Kingston On Thames, R (on the application of) v Secretary of State for Communities and Local Government [2009] EWHC 1121 (Admin)

[2009] EWHC 1121 (Admin)

Case No CO/9059/2008

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday, 27 April 2009

Strand

London WC2

B E F O R E:

MR JUSTICE COLLINS

QUEEN ON APPLICATION OF MAYOR AND BURGESSES OF ROYAL BOROUGH

KINGSTON ON THAMES

Claimant

-v-

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT

Defendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr M Reed appeared on behalf of the Claimant

Mr S Whale appeared on behalf of the Defendant

J U D G M E N T

Between

Kingston On Thames, R (on the application of)Claimant

Secretary of State for Communities and Local GovernmentDefendant

[1]MR JUSTICE COLLINS: This is an appeal against the decision of a planning inspector whereby he granted planning permission for a development involving the demolition of two houses in Somerset Avenue, Chessington, and the erection on the site of seven houses (comprising two pairs of three-bedroom with accommodation in the roof space and three of four-bedroom detached houses). There was associated parking, landscaping and a new access road from Somerset Avenue.

[2]This was in fact the second of two applications, the first (which had been refused) being for eight houses and the second (which was eventually allowed by the inspector) being for seven.

[3]The basis on which the council refused the application is set out in four reasons:(1) it asserted that it would be a cramped form of development detrimental to the character and appearance of the surrounding area;

(2) it would harm the character and setting of the local space because of the proximity of the buildings to the site boundary;

(3) it failed to pay adequate regard to the role of the site as part of the connecting green space in terms of landscape and ecology;

(4) without a Section 106 agreement requiring the applicant to provide a financial contribution to education facilities in the borough it was contrary to a policy of the council.

[4]There was, in addition, a ground relating to highway matters and it is that ground which alone forms the basis of the challenge before me.

[5]There was an additional ground raised relating to what had occurred during a site visit, it being alleged that there was procedural impropriety involved in that. That ground has been abandoned and is not being developed before me.

[6]The highway reason for refusal reads as follows in the council's refusal:

"The proposed development fails to provide adequate on-site parking. As such, the proposal would result in further unreasonable pressure for parking on Somerset Avenue contrary to Policies T1 and T20 of the [borough's] Unitary Development Plan First Alteration."

[7]The report of the officers to the council in relation to this referred to consultations with the highways officer and noted that there was a shortfall of five spaces compared to the borough's maximum standard, that is five spaces within the proposed development. In fact there were twelve spaces that were provided for in the development. The council's policy in relation to maximum standard would have required, as I understand it, seventeen spaces. Twelve spaces are more than the seven for the individual houses, but nowadays it is no doubt to be anticipated that many houses will have more than one family car although, as we know, there is pressure for discouragement of the use of the motor car for "green" reasons.

[8]Consequently the highways officer, as reported to the council, indicated that so far as highway safety issues were concerned, the applicant should be financially responsible for the extension of existing waiting restrictions on the inside of the bend at which this development was to take place. It went on: "This will prevent cars parking near the bend. White road markings required in centre of road to guide motorists to keep in their lane. This should be part of the Section 106 Agreement. Proposed cross-over shown incorrectly. Cross-over should be continuous ..... " and so on.

[9]I am not sure this is of particular relevance in the context of the final decision.

[10]In paragraph 21 of the report the officer recorded:

"21 The proposal will provide parking for 12 vehicles, which is a shortfall of five spaces compared to [borough's] maximum parking standards. The council's highways officer has recommended that in this case the maximum standard should be observed due to the 'intense' pressure for on-street parking currently and the lack of control which can be exercised by the council in precluding future occupiers of the site from parking on Somerset Avenue."

[11]In its written statement to the inspector the council dealt with highway safety in paragraph 5.16. It would be convenient to read, so far as material, what is there said:

"5.16 The proposal will provide parking for 12 vehicles, which is a shortfall of five spaces compared to RBK's maximum parking standards. The council's highways officer has recommended that in this case the maximum standards should be observed due to the 'intense' pressure for on-street parking currently and the lack of control which can be exercised by the council in precluding future occupiers of the site from parking on Somerset Avenue. No measures have been suggested to manage the access way in terms of controlled parking from both residents within the new development, their visitors and existing residents on Somerset Avenue. Concern also arises from the fact that vehicles parked on the portion of uncontrolled road (no waiting restrictions) on the bend on Somerset Avenue could create adverse highway safety issues with cars exiting the new development. There are other minor issues with the development from a highways perspective including the introduction of a footpath and the introduction of street lighting but they are not considered reasons for refusal. However any re-submissions should seek to resolve these issues."

[12]So far as those last two sentences are concerned - the reference to "other minor issues" - it seems to me that was clearly intended to look forward, that is to say that the word "other" does not signify that in the view of the author of this document what had been referred to before could be regarded as minor.

