St Vincent's Housing Association Ltd v Secretary of State for Communities and Local Government [2011] EWHC 3339 (Admin)

Case No CO/4110/2011[2011] EWHC 3339 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Venue Leeds Combined Court
1 Oxford Row
Venue LeedsDate Thursday 3 November 2011
West Yorkshire
LS1 3BG
Before
HIS HONOUR JUDGE SHAUN SPENCER QC(Sitting as a High Court judge)
Between
ST VINCENT’S HOUSING ASSOCIATION LTDClaimantcommunities and local governmentDefendant
(DAR Transcript 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)
Mr Hardy (instructed by Eversheds Solicitors) appeared for Claimant.Mr Hunter (instructed by the Treasury Solicitors) appeared for Defendant.
Judgment
[1]I now proceed to give judgment in the case of St Vincent’s Housing Association Ltd v the Secretary of State for Communities and Local Government. St Vincent’s Housing Association Ltd, the Claimant, is a registered provider of social housing. Pursuant to s 288 of the Town and Country Planning Act 1990 the Claimant Housing Association applied to the High Court as a person aggrieved by the decision of a planning inspector dated 29 March 2011 to refuse to give planning permission for the erection of ten bungalows on land situated to the rear of number 12 Green Lane in Shelf, which is in the locality of Halifax.[2]What has bulked large in this application are the trees which are in considerable number on the proposed site. I should say something about them at this stage; more detailed reasons will be provided later in this judgment. In the bundle for the case I have, at page 42,what has been described as a shadow zone drawing. If the drawing is held pointing north with Green Lane at the top one can see running north to south the dwellings which are proposed to be built, numbering at the top from one through to number ten on the bottom. These are the semi-detached bungalows and on the east boundary of the site there are a considerable number of mature deciduous trees marked as being present. There is a key which indicates that any tree which falls within an area which is hatched blue is to be removed. Those trees were to be removed because of their general poor condition and the planning inspector saw no reason to dissent from the suggestion that removal was appropriate in the case of those trees. Those being removed, a considerable number of trees still remain. What is shown, as I have already indicated, is the tree shadow zone. Those trees are regarded, so far as condition is concerned, as being good or good enough and so they will remain. They are the subject of a tree preservation order that was imposed in the year 1990.[3]I come now to something which was said about those trees in the course of the inspector’s decision letter. At paragraph 9 he said this:
“Whilst most of the trees are shown to be retained, the Tree Shadow Zone plan shows that all of the gardens and the windows/patio doors to the rear facing bedrooms and lounges of Plots 1, 2 and 8 and most of the garden of Plot 9 would be heavily overshadowed.”
[4]These trees are deciduous; obviously. they were not in leaf throughout the winter of 2010/2011 and particularly they would not have been in leaf when the inspector performed his site visit on 21 February 2011. The fact is, however, that he did make a site visit and had the opportunity to consider the size and conformation of the trees and their proximity to the proposed building area. On any reasonable construction of the decision letter it is quite plainly the presence of the trees which condition the refusal. It is right to say that the site was a green field site and he bore that in mind, but the trees were fundamental to his decision.[5]If I look at paragraph 4 he identified the main issue of the appeal in these terms:
“The effect on the character and appearance of the area, with particular reference to the impact on protected trees.”
So far as trees are concerned, the inspector referred to a number of Natural Environment Notices, in particular, that which is described as policy NE21. That appears in the development plan for Calderdale adopted on 25 August 2006. In that part of the development plan, which is subtitled Natural Environment and the Countryside, paragraphs 11.78 and 11.79, there are the following expressions under the heading of “Shade cast”:
“Trees can overshadow and cast shade on adjacent dwellings and other types of buildings, which can severely affect amenity and in particular that of residents. Shade cast can often threaten the retention of trees due to residents and other occupiers requesting the felling of offending trees. As such, when considering the layout of developments, the Council will seek to prevent an unacceptable degree of overshadowing of development by trees that are to be retained either on or off site. “Where the likely level of shade cast is considered to be unacceptable a proposal will be refused in order to preserve any tree(s) of amenity value.”
