Venn v Secretary of State for Communities and Local Government [2015] EWHC 1186 (Admin)

Case No CO/6859/2013[2015] EWHC 1186 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 6 March 2015
Strand
London WC2A 2LL
B e f o r e:
MRS JUSTICE ELISABETH LAING DBE
Between
VENNAppellantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTRespondent
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 7404 1424(Official Shorthand Writers to the Court)
Mr C Jacobs (instructed by Richard Buxton Solicitors) appeared for AppellantMr S Whale (instructed by the Treasury Solicitor) appeared for Respondent
J U D G M E N T
[1]MRS JUSTICE ELISABETH LAING: Introduction This is an application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision of an inspector appointed by the Secretary of State and contained in a decision letter dated 25 April 2013. The inspector had dealt with an appeal by written representations and he had made a visit to the site. The local planning authority, Lewisham London Borough Council ("the Council") had refused planning permission to the developer, Mr Dos Santos. He appealed against that decision, and the inspector in the decision letter allowed his appeal.[2]The inspector granted planning permission for the building of a single-storey detached house at 47 Dundalk Road, Lewisham. The claimant lives next door in the ground floor flat at 49a Dundalk Road. She made written representations to the inspector. She considered that the building would interfere with the outlook from, and the light for, her ground-floor flat, which is next door to where the building will be built and is very close to it. It would also interfere, in her view, with the amenity of an extension to her flat for which she has planning permission but which she has not yet built.[3]Mr Jacobs, who represented the claimant, argued that the inspector went wrong in four principal ways. He described his first two arguments as the substantial points in the case. First, in paragraph 5 of the decision letter, having said that he would consider option 32 of the Council's emerging local plan, he misapplied it. Second, the inspector did not give adequate reasons for his conclusions on separation distances. Third, there was a procedural irregularity because the report of Mr Baird, an independent lighting expert, was not before the inspector. Fourth, the inspector had before him inaccurate plans. The facts[4]I start by describing the site. I take this description from the Council's appeal statement:
"2.1 The application site is part of the garden area to the side of 47 Dundalk Road. 47 Dundalk Road is a two-storey, end of terrace house with a large, irregularly shaped garden that wraps around the back and side of the property. The property has been converted into 2 flats. 2.2 The garden is generally rectangular in shape but it has a large triangle missing from the frontage of the site that forms the garden to the side of 49 Dundalk Road. The access onto Dundalk Road is therefore narrow and currently takes the form of a garden gate accessed at an angle past the bay window of 47 Dundalk Road. The site compromises an area of grass with a number of mature trees to the rear and a garden shed adjacent to the flank wall of 47 Dundalk Road. 2.3 The plot is located on the southern side of Dundalk Road. The surrounding area is predominantly residential in character, compromising terraced houses. 2.4 The site is bound by 47 Dundalk Road and its garden to the northeast, the gardens of nos.52-58 Finland Road to the rear, and the garden of 49 Dundalk Road to the west and southeast. 49 Dundalk Road is semi-detached Victorian two storey property that has been divided into two flats. The property features a large northeast facing bay window which is 2.5m from the boundary fence."
[5]I take the facts largely from Mr Jacobs' helpful chronology in his skeleton argument. In 2008 Mr Dos Santos had applied for planning permission to build a two-storey dwelling house at 47 Dundalk Road. That application was withdrawn. On 30 July 2009 the Council refused planning permission in relation to an application made in 2009. On 3 September 2010 a planning inspector dismissed an appeal against the 2009 refusal of planning permission. On 3 October 2011, Mr Dos Santos submitted a planning application for building of a single-story detached house at 47 Dundalk Road, and that is the application which is the subject of the current appeal.[6]On 14 May 2012 the application was amended so as to be an application for a two-bedroomed dwelling with windows which had been moved to the sides. A new lighting report was submitted and the neighbours were re-consulted on the new design. On 6 June 2012 the application documents were revised again after the deadlines for consultation had passed. On 18 June 2012 the Council's planning committee visited the site and the site was measured. On 18 June 2012, Mr Peter Baird produced a lighting report. On 21 June 2012 there was a meeting of the Council's planning committee, and 29 June 2012 is the date of the Council's notice of refusal of planning permission.[7]The Council's reasons for refusing the application for planning permission were:(1) the proposed development by reason of its close proximity to neighbouring residents would result in a cramped and unneighbourly development contrary to saved policies HSG 5, Layout and Design of New Residential Development, and HSG 8 Backland and In-fill Development of the adopted UDP;(2) the proposed development by reason of its convoluted access, lack of outlook and limited usable amenity space would provide a poor standard of accommodation for future residents, contrary to saved policies HSG 5 Layout and Design of New Residential Development and HSG 8 Backland and In-fill Development of the adopted UDP;(3) the proposed development failed to relate to, and respect, the existing urban grain and pattern of development, contrary to saved policies URB 3 of Urban Design and HSG 8 Backland and In-fill Development of the adopted UDP, and policy 7.4 Local Character of the London Plan.[8]On 22 August 2012 Mr Dos Santos appealed under section 78 of the 1990 Act by way of the written representations procedure. On 20 November 2012, the Council served its appeal statement, and on the same date the claimant sent her lighting report by Mr Baird to the Planning Inspectorate. On 21 November 2012 the claimant sent her written representations to the Planning Inspectorate. There was a site visit on 21 February 2013 and, as I have said, the decision letter is dated 25 April 2013. Relevant policies[9]Paragraph 14 of the National Planning Policy Framework ("NPPF") has a presumption in favour of sustainable development. Paragraph 53 of the NPPF is as follows:
"Local planning authorities should consider the case for setting out policies to resist inappropriate development of residential gardens, for example where development would cause harm to the local area."
