Simon Patience (New Homes) Ltd, R (on the application of) v Department for Communities & Local Government [2007] EWHC 3111 (Admin)

Case No CO/10701/2006[2007] EWHC 3111 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 30th November 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF SIMON PATIENCE (NEW HOMES) LTDClaimantv
Between
DEPARTMENT FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Powell (instructed by Pollecoff) appeared for ClaimantMr P Greatorex (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of an Inspector appointed by the first defendant dismissing the claimant's appeal against the refusal of the second defendant to permit the erection of a detached house on land to the rear of Roseacre, Station Road, Woldingham in Surrey.[2]The appeal was dealt with by way of an informal hearing on 10th October 2006. The Inspector visited the site on the same day and his decision letter is dated 20th October 2006. The site on which the detached house was proposed to be built is an undeveloped parcel of land to the rear of Roseacre. Roseacre has its own driveway off Station Road. To the south of Roseacre's driveway, the access to the parcel of land at the rear runs from Station Road between Roseacre and the house to its south, Meadowcroft. It was described in the second defendant's hearing statement as being about a 100 metres long and a minimum of 2.4 metres wide.[3]The second defendant refused planning permission on two grounds. The second was a highway objection which the Inspector said could have been dealt with by the imposition of an appropriately worded condition. The first reason for refusal was as follows:
"The proposed dwelling by reason of its size and siting would constitute tandem development also resulting in a cramped form of development disrespecting the spacious character and appearance of the area; detrimental to the special character of Woldingham and result in a significant overpowering effect, overlooking and harm to the amenities of the Quince Cottage and Roseacre, contrary to policies BE1 and BE7 of the Tanbridge District Local Plan 2001."
[4]Policy BE7 is in these terms so far as relevant for present purposes:
"Within Woldingham, as shown on the Proposals Map, residential development or redevelopment proposals including extensions to existing property will be permitted where such proposals: (a) do not detract from the character of the area, or the adjoining Green Belt and meet the requirements of Policy BE1 "
General Policy for New Development", Policy BE9 "Wooded Hillsides", and Policy BE12 concerning extensions . . . (f) do not include tandem development or development in depth involving the formation of cul de sacs . . . "[5]The Inspector said in paragraph 1 of the decision letter that the main issues were:
" . . . the effect of the proposed dwelling on the character and appearance of the area and the living conditions of neighbours together with the impact of the proposed access on highway safety."
Having set out the relevant policies and described the site and the proposed development, the Inspector said this in paragraphs 8 to 10 of the decision letter:
"(8) Although the majority of the appeal site lies to the rear of Roseacre, this area does not form part of the existing curtilage of Roseacre and, according to the historical Ordnance Survey maps submitted at the hearing, has been separate since at least 1934 and in its current form since at least 1965. In this respect, I am satisfied that the area to the rear would not represent the subdivision of an existing curtilage. However, because the site is located to the rear of Roseacre, it would only gain a significant frontage to a highway if the curtilage of Roseacre were to be sub-divided at the front. (9) Because the rear of the appeal site and the access is independent from the curtilage of Roseacre, in my view the proposal would not represent tandem development as the concept of tandem development implies that the sites were, at some stage, linked. Nevertheless, and despite the proposed access arrangements to the front of Roseacre, I conclude that the effective area of the site is to the rear of Roseacre and because it is only connected to the highway by a long access, the proposal would represent development in depth."
Pausing there, on behalf of the claimant Mr Powell acknowledged that the Inspector was entitled to conclude that the proposal would represent development in depth. Continuing with the decision letter:
"(10) The appellant argues that, because there is existing access, a new cul de sac would not be formed. However, the existing access leads only to the appeal site which is currently a vacant field. From what I saw and the evidence I heard, it is unclear whether the access has recently, if ever, been regularly used as a normal vehicular access. In addition, the proposed access would be re-aligned over the front of the existing curtilage of Roseacre and would, in part, become a shared access. Taking all these matters together, I conclude that the proposed development would represent development in depth involving the formation of a new cul de sac, contrary to Policy BE7 of the Local Plan and 5.2 of the Woldingham Village Design Statement [WVDS]."
Policy 5.2 of the WVDS echoed criterion (f) in Policy BE7.[6]The Inspector referred to the proposed access being re-aligned over the front of the existing curtilage of Roseacre. What was proposed was that the existing driveway to Roseacre would be closed at the point where it enters Station Road and a new access way, serving both Roseacre and the proposed new dwelling, would be constructed onto Station Road swinging round to the south across the front of Roseacre and then turning through a 90 degree angle and running up between Roseacre and Meadowcroft to a turning area beside the proposed new dwelling.[7]On behalf of the claimant, Mr Powell challenged the decision on the ground that while the Inspector was entitled to conclude in paragraph 9 that the proposal would represent development in depth, he was not entitled to conclude in paragraph 10 that what was proposed was a cul de sac; the access was more properly described as a driveway. He further submitted that even if the access was correctly described as a cul de sac then what was being proposed was not a new cul de sac but the improvement of the existing access way. He also submitted that the Inspector's reasoning was inadequate. In my judgment, the Inspector's reasoning is entirely clear and eminently sensible.[8]Mr Powell referred me to the dictionary definition of cul de sac in the Shorter Oxford English Dictionary, "A street passage et cetera closed at one end; a blind alley . . . " and submitted that that definition denotes closure at one end but also denotes a public quality to the access. His submission was that it is this public quality which distinguishes a cul de sac from a domestic driveway.