Freedman v Zafir [2007] EWHC 888 (Admin)

Case No C0/6143/2006[2007] EWHC 888 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 27 March 2007
Strand
London WC2
B E F O R E:
MR JUSTICE WILKIE
Between
ISAAC FREEDMANClaimantMAYER ZAFIRClaimant-v-
Between
SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENTDefendantLONDON BOROUGH OF HACKNEYDefendant
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 Leibowitz as Mackenzie Friend appeared for applicantsMS LISA BUSCH (instructed by Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE WILKIE: This is an appeal by Mr Isaac Freedman and Mr Mayer Zafir respectively of 41 and 47 Chardmore Road, London N16, against decisions of Mr McPherson, an Inspector appointed by the Secretary of State for Communities and Local Government, the first respondent, brought under section 288 of the Town and Country Planning Act 1990. Mr McPherson in turn dismissed the applicants' appeals against decisions of the London Borough of Hackney, the second respondent, to refuse planning permission in each case for a rear extension in respect of residential dwellings, namely 41 and 47 Chardmore Road.[2]The applications for planning permission were in respect of virtually identical proposed extensions at first-floor level, and the appeals were both dealt with by the same Inspector. The Inspector, in order to conduct the appeal, made site visit to both houses on the same day, 17th May 2006, and he issued decision letters on consecutive dates in respect of 47 on 12th June, and in respect of 41 on 13th June. The decision letter is contained in 11 numbered paragraphs in each case. Of those 11 numbered paragraphs ten of them are in identical terms, only in paragraph 3 which deals with residential amenity do the two decision letters differ, though even then the difference is only as to part.[3]Both Mr Freedman and Mr Zafir have been, with the permission of the court, represented by a Mackenzie Friend, a Mr Leibowitz, and I am grateful to him for his lucid, oral presentation as well as his skeleton argument, together with the enclosures. He has identified that the applications can only succeed if the decision letters were not within the powers of the Inspector, pursuant to the 1990 Act, and that in effect in this case that means on standard public law grounds, including the ground that the Inspector failed to take into account relevant considerations or took into account irrelevant considerations. As far as both properties are concerned, Mr Leibowitz says that the Inspector failed to take into account relevant considerations. As far as No 47 is concerned, he says that the Inspector took into account an irrelevant consideration. I will deal with each of these grounds in turn.[4]Miss Busch, for the Secretary of State, whilst acknowledging, in my judgment sensibly, that the decision letter does on its face contain a factual error in respect of No 47, and in respect of each of them fails to record a particular matter in relation to the development of policy, to which I will turn, says that I should dismiss these applications in relation to No 47 on the basis that, notwithstanding the apparent error of fact, the decision letter was, in effect, an exercise of planning judgment, and that I should exercise my discretion to disregard any error of fact; and in respect of both properties she says that the decision letter, on its terms, sufficiently demonstrates that the Inspector did have regard to all relevant matters.[5]As I have indicated, the appeals were in respect of a refusal of planning permission. In each case what was proposed was to extend the full width ground floor rear extension to the two properties to build at first-floor level a rear extension for about half the width of the property. The purpose of the proposal was to extend, in each case, one of the first-floor bedrooms, thereby providing internal space for a new bathroom which would materially improve the amenities of the sizeable family which occupied each of the dwellings. The benefits to the occupiers were recognised by the Inspector, who had to balance that against other factors such as any loss of residential amenity to neighbours and visual harm it would cause to the appearance of the terrace of houses. The Inspector in each case having considered the matter did not consider that the neighbours' amenities would be significantly affected and so the only issue for him was the balance between benefits to occupiers against any visual harm the proposals might cause.[6]The Inspector in each decision letter referred to the relevant planning policies, and he referred in paragraph 2 as follows:
"The Development Plan for the area includes the Hackney Unitary Development Plan 1995, in which Policies [including] EQ6, between them, welcome new developments, including extensions providing they would be of high quality design respecting the appearance of the existing building, and would also not have an unacceptable impact on the local area."
He then goes on to refer to policy H020, indicating topics to be covered by a Supplementary Planning Guidance, and he refers to the Council's Supplementary Planning Guidance on Residential Conversions, Extensions and Alterations as indicating that extensions should respect the architectural character and form of the original building.[7]In paragraph 6 of the decision letters, the Inspector in the third sentence refers to paragraph 26 of the Council's Supplementary Planning Guidance, and he says this:
"... though it also quotes UDP Policy ENV3 which suggests that extensions are more likely to be acceptable on rear facades. However, that policy would appear to be from an earlier UDP and not the current one. I conclude that the proposal would not conform to the policies of the present Development Plan."
