Townsley, R (on the application of) v Secretary of State for Communities and Local Government [2009] EWHC 3522 (Admin)

Case No CO/2947/2009[2009] EWHC 3522 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday 4 December 2009
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF TOWNSLEYClaimant-v-
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr T Mould QC instructed by Geoffrey Searle Planning Solicitors, appeared for ClaimantMr P Greatorex instructed by Treasury Solicitors, appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: This is a claim for judicial review of a decision of an inspector given on 6 February 2009 whereby he allowed an appeal against an enforcement notice which had been issued by Westminster City Council in respect of a balustrade which had been erected around a flat roof at the rear of a new dwelling house at No 15 Acacia Road, St John's Wood. The council, in February 2004, granted planning permission and conservation area consent to enable the existing house on the site to be demolished and a new one to be constructed. There were various changes to the original permission so that the final full planning permission was granted on 20 September 2005.[2]The approved plans show at the rear a fairly substantial flat roof at the first-storey level. There was no balustrade shown surrounding that particular flat roof. The permission therefore did not specifically authorise the construction of any such balustrade.[3]During the course of construction the developer did construct a glass balustrade of some 1.2 metres in height. It seems that this was done because it was discovered that it would not be in conformmity with building regulations if there were not some barrier to prevent anyone falling where there was access to a flat roof. There was access to this flat roof from, I think, the master bedroom to the house. Apparently it was not envisaged that the roof would be used for sitting out or any such activity. That no doubt is why initially there was no balustrade of any sort to be put around it. Apparently the building regulations apply where there is access. It is not necessary that it should be intended that there should be use made of the flat roof for any particular purpose.[4]Following that, the developers made an application for planning permission to give retrospective permission for the balustrade. That was considered by the council. In March 2008 they refused planning permission for the retention of that balustrade on amenity and design grounds. The reasons for the refusal in brief were that it would result in more intensive use of the flat roof for sitting-out purposes and because of its size, design and location it would harm the appearance of the building and fail to maintain or improve, preserve or enhance the character and appearance of the conservation area.[5]On 4 June 2008 the local authority issued an enforcement notice requiring the removal of the balustrade. The point that was being made was that access to the roof could have been prevented without the need to erect a balustrade such as this, for example, by what is called a Juliet balcony, or, I suppose, some other means although no doubt it would have been desirable to ensure there was some escape route in case of fire. In any event, there were other means, it was said, of achieving the necessary result without the erection of the balustrade or possibly any balustrade.[6]The site owner appealed to the Secretary of State against the enforcement notice. The appeal was based solely on ground (a), that is to say that planning permission should have been granted for the retention of the balustrade. The matter was dealt with by way of written representations. The claimant in this case was one of the objectors to the suggestion that planning permission ought to be granted. He occupies the next-door house, No 17 Acacia Road. He is concerned, first, with the look of the balustrade and, secondly, in regard to overlooking and possible use of it as a sitting-out area.[7]The inspector inspected the site on 20 January. On 23 January the inspector wrote to the parties inviting their views on the following question:
"Whether the erection of the glass balustrade around the perimeter of the flat roof of the ground floor rear extension is or is not permitted development."
As a result of that, the parties made their various submissions.[8]The inspector raised that, relying upon the terms of the General Permitted Development Order (GPDO) 1995 as it was then in force. Schedule 2 to the order contains a list of permitted development. It is divided into classes. The relevant one for our purposes is class C.[9]I should mention class B (because it was referred to by the inspector) which permits the enlargement of a dwelling house consisting of an additional alteration to its roof. However that particular permitted development is not allowed if the dwelling house is on what is called Article 1 (5) land, namely, for our purposes, is in a conservation area. This is in a conservation area and therefore class B cannot apply.[10]Thus class C is the relevant one which reads as follows:
"Permitted Development: C Any other alteration to the roof of a dwelling house. Development not permitted: C1 Development is not permitted by class C if it would result in a material alteration to the shape of the dwelling house."
The local authority took the view that when it issued its enforcement notice - and as part of its submissions - it would not have been permitted development because it did alter materially the shape of the building.[11]The inspector in his decision considered, first, whether the operation in question was development. Obviously if it was not to be regarded as development at all then it would have been permissible for the developer to include it. But he decided, and rightly decided, and there is no challenge to this from either party, that it did constitute development because it was a work of improvement or alteration which did materially affect the external appearance of the building. He said in his decision as follows:
"15 In this case the clear glass balustrade extends across the rear of the house at first-floor level. Although it is not readily visible from public viewpoints in the road, it can be seen from neighbouring buildings and gardens. Applying the test of Burroughs [Day v Bristol City Council [1996] 1 EGLR 167], I find that it is more than 'de minimis'. It materially affects the external appearance of the building and would not be excluded from the definition of 'development'."
There is no issue taken with that finding and indeed it is clearly correct.[12]The inspector went on to consider various aspects of class B. It seems to me, strictly speaking, that was a wholly unnecessary exercise because since this was within a conservation area class B could not on any view apply. But he did have to consider whether the shape of the dwelling house had been materially altered so that C1 applied. He made the point about the merits of the design and so on which were not strictly material to that question. He said:
"31 However answering the question 'Has the shape of the dwelling house been materially altered?' entails a different test. In theory, this is a more objective test, because it entails a straightforward comparison between the overall shape of the house before and after the alteration to the roof was carried out. The answer should be unaffected by individual tastes or preferences, but there are still factors to be weighed in importance. 32 One of these is the reflective quality of the glass and whether or not light glinting off it changes an observer's perceptions of the shape of the house. The council asserts that when viewed from certain vantage points the glazing appears as a solid opaque structure that materially alters the shape of the dwelling house. 33 In my planning judgment, the glass balustrade does not have that effect. I perceive it as a frameless, transparent structure that does not obscure any part of the building and does not alter the 'reading' of its overall shape."
[13]It is visible to the extent that it materially affected - because of its visibility - the external appearance of the building. So much is clear from the inspector's reasoning to which I have already referred in paragraph 15. What he appears to be saying in paragraph 32, more particularly paragraph 33, is that because it is a frameless, transparent structure it does not obscure any part of the roof and thus it can be effectively ignored when one considers the shape of the building. If you cannot see it - and it has therefore no effect upon the building itself - then it does not affect the shape. It seems from the way that he put it, and indeed it would be consistent with his view of materiality in relation to appearance, that if he had been persuaded that it was generally visible he would have accepted that it fell within the exclusion in class C.[14]It is a little difficult to marry the findings in paragraph 15 and 33 because if it was sufficiently visible from neighbouring buildings and gardens to affect the appearance of a building then it is difficult to see why it should not, by the same token, affect the shape of the building. Mr Greatorex accepts that if it had been a solid balustrade and not made of glass it would inevitably have affected the shape of the building because, instead of the flat roof, there was a roof with a 1.2 metre balustrade surrounding it. That is something which is a different shape. Thus it can only be because the inspector took the view that because it was of glass and because therefore it did not have any visual effect upon the underlying building that it could properly be said not to have altered the shape of the building.[15]Mr Greatorex says that it was a planning judgment that he was exercising in that context. This court will not interfere where there is an exercise of planning judgment by an inspector even if in a given case the court finds that exercise surprising. It is only if the exercise is truly perverse that this court can interfere. The hurdle to be overcome by a claimant who asserts a finding is perverse is a very high one indeed. In the end, for reasons that will become apparent, I do not think this will be determinative of this claim. It seems to me that it would be very difficult to reconcile the inspector's reasoning between the two paragraphs in question. It is a decision which, I am bound to say, comes as close as one could want to being one that was not reasonably reached.[16]However the main point relied on by Mr Mould QC is that this was not a situation where the inspector was entitled in law to find that the GPDO could be relied on. Class C deals with any other alteration to the roof of a dwelling house. It follows that before the GPDO rights can be exercised there must be a dwelling house. When the balustrade was erected there was no dwelling house because it was under construction. It seems to me quite plain that the GPDO cannot be used to effect a change in what is permitted by a planning permission when that planning permission is being carried out. The purpose of the GPDO is to allow alterations and extensions or amendments to an existing building which has already been constructed and is, in the case of class C, a dwelling house. It is not until it becomes a dwelling house that the GPDO can be used.[17]Mr Greatorex says that creates a situation which is unreal because if a developer is permitted to carry out what is permitted by the GPDO once the building is completed, once it becomes a dwelling house (and that is a better way of putting it), then it would be absurd to enforce against it because all that the developer would have to do would be to put it back again. That would be a waste of everyone's time and money. If in a given case that was likely to be the only result then one can see clearly that it would be difficult for a local planning authority to decide that enforcement was expedient for that is the test they have to apply. The mere fact that development has taken place without planning permission does not mean, of itself, that enforcement action will be taken. Of course once the relevant period has passed, which is four years, it is immune from enforcement and can be treated, for all intents and purposes, as being lawful development. The fact that it may not be enforced against does not make it lawful when it is actually carried out.[18]Mr Mould has relied, too, on Article 3 (5) of the GPDO. This provides:
"(5) The permission granted by Schedule 2 shall not apply if - (a) in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful; ..... "
Mr Mould submits that the fact the balustrade was erected without any permission because it was not featured in the permission granted means that the building operations involved were unlawful.[19]In support of that proposition he prays in aid observations of Lord Hobhouse in Sage v Secretary of State for the Environment, Transport and the Regions [2003] 1 WLR 983, 990. In paragraph 23 - having referred to the holistic approach, one on which enforcement certainly was based - Lord Hobhouse said:
"23 When an application for planning consent is made for permission for a single operation, it is made in respect of the whole of the building operation. There are two reasons for this. The first is the practical one that an application for permission partially to erect a building would, save in exceptional circumstances, fail. The second is that the concept of final permission requires a fully detailed building of a certain character, not a structure which is incomplete. This is one of the differences between an outline permission and a final permission: s.92 of the Act. As counsel for Mr Sage accepted, if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful. She contrasted that with a case where the building has been completed but is then altered or improved. This demonstrates the fallacy in Mr Sage's case. He comes into the first category not the second."