[6]So far as the policy itself is concerned, NE21 says this:
“Where trees are located on or adjacent to development sites, development proposals will be permitted provided that:- v. an appropriate layout of development is achieved which prevents the development being subjected to an unacceptable degree of shade cast by trees which are to be retained”
[7]It is clear from the content of the decision letter that the inspector was greatly concerned by the shade cast over the houses and curtilages proposed to be built. I have already cited his reference to plots of one, two, eight and nine being heavily overshadowed. I should read the rest of paragraph 9 in full:
“New residents might initially consider the presence of mature trees an attractive feature. However, a large tree can be frightening, particularly when it sways. Birds roosting in the trees can be noisy and messy. Trees can make gardens damp and dark preventing garden plants from growing and can result in dark and claustrophobic living conditions inside a dwelling. Debris, such as leaves, pollen and honeydew, falls from trees throughout the year. Given the proximity of the trees to the proposed bungalows and the degree of shading, these impacts would be perceived as a significant nuisance and danger. These problems will result in pressure from the owners of the bungalows to fell the offending trees. Even though the trees are protected by a TPO their proximity to the bungalows and the degree of shadow cast would make it difficult for the Council to resist application to fell the trees on safety and amenity grounds. This would result in the potential loss of a further 20 trees. Accordingly, the loss of trees as a result of the development would have a significant and unacceptable effect on the character and appearance of the area.”
[8]The letter also deals with the impact on nature conservation and the fact that the area is within a site designated as a wildlife corridor. He said this in the conclusion of the paragraph:
“…the loss of a significant number of mature trees would have an adverse impact on the value of the wildlife corridor.”
[9]Paragraph 14 says this:
“Notwithstanding that most of the site is shown to be within a Primary Housing Area, UDP Policy H9 says that proposals for residential development on unallocated green field land will not be permitted. Given my conclusion regarding the green-field nature of the site and the unacceptable impact on the character of the area through the significant loss of protected trees, the proposal would conflict with the objectives of Policies GP2 and H9.”
[10]It is submitted to me on behalf of the Claimant that the concern about trees is not something that was reflected in the presentation of the council’s planning officers when the application for permission was first made to the local planning authority. Indeed, the council planning officers’ recommendation was that the application should be approved. However, as they were entitled to do, the planning committee departed from the position of the planning officers and refused permission hence, obviously, the appeal. The point is then made that the refusal by the local planning committee does not contain in its decision any concern regarding the fate of the trees. Those points are all factually accurate but it does seem to me that the Inspector was entitled to bring his own mind to the issues at stake. The submission for the Claimant is that the Inspector, being so entitled, has not made a particularly good fist of things.[11]The points made by the Claimant are helpfully summarised in the skeleton argument at paragraph 3. Under 3.1 it is said as follows:
“There was no evidence before the Inspector from which he could rationally draw the conclusion that: 3.1.1 the impact of the trees to be retained on the site on future occupants’ particular units would be seen as a significant nuisance and danger; 3.1.2 the Council would find it difficult to resist any future applications to fell the remaining trees on safety and amenity grounds; 3.1.3 the Proposed Development would therefore result in the loss of 20 trees in addition to those identified for removal as part of the Proposed Development which would have an unacceptable impact on the character and appearance of the local area and on wildlife.”
[4]One matter which has focused prominently in the submission of the Claimant is the fact that the Inspector was making his own prediction as to what the council’s attitude would be, in its capacity as local planning authority, to any application for consent to cut down trees which were the subject of a protection order. Mr Hardy observes in his skeleton argument at paragraph 5.7:
“Any application submitted pursuant to Regulation 9A the Town and Country Planning (Trees) Regulations would be considered by the Council on its merits in accordance with the relevant law and policy. It is submitted that the Inspector’s presupposition regarding the likely outcome of any future applications discloses an error in law. The Inspector could not reasonably come to the conclusion that the Proposed Developments ‘would result in the likely loss of a further 20 trees…’.”
[5]Let me take this in stages. So far as paragraph nine is concerned, it is clear that the inspector took as the fundamental piece of evidence the tree shadow zone plan. He can scarcely be criticised for doing so because this particular document is one which was brought into existence by those acting for the claimant. It is submitted by Mr Hardy that the shadow plan represents what he describes as the worst case. Even if that be so, the worst case is something that can happen. I take the view that the inspector was entitled to regard the shadow zone set out on the drawing as representing the case. He makes the proposition that a large tree can be frightening, particularly when it sways; birds roosting in the trees can be noisy and messy; trees can make gardens damp and dark preventing garden plants from growing; and they can result in dark and claustrophobic living conditions inside a dwelling. It seems to me that all those propositions are ones which the inspector was entitled to take into account. It seems to me that those propositions are simply general common sense. Ditto the further point that debris, such as leaves, pollen and honeydew, fall from trees throughout the year. Having stated that proposition, he then goes on to say:
“Given the proximity of the trees to the proposed bungalows and the degree of shading, these impacts would be perceived as a significant nuisance and danger.”