In paragraph 7 he then goes on to say as follows:
"The appellant has referred to both draft LDF and SPG documents prepared by the Council, but I have no copies of either and, from what he says, they would appear to be at quite an early stage in the process."
[8]Mr Leibowitz says that the Inspector has failed to have regard to two relevant matters, namely the draft LDF and SPG documents, and the UDP policy ENV3, reference to which was contained in the Supplementary Planning Guidance which the Inspector took into account.[9]As far as the former document is concerned, I have been taken to various passages in the draft LDF, in particular, rear dormer guidance from the SPG which reads:
"The rear elevation of a dwelling is the most flexible location to accommodate additional space therefore the council will respond with more flexibility to the rear of properties."
Then there is reference to the draft amended SPG in relation to rear extensions which, amongst other things, states that rear extensions of two or more storeys, can be developed to a storey below the eaves of the main building with a depth of 1.5m. Full width extensions of single storey height can be to 2.5 metres in depth.[10]Mr Leibowitz, whilst accepting that these are in draft form, nonetheless says that the Inspector erred by failing to have regard to them. In my judgment, the Inspector did not err in failing to have regard to such draft documents. He referred to them in paragraph 7, but gave, in my judgment, a perfectly good reason for not having regard to them as they are in draft form and, it would appear, an early draft form.[11]I therefore turn to the question of whether the Inspector erred in failing to have regard to UDP policy ENV3. As I have already indicated, one of the documents to which the Inspector had regard was the Supplementary Planning Guidance note. In particular, he had regard to paragraph 26 of that Guidance note which reads, in so far as it is relevant, as follows, dealing with appearance:
"Most houses were originally built and designed without regard to any future need for extensions. It is therefore necessary when considering the design of an extension to take account of the following criteria: a) The extension should not be out of scale or out of character with the existing building. b) In designing such an extension one should have regard to the appearance of the existing building. d) Features such as doors and windows ... should be of similar proportions, design and materials to those on the original building. Heights of lintols and stills should line through where appropriate."
Also contained within that Supplementary Planning Guidance in the same part and at paragraph 22 is the following:
"All extensions and alterations which require planning permission must conform to the Council's policies which are set out below."
There is then below reference to Council Policy ENV3 Alterations and extensions, which in so far as it is relevant, reads as follows:
"The Council will normally permit developments involving alterations and extensions to buildings which: b) Respect the architectural character, plan form, window and door size and pattern, materials, details and other conventions of the original building; d) Confine alterations and extensions wherever possible to the rear ..."
[12]The Inspector in his decision letter in paragraph 6 appears to conclude that he was not obliged to have regard to UDP policy ENV3 because that appeared to be from an earlier UDP, not the current one. In my judgment, he was correct as a matter of fact in concluding that ENV3 was from an earlier UDP, not the current one. It seems not to be in dispute that there was an earlier UDP in 1987. The current UDP applicable to these appeals was the UDP adopted in 1995, but between 1987 and 1995 the Supplementary Planning Guidance notes have been drafted and of course at that stage referred to the then existing UDP.[13]However, if one looks at UDP1995 and, in particular, the section dealing with alterations and extensions, which is EQ6, its terms are identical to the terms of the previous UDP ENV3, and in particular in relation to alterations and extensions confined to the rear of buildings it is in identical terms. Thus, Mr Leibowitz has a highly technical point in the sense that he says that the Inspector, having had regard to the Supplementary Policy Guidance document paragraph 26, ought similarly to have had regard to another paragraph in the same document, paragraph 22, and ought to have had regard to policy ENV3.[14]There is, however, nothing of substance to this point because EQ6, the current UDP to which the Inspector referred at paragraph 2, is in identical terms, so that if the Inspector took into account EQ6, it therefore follows that in substance he also took into account the policy articulated in ENV3. The question is, however -- and indeed Ms Busch accepts this -- whether the terms within which the Inspector expressed himself at paragraph 6 suggest that he failed to realise that UDP Policy ENV3 was in identical terms to policy EQ6 and, in particular, in relation to the welcome which it gave to extensions which were confined to the rear such as the proposed extensions in these two cases. She points out that, in paragraph 2 to which I have already referred, the Inspector specifically refers to UDP EQ6 and to the fact that it welcomed new developments, including extensions. He then introduced a number of provisos which are contained within Policy EQ6, but he makes no reference whatever to the provision that the extension be confined, wherever possible, to the rear. By way of contrast, in paragraph 6 he seems to deal with the suggestion that extensions are more likely to be acceptable on rear facades in terms which suggests that he