[13]The substance of the ground for refusal on this basis was, indeed, as set out in the reasons given in the refusal to which I have already referred, namely that there was a shortfall of off-street parking and that meant that residents - and no doubt their visitors - would increase pressure on parking and that would cause highway safety concerns.

[14]The inspector in his decision letter dealt with the highway concerns in paragraphs 21 to 23. He recognised that this was one of the important issues with which he had to deal. The hearing was what was described as an informal hearing which, as Mr Reed has indicated, was more like a round table discussion with the inspector acting, as it were, as a chairman albeit of course those who wished to have their say would give their evidence and could be questioned by other interested parties and by the inspector himself.

[15]Mr Reed has submitted as part of his case that the inspector was obliged to deal with what was put in the written case even though the evidence before him emerging from the informal hearing may well have modified or, to an extent, have shown that that written case did not have substance in any particular respect.

[16]The council's highway officer, Mr Dearman, did give evidence before the inspector. The inspector has produced a statement which identifies what he said. That evidence from the inspector is not in any way challenged by the council.

[17]Before coming back to what the inspector said, I should make it clear that in my view it is not necessary for an inspector to deal with what was in writing if and to the extent that it has been varied by the evidence which was produced before him. What the inspector has to do is to look at the matter in the light of the material and the evidence put before him which would include that in writing insofar as not modified and that given before him during the course of the hearing.

[18]In paragraph 21 he records that there was already a highway problem in Somerset Avenue with the road being used as a rat-run. There was some disagreement in the evidence put before him between residents and the highway engineer Mr Dearman as to whether the situation was helped or made worse by the presence of on-street parking.

[19]The main area of concern was the bend in the road at the proposed entrance to the appeal site. As I understand it, it is virtually a 90-degree bend and the entrance will be on the apex of that bend. The concern is - at least in part - that those using the road may not appreciate the existence of this entrance, particularly if it may be hidden to some extent by the presence of parked cars. There is also a concern that there might be by those unfamiliar with the road a belief that the road continued into the new development as opposed to going off to the left or right.

[20]Of course street signing could, to an extent, alleviate that: warning signs and possibly - though the inspector had before him some dispute about this - some restrictions on parking within a particular distance of the apex of the bend.

[21]The inspector recorded that the accident figures did not show any personal injury accidents in this particular road at the bend. That is - it is recognised - of limited materiality because the existence of the access-way will create a problem if a problem is going to exist.

[22]The inspector continued that the council's main objection was based on the shortfall in off-road parking spaces provided which was below the maximum. The inspector recorded that there was no minimum standard provided in the guidance in PPG 13, but councils should use their discretion in setting the levels of parking appropriate for local circumstances. He added:

" ..... In this respect I am aware that the site was within walking distance of local shops and bus stops in Hook Road. As a result, the proposed level of parking in both schemes would be adequate to serve the future needs of residents."

The inspector is therefore forming the view, a view which he was entitled - right or wrong - to form that the parking to be provided for the development would not create the problem of residents needing to park on the road as opposed to on site. Finally in paragraph 23 he continued:

"With regard to fears that were expressed by residents that traffic would have problems 'reading the road' at the corner, it is my view that the access from the proposed development would have good visibility and would remain private and therefore distinct from the road geometry of Somerset Avenue. In conclusion, therefore, I consider that the proposals for both schemes 1 and 2 would not have an adverse impact on highway safety and thereby would not conflict with the objectives of UDP policies T1 and T20."

[23]Mr Reed complains, first, that the inspector failed to deal specifically with the concerns raised by the council that the development would create conflict with traffic on Somerset Avenue because of the increased pressure created, whether by residents or visitors, in respect of on-street parking; and also the inspector failed to deal specifically with the issue which was allegedly raised of the Section 106 agreement to deal with extra expense in signing or yellow lines or whatever.

[24]So far as the Section 106 point is concerned, the best that Mr Reed can do is to note the reference in the officer's statement to the consultations with the highways officer in which the officer had said that management of parking, etc, should be part of a Section 106 agreement. He went on that - "White road markings required in centre of road to guide motorists to keep in their lane. This should be part of the Section 106 agreement." He did not seem, on the face of it, on what is recorded, to be referring to yellow lines waiting restrictions, merely to white lines to indicate the division of the carriageway. What good that would have done, I do not know. It certainly was not picked up in the officer's recommendations, nor was it put as part of the case specifically referred to in paragraph 5.16 in the statement produced by the council.

[25]Mr Reed has to rely on the inspector's statement dealing with this complaint. The inspector records the evidence given before him by Mr Dearman who was a traffic engineering manager for the council. In paragraph 5 of that statement the inspector records:

"Mr Dearman characterised issue (v) [that is the highways issue] as one of on-street versus off-street parking, describing an ongoing debate with residents as to the appropriate measures to be taken. He briefly suggested that a Section 106 agreement 'could' be used for an extension of parking restrictions and signs, but did not pursue this suggestion any further."

