Tanner, R (on the application of) v Secretary of State for Communities and Local Government [2010] EWHC 822 (Admin)

Case No CO/8130/2009[2010] EWHC 822 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 18 March 2010
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
Between
THE QUEEN ON THE APPLICATION OF TANNERClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Meyric Lewis (instructed by Kester Cunningham John) appeared for ClaimantMiss Carrie Patry-Hoskins (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE COLLINS: There are two matters before the court. One is an application pursuant to Section 288 of the Town & Country Planning Act 1990 which seeks to challenge a refusal to grant a planning permission to permit a building - which was constructed but not in accordance with a permission that had been granted in 2007 - to remain where it was. Secondly, an application for leave to appeal under Section 289 of the Act against the decision of an inspector dated 28 June 2009 whereby she upheld an enforcement notice against that building.[2]Mr Justice Silber in September directed that the two should be listed together as a rolled-up herring and, if permission were granted on the Section 289 appeal, it should be heard at the same time as the Section 288 application.[3]It seemed to me that in all the circumstances - whether or not in the end I was going to be persuaded by the arguments raised on behalf of the appellant or applicant or claimant, depending on which section is applicable - it was convenient and sensible to grant permission so that the two matters could be heard substantively together. That, without any objection from Miss Patry-Hoskins who appears on behalf of the Secretary of State, I did. Accordingly this judgment deals with both the Section 288 claim and the Section 289 appeal.[4]The building in question is a garage with storage area above in Long Melford. Long Melford is a town which is, to a large extent, a conservation area. It contains a significant number of buildings of interest which are listed. On the site in question there are listed buildings on either side of the site on which this (I will call it) garage has been constructed.[5]The claimant (and I will refer to him as such to save repetition) made an application for planning permission to construct a garage and received permission from the council in 2007. He then proceeded to construct the garage but unfortunately he did not follow the plans upon which the permission had been granted. He says that he discussed the matter with his architect and was under the impression that what was to be done by way of changes were not more than minor amendments which would not mean that he was in breach in any way of the planning law. Unfortunately for him, that was not the case. In particular, the building as built was higher than that for which permission had been granted.[6]There is an argument before me which was maintained at the hearing before the inspector whether the increase in height was 1.5 or 2.1 metres or, in imperial terms, a distinction between about 5 and about 7 feet. In addition there were amendments of varying sorts to the fenestration and, I think, to the design of the roof. Further, the garage as built was placed some 7 metres away from the site for which the permission had been granted. It is a major point relied upon on behalf of the claimant that that 7 metres takes it further away from the boundary of the property and, more particularly, from a neighbouring listed building. It is said and it was said before the inspector that if the enforcement notice was upheld the planning permission as originally granted could be implemented and this would mean that the garage was that much closer to the neighbouring listed building and that would be a situation which was less desirable than if it were left where it was. That was certainly a matter that was relied on in the course of the appeal.[7]There were, it is submitted by Mr Lewis, important matters that the inspector should have dealt with explicitly. The first was the distance of 7 metres. Secondly, the question whether the height was actually increased by 1.5 or by 2.1 metres, the distinction between the two being the fact that it apparently has been placed on a platform itself 0.6 metre high. The plans upon which the original permission was granted appeared to show that there would be no such platform and that the height would be the same height as the gate to the property.[8]That is of some importance because although I do not have the precise details - and it is not possible from the material put before me to judge accurately this issue, nor indeed I would say in parenthesis is it necessary for me to do so because it is a question that goes to planning judgment rather than to any question of law - the land, to some extent, slopes. That is clearly something which is material when one is considering the question of impact on neighbouring properties and indeed, in more general terms, not only as listed buildings but on neighbours who may be overlooked by a particular building or may have a particular building made visible which spoils the outlook that they would otherwise have.[9]The fact that it had been erected 7 metres away from where it should have been was known and indeed was a matter raised at the inquiry. Unfortunately, the council in the enforcement notice had, as is normal, annexed a plan. That plan was inaccurate in that it showed the building in question on the site where it should have been erected rather than the site where it had actually been erected. That was spotted at the outset of the inquiry - I am not sure by whom and it matters not - and there was an amendment made. No objection was or indeed could sensibly have been taken to that amendment, which meant that the proper position was recorded. It is quite plain that the inspector was well aware of the 7-metre point and indeed of the height point, both of which were argued.[10]Mr Lewis makes the point that the officers of the council - when they considered whether planning permission should be granted to approve the garage as built - produced a favourable report. It was their view that it could and should be approved. However the councillors and members of the relevant committee who had the ultimate decision were not persuaded that that was correct. So they refused planning permission. There followed a decision that it was expedient to issue enforcement proceedings which required that the garage be demolished. Of course that could have meant that the claimant could have rebuilt in accordance with the planning permission granted in 2007. Indeed he can still do that. The planning permission contains a number of conditions. But the most material one is - I suppose for these purposes - the usual 5-year commencement provision. That will not run out until 2012.[11]I do not think it is necessary to go into further detail as to the site or what the building looks like. That is all set out in the inspector's report and is not material to the issues which I have to decide. The inspector set out what she considered to be the three main issues (paragraph 6 of her determination): first, whether the building preserved or enhanced the character of the Long Melford Conservation Area; second, the effect on the setting of the neighbouring listed building; and, third, the effect on the living conditions of neighbouring occupiers with particular regard to outlook. When one looks at the question whether the building is one for which planning permission should be granted, those three issues are quite clearly correctly identified as the main issues.[12]The only other question which fell to be considered and was considered was what has been described as the fall-back. That is to say, if this enforcement notice were to be upheld then the planning permission could be brought into effect and an issue clearly would arise whether what was there now was preferable to what would be erected were the planning permission to be put into effect.[13]The conservation area issue was considered by the inspector. She noted in paragraph 15 of her decision that the planning permission granted in November 2007 was a material consideration but that there were a number of differences. She set out those differences. She said:
