Hobson v Secretary of State for Communities & Local Government & Ors [2009] EWHC 981 (Admin)

[2009] EWHC 981 (Admin)Case No CO/10287/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/05/2009
Before
SIR THAYNE FORBESSitting as a Judge of the High Court
Between
Anthony HobsonClaimantThe Secretary of State for Communities and Local GovernmentDefendantsGuildford Borough CouncilDefendantMr Robert BrownDefendantMrs Marlene BrownDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
James Pereira (instructed by Sharpe Pritchard) for ClaimantDavid Forsdick (instructed by the Treasury Solicitor) for First DefendantHearing Hearing date: 22 nd April 2009
JudgmentSir Thayne Forbes:Introduction
[1]The first defendant to these proceedings is the Secretary of State for Communities and Local Government (“the Secretary of State”). The Claimant applies under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash the decision of the Secretary of State’s duly appointed Inspector (“the Inspector”), given by letter dated 16th September 2008 (“the decision letter”), whereby the Inspector allowed an appeal by the third and fourth defendants (“Mr and Mrs Brown”) against the refusal of the second defendant (“Guildford BC”) to grant planning permission to demolish an existing chalet bungalow and replace it with a two storey house. Neither Guildford BC nor Mr and Mrs Brown have played any active part in the hearing of this application. The Factual Background[2]Guildford BC is the local planning authority for (inter alia) East Horsley in Surrey. By an application dated 31 January 2008 (“the planning application”), Mr and Mrs Brown sought planning permission for development of the site at “Merrow Down”, The Warren, East Horsley (“the appeal site”) by demolition of the existing chalet bungalow and its replacement with a detached two storey five bedroom house with attached double garage (“the proposed development”). It is common ground that the appeal site is situated in the Green Belt.[3]By notice dated 24 April 2008, Guildford BC refused permission for the proposed development. The stated reasons for refusal were as follows: “The proposed replacement dwelling by virtue of its scale, bulk and increase in floor area, combined with the significant increase in height would result in a replacement dwelling that would be materially larger than the dwelling it seeks to replace. This would result in a detrimental impact on the openness of the Green Belt and the rural character of the area. As such the proposal would be contrary to the provisions of policies RE2 and H6 of the Guildford Local Plan (as saved by CLG direction on 24 September 2007) and policy LO4 of the Surrey Structure Plan 2004 (as saved by CLG Direction on 21 September 2007) and the provisions of PPG 2 “Green Belts”.[4]Mr and Mrs Brown duly appealed against the planning authority’s refusal pursuant to section 78 of the Town and Country Planning Act 1990 (“the 1990 Act”). The appeal was conducted by means of written representations. As indicated above, the Inspector allowed the appeal for the reasons given in his decision letter dated 18 September 2008. In paragraph 1 of the decision letter, the Inspector stated his decision in the following terms:
“Decision 1. I allow the appeal, and grant planning permission for a detached two storey five bedroom dwelling with attached double garage, following the demolition of the existing dwelling at “Merrow Down”, The Warren, East Horsley, Surrey KT24 5RH in accordance with the terms of the application, Ref 08/P/00197, dated 31 January 2008, and the plans submitted with it, subject to the conditions set out in the attached schedule.”