[10]Paragraph 216 of Annex 1 to the NPPF provides:
"From the day of publication, decision-takers may also give weight to relevant policies in emerging plans according to: • the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given); • the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and • the degree of consistency of the relevant policies in the emerging plan to the policies in this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given)."
[11]The London Plan was published in July 2011. Together with the core strategy and saved policies in the Lewisham Unitary Development Plan ("the UDP") adopted in July 2004, the London Plan is a development plan for Lewisham.[12]The Saved policies of the UDP to which this appeal relates are materially as follows:
"HSG 5 Layout and Design of New Residential Development The Council expects all new residential development to be attractive, to be neighbourly and to meet the functional requirements of its future inhabitants. The Council will, therefore, only permit new residential development which: (a) provides a satisfactory level of privacy, outlook and natural lighting with appropriate provision of private amenity space; (b) complies with the urban design and conservation policies of this Plan... Housing development must also have regard to the amenities, stability and security of any existing community in which it is built. Where appropriate the Council will seek the provision of new homes designed, or capable of adaptation to, housing for long-term needs." "
HSG 8 Backland and In-fill Development Backland and in-fill development will be permitted provided the following criteria are met: (a) sufficient garden depth and area should be retained by existing dwellings (see Policy HSG 7); (b) the scheme must respect the character of the area, including the cumulative impact; (c) the scheme must be particularly sensitively designed; (d) there must be a proper means of access, suitable for the entry and egress of service vehicles which is convenient and safe both for drivers and pedestrians; (e) on a road where additional on-street parking would not be permitted the development would not worsen any (on-street) parking problems; (e) there should be no appreciable loss of privacy and amenity for adjoining houses and their back gardens; (f) there should be no appreciable loss of wildlife habitat; (g) where the site was originally in part, or in whole, the private garden of one or more houses, the density calculation of the proposed development will take into account the site area of the original house and the number of habitable rooms in it." "URB 3 Urban Design: The Council will expect a high standard of design in new development or buildings... Where appropriate the following factors will be taken into consideration:- (a) scale and mass of development, particularly where a new development might be out of scale with the existing surrounding development; (b) layout and access arrangements, which may include the avoidance of large areas of parking and servicing uninterrupted by landscaping; (c) relationship of development to the existing townscape which should maintain or complement the surroundings; (d) the height of the development should be in scale with adjoining buildings (see also Policy URB 5); (e) new development should respect the scale and alignment of the existing street including its building frontages; (f) where justified new building frontages should clearly delineate public routes where appropriate, and design should ensure that convenient and safe pedestrian access to local facilities and the public transport network are taken into account, including the needs of disabled people... (k) the preservation and creation of urban form which contributes to local distinctiveness such as plot widths, building features and uses, roofscape and open space..."[13]A document dated December 2012 is a copy for public consultation of the Development Management Local Plan Further Options Report produced by the Council. This went out for public consultation after the Council's decision refusing planning permission to the developer:
"2.34 Infill, backland, back garden and garden amenity area development. What is the aim of this policy option? 2.323 This policy option sets out the requirements for a variety of sites within residential areas that may come forward for development. Development on these sites require careful consideration due to the need to preserve the quality and amenity of residential areas. The main types of sites are listed below: A. Infill sites are defined as sites within street frontages such as former builders yards small workshops and garages, gaps in terraces and gardens to the side of houses. Infill sites may present urban design problems in harmonising the development with the existing built form. B. Backland sites are defined as 'landlocked' sites to the rear of street frontages not historically in garden use such as builders yards, small workshops and warehouses and garages. They require sensitive treatment and a high quality of design in order to achieve successful development because of the potential for visual and functional intrusion due to the close proximity to existing housing. C. Back gardens are private amenity areas that were the entire back garden of a dwelling or dwellings as originally designed. Gardens used to be considered previously developed land (PDL) with a presumption in favour of development. Gardens are no longer considered to be PDL which means that there is no longer a presumption in favour of development. Back gardens in the 'perimeter block' urban typologies identified in the Lewisham Character Study which have more or less enclosed rear gardens, are considered to be an integral part of the original design of these areas and provide valuable amenity space and an ecological resource. Development of separate dwellings in the back gardens of these urban typologies will not be considered acceptable. Other typologies also often have dwellings with private back gardens that do not form such as strong design feature of the development. These are typically more modern developments which feature small gardens which are rarely longer than 10 metres or are quite narrow... 2.324 These definitions will cover the majority of sites of this type that are likely to come forward for development. It is recognised however, that there will be some instances where a particular site will not fall squarely within any one of these definitions. In these cases the principles that will be applied will be taken from the appropriate parts of this policy. Council's recommended option 32: Development on Infill Sites, Backland Sites, Back Gardens and Amenity Areas. General principles. 1. Depending on the character of the area and the urban design function a space fulfils in the streetscape, some sites will not be considered suitable for development and planning permission will not be granted. 2. If a site is considered suitable for development planning permission will not be granted unless the proposed development is of the highest design quality and relates successfully and is sensitive to the existing design quality of the streetscape. This includes the importance of spaces between buildings which may be as important as the character of the buildings themselves, and the size and proportions of adjacent buildings. 3. Development on these sites must meet the policy requirements of DM Option 29 (Urban design and local character), DM Option 31 (Housing design and space standards) and DM Option 24 (Landscaping and trees). 4. Development on these sites should retain existing formal or informal pedestrian through routes. A. Infill sites 5. Development within street frontages and on street corners will only be permitted where they: a. make a high quality positive contribution to an area. b. provide a site specific creative response to the character and issues of the street frontage typology identified in the Lewisham Character Study, and any relevant Conservation Area Appraisal. c. result in no significant overshadowing or overlooking, and no loss of security to adjacent houses and gardens. d. provide appropriate amenity space in line with DM Option 31 (Housing Design, Layout and Space Standards) e. retain appropriate garden space for adjacent dwellings. f. repair the street frontage and provide additional natural surveillance. g. provide adequate privacy for the new development and h. respect the character, proportions and spacing of existing houses... C. Back gardens 8. The development of back gardens for separate dwellings in perimeter form residential typologies identified in the Lewisham Character Study will not be granted planning permission."
[14]I note that this type of policy is supported both by the NPPF and by the London Plan. The Council's appeal statement[15]Paragraph 4.11 of the Council's appeal statement referred to the Development Local Plan Further Options Report. That was said to have been approved by the Council's Mayor and Cabinet on 14 November 2012, and was due to be endorsed by the Council on 28 November, with public consultation due to take place in January and February 2013. The Council said that in accordance with the NPPF, it carried limited weight but it provided:
"a useful indication of the direction in which the Council's policies were travelling, particularly with regard to garden land."