[20]Sage involved the erection - I think without planning permission - of a building which was intended to be a dwelling house but never got there because it was left unfinished for a substantial period of time. The issue was effectively whether the time limit of four years began to run from the time when the whole operation of creating the dwelling house was substantially completed or whether it was at an earlier stage. That was not in any way equivalent to the issues with which this case is concerned. Nonetheless the observations of Lord Hobhouse that the whole operation would be unlawful if not carried out both internally and externally in accordance with the permission is of general application and is not limited to the facts of that case. It is suggested that it goes too far and it is too wide if taken entirely literally. It is not necessary for me to go into a detailed analysis of quite how far it can properly be said to go. Suffice it to say that it would clearly apply to any material variation to the permission that was granted.[21]It is common ground that the erection of this balustrade was a material alteration. It is accepted that in itself it was development which, apart from the GPDO, would have required planning permission. Indeed that is what the developer believed was the case. The developer applied for planning permission. The planning permission was refused as I have indicated.[22]It follows from that, submits Mr Mould, that the building operations were unlawful and thus Article 3 (5) of the GPDO applies. I think he is right in the context of this case. Equally I do not think he needs that additional factor because, as I have already decided, the GPDO rights only arise in relation to a dwelling house. This was not, at the time the balustrade was constructed, a dwelling house.[23]Mr Greatorex submits that Circular 11/95 gives the necessary protection through the use of conditions and there is no reason in those circumstances why GPDO rights should not be exercised in the course of construction. It is always open to a planning authority - indeed they are encouraged - to consider the use of conditions to avoid what it regards as undesirable development even though it would otherwise be permitted by the GPDO. It would be open to it for example to have forbidden the erection of a balustrade altogether and thus to ensure some other means of avoiding access to the roof; alternatively it could have imposed a condition that if there were to be any sort of balustrade there should be no use of the roof for sitting-out purposes so that overlooking could be avoided. Certainly conditions could have been imposed.[24]Indeed if the inspector had dealt with this on the basis of ground (a), that is to say that planning permission should have been granted, he could have granted permission subject to any conditions he saw fit to impose to protect the amenities of the claimant or the area generally.[25]The fact that it is possible to impose conditions does not, in my judgment, affect - cannot affect - the issue of law which is whether construction which could, once the building was completed, have formed permitted development is lawful even though it is work done which is not permitted specifically by the planning permission which has been obtained.[26]Mr Greatorex submitted that even if I am against him on this, nonetheless it is plain that the developers could, once the building had been completed, have carried out this particular development. Therefore, as a matter of discretion, I should not grant the relief that is claimed.[27]There is a twist in this case because by amendment that came into force on 1 October 2008 the development which was permitted and which enabled the balustrade, in the inspector's view, to have qualified would not now be permitted. It is common ground that this particular balustrade could not now be constructed in reliance on the GPDO. But, submits Mr Greatorex, this building was completed before 1 October. Therefore the work could have been done at a time when it would have been permitted, on the inspector's findings, and therefore discretion should not be exercised.[28]That, in my view, is the wrong way of looking at it. The reality is that the inspector chose to consider - wrongly, in my judgment - that he was entitled to allow the appeal on the basis of the exercise of GPDO rights. The fact is that the development in question was not in accordance with planning permission. Whether or not it would have been enforced against is immaterial. It was in fact enforced against but that was because the local authority took the view that it did not fall within class C because of its effect on the shape of the building.[29]Once the matter had come before the inspector there had been no specific use of the GPDO in lawful circumstances. It was not open at that stage for there to be any possibility of making use of the GPDO. It was too late. The developer had chosen to construct the balustrade without getting planning permission. That made it a breach of planning control. In theory, whatever may have been the possibility of removing and re-erecting, an enforcement notice could have been issued.[30]True it is that there may well be cases where there are changes made in the course of construction which would be permitted. If it is clear when the matter is considered by an inspector, if it gets to that stage, that all that would be necessary would be for them to be removed and replaced it may well be decided that enforcement action becomes otiose. Equally, I doubt that any local planning authority in its right mind would regard it as expedient to enforce in a situation where all that was necessary was for removal and immediate replacement, subject only to this: Mr Mould has drawn attention to Article 4 of the GPDO which enables a local planning authority effectively to provide in a particular case and in particular circumstances that the GPDO rights should not apply.[31]If it was regarded as something of importance and a material matter it would be open to a local planning authority to make use of Article 4. This would be perhaps particularly the case where the view was taken that if the particular development was to take place there was a real need for some sort of condition to be provided even if the development was in due course permitted. I bear in mind that we are here concerned with a conservation area and a situation where the look of the building is very important indeed.[32]So for all those reasons, in my judgment, this claim succeeds. The inspector was wrong. He should not have allowed the appeal against the enforcement notice, and the matter must go back for reconsideration. Effectively the reconsideration must be, in the circumstances, on ground (a) which was the ground the appellant regarded as the material ground. It is not open, for reasons I have indicated, for use to be made now of the GPDO rights because the law has changed. That may be a misfortune for the developer but that is the situation.[33]MR MOULD: My Lord, the relief sought in the claim form was a quashing order. I ask the court to make that order.[34]MR JUSTICE COLLINS: I do. What about costs?[35]MR MOULD: As regards the question of costs, I ask for my costs on the usual basis. I understand that there has been agreement that in the event the claim were to succeed, as has been the case, if you were minded to make an order for costs, it should be in the sum of £14,000.