believed that such a policy was only contained in Policy ENV3, a policy which he specifically said that he was not going to have regard to because it was from an earlier UDP, not the current one. Therefore, reading paragraph 6, one is driven to the conclusion that the Inspector did not have regard to the policy one of the provisions of which made a welcome for development more likely if the extension proposed was confined to the rear. On the contrary, paragraph 6 rather suggests that he rejected that contention. He was correctly declining to have regard to an earlier UDP, but has failed to recognise that the current UDP was in identical terms to the previous one, in particular in respect of the factor which he was being asked to weigh in the balance in favour of the appeals. Thus, although the point taken by Mr Leibowitz, in one form, is a highly technical one, the way in which the Inspector dealt with the policies in paragraph 2 and paragraph 6 makes the point one of substance rather than one of pure technicality and, in my judgment, does give rise to a serious concern that the Inspector has misdirected himself as to the nature of UDP95 and, in particular, EQ6, and, accordingly, has failed to have regard to a relevant factor so as to make his decision in respect of these two appeals unlawful and therefore requiring to be quashed. As the point goes to the substance of the matter, rather than to form, this does not seem to me to be a case in which I ought to exercise my discretion, notwithstanding the fact that the judgment ultimately is a planning one for the Inspector.[15]The second ground concerns exclusively No 47. No 47 differs from No 41 in that No 41 has a pitched roof on the main building, and the proposed first-floor extension would have a flat roof. No 47 is different, however, in that planning permission was obtained and work performed to construct a substantial dormer to No 47 which caused the main building roof to be flat rather than pitched. In paragraph 6 of the decision on No 47, the Inspector says as follows:
"The proposal would result in an additional box-shaped structure protruding from the rear elevation, where it would have little regard to the design and appearance of the original building. For instance, the extension would have a flat roof, despite the pitched roof of the main building. Paragraph 26 of the Council's SPG calls for such matters to be reconciled..."
It is this perceived visual harm, and the application of paragraph 26 calling for such matters to be reconciled, which comprise the crux of the decision in relation to No 47. An identical passage is contained in paragraph 6 in relation to the decision letter for No 41. Mr Leibowitz does not seek to raise any argument in respect of that passage in that decision letter because he acknowledges that the description there is an accurate one. Mr Leibowitz surmises, and it may be right, that because the two appeals were so closely interrelated the Inspector has simply mistakenly assumed, or accepted as a draft paragraph 6, the same for each of them, failing to record that, in fact, there is a significant difference between the two houses. However that may be, the fact is that the decision letter in relation to No 47 does contain an error of fact which seems to go to the heart of the matter. Whilst it is no doubt accurate to say, as Mr McPherson does say in a witness statement, that though No 47 has a loft extension with large dormers, which is clearly a change to the original building, it was still part of a continuous row of similar buildings with pitched roofs; and whilst it is no doubt true to say that he exercised judgment in concluding that the proposed-box shaped structures in each case would have little regard to the design and appearance of the original building, the fact is that he specifically gives an example which is factually incorrect.[16]That was the judgment which was at the heart of his decision, and it seems to me that it must be right that Mr Leibowitz is correct in saying that at the heart of his decision he has had regard to an irrelevant consideration, namely this factually inaccurate description of the impact of this particular proposed extension on that particular building.[17]Once again, whilst acknowledging that matters of planning judgment are for the Inspector, if as appears here, there is a clear taking into account of an irrelevant matter, it seems to me that this is not a case where the court, in the exercise of its discretion, can allow the appealed decision to stand. Therefore on this ground, as well as on the other ground, the application in respect of the appeal decision on No 47 Chardmore Road must succeed. The outcome, therefore, is that I will quash each of these appeal decisions and the matter will be remitted for further consideration by the Inspector.[18]Miss Busch, do you have any argument against the rule that it should be a different Inspector?[19]MISS BUSCH: My Lord, No.

MR JUSTICE WILKIE: Very well, it will go to a different Inspector for the appeal to be reheard.

[21]THE APPLICANT: I apologise. I not very familiar -- we paid £400 for this application, are we entitled to get it back?

MR JUSTICE WILKIE: That is the fee, is it?

[23]THE APPLICANT: Yes.

MR JUSTICE WILKIE: Is there any reason why the Secretary of State should not pay the £400?

[25]MISS BUSCH: No, my Lord.

MR JUSTICE WILKIE: Is that £400 for each?

[27]THE APPLICANT: No.

MR JUSTICE WILKIE: Four hundred pounds in total?

[29]THE APPLICANT: No, it was the cost of the -- because there were two together.[30]MR JUSTICE WILKIE: I see. So you have made one application in respect of two.[31]THE APPLICANT: Yes.[32]MR JUSTICE WILKIE: Very well. I will order the Secretary of State to pay costs of £400 to the applicants.