[9]I do not accept that submission. One can perfectly properly describe a private access way as a cul de sac. It will be very much a question of judgment for the person looking at the access way on the ground whether any particular driveway can sensibly be described as a cul de sac. While the existing driveway to Roseacre, given its length, would not normally be described as a cul de sac, I can see no reason whatsoever why a 100 metre long access way leading from a public highway between houses to a dead end at a turning area in front of a new house, cannot be described as a cul de sac. The terms driveway and cul de sac are not mutually exclusive. Some drives may be sufficiently long to be described as a cul de sac, some may not. That was a matter for the Inspector to judge on the site inspection. He was perfectly entitled to describe the particular access arrangements proposed here as access by way of a cul de sac.[10]Mr Powell referred to what he said was common usage and how the term cul de sac was understood amongst developers. In respect of the latter, certainly the second defendant which plainly has some experience of planning matters as the local planning authority considered that it was appropriate to describe the proposed access as a cul de sac. So far as the former is concerned, in my judgment it would be entirely appropriate, and in accordance with common usage, to describe this particular private access way as a cul de sac.[11]In any event, one is concerned not with "common usage" in the abstract, but with the meaning of cul de sac in the context of Policy BE7. The underlying purpose of the policy, as explained in paragraphs 3.41 to 3.44 of the Local Plan, is to protect the special, spacious, sylvan character of Woldingham, with houses on larger plots with wide frontages. In this context, criterion (f), which seeks to prevent both tandem development and development in depth involving the formation of cul de sacs, is clearly concerned to prevent precisely the kind of residential development that was proposed by the claimant: constructing behind an existing dwelling a new dwelling served by a "dead end" access (otherwise known as a cul de sac).[12]Turning to the second limb of the argument, that is to say that what was being proposed was not something that was new but merely an improvement of that which was existing, in my judgment, that is a wholly artificial and legalistic approach to criterion (f) in Policy BE7. As the Inspector said in paragraph 10, the existing access led to a vacant field. There was no evidence that it had been used "as a normal vehicular access". It was proposed to be widened to 3.2 metres. It will be recalled that its minimum width was 2.4 metres. A note from the highway authority, Surrey County Council, stated that its objections on highway grounds could be overcome if the access was not less than 3.2 metres and sufficient turning room was provided at the end of the drive for service and delivery vehicles to enter and emerge from the site in forward gear. I note that the County Council chose to describe the access road as a "drive" but that is not determinative of the question whether the Inspector was entitled to conclude that this particular drive would be a cul de sac for the purposes of Policy BE7.[13]Works would clearly be required. It is plain that in addition to widening it to 3.2 metres and making it fit for normal vehicular use, it would be necessary to construct adequate turning arrangements at the head of the access. Moreover, as the Inspector noted in paragraph 10, it was proposed to re-align the access way where it joined Station Road, so that not merely would there be a new point of access to the highway, but also the new access would then serve the two properties: Roseacre and the proposed new dwelling.[14]In these circumstances, the Inspector was perfectly entitled to conclude that in reality what was being proposed was a new cul de sac. Though I was referred to certain authorities dealing with the interpretation of planning policy, it is unnecessary to refer to those authorities because I am entirely satisfied, not merely that the Inspector's approach to Policy BE7 was a reasonable one but also that it was an entirely correct approach. Far from being a strained interpretation of the policy, as submitted by Mr Powell, it is the claimant's approach to the policy which is strained and wholly artificial.[15]Even if I had concluded that there was some error in the Inspector's approach to criterion (f) in Policy BE7, the application to quash the decision letter would have had to be dismissed in any event. It will be remembered that criterion (a) in Policy BE7 states that residential development within Woldingham will be permitted where it does not detract from the character of the area. In paragraph 13 of the decision letter, the Inspector concluded, having considered the effect of the proposed new dwelling on the surrounding properties "that the proposed dwelling would look out of character with the more open, rural nature of its surroundings, contrary to Policies BE1 and BE7 of the Local Plan". The Inspector then considered the issue of living conditions and concluded in paragraph 17 "that there would be a harmful effect to the living conditions of the residents of Quince Cottage from overshadowing and overbearing, contrary to Policy BE1 of the Local Plan."[16]Mr Powell accepted that the Inspector was entitled to reach those conclusions. In the light of those two conclusions it was inevitable, therefore, that whatever view was taken about the cul de sac issue, the Inspector's conclusion in paragraph 20 would have been the same. That conclusion was:
"The proposed development would harm the character and appearance of the area and the living conditions of the occupants of Quince Cottage and would therefore be contrary to objectives contained in the Local Plan. I find no material considerations that would outweigh the harm and, having regard to all other matters raised, including the representations of local residents where relevant to the planning matters before me, determine that the appeal should fail."
[17]Mr Powell made a further criticism of the Inspector's decision letter on the basis that the Inspector had not given any explanation of how harm was caused by the formation of the cul de sac. There is no force in that criticism. Criterion (f) in Policy BE7 makes it clear that development in depth involving the formation of cul de sacs is, at least in principle, out of keeping with the special character of Woldingham. It was unnecessary for the Inspector to go further and consider what precise harm would be done by this particular cul de sac, particularly bearing in mind the fact that permission was not refused simply on the basis of conflict with criterion (f), but also on the basis that the dwelling itself would be out of character with the area and would have a harmful effect on the living conditions of the residents of Quince Cottage.[18]In these circumstances there is no force whatever in any of the criticisms of the decision letter and this application must be refused.[19]MR GREATOREX: I am grateful, my Lord. So far as costs are concerned, the matter has been agreed between the parties. With your Lordship's approval I would ask that there be an order that the claimant pay the first defendant's costs agreed in the sum of £4,750.