[16]The Council said that the relevant saved policies were URB 3 Urban Design, HSG 4 Residential Amenity, HSG 5 Layout and Design of New Residential Development, and HSG 8 Backland and In-fill Development. The Council drew attention to the fact that the options report was a change of policy since the decision refusing permission. At paragraph 6.3 of its statement, the Council said that the recommended option 32 "defined" the appeal site as in-fill site. The Council then set out the provisions of option 32 about in-fill sites. Paragraph 6.4 of the appeal statement said that garden development had become a contentious issue and the policy was being developed to provide more clarity about whether in-fill developments were acceptable. Policy option 32 provided additional guidance, specifically tailored to in-fill development.[17]The Council said it objected to the building because it did not respect the existing building line at the back of the terrace. At paragraph 6.9 of the statement the Council referred to the fact that a neighbour, that is the claimant, had been given planning permission to build a single-storey extension with a living roof. That would occupy 30 square metres of the small garden at 49a, and the two developments would result in an unacceptable loss of garden space. The two developments would be too close to each other for comfort. The proposal was said to be acceptable in terms of overlooking. It would result in the remaining garden of 47 Dundalk Road being the same size as the other gardens.[18]Although sensitively designed, the property would result in an increased sense of enclosure for neighbouring gardens. It was so close to other dwellings as to be unneighbourly, contrary to HSG 5. The Council also considered the proposal would result in a poor standard of accommodation for future occupiers even though it met minimum standards in the London Plan. At paragraph 6.16 it noted that the appellant had not carried out an assessment of light which showed that conditions for the proposed occupants would be acceptable.[19]Officers considered that if the more detailed guidance given in option 32 had existed at the time of their report, they might not have recommended approval. I have not seen the officer's report for the planning committee. The proposed change of use, the appeal statement concluded, was an incongruous form of development and would have un unacceptable impact on the amenity of neighbouring occupiers and would result in poor standards of accommodation for future occupants. The claimant's appeal representations[20]It was suggested in the appellant's skeleton argument that the inspector did not have this document. The Secretary of State in his skeleton argument denied this. Mr Jacobs relied on the appellant's appeal representations in the course of his submissions. I took from that that he was accepting that the inspector had had the claimant's written representations and that is rather confirmed by an email exchange which I received late this morning. And it does seem that Mr Jacobs' position now is that he accepts that those appeal representations were before the inspector.[21]In paragraph 5 of her representations the claimant said that the appellant had forwarded old versions of superseded plans and proposals which did not appear to match the application considered by the Council. She asked if it was possible for the public to see the same plans as the inspectorate was considering. She said that the appeal site was a rear garden site with no road frontage. She said that the site was a rear garden, and had always been a rear garden ever since the streets had been built. The current street layout was unaltered from its original layout and left no room for neighbourly in-fill. The proposal would cause unusual and extreme amenity impact for those living on all sides. Its side elevation would be just over 3 metres to the south (that was later corrected to "the east"), and directly in front of the only rear and principal bay windows of the ground-floor flat at 49a. It would block the main source of direct and reflected light and would be to the full height of the only back windows. It would destroy the outlook from the claimant's main living and working space, and place a front door, public entry path and refuse store directly under her living room windows. Because of the unusual layout of the houses, this was "no ordinary in-fill opportunity". The design of 49 meant that the principal windows were on the side of the building. The bungalow would block these from just over 3 metres away. The original 9.5 metre gap between 47 and 49 Dundalk Road had been left for a reason. It was a vital light well for 49s's south and east facing windows. The windows also captured significant reflected light which bounced off the flank wall of 47. The new development would block this also. It would block sunlight to the garden of 49a as well.[22]The claimant referred to the minimum of 9 metres separation between principal windows and the rear and windowless flank walls specified in Lewisham's SPD on residential development standards. That was the width of the current gap. How could a gap of 3.5 metres be considered acceptable, she asked rhetorically. Minimum separation distance between facing windows in the Lewisham SPD was 21 metres. The actual distances between almost directly facing windows was 3.5 metres on one side and 4 metres on the other.[23]The claimant also made a point about access to the proposed building. She went on to say that the development had been discussed in committee as failing to meet a large number of other local and regional policies, including HSG 8 Backland and In-fill. She referred to the change in level of the site and the effect that raised floor heights would have on overlooking and underlooking. She also said that the Planning Aid light specialist - this is a reference to Mr Baird - had noted the poor outlook, amenity and light levels for future occupiers and the need for ADF levels to be measured and considered. The windows were up against fences creating a hemmed-in feeling.[24]The claimant then referred to the Council's policy on backland development. She referred again to the Council's SPD. The "back garden bungalow" would also infringe the amenity and privacy of neighbours. The slope of the site meant that the side windows would sit above the fences. The claimant hoped that the inspector had received more than 80 responses from neighbours, and the comments and reports from the independent specialist in light who had helped to check the multiple erroneous light and other reports submitted by the applicant. The specialist submitted overshadowing daylight and sunlight assessments with Waldram diagrams to show the failure to comply with BRE targets, impacts on internal light levels on both sides, and overshadowing of rear gardens. The specialist had tried to point out errors in the developer's report, for example, that the sun was rising in the wrong part of the sky and that Waldram overlays had been cropped and misapplied. His report had been accepted by, and had informed the decision of the planning committee.