The Legal Framework and Relevant Policies[5]Section 288 of the 1990 Act empowers the Court to quash an Inspector’s decision if it finds either that the decision is not within the relevant powers of the Act (section 288 (1)(b)(i) and (5)(b)), or that a relevant requirement has not been complied with and the Claimant has been substantially prejudiced thereby (section 288(1)(b)(ii) and (5)(b)). The first limb for quashing the decision includes conventional administrative law illegality, such as a failure to apply policy properly or a failure to take into account a material consideration. The second limb includes matters such as a failure to give adequate reasons for a decision.[6]Section 70(2) of the 1990 Act provides that the determination of an application for planning permission must be made having regard to the relevant provisions of the development plan and to all other material considerations.[7]Where a determination falls to be made with regard to the development plan, it is to be made in accordance with that plan unless material considerations indicate otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) and City of Edinburgh v Secretary of State for Scotland (1997) 1 WLR 1447, at pages 1459 to 1460.[8]Matters of planning judgment are within the exclusive province of the decision-maker: see the speech of Lord Hoffman in Tesco Stores Ltd ~v~ Secretary of State (1995) 1 WLR 759 (“Tesco”) at page 780, where he stated the principle in the following terms:
“This distinction between whether something is a material consideration and the weight it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”
[9]The law requires that the reasons given for a decision to allow a planning appeal and grant planning permission must be proper, adequate and intelligible. The reasons should state the decision-maker’s conclusions on the principal important controversial issues in the appeal and the decision should be read as a whole: see the speech of Lord Brown in South Bucks DC ~v~ Porter (No 2) (2004) 1 WLR 1953 (“Porter”) at paragraph 36.[10]Decision letters should be read in a straightforward down-to-earth way, without excessive legalism or exegetical sophistication: see the judgment of Sir Thomas Bingham MR (as he then was) in Clarke Homes ~v~ Secretary of State for the Environment (1995) 66 P & CR 263 at pages 271-272.[11]The Government’s policy on planning in the Green Belt is contained in Planning Policy Guidance Note 2 (“PPG2”). So far as material, PPG2 provides as follows: “3. Control Over Development Presumption against inappropriate development3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. See paragraphs 3.4, 3.8. 3.11 and 3.12 below as to development which is inappropriate.3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development. … New Buildings 3.4 The construction of new buildings inside a Green Belt is inappropriate unless it is for the following purposes: … Limited extension, alteration or replacement of existing dwellings (subject to paragraph 3.6 below); … … 3.6 Provided that it does not result in disproportionate additions over and above the size of the original building, the extension or alteration of dwellings is not inappropriate in Green Belts. The replacement of existing dwellings need not be inappropriate, providing the new dwelling is not materially larger than the dwelling it replaces. Development plans should make clear the approach local planning authorities will take, including the circumstances (if any) under which replacement dwellings are acceptable. Presumption against inappropriate development New Buildings

Limited extension, alteration or replacement of existing dwellings (subject to paragraph 3.6 below); …

[12]It was common ground that the Inspector was right to conclude, as he did in paragraph 7 of his decision letter, that policy H6 of the Guildford Borough Local Plan 2003 was the most relevant local plan policy (“policy H6”). As can be seen from its terms, Policy H6 is of general application to development involving replacement dwellings in the countryside, but it also incorporates the policy requirements of PPG2 for the purposes of such developments within the Green Belt. So far as material, policy H6 is in the following terms:
“Policy H6 REPLACEMENT DWELLINGS IN THE COUNTRYSIDE Outside the urban areas of Guildford and Ash and Tongham replacement dwellings will be permitted provided that the development: Does not result in the loss of a small dwelling; Is in scale and character with the area; Has no unacceptable effect on the amenities enjoyed by the occupants of buildings in terms of privacy and access to sunlight and daylight; Has no unacceptable effect on the existing context and character of the adjacent buildings and immediate surroundings. In addition to the above criteria, outside the identified settlements and within the Green Belt there will also be a presumption against the replacement of existing dwellings with dwellings which are materially larger than those they replace. … Green Belt Policy 5.32… 5.33 It is not considered desirable to state categorically what maximum size of replacement dwelling outside settlements is permissible given the wide range of circumstances to which the policy applies, other than the general requirement that they should not be materially larger than the dwelling they replace. The principal consideration will be the potential impact of the replacement dwelling on the openness of the Green Belt and the visual amenities of the Green Belt in terms of its size, scale, design, materials and character.”
REPLACEMENT DWELLINGS IN THE COUNTRYSIDE

Green Belt Policy

[13]It was common ground that, in paragraph 2 of his decision letter, the Inspector correctly identified the main issue in the appeal as follows:
“… whether the proposal represents appropriate development within the Green Belt, and if not whether there are any very special circumstances which overcome this harm and allow a judgement in favour of the proposal to be made.”
