in that respect. But it is obviously an important point and the one likely to arise in practice. The real question is whether the partial grant of permission, or the context in which it may be implemented as a partial permission, gives rise to material considerations including a change in the balance of planning considerations, or to a need for representations, which have not been considered. Severability -- and here I disagree with what Forbes J said in Wheatcroft -- is a useful way of measuring, without necessarily being decisive on, the question of whether the context in which the permitted part could be built is very different from that previously contemplated. But it is a practical not a textual test. Also a substantial difference in scale or extent between that which is applied for and that which is granted may not of itself be a sound basis for refusing to exercise the discretion in favour of a part permission, if the parties have had a true opportunity to consider the impacts of the development as it would in fact be implemented. But there may have been a major alteration in the balance of planning considerations.[27]It is my judgment that, but for the issue of levels, there was nothing wrong at all with the inspector granting permission and refusing permission in the way which he did. The two parts of the scheme are in every sense severable, and although there is an obvious substantial difference between the permission as a whole applied for and the permission in part granted, there is no new consultation issue that arises. The split decision did not alter the nature of the part permitted, its planning benefit or impacts. No new material considerations arose.[28]I have therefore considered carefully whether the fact that there is a difference in levels, albeit one of which the inspector was unaware, means that there is a significant change to the context of the permission by comparison with that which was envisaged, of a nature which makes the exercise of the discretionary power in section 79 unlawful. That is an issue to be determined separately from procedural fairness. It is a question of whether the partial grant of permission gave rise to a material consideration which had been ignored, i.e. the effect of the difference in levels.[29]I have come to the conclusion that the context is not sufficiently different to mean that the permission should be quashed, and no material consideration was ignored, for these reasons. First, as is obvious, a particular permission sought has in a very real sense been granted.[30]Second and crucially, the permission cannot be implemented on its own without a further permission being granted, raising the roof height of the existing double garage. Had Mr Johnson been able to implement the permission for the conversion of the new dwelling by carrying out engineering works to the drive, e.g. by way of regrading and enlarging it, which did not require of themselves planning permission, that would have created in my judgment a different planning context or a fresh material consideration. The inspector would not have anticipated that the grant of permission would have entailed engineering works to the drive, which could not be controlled by planning decision. He would have failed to have regard to an important implication of his grant of permission, in circumstances where the character of the area in views from the road was clearly an important aspect to him. I would have quashed the decision, subject to any issue of discretion in the peculiar circumstances of this case.[31]However, as the permission cannot be implemented without the opportunity for the local authority to make a further decision, it cannot be said that the implementation of the permission gives rise to a significantly different context from that which the inspector contemplated or to a further material consideration. There will simply be no change. The fact that the permission cannot be implemented may not be what the inspector intended or contemplated, but this is not one of those cases in which the implementability of the permission was itself material to its grant.[32]Accordingly, whilst I respect the concerns which underlie this application, I dismiss it.[33]Thank you Mr Johnson.[34]MR AUBURN: My Lord, I am grateful. I have an application for costs.

MR JUSTICE OUSELEY: Yes.

[36]MR AUBURN: I have a schedule I can hand up. It has been served on Mr Johnson. Firstly, the costs we claim are around half --

MR JUSTICE OUSELEY: Do you have a copy Mr Johnson?

[38]MR JOHNSON: Yes.[39]MR AUBURN: They are around half of what Mr Johnson was claiming from us.

MR JUSTICE OUSELEY: Do you have any comment to make in relation to costs Mr Johnson?

[41]MR JOHNSON: No.[42]MR JUSTICE OUSELEY: The application will be dismissed. There will be an order for costs in the sum of £4,761, to be paid by Mr Johnson to the Secretary of State. ______________________________

Cited in 4 later judgments