[6]Insofar as he predicted that considerations of that character would lead to pressure for felling the trees or for applications being made that the trees be felled, it seems that he would be in the same company as the authors of the structural development plan. I refer to the paragraph I have already cited which says:
“Shade cast can often threaten the retention of trees due to residents and other occupiers requesting the felling of offending trees.”
It is clear from his reference elsewhere to NE21 that that passage was in his mind.[7]The critical question which is posed by Mr Hardy is: Was he entitled to predict that the outcome of such applications for consent to fell would be that they would be granted? Paragraph 9 says this:
“Even though the trees are protected by a TPO their proximity to the bungalows and the degree of shadow cast would make it difficult for the council to resist applications to fell the trees on safety and amenity grounds.”
[8]I do not find it easy to expend a lot of words on this; I think it is a matter of impression. However, bearing in mind the content of NE21 and its commentary, and bearing in mind that the decision was made by a planning inspector who obviously would be appropriately qualified in this area, I take the view that he was entitled to conclude that the applications, if made, would be granted. I do not think he expressed the matter in terms of the level of probability or certitude but it was enough for him to regard the loss of a significant number of trees as being a consequence and a more than likely one at that, it appears to me. I cannot see that he went wrong in coming to that conclusion. It was submitted to me, understandably, that were applications to be made in these circumstances any planning authority worth its salt would tell the applicants to be off and that they should bear in mind that they bought the house with the trees in the locality. I get from paragraph 11.78 (which I have cited) that that would not be likely to be the reaction of a planning authority.[9]I add this by way of afterthought - and I think I have given Mr Hardy the opportunity to comment on it – for my part, I have to consider, amongst other aspects of the skeleton argument, that which appears at paragraph 6.2. Mr Hardy says this: “From the overall conclusion set out in paragraph 17 of the decision letter, it is clear that the loss of a further 20 trees and the impact this would have on the value of the wildlife corridor was weighedagainst the benefits of the development. It is submitted that there is a very real risk that the Inspector would have reached a different conclusion had the errors in law identified above not been made” (the errors in law being as it was presented that there was no evidence upon which he coulddraw the conclusions he did).[10]It seems to me that it would not have made any difference to the inspector’s decision if he had concluded in his prediction exercise that the trees would not have gone. It is clear to me that, bearing in mind the content of paragraph nine of the decision letter, he would still have refused permission. The fact is that the problem is the trees. If the trees are lost that is a problem for the reasons given in his decision; if the trees are retained, that is a problem which appears for the reasons set out in paragraph nine.[11]The further submission was that the reasons given were inadequate. There has been a substantial critique of the inspector’s reasoning on the “no evidence to support particular findings” front : any want of reasons did not prevent a thorough critique of the findings which he made. If one can criticise findings, at least it indicates that one knows what they are. I think that, as Mr Hardy puts it, what he is really driving at is this: it is not enough to say that the local planning authority would grant consent for the felling of protected trees; one has to have set out reasons why one thinks they would do that.[12]The reasons are adequately set out in paragraph nine, the point being that the proximity to the bungalows and the degree of shadow cast would make it difficult for the council to resist applications to fell the trees on safety and amenity grounds. I do not think that anything more is called for than that.[13]In the circumstances the application is unsuccessful. MR HUNTER: My Lord, there is an application for costs on behalf of the defendant. JUDGE SHAUN SPENCER QC: Do you resist the costs? MR HARDY: It is always difficult for an advocate in these circumstances, but there is an application for permission to appeal. JUDGE SHAUN SPENCER QC: Can I deal with the costs first? MR HARDY: Yes. In principle there is no resistance to the application. JUDGE SHAUN SPENCER QC: That is in principle. Do you want to say anything about -- MR HARDY: We are in discussion about costs. There were some elements of costs which were only done overnight and I have not had time to take instructions. I do not think the difference is great but I am not in a position to say that I agree entirely. JUDGE SHAUN SPENCER QC: What do you suggest I do in those circumstances? MR HARDY: Talking to my learned friend outside we wondered whether or not it was an order for the detail and the quantum of costs to be agreed at a