MR JUSTICE COLLINS: So be it.

[37]MR GREATOREX: That is right. I mention permission to appeal. The GPDO has application throughout the country. Clearly it is of considerable importance as to when those rights arise. I ask for permission on that basis.[38]MR JUSTICE COLLINS: I think it is as clear as could be what the GPDO says. If you want to take this further you will have to persuade the Court of Appeal.[39]MR GREATOREX: Can the time for appealing be extended to 21 days from receipt of transcript?[40]MR JUSTICE COLLINS: Yes, certainly. I am going to be away until the end of term now so I will not be able to correct the transcript. I shall direct, if you like, it may be desirable, that you can get an unapproved copy of the transcript with which you can work. You have made a note of it; it will only be typos.[41]MR GREATOREX: The request I have had from behind me is that formally the time we have to lodge our appeal is 21 days from whenever the official transcript is finally approved.

MR JUSTICE COLLINS: It will not be finally approved until, at the earliest, the last day of term.

[43]MR MOULD: It is in everyone's interest to avoid unnecessary delay. I do not have strong views.

MR JUSTICE COLLINS: I do not think it is going to be crucial.

[45]MR MOULD: No.

MR JUSTICE COLLINS: I assume I can have it corrected by 21st.

[47]MR MOULD: I am not going to take any point.

MR JUSTICE COLLINS: You can have it from approved transcript.