It was also common ground that, in the circumstances of this case, the key question that the Inspector had to address in deciding whether the proposed development constituted appropriate development within the Green Belt was: is the proposed new dwelling “materially larger” than the existing dwelling that it is to replace (“the key question”)?[14]In R (on the application of Heath and Hampstead Society) ~v~ The London Borough of Camden (2007) EWHC 977 (Admin) (“Heath and Hampstead”), the same “key question” as that identified in paragraph 13 above arose in relation to a proposed development on Metropolitan Open Land (“MOL”), to which the same policy approach (i.e. as in PPG2) is applied. In his judgment in Heath and Hampstead, Sullivan J said this with regard to the key question posed in paragraph 13 above:
“19. I do not accept the submission that Surrey Homes was wrongly decided. It follows that I do not accept the submission that when deciding whether the replacement dwelling is or is not “materially larger” than the dwelling it replaces, the local planning authority is solely concerned with a mathematical comparison of relevant dimensions. 20. However I do accept Mr Altaras’s fall back submission that the exercise under paragraph 3.6 [of PPG2] is primarily an objective one by reference to size. Which physical dimension is most relevant for the purpose of assessing the relative size of the existing and replacement dwelling house will depend on the circumstances of the particular case. It may be floor space, footprint, built volume, height, width, etc. But, as Mr Lockhart-Mummery said in Surrey Homes “… In most cases floor space will undoubtedly be the starting point, if indeed it is not the most important criterion.”
It is one thing to say that in a case where the increase in dimensions is marginal in quantitative terms, some regard may be had to other matters “such as bulk, height, mass and prominence”, it is quite another thing to set consideration of the physical increase in size to one side altogether, and, in effect, to substitute a test such as “providing the new dwelling is not more visually intrusive than the dwelling it replaces” for the test in paragraph 3.6 [of PPG2]:
“providing the new dwelling is not materially larger than the dwelling it replaces.”
[15]In Heath and Hampstead,Sullivan J went on to conclude that the planning authority had asked itself the wrong question in relation to paragraph 3.6 of PPG2 and expressed his conclusion to that effect in the following terms:
“44. In my judgment the claimant is right to contend that this approach – to ask what harm would a particular replacement dwelling do in terms of its visual impact from public vantage points within the MOL – is the antithesis of the approach which should be adopted when deciding the threshold question: is this replacement dwelling appropriate development within Metropolitan Open Land? At the risk of repetition, the question is not whether the replacement dwelling would be more visually intrusive from the public realm, but whether it would be materially larger than the existing dwelling. That is principally a question of size, actual rather than perceived size. It is one thing to say that the perception of size may be relevant in deciding whether a measured increase in size is material, it is quite another to substitute an assessment of visual impact for a measurement of size. Although the perception of size may be relevant in marginal cases, the tail must not be allowed to wag the dog. On any basis it is impossible to avoid the conclusion that this replacement dwelling was materially larger, very much larger, than the existing house.”
In my view, it is worth drawing attention at this stage to the relevant comparative dimensions that gave rise to Sullivan J’s observations in the final sentence of paragraph 44 of his judgment, quoted above. Sullivan J dealt with these in paragraphs 23 and 24 of his judgment, as follows:
“23. Against this background, I turn to the comparative dimensions of the proposed replacement dwelling and the existing dwelling. In terms of floor space, the report told the committee members that the floor space of the existing dwelling was 186 sq metres and that of the replacement dwelling was 626 sq metres. The first of these figures was subsequently revised by the officer during the members’ discussion of the report. The officer stated that the figure was closer to 146 sq metres, the figure that had been put forward by the claimant. … Thus there was at least a three-fold or a four-fold increase in floor space … In terms of built volume … there was almost a four-fold increase. In terms of footprint … there was a doubling of size. Considering the external paving alone … there was a five-fold increase in size. 24. Since the exercise is primarily an objective one by reference to size rather than visual impact, the replacement dwelling is plainly “materially larger” than the existing dwelling. …”
[16]In due course, Sullivan J’s judgment in Heath and Hampstead was considered by the Court of Appeal: see (2008) EWCA Civ 193 (“Heath and Hanmpstead/CA”). In the course of his judgment, Carnwath LJ (with whom both Waller LJ and Sedley LJ agreed) said this:
“7. The concept of “appropriate development” is well-established in the context of Green Belt policy. … The same policy approach is applied to land in the MOL. It follows that an important first step, or “threshold” question (as the judge described it), in relation to an application for development in the Green Belt or the MOL, is to decide on which side of the appropriate/inappropriate line it falls. … 37. The words “replacement” and “not materially larger” must be read together and in the same context. So read, I do not think that the meaning of the word “material”, notwithstanding its use in planning law more generally, can bear the weight which the authority sought to give it. Size as Sullivan J said is the primary test. The general intention is that the new building should be similar in scale to that which it replaces. The Surrey Homes case illustrates why some qualification to the word “larger” is needed. A small increase may be significant or insignificant in planning terms, depending on such matters as design, massing and disposition on the site. The qualification provides the necessary flexibility to allow planning judgment and common sense to play a part, and it is not a precise formula. However, that flexibility does not justify stretching the word “materially” to produce a different, much broader test. As has been seen, where the authors of PPG2 intend a broader test, the intention is clearly expressed. Conclusion 38. For these reasons, which are in line with those of Sullivan J, I conclude that the council misunderstood and misapplied MOL policy. Had they properly understood the policy, in my view, they could not reasonably have concluded that a building more than twice as large as the original (in terms of floor space, volume and footprint) was not “materially larger”
. The Decision Letter[17]Having correctly identified the main issue (see paragraph 13 above), the Inspector then proceeded to give his reasons for allowing the appeal in paragraphs 3 to 16 of his decision letter, the material terms of which are as follows:
“3. … 6. It is not disputed that the site is within the Green Belt, so the content of Planning Policy Guidance Note 2: Green Belts (PPG2) is directly relevant. That document indicates that the replacement of existing dwellings need not be inappropriate, providing the new dwelling is not materially larger than the dwelling it replaces. Reliance will be placed on development plans to set out the local approach to considerations of this kind. 7. In this instance I consider the content of saved policy H6 of the Guildford Borough Plan Adopted January 2003 (local plan) to be most relevant. 8. This policy relates directly to replacement dwellings and sets out various criteria which need to be met for proposals of this kind. Firstly, in my view the loss of a small dwelling would not occur, given the substantial level of accommodation offered by “Merrow Down”
. In addition, I consider that the proposed house would clearly be in scale and character with most of the other dwellings within The Warren which is typified by substantial detached houses of the kind proposed. 9. Many of the proposed design components, with which the Council does not take particular issue, reflect design features that are well represented elsewhere in the road and which are redolent or commonly found in this part of Surrey. The proposed building would be visually more interesting than the dwelling it would replace and would reflect the context and character of existing buildings and the immediate surroundings. 10. Furthermore, it is not alleged that the proposal would have any adverse impact on the living conditions of the occupiers of adjoining properties, other than some temporary discomfort when demolition and construction works were taking place. I noted the heavy screening afforded by existing landscaping which effectively prevents any harmful overlooking. 11. Whilst the proposed house would be taller than the existing building, it would generally reflect the height of other two storey houses within the road and so would not, in my view, appear to be unusual or distinctive in this regard. As indicated, it would also occupy essentially the same overall footprint as the existing house and garage, but the use of integral garaging and the slight re-alignment referred to in paragraph 5 above, would actually allow better separation between the proposed building and its side boundaries. Overall, the level of built frontage would decrease, allowing space and views to the side of the property. 12. This would improve the openness characteristics of the plot, although I accept that this would be counter balanced to some degree by the increased ridge height of the roof. Overall, the proposal might therefore be judged to have a neutral effect upon openness considerations at this Green Belt location. 13. The number of habitable rooms would not be appreciably different, although it is conceded that the proposed house would have a greater floor area and overall volume. However, the level of increase would not be unduly dramatic and the replacement house would appear to reflect the general pattern set by other similar cases within The Warrant in recent times, some of which at least were considered under the current development plan regime. 14. Some local residents also expressed concern about the potential for the roof void to be utilised for further accommodation in the future. That is of course only speculative, but such work, if it did occur, would not in any case increase either the volume of scale of the building. Controls over such work can be exercised via the removal of permitted development rights, allowing judgements on the efficacy of any such works to be brought before the local planning authority. 15. Taking all these factors into account I am lead to conclude that the proposal is not in conflict with policy H6, or by implication RE2 of the local plan. The dwelling although different from the existing property in design, layout, volume and height would not be materially larger overall than the dwelling it would replace. It would in fact be very similar to many existing properties within The Warren which sit quite comfortably within their setting, in terms of its scale, bulk and height. I am also content that the openness of the Green Belt would not be compromised. In these circumstances I consider the proposal to represent appropriate development within the Green Belt and as such to be consistent with the guidance set out in PPG2 and policy LO4 of the Surrey Structure Plan of 2004. 16. For the reasons set out above, and having had full regard to all other matters raised, I therefore conclude that this appeal should succeed.” The Grounds of Challenge[18]In the Details of Claim, the Claimant asks the Court to quash the Inspector’s decision on all or any of the following grounds:
“(1) The Inspector erred when applying the policy test in PPG2 of whether the replacement dwelling was materially larger than the dwelling it replaces. In reaching his decision he failed to give primacy to the objective increase in size of the replacement dwelling and instead impermissibly took into account questions of visual appearance and visual impact. … (2) The Inspector’s reasons on the question of whether the replacement dwelling was or was not inappropriate development were inadequate in law and the Claimant is prejudiced thereby. (3) The Inspector erred in applying condition 3 to the grant of planning permission. The effect of granting planning permission subject to that condition was that the later conversion of the loft space was not taken into account as part of the assessment of whether the dwelling was inappropriate development or not, when it ought to have been taken into account in answering that question.”
The Parties’ Submissions[19]Grounds 1 and 3. On behalf of the Claimant, Mr Pereira sensibly suggested that it was convenient to take grounds 1 and 3 together, since both were concerned with the Inspector’s assessment of whether the proposed replacement dwelling was inappropriate development. It was Mr Pereira’s submission that the Inspector had correctly identified the main issue in paragraph 2 of his decision letter (see paragraph 13 above), but that he had fallen into error in his approach to and determination of that issue in the way summarised in Grounds 1 and 3 above. In support of that general submission, Mr Pereira made the following four main points.[20]First, Mr Pereira submitted that, for the purposes of PPG2, the “threshold question” in deciding whether development is inappropriate (correctly identified by the Inspector as the main issue in the appeal) determines whether the development in question is deemed to be harmful to the openness of the Green Belt, because inappropriate development is, by definition, harmful to the Green Belt (see paragraph 3.2 of PPG2, quoted in paragraph 11 above). It was Mr Pereira’s submission that it is clear from the terms of paragraphs 11 and 12 of the decision letter that, nevertheless, the Inspector reached a conclusion on the proposed development’s effect on openness that was based on a visual assessment of the development, rather than by means of an objective comparison of size as required by paragraph 3.6 of PPG2. Mr Pereira contended that the Inspector thus erred in reaching a conclusion with regard to the proposed development’s effect on openness without having first answering the essential threshold question as to whether this particular proposed development was appropriate or inappropriate Green Belt development – a question that should be primarily answered by an objective comparison of size: see Heath and Hampstead (supra).[21]Second, Mr Pereira referred to paragraph 13 of the decision letter, which noted the concession that the proposed replacement house would have a greater floor area and overall volume, which the Inspector characterised as not “unduly dramatic”. Mr Pereira pointed out that it was accepted that the actual increase in the floor space of the proposed replacement dwelling was 33% (including the garage) and the increase in height was 1.5 metres. He submitted that neither of these increases could be characterised as marginal and emphasised that the Inspector’s conclusion that the level of increase would not be unduly dramatic had not been reached as a result of comparing the relevant dimensions of the replacement dwelling with the existing one, but by comparing the replacement dwelling with “the general pattern set by other similar cases within The Warren”.[22]Mr Pereira therefore submitted that the Inspector’s approach in paragraph 13 had been, in effect, to make an assessment of the visual appearance and impact of the replacement dwelling; therefore, in that particular paragraph, he had not carried out the objective comparison in size of the two dwellings as required by paragraph 3.6 of PPG2 and emphasised in Heath and Hampstead and Heath and Hampstead/CA (supra).[23]Third, Mr Pereira referred to paragraph 14 of the decision letter. He submitted that, by dealing with the expressed concerns about a possible loft conversion of the roof void, by the imposition of a condition that removed permitted development rights, the Inspector effectively excluded the roof floor-space from ever being considered under PPG2 because:(i) by finding that such a conversion would not increase either the volume or scale of the replacement dwelling, he had effectively approved the construction of a floor in the roof void;(ii) he did so, without having taken that floor area into account for the purposes of the objective comparison of size required by paragraph 3.6 of PPG2; and(iii) as a result, no account would be taken of that floor area in any subsequent application for a full-scale loft conversion, because the proposal would not involve any additional floor area beyond that which would, by then, have been constructed.