[25]When the claimant emailed the report of Mr Baird to the Inspectorate on 20 November 2012, she attached to that email a summary of the lighting report which she had made for the Council's planning committee. In that summary she said that the specialist had been unable to replicate any of the conclusions of the applicant's latest report. That report contained no site survey data, Waldram diagrams or workings. To produce similar results the development would have to be under 2.7 metres high, sunk below pavement and site level. Even at this height, daylight levels for neighbours would fall below acceptable levels. There would be up to 20 per cent falls in daylight levels for neighbours, below BRE levels. There would be appreciable overshadowing of gardens, and there would be a significant reduction in the only direct sunlight for 49a's ground floor flat. It received sunlight only in the morning, and that was the only direct sunlight for the whole flat. The specialist, the summary went on, suggested that a full assessment should be done of how well lit the development's new rooms would be. It was likely to be unacceptable.[26]In his report, Mr Baird questioned the accuracy of the developer's survey report. He gave reasons for this. His conclusion was that the development had "a demonstrable effect on the daylight reaching neighbouring windows. While these were not shown to breach BRE (subject to lack of detailed survey information) the proposal has an adverse effect on daylight and sunlight which should be taken into account when assessing the acceptability of the proposal." Mr Baird's conclusion went on to say that of more concern was the potential daylight and sunlight reaching the proposed development itself. Further investigation of the internal daylight and overshadowing of amenity space for the development should be done.[27]It is accepted by Mr Whale for the Secretary of State that the inspector did not have Mr Baird's report when he made his decision. He did not explain why. It was initially unclear whether the inspector had the claimant's summary of the report either. Her case was that he did not. But the Secretary of State has checked the file, and it appears that the inspector did have this, and I accept that.[28]The claimant finished her representations by referring to the fact that she had been granted planning permission for an extension and that the new development would block the studio windows of her new extension, destroying light for it, and its potential to be used as a studio. The decision letter[29]The inspector said that there were three issues:
"• the effect of the proposal on the character and appearance of the area; • whether the proposal would have an adverse effect on the living conditions of neighbouring occupiers, with regard to outlook and enclosure; and • whether the proposal would provide acceptable living conditions for future occupiers of the development, with regard to access, external amenity space and outlook..."
In paragraph 5 he said:
"5. Although the National Planning Policy Framework (the Framework) excludes garden land from the definition of previously developed, this does not mean that it should never, under any circumstances, be developed. The Council refers to its emerging Development Management Local Plan Further Options Report, which it approved for consultation after the application was determined. As it is still at a relatively early stage of preparation, limited weight can be attached to it in terms of local policy. Nevertheless, I shall address the various criteria, under the Council's Recommended Option 32, regarding infill, backland and back garden development, which the Council raises in its evidence."
[30]The inspector concluded that the development would not harm the character and appearance of the area. He said, at paragraphs 12-17 of the decision:
"12. The neighbouring ground and first floor flats at 49 Dundalk Road each have a bay window on the side of the property, facing a narrow side garden and the boundary fence to the appeal site. My site visit confirmed that the outlook from these bay windows is an important factor in the quality of living accommodation, given its current internal organisation. The immediately facing side wall of the proposed house would be set away from the boundary, beyond a small courtyard. The Council's Residential Standards Supplementary Planning Document (SPD) states that the distance between habitable rooms on a main, rear elevation and the flank wall of adjoining development should normally be 9 metres or more. The proposed scheme would not achieve these distances in relation to the side of No.49. However, the SPD also states that these guidelines should be interpreted flexibly, depending on the context of the development. In this case, the bay window of the ground floor flat is higher than the ground level of the garden, so that, although the upper part of the side wall of the proposed house would be visible above the fence, it would not dominate the outlook from the window, which would continue to extend to the side of No.47 and the trees at the back of the appeal site. Consequently, although the separation distance set out in the SPD would not be met, I consider that the impact on the outlook from the bay window of the ground floor flat would not be unduly harmed. 13. Although I have not been provided with details of the proposed studio extension to No.49, it seems equally unlikely that the proposed single storey house would impact unacceptably on any outlook from it. Moreover, from within the garden of No.49, at a lower level, the proposed side walls would be sufficiently low and set far enough back from the boundary as to not create an unduly enclosed or cramped feeling. 14. From the bay window of the upper flat within No.49, the existing view is over the un-landscaped, grassed appeal site, containing a timber shed. This would be replaced by the top of the side walls of the proposed house, its green roof and a series of landscaped courtyards. The significant existing trees would remain and be supplemented with new planting. Consequently, although the outlook from the upper floor flat would be changed, it would not be harmed. 15. Although bedroom and kitchen windows on the rear and side of No.47 currently look onto the side garden, the appellant would be able to erect a 2 metre high fence, as proposed, under permitted development rights. The ground floor windows would face the upper part of the side wall of the proposed house, beyond the fence and a narrow courtyard area. Given that the house would be single storey and the separation distance would not be much less that the distance between facing sides of the two storey rear offshoots in the remainder of the terrace, the outlook from the ground floor windows would, again, be changed, but not significantly harmed. The outlook from the upper floor windows would be over the proposed courtyard and green roof and would also not result in any significant sense of enclosure. No.47 would also retain a sizeable rear garden area, from which the outlook towards the appeal site would be mainly towards the proposed patio and would, therefore, be satisfactory. 17. Therefore, I conclude that the proposed development would not have a harmful effect on the outlook, or create a sense of enclosure, from the rooms or gardens or neighbouring dwellings. It wold not represent cramped and unneighbourly development which would harm the living conditions of the occupiers and would not conflict with UDP Policies HSG 5, or HSG 8, or the SPD, in that respect."