"The differences between the building approved and that built formed a large part of the cases put by the parties and interested persons. In my opinion the differences between the two buildings in particular the locations of the two buildings, their heights and the level of the land on which they are/would be built (although I accept that the appellant does not agree that the permitted building would be built at a lower level) are such that I give little weight to the approval save for [the] fact that it established the principle of a three-car garage with storage above on the appeal site."
[14]Mr Lewis complains that she does not there specify the 7-metre or the actual difference in height. In my view she does not need to do so. This decision letter was addressed to those who were aware of what the issues were. She records clearly that there were the differences in height, in location and level of land.[15]It seems to me that in those circumstances it is unnecessary to have gone into the precise details of what those differences were. The important question was whether in her judgment they were significant and whether in her judgment what was there was acceptable in planning terms, and what could be there if the enforcement notice was upheld was perhaps something that would be worse in planning terms. It is obvious that when one has to consider a fall-back it is can be highly material to decide, when one is concerned with enforcement notices, whether, if the enforcement notice is upheld, the result will be something worse. As we shall see, it was clearly her view that what was permitted would not be something that could be said to be in any way worse. Indeed, the fact that permission had been granted shows that those who had the responsibility of considering whether it was indeed acceptable in planning terms had taken the view that it was. Thus her view as to whether what was there was acceptable prima facie would determine the matter.[16]Mr Lewis has sought to persuade me that the existence of the alternative was something she should have gone into. It was always necessary, as I understand his submission, to consider the likelihood of it being implemented. It seems to me that if the decision is that what can be built is acceptable - or certainly is not unacceptable - then whether or not it is going to be built is an entirely immaterial consideration. There were indeed suggestions that some of the amendments to the original plans were needed to enable a sensible garage to be constructed. Whether or not in due course that will mean that the planning permission as granted is able to be put into effect, only the future will tell. If it cannot be, then clearly the claimant will have to make a fresh application for planning permission and a decision will be reached whether a particular design or a particular decision on position is or is not acceptable.[17]The only thing one can say is that it would, I suppose, be difficult for the council to refuse absolutely to allow any garage to be built because clearly it has been recognised that it is not an unreasonable request, and a garage can be constructed which is not out of character with the surroundings or which is in any way, in planning terms, unacceptable.[18]The inspector dealt with the setting of the listed building. She concluded in relation to the first issue that it did not preserve or enhance the character or appearance of the Long Melford Conservation Area. That was her judgment and that is a matter that cannot be criticised in this court. It is not an error of law, albeit I appreciate that the claimant disagrees with that conclusion. That is the way the system works.[19]The second issue is the setting of the listed building. She concluded that it did have a harmful effect on the setting of the neighbouring building and thus was contrary to local policy and national planning. Again, that is a planning judgment which she was clearly entitled to form; similarly in relation to the neighbours' living conditions because of the height largely and, to some extent, because of the position and adverse effect on the living conditions of neighbouring occupiers with particular regard to outlook.[20]Under the heading "Other Matters" (paragraph 26), she dealt with what has been described as the fall-back position. I cite that paragraph because it is, in the context of the claim and the appeal, of central importance:
"26 The fall-back position is that the appellant could build the building approved in November 2007. Whatever the perceived drawbacks of that building may be as submitted by the appellant, it has been approved by the council (subject to conditions) and therefore it is acceptable in terms of, among other things, the Conservation Area and the setting of the Listed Building."
Pausing there, she accepts - indeed she was bound to accept - that once permission had been granted it had to be assumed that the necessary criteria had been properly applied and therefore it was a building which was not in planning terms objectionable.[21]The inspector continued:
"26 In particular I note that the approved plan shows the approved building would be at the same ground level as the gates leading to the rear of the site and it would therefore be at a lower level and also that it would have less height and therefore less volume than the building that is the subject of these appeals."
Pausing there, Mr Lewis complains that she nowhere in terms indicates what the precise level difference is. She records, as I have already indicated, in paragraph 15 her acceptance that the appellant did not agree that the permitted building would be built at a lower level, but she makes the point in paragraph 26 that the plan showed that the level would be at the same ground level as the gates leading to the rear of the site. In those circumstances, as it seems to me, she was quite clearly indicating that that was the level which, on the face of it, ought to have been applicable. It follows that the 600-millimetre platform was something which was wrongly added to the height of the building as built.[22]I return to paragraph 26:
"26 In view of the explanations given by the appellant for the differences between the approved building and the building as built, which include the need for the windows in the rear elevation to comply with Building Regulations regarding escape from fire and the width of the garage doors being reduced because of the need to increase the width of the piers to support the arches, it appears to me that it may not be possible to build the garage as approved; but these are matters for the future should the appellant decide to proceed with building the garage."
It is true that she does not specifically in that paragraph refer to the 7-metre point. On the other hand, it was a matter that everyone knew was before her. She referred to the situation of the building. It was known that this was a factor and that an acceptable building could be constructed 7 metres nearer.[23]Mr Lewis submits that she should have considered the 7-metre point in terms because it might have led to a different view as to acceptability. That is a submission which I cannot accept. She clearly was aware of the difference. It was her view that the building - where it was - was unacceptable. That was her judgment. That was a judgment that is not in any way flawed as a matter of law. She, equally, took the view that the permission as granted was accepted. It was known that that meant 7 metres closer to the neighbouring building, but the land levels were something of importance in relation to that.[24]It seems to me in those circumstances that not only was she entitled to decide as she did but that the challenge on the basis that her reasons are not sufficient is one which cannot be maintained. She explains quite clearly in the course of her decision why she takes the view that the building as built was unacceptable. In those circumstances both the claim and the appeal must be dismissed.[25]MISS PATRY-HOSKINS: My Lord, the Secretary of State has an application for costs. We have submitted a summary assessment.