later date. JUDGE SHAUN SPENCER QC: Set against what I regularly see, particularly in personal injury claims, the costs bill is very modest. MR HUNTER: There has been an update because there has been another solicitor sent up and my costs have increased slightly as well because I think that was an estimate. JUDGE SHAUN SPENCER QC: I may have spoken too soon. MR HUNTER: Can I give you the total, my Lord? The current total is £8693.55. I take it your Lordship has a statement of the original costs and what has been added on are six hours for my attendance yesterday and preparation, that is four hours attendance at the court and outside and the preparation, and there are a further four hours today. JUDGE SHAUN SPENCER QC: Do you operate in these circumstances on a brief fee or an hourly rate? MR HUNTER: It is an hourly rate; I am on a £90 hourly rate. Additionally another solicitor came up from London last night so there are increased travel costs and a hotel room, and the increased costs of attendance today. It is the hours that are spent by myself and those who instruct me and the additional travel costs which makes the difference. The figure on there is different from the one I have given to your Lordship because I have added my additional amount, which is £360, to that amount. JUDGE SHAUN SPENCER QC: What is the 2.5 at £200 an hour? MR HUNTER: That was 2.5 hours at yesterday’s hearing and then it has gone up to five hours for today. JUDGE SHAUN SPENCER QC: It did not take five hours today. MR HUNTER: No, I think it has gone up by 2.5 hours. JUDGE SHAUN SPENCER QC: If the 2.5 at £200 represents yesterday and we have had about two and a half hours today, I do not see why 2.5 hours is put down as five. MR HUNTER: I think it was 2.5 from yesterday (which I think is actually less than the time we spent) and 2.5 hours today, so it is the accumulative total. If we had finished yesterday it would have been 2.5; it is now five because it has doubled. JUDGE SHAUN SPENCER QC: You do not get both. MR HUNTER: I am sorry, my Lord, I am looking at the wrong figures. The 2.5A is yesterday’s attendance. The five hours at £160 per hour is today’s but that was on the assumption it would last the whole day. Attendance at hearing D should be, I think, 2.5, that should be £400. That was done under the assumption that this might last all day but if it is only half a day it is 2.5. Then the additional amount that is added on, there is another seven hours’ travel and waiting because my instructing solicitor who has come up today is different from yesterday. As I indicated, in addition to those fees there is £360 for my fee today. JUDGE SHAUN SPENCER QC: If you have two solicitors coming that doubles up the travel costs. MR HUNTER: It does, my Lord. Can I explain why that happened? I spoke to those who instruct me and as I understood yesterday I was not entirely clear what the position on the hearing was. I was initially told by my clients that we were due to start yesterday at two o'clock. I was then told it was starting at 10.30 and I was not told it was half a day as I think I revealed to your Lordship yesterday. Those who instruct me were told by the court that it was listed for one day and were not told anything else, so the solicitor who came yesterday, who was the case handler, does not work on Thursdays and therefore another solicitor had to be sent up from London last night. JUDGE SHAUN SPENCER QC: Thank you. Are there any points you wish to raise on this schedule? MR HARDY: Yes, there are three. First of all there is the timing point which has been picked up, that is the double counting of the 2.5 hours. Secondly, it was obvious yesterday that the first defendant had misunderstood about the listing of this case. It is perfectly clear that there were two half days, which were Wednesday and Thursday, and therefore there is no need to have two separate solicitors travelling up. The seven hours’ travelling time at £160 the second time over therefore should not be included. There is no reason why the claimant should pay for a misunderstanding or maladministration on the part of the first defendant. The final point is the train tickets. The train tickets from London to Leeds at £478 plus a hotel night at £75 are all on commercial rates in these times, and second-class standard fare from London at peak times does not cost that. That is first class travel by the look of it. And moreover, the hotel night at £75 would not be required because one would be travelling up in peak times, so there is a question about why train tickets are so high for two solicitors and why the need for hotel accommodation because they appear to have been travelling up on each day. MR HUNTER: In relation to the first point, I have accepted that the five hours was an estimate of a full day’s hearing and that should be reduced to 2.5, so I have responded to that point. In relation to the train tickets point, I am instructed that that is not a first class train ticket, it is a standard open return because, of course, my solicitor did not know exactly when the hearing would finish and when they would have to return. JUDGE SHAUN SPENCER QC: How many open returns is that? MR HUNTER: There are two. JUDGE SHAUN SPENCER QC: So an open return