[31]The inspector concluded that there would be no harmful effect on the outlook nor that the development would create a sense of enclosure for rooms or gardens of neighbouring dwellings. The inspector then considered the living conditions for future occupiers. He noted that the Council pointed out that the sunlight and daylight assessment did not address internal conditions but the building did have extensive areas of glazing. The Council's committee report had found that where relevant standards had been complied with or, if not, a compromise was justified in the circumstances, the inspector saw no reason to differ from that view. The living conditions for future occupants would be acceptable.[32]The inspector then considered "other matters":
"23. I note that neighbours have questioned the accuracy of the sunlight and daylight assessment carried out for the appellant. The Council, in its committee report, accepted that the appellant had addressed those concerns and that the effect on neighbouring properties would be negligible. On the basis of the evidence before me, including my own observations on site, and given the south easterly orientation of the site, I am satisfied that the limited height of the proposed house, over and above 2 metre high boundary fences would not lead to significant harm with respect to loss of daylight or sunlight. Whilst the previous Inspector was concerned about a degree of loss or morning sunlight from the ground floor of No.49, that was in respect of a two storey house rather than the single storey building now proposed."
[33]At paragraph 26 he said that he had taken into account all other matters raised by third parties but that none had led him to reach a different conclusion. Discussion Did the inspector err in paragraph 5 of the decision letter?[34]The effect of the NPPF is that the inspector had a discretion to take option 32 into account, and the more advanced in its preparation it was and the more it was consistent with policies in the NPPF, the greater weight he was permitted to give it. The weight he chose to give it was a matter for him. Option 32 was approved for consultation after the planning application was decided. The inspector said that option 32 was still at a relatively early stage of preparation and that limited weight could therefore be given to it as a local policy. Nonetheless, he said he would address the various criteria under option 32 "which the Council raises in its evidence". He then did so. It is important to note that the Council in its appeal statement accepted that the development was in-fill development, and so addressed those parts of option 32 which related to in-fill development. There was no apparent dispute between the appellant and the Council about which part of option 32 applied. Nor do I consider that the passages in the claimant's appeal statement which refer to this show that she was asserting that this was a back garden development for the purposes of option 32, rather than in-fill development.[35]Moreover, the explanatory text to option 32 shows that its definitions are not exhaustive. Sometimes sites do not fall squarely within the definitions and in such cases "the principles that will be applied will be taken from the appropriate part of a policy". In my judgment it was open to the inspector on a proper interpretation of option 32 to conclude, as the Council clearly had, that this was in-fill development. If it was not in-fill development then it was a hybrid and it was open to the inspector to conclude that the appropriate parts of option 32 were those which the Council had applied to it, and which he, in turn, also considered.[36]In my judgment it is implicit in the inspector's approach that he considered that the development was in-fill development. But since there was no dispute apparent on the face of the documents before the inspector about which aspect of option 32 applied to the development, he was not obliged to give reasons for saying why he concluded that it was in-fill, rather than garden development. In all the circumstances, in my judgment, he gave adequate and intelligible reasons for his conclusions on this aspect of the appeal. They disclosed no error of law and I reject this ground of challenge. Separation distances[37]Mr Jacobs submitted that the inspector gave inadequate reasons for deciding that the separation distances were acceptable. He submitted that the use of the word "flexible" could not permit the acceptance of separation distances which were so much smaller than 9 metres as were the separation distances here, and that the inspector should have explained expressly both what the distances were and why such distances were nonetheless acceptable. I reject this argument.[38]The inspector was clearly aware, having seen the plans, visited the site, and read the claimant's appeal statement, that the separation distances were significantly less than 9 metres. He referred to separation distances in paragraphs 12 and 15 of the decision letter. It is clear from paragraph 12 that the inspector knew that the separation distances provided for in the Council supplementary planning document would not be achieved. In my judgment he gave adequate and intelligible reasons to explain why a flexible application of the policy was acceptable on the facts of his case. "Flexible", in my judgment, means what it says. The expert report about light[39]Mr Baird's report about light was before the planning committee when it made its decision to refuse planning permission. The officer's report which preceded the meeting of the planning committee is not in the bundle, and I do not know its date. This is a regrettable omission. It seems that the claimant sent the report of Mr Baird to two councillors on the evening before the meeting, that is on 20 June 2012. It may well be that the original officer's report was written before the evening of 20 June 2012; I do not know. Nor do I know whether there was a supplemental officer's report dealing with late submissions for the meeting, such as the report from Mr Baird. When he dealt with this point in the decision letter, the inspector noted that neighbours had questioned the accuracy of the sunlight and daylight assessment carried out by the appellant. The inspector said that the Council had addressed those concerns in its committee report and concluded that the effect on neighbouring properties would be negligible.