MR JUSTICE COLLINS: I think I may have seen it at some stage.

[27]MISS PATRY-HOSKINS: I hand up a further copy. It obviously does need to be amended in the light of the fact that the court has not sat for the whole day.

MR JUSTICE COLLINS: Did someone think this was going to last a day?

[29]MISS PATRY-HOSKINS: The time estimate was half-a-day to a day.[30]MR LEWIS: It is a situation where it reflects whether - if I may put it that way - we are lucky enough to have your Lordship to determine the case - - - - -

MR JUSTICE COLLINS: You do not think you are lucky.

[32]MR LEWIS: - - - - - or may be not a planning judge. It may be that my choice of words is not quite right.[33]MISS PATRY-HOSKINS: I have amended - - - - -[34]MR JUSTICE COLLINS: This is rather a lot less than you would have claimed. Knowing the usual Treasury solicitor rates, do you challenge the figure?[35]MISS PATRY-HOSKINS: Can I give you the amended figures? In order to be completely fair, we have reduced it from a day. The reduced figure is £5,334.

MR JUSTICE COLLINS: I think you will find that even more acceptable.

[37]MR LEWIS: Yes.

MR JUSTICE COLLINS: You cannot resist an order for costs, can you?

[39]MR LEWIS: No.

MR JUSTICE COLLINS: Dismissed, with an order for costs in the sum of £5,334.

[41]Mr Lewis, I take it you do not want to make an application for leave in relation to the 288. As you appreciate, it will be refused. Do you want a formal refusal or not?[42]MR LEWIS: I will double check. But to confirm, that is why I did not rise. I am grateful for your Lordship giving me the opportunity.