The inspector states in paragraph 11 that the council did not propose an obligation incorporating the Section 106 contribution in its appeal statement, nor did it raise the matter during the time Section 106 obligations were discussed at the hearing.

[26]In the light of that evidence it is, in my judgment, quite impossible for the council to complain that there was an error of law by the inspector in failing to deal more specifically with the Section 106 possibility. It simply was not put as part of the council's case through Mr Dearman as a realistic objection or concern or proposed condition which would be required. It may be that that was partly because there were doubts as to what ameliorative measures, if any, would be appropriate. That point is one which is entirely without substance.

[27]The complaint then is that the inspector failed to deal specifically with the alleged conflict that was likely then to arise, having regard to extra pressure on parking, pressure which, on the evidence of Mr Dearman, was indeed already intense. There is no evidence before me as to what was the nature of that parking, that is to say whether it was purely by residents or whether it was commuters who left their cars for the day or those who wanted to visit local shops and did not want to pay meters or car parking charges that may have existed there. So what measures might have been available to reduce parking? Perhaps limitations to residents or their visitors, or charges during the middle of the day to prevent commuters leaving their cars all day - that sort of thing - I do not know whether it would be material. No doubt, the council will - as they have, in any event, because of the pressure on parking and concerns of residents about that parking - decide what (if any) measures are necessary.

[28]It is difficult to follow precisely what the conflict which the council fears is said to amount to. It is clear from Mr Dearman's evidence, as recorded by the inspector, that the major concern was the shortage of off-street parking which could lead to further on-street parking.

[29]The inspector visited the site and was able to see for himself what the position was on the ground. The inspector, in my judgment, clearly did have regard to the material put before him and to the council's objections to the development on highway grounds. It seems to me to be clear beyond any question that the nature of the objections were mainly the other reasons for refusal. To an extent, it may well be that the highway objections were something of a makeweight. Be that as it may, it seems to me that the inspector was entitled, as a matter of judgment, to form the view that he did. He clearly dealt with the highways issue and he dealt with it in a proper fashion, having regard to the evidence put before him by the council's witness.

[30]He cannot be criticised for not having referred back to the written statement because he recognises that the council's witness did not produce as strong a reason for maintaining any highway objection as the council may have wished to have put forward. That is the council's misfortune. If its witness did not come up to proof, as it were, then the inspector is not bound to look behind what he said and deal with the matter on the basis of the written statement that was put in.

[31]There is no error of law involved in this decision. This claim totally lacks merit and is dismissed.

[32]MR WHALE: I am grateful for that, both for the result obviously and the way that you have arrived at the result. I do not know if a statement of costs has arrived.

MR JUSTICE COLLINS: I have not seen one, no.

[34]MR WHALE: I hand one up.

MR JUSTICE COLLINS: Mr Reed, you have seen this, have you?

[36]MR REED: Yes.

[37]MR WHALE: I will see if there are issues between the parties, obviously; there may not be.

[38]MR JUSTICE COLLINS: As a matter of principle, Mr Reed, you cannot say anything against an order for costs in principle, can you?

[39]MR REED: Certainly.

MR JUSTICE COLLINS: It is the amount. (Pause) It is a slightly shorter hearing than you expected.

[41]MR REED: That is what we are discussing.

[42]MR WHALE: We have not the final figures yet; it would take too long. The point is that the statements - - the estimate was five hours or so at the hearing today. That was obviously unduly pessimistic on my client's part.

MR JUSTICE COLLINS: Someone has given a one-day estimate in this case.

[44]MR WHALE: Yes. You will recall that there was this other issue that was abandoned.

MR JUSTICE COLLINS: That was not abandoned until later.

[46]MR WHALE: On Friday.

MR JUSTICE COLLINS: What are the expenses for attendance here?

[48]MR WHALE: It affects it this way: the attendance at hearing for the solicitor which is currently £800 should be £320 because that is two hours.

MR JUSTICE COLLINS: That is £480.

[50]MR WHALE: Indeed. I will check behind me. It might be in some way time - - - - -

[51]MR JUSTICE COLLINS: I heard somewhere that the council's fees were nowadays also to some extent tied in time.

[52]MR WHALE: That is certainly the case as far as trainee solicitors are concerned, not in the ordinary way of things, but I am just seeing in this - - - - -

MR JUSTICE COLLINS: If you lose it.

[54]MR WHALE: Exactly. (Pause) It should be £480.

MR JUSTICE COLLINS: As opposed to 600.

[56]MR WHALE: Indeed, so shave another 120 off.

[57]MR JUSTICE COLLINS: That brings it down to 8,544. There should be probably some small adjustment on VAT, should there not be?

[58]MR WHALE: It is no part of this statement. You can forget VAT. It is as you indicated.

MR JUSTICE COLLINS: 8544?

[60]MR WHALE: Indeed. That, I think, is agreed.

MR JUSTICE COLLINS: It does not sound unreasonable.

[62]MR REED: The council takes no point on that.