[40]He had made his own observations on the site and did not consider that the height of the house would lead to "significant harm with respect to loss of daylight or sunlight". He noted that the concerns of the previous inspector in this regard had related to a two-storey building. So the inspector knew that neighbours had questioned the accuracy of the assessment done for the appellant. He also had an advantage I do not share: the material in the Council's officer's report which dealt with that issue. He had also a further advantage which I do not share: he had done a site visit and formed his own views on the issue of sunlight and daylight. He had seen the claimant's summary of Mr Baird's report. His conclusion was not that there would be a negligible effect but that the limited height of the new house over and above the 2 metre high boundary fence (the existing fence is 1.4 metres high but permitted development rights meant that it could be 2 metres high) "would not lead to significant harm with respect to loss of daylight or sunlight". He therefore considered that there was an effect, took it into account, and decided that it would not lead to significant harm. It seems to me that there are three issues:(1) was it irrational for the inspector, having seen a reference in the claimant's appeal representations to an expert report and having seen her summary of it, not to call for its production?(2) if not irrational, was it unfair?(3) if it was unfair, would the outcome have been the same had the inspector seen the report?[41]My consideration of this argument is hampered by the fact that I have not seen what officers had to say about the light issue. What the claimant said about the light expert's report was that it had been accepted by, and had informed, the committee decisions. The inspector therefore knew that the report had been referred to and had been before the planning committee and was to that extent water under the bridge. He had been informed by what officers had had to say in their report about the light issue. He had also made his own assessment after visiting the site. I do not consider that on the basis of the material which he did have the inspector was irrational in concluding that he could decide the appeal on the basis of that material which he did have. It was open to him to conclude: I have the officer's report; I know that neighbours have criticised the appellant's light report; I have read the appellant's representations and her summary of Mr Baird's report; and I have visited the site; I am in a position to make up my own mind about significant harm with respect to loss of daylight and sunlight without seeing a further report which, according to the claimant, has criticised the appellant's report.[42]Did the inspector fail to act fairly? The answer to this is clear. If a person who is to be adversely affected by a proposed development makes representations to an inspector, then fairness demands that the inspector should look at everything which is submitted to him. I conclude that the inspector did act unfairly. I do not criticise the inspector as, given my conclusion on the previous point, this was not his fault. Rather, any fault lies with the Secretary of State as he failed to make administrative arrangements to ensure that the report reached the inspector. The Secretary of State was responsible in this instance for the inspector's failing to act fairly.[43]The next question is whether I should quash the decision because of this lack of fairness. I have been referred by the parties to the decision in Bolton Metropolitan Borough Council v Secretary of State for the Environment 61 P~& CR 343. The question is whether the report might have caused the inspector to come to a different conclusion or, to put it the other way round, whether there is no real possibility that the decision might have been different had the report been taken into account. I recognise how unsatisfactory it is for a claimant to be told that an inspector has acted unfairly but that had he acted fairly he would not have decided the appeal any differently. However, that is my view on the evidence. I do not consider that there is any possibility that this report would have led the inspector to a different conclusion. There are really six reasons for this.[44]First, the inspector knew that the light report had been before the planning committee; second, he knew that officers had dealt with the appellant's expert report in their own report to the Council's planning committee; third, he had the claimant's summary of the report before him which was more favourable to her case than the report in fact is; fourth, the Council had not refused permission by reference to light and overshadowing; fifth, the inspector had made his own site visit to the site and his own assessment of the impact on daylight and sunlight; sixth, the report's conclusions were in fact rather muted. The were that:(1) the development had a demonstrable effect on daylight reaching neighbouring windows. These were not shown to reach BRE targets but there was an adverse impact which should be taken into account when assessing the acceptability of the proposal. This was based on assumptions and without detailed survey information;(2) of more concern was the daylight reaching the proposed development. This needed further investigation. So I would uphold this ground of challenge by concluding that the inspector did act unfairly but because of the peripheral importance of the report in the circumstances to the issue decided by the inspector, I would not quash the report on this account. What plans were before the inspector?