[24]Mr Pereira submitted that the foregoing analysis demonstrated why the potential floor area of the roof void should have been taken into account by the Inspector, when carrying out the objective comparison of size required by PPG2. He therefore contended that the Inspector had fallen into error in failing to do so.[25]Fourth, Mr Pereira referred to paragraph 15 of the decision letter and accepted that, in that paragraph, the Inspector had expressed the view that the proposal was not in conflict with policy H6 and that the replacement dwelling “would not be materially larger overall than the dwelling it would replace.” However, Mr Pereira submitted that, on a fair reading of the decision letter, it was clear that the Inspector had not been there expressing a conclusion based on a proper objective comparison of size between the replacement and the existing dwellings (as required by paragraph 3.6 of PPG2); rather, as the Inspector expressly stated, he had reached this particular conclusion “taking all these factors into account”, i.e. the factors that he had set out in the earlier paragraphs of his decision letter, none of which involved any such comparison of size.[26]It was Mr Pereira’s submission that these preceding factors were all essentially matters of visual impact that were simply not the primary concern of paragraph 3.6 of PPG2. In this regard, Mr Pereira stressed that nowhere in his decision letter did the Inspector purport to carry out any exercise in comparing the relevant dimensions of the proposed replacement dwelling with those of the existing dwelling – an exercise that Mr Pereira submitted was the primary exercise to be carried out in order to satisfy the requirements of paragraph 3.6 of PPG2: see Hampstead and Heath (supra).[27]It was also Mr Pereira’s submission that, when expressing the conclusion that the replacement dwelling was not materially larger than the existing one, although the Inspector did refer to the difference in volume and height between the proposed and the existing dwellings, there is no reference to the 33% increase in floor-space. Furthermore, Mr Pereira submitted that the Inspector’s reference to design and layout in paragraph 15 of the decision letter must be understood to be a reference to his earlier consideration of those factors by reference to their visual appearance and impact.[28]Mr Pereira therefore contended that, on a fair reading of paragraph 15 and of the decision letter as a whole, the Inspector’s apparent conclusion that the replacement dwelling would not be materially larger overall than the dwelling it would replace, was not primarily based on any proper objective comparison of size as required by paragraph 3.6 of PPG2, but upon an assessment of the replacement dwelling’s visual appearance and impact in the context of The Warren. He also submitted that, in reality, this was a case where it was difficult to avoid the conclusion that this particular replacement dwelling would be materially larger than the existing bungalow, having regard to the increases in floor-space and height of the replacement dwelling: see Heath and Hampstead and Heath and Hampstead/CA (supra). Accordingly, it was Mr Pereira’s submission that the Inspector had, for those reasons, fallen into error.[29]On behalf of the Secretary of State, Mr Forsdick submitted (correctly, in my view) that it is clear from the structure of the decision letter that the Inspector first analysed the planning merits of the proposed development by reference to the specified criteria in policy H6 of the local plan, as he was required to do by section 38(6) of the 2004 Act and as paragraph 3.6 of PPG2 expressly envisages. Thus, it can be seen that, in paragraphs 8 and 9 of the decision letter, the Inspector dealt with criteria 1 and 2 of H6; in paragraph 10, he dealt with criterion 3; and, in paragraphs 11 to 13, he dealt with criterion 4. In my view, the Inspector was right to approach the matter in this way. Furthermore, I accept Mr Forsdick’s submission that there can be no complaint about the way in which the Inspector addressed and dealt with those criteria.[30]I also agree with Mr Forsdick that the Inspector only turned to deal specifically with the question, whether the replacement dwelling would be “materially larger” than the existing dwelling, in paragraphs 14 and 15 of the decision letter. In my view, that approach is entirely consistent with the terms of policy H6 and PPG2. I reject Mr Pereira’s submissions to the contrary effect.[31]I agree with Mr Forsdick that the main apparent concern expressed in the Claimant’s evidence to the Inspector (in the form of a report by Derek Horne and Associates) was with regard to the potential increase in size that would result from conversion/use of the roof void of the proposed house and that the increase in the floor area (not including the garage) was otherwise regarded as only “modestly larger than the existing dwelling”: see paragraphs 7.01, 7.02 and 7.03 of that report.[32]I am satisfied that, from all the evidence before him and as is apparent from the terms of his decision letter, the Inspector was well aware of the “modestly larger” floor area of the proposed house (less the garage), the somewhat increased volume and height of the proposed house, the similarity in the size of its footprint and the decrease in the level of built frontage. As Mr Forsdick observed, the Inspector’s conclusion on the “materially larger” issue is then expressed at paragraph 15 of the decision letter as follows:
“The dwelling although different from the existing property in design, layout, volume and height would not be materially larger than the dwelling it would replace.”