MR JUSTICE SULLIVAN: Confirmed, Mr Powell?

[21]MR POWELL: Yes. Including VAT.[22]MR JUSTICE SULLIVAN: Right. Then the application is dismissed, the claimant is to pay the first defendant's costs. Those costs are summarily assessed in the agreed sum of £4,750 including VAT.[23]MR POWELL: My Lord, may I ask for permission to appeal.

MR JUSTICE SULLIVAN: You may, yes.

[25]MR POWELL: On the basis that your Lordship has accorded undue latitude to the Inspector's interpretation of Policy BE7. Further, that this being the interpretation of policy, in planning matters being a significant matter on which there is currently only a first instance decision by Davies J in the Cannock Parish Council case and we have a Court of Appeal decision being ex parte Woods, that this is a matter of public importance that would benefit from the Court of Appeal's decision.[26]MR JUSTICE SULLIVAN: Thank you very much. I do not need to trouble you Mr Greatorex. I refuse permission. Without any disrespect to Mr Powell, I think this is one of the most hopeless challenges that I have considered, so I refuse permission. Thank you very much.[27]MR POWELL: My Lord, just one further point. Would your Lordship be prepared to extend the period of time for appealing to the Court of Appeal? Plainly your Lordship's judgment will not be available for some days as yet. It would be helpful to have the transcript before making an application to the Court of Appeal.[28]MR JUSTICE SULLIVAN: I have no objection to the period running. Is it 14 days or 21 days? I think it is only 14 days. I have no objection to it running from the day you receive the approved version of the judgment. Any objection to that Mr Greatorex? It is probably sensible people do have the judgment and they can form a better view about their prospects.[29]MR GREATOREX: Absolutely, my Lord. I assume that the claimants will obtain it as soon as possible.[30]MR JUSTICE SULLIVAN: Yes. It will probably be available during the course of next week. You are more than welcome to that Mr Powell. It will not cause any great delay. Your 14 days can run from the time you receive the approved judgment.[31]MR POWELL: I am obliged.