[45]There was a certain amount of confusion about what plans were before the inspector, whether they were accurate, and whether the claimant and others had had a chance to comment on any inaccuracies. In paragraph 51 of his skeleton argument Mr Jacobs referred to paragraphs 26 and 27 of a claimant's witness statement. She there said that the inspector's file showed that inaccurate new drawings were submitted after the committee and site visit. The committee and third parties had been deprived of the opportunity to comment on them. In paragraph 27 of that witness statement she said that the new drawings had been submitted after the application was determined. It was clear from the inspectorate file that these had been taken into account. Allowing an exchange of drawings and measurements behind the scenes was highly worrying, she said.[46]I was taken to an email exchange in the bundle. The inspectorate in an email dated 28 February 2013 had asked the Council for clarification about plan SK01. The site measurements had been checked. Drawing SK01 had only ever been tabled informally. It was included in the appeal documents as it showed the chamfering of the bricks on the corner of a proposed building. According to a letter from the Council which was sent to the inspectorate, drawing SK01 was not listed as an application document and was not listed in the decision notice. It was an indicative proposal which showed that the scheme could be modified so as to improve the access route.[47]I was taken to other drawings during the course of the hearing. In the case of at least one there were inaccurate measurements on the drawing. However, I was not persuaded that any one of them showed a material measurement which was inaccurate. In the light of these factors I conclude there was no material irregularity or unfairness in this aspect of the inspector's conduct of the appeal. Whether or not the claimant had the opportunity to comment on measurements in the plans, it seems to me that none of the plans which was before the inspector, whatever inaccuracies it might have contained, was inaccurate in a way that was material to the issues which the inspector was considering. I reject this ground of challenge. Conclusion[48]My conclusion is that all the grounds of challenge fail except ground 3. It seems to me, however, that in the light of the peripheral materiality of Mr Baird's report, I should not quash the inspector's report on that ground, and I decline to do so.[49]Any applications?[50]MR WHALE: My Lady, yes. There is an application for costs but it is only a limited application because there was a voluntary agreement whereby if the claim failed the claimant would pay not more than £3,500.

MRS JUSTICE ELISABETH LAING: Right.

[52]MR WHALE: The Secretary of State's costs are in excess of that but I am only asking for £3,500.

MRS JUSTICE ELISABETH LAING: All right.

[54]MR WHALE: So it will be: claim dismissed and a costs order on those terms if you are so inclined.[55]MRS JUSTICE ELISABETH LAING: Right. Mr Jacobs, do you want to say anything about that?[56]MR JACOBS: My Lady, I can't oppose the amount. I would ask that you don't make any stipulation with regard to time to pay because those instructing will no doubt contact the respondent in that regard. I am instructed to ask for permission to appeal. I will be brief. It is only on the basis that the Court of Appeal may take a different view with regard to the emerging policy point and in relation to the materiality of the expert report not being before the inspector, and the fairness of the outcome.[57]MRS JUSTICE ELISABETH LAING: Yes, well, I am slightly less persuaded by ground 1, but if I am going to grant you permission to appeal, I will grant it on both grounds. It does seem to me that the second ground is something that you are entitled to ask the Court of Appeal to have a look at, so I will grant you permission to appeal.[58]MR JACOBS: I am most grateful.

MRS JUSTICE ELISABETH LAING: I wasn't quite sure what you were asking me to do about costs.

[60]MR JACOBS: Could we stay the order for costs in light of your grant of permission to appeal, my Lady?

MRS JUSTICE ELISABETH LAING: Do you want to say anything about that, Mr Whale?

[62]MR WHALE: Well, my Lady has given permission to appeal. It doesn't mean it will be pursued, of course. Ordinarily, even the lodging of an appeal does not stay the court below, so it would be most unusual to go that far. So I would resist that application and just ask that £3,500. If the claimant wants to make representations to the Treasury Solicitor out of court, so to speak, in terms of the timing of payment, I am sure that the Treasury Solicitor will give that careful attention.[63]MRS JUSTICE ELISABETH LAING: Yes. All right. I am going to make the normal order for costs so I am going to make an order that the claimant pay the costs and, as Mr Whale suggests, if your client wants to make representations to the Treasury Solicitor it is open to her to do so.[64]MR WHALE: Would it help if we were to draw up an order and send it in?[65]MRS JUSTICE ELISABETH LAING: I think that would be very helpful, yes please. Thank you both very much for your clear and helpful submissions.