So far as concerns the roof void, the Inspector specifically took volume (i.e. including the roof void) into account when reaching his conclusion and dealt with possible conversion of the roof void by means of a perfectly appropriate planning condition.[33]I agree with Mr Forsdick that, on a fair reading of the decision letter, the Inspector’s conclusion with regard to the “materially larger” issue is therefore a planning judgment reached after consideration of the issue in a manner entirely consistent with that stated in Heath and Hampstead to be the correct approach to paragraph 3.6 of PPG2. I accept Mr Forsdick’s submission that, in respect of that particular issue, it is clear that the Inspector directed himself primarily by reference to the objective facts as to size (i.e. volume, height, footprint and floor-space). In my view, he did not do that which the planning authority did in Heath and Hampstead, i.e. to substitute a visual impact test for the necessary objective comparison in size between the replacement dwelling and the existing dwelling. I therefore reject Mr Pereira’s submissions to the contrary effect.[34]I also agree with Mr Forsdick that the increases in size involved in this case were very different (i.e. very much less significant) from those that existed in the Heath and Hampstead case (see paragraph 16 above). Considered overall, I accept that the Inspector was entitled to regard the increases in size in the present case as relatively marginal (as he apparently did) and that, therefore he was also entitled to have some regard to matters such as “bulk, height, mass and prominence (as he did) when reaching his overall planning judgment.However, as I have already indicated, I am nevertheless satisfied that, on the “materially larger” issue, the Inspector did direct himself correctly, i.e. primarily by reference to the objective facts as to size (see above).[35]Accordingly, for those reasons, I am satisfied that grounds 1 and 3 fail.[36]Ground 2. Mr Pereira submitted, in the alternative, that the Inspector’s reasoning gave rise at least to a genuine doubt as to whether he had lawfully applied paragraph 3.6 of PPG2. In support of that submission, Mr Pereira referred once more to the Inspector’s apparent reliance upon matters of visual impact as opposed to an objective comparison of size, the finding with regard to openness in paragraph 12 of the decision letter, the alleged failure to deal with the correct policy test in paragraph 13 and the apparent failure in paragraph 15 to have regard to appropriate factors when reaching his conclusion with regard to the “materially larger” issue posed by paragraph 3.6 of PPG2. Mr Pereira contended that all these matters raise sufficient doubt as to whether the Inspector had actually adopted a lawful approach to the policy considerations of PPG2 and that, as a result, the Claimant has been prejudiced.[37]For his part, Mr Forsdick submitted that, once the structure of the decision letter and the Inspector’s approach is properly understood (see paragraphs 30 to 35 above), the reasons for his conclusions on the principal controversial issues are clear and entirely in accordance with the principles stated by Lord Brown in Porter (supra). I agree with that submission and, accordingly ground 3 also fails. Conclusion[38]For all the foregoing reasons, I am satisfied that none of the grounds upon which the Claimant relied in this application have been made out. Accordingly, the application must be and is hereby dismissed.

Cited in 1 later judgment