standard is in excess of £200. MR HUNTER: I would not be surprised but I will see if we can verify that. The second point, my Lord, as regards hotel accommodation, the choice for those instructing me was to set off at six o'clock in the morning or to come and stay over night last night. JUDGE SHAUN SPENCER QC: I need not trouble you about the hotel room. MR HUNTER: The other point is the maladministration of the defendant in not appreciating that we were listed over two days. I am sure it is the case that there was discussion with my client, but my instructing solicitors are very keen to impress on the court that on instructions from the court – and I have a copy of the letter that was sent – it was for a one day hearing on 2 November. It may be that Mr Hardy, acting as both solicitor and advocate in this matter, was kept informed of changes to the listing of the hearing. Those who instruct me were not and I am afraid they had no indication from the court other than it was listed for one day yesterday. In my submission it was not their fault that they proceeded on that assumption. JUDGE SHAUN SPENCER QC: I do not regard this as something to spend a lot of time on The position is this, that so far as the train tickets are concerned, £478, I will scrub that and that will go out as £300, unless you have train tickets to produce. MR HUNTER: I think I do. I have a copy of the email booking. An any time return is £239 standard. (Handed to the judge) JUDGE SHAUN SPENCER QC: That gets you yesterday’s rail fare. MR HUNTER: There is today’s as well; the solicitor will need it back, I am afraid. JUDGE SHAUN SPENCER QC: Yes. It says £239 and it is clearly marked “standard”. That is astonishing. So that is £478. Mr Hardy, is there anything else you wish to say on this topic? MR HARDY: Why should the claimant have to pay for two separate lots of travel? He should pay for one attendance with an overnight stay, so it should be £239 plus a hotel room, or it should be two rail tickets and no hotel. They cannot have both. JUDGE SHAUN SPENCER QC: What do you say about that? MR HUNTER: The question is whether they were reasonably incurred. Those instructing me were notified by the court that it was one day. It was not their fault therefore that on learning that that was not the case that they would have to send an alternative solicitor to attend today and therefore the costs were reasonably incurred in my submission. The public purse should not be put out for that reason. JUDGE SHAUN SPENCER QC: I am more impressed by Mr Hardy’s argument that in this instance St Vincent’s purse should not be put out. So it will be one fare at £239 and one hotel bill for £75.55. We have put 2.5 in relation to the attendance at the hearing instead of what appears as five. Is there anything else you wish to raise, Mr Hardy? MR HARDY: The figure of £1120, which is seven hours’ travel and waiting, £160, that amounts to about a sixth of the total bill. JUDGE SPENCER: It does indeed. MR HARDY: Again that is not something which the claimant says it should pay because it comes from that second trip being made. JUDGE SHAUN SPENCER QC: Yes, so you would like the second lot of travel and waiting taken out. MR HARDY: Yes, and with that there would be agreement. JUDGE SPENCER: Do you have anything to say about that? MR HUNTER: My Lord, in relation to that it could not all be taken out, even if you were to accept the principle, because there would still be waiting at court, which might just be an hour of that. JUDGE SPENCER: I do not know about that. We had a prompt start. MR HARDY: I turned up at court early, my Lord; I am sure that those who instruct me turned up early at court to make sure that we were on time. JUDGE SHAUN SPENCER QC: Yes, well I scrub the £1120. Perhaps somebody can do the sums. MR HUNTER: It is the reduction of £139 for one train ticket; £400 for the five hours which should have been four hours and then £1120. JUDGE SHAUN SPENCER QC: Mr Hardy, you said you wanted permission to appeal. MR HARDY: Yes, I am duty bound to make that application. As I say, it is always difficult, having just heard the judgment. It seems to the claimant that there is a point of principle and it is this: whether or not it is legitimate and lawful for an inspector to predetermine a decision which has to be made by a statutory constituted body, whether that be a tree preservation order or a further planning permission or just a building consent or something of that sort, and whether that is distinguishable in principle from the line of cases from the Winchester decision onwards dealing with factual and consent points. That is a point of public interest which is one which may well interest the Court of Appeal. JUDGE SHAUN SPENCER QC: If it does, they will give you permission but I do not give permission to appeal. I take the view that there are no real prospects and I cannot think of any other reason why I should. MR HARDY: Thank you. MR HUNTER: My Lord, can I give you the figure with those reductions. JUDGE SHAUN SPENCER QC: Just pass it to the court officer. MR HUNTER: Thank you, my Lord. JUDGE SHAUN SPENCER QC : I am most grateful to both of you, thank you very much. ___________________________________________

Cited in 1 later judgment