Validity of inspector’s decision — Back garden development — Private leisure building — Whether decision allowing development departure from local plan — Whether inspector properly considered “relative value” of garden rather than loss of open space — Whether inspector properly understood local policy — Inspector’s decision upheld
An application was made by the third respondent, Z, for the development of a private leisure building (including swimming pool and games room) to be located on part of an existing tennis court in the back garden of his house at 13 Frognal Lane, London NW3. A local inquiry was held against the failure of the local planning authority, Camden London Borough Council, to give their decision within the prescribed period. The council submitted that the proposal offended against policy LE9 of the borough plan in that it would result in the loss of “valuable” open space. The relevant policy stated that “the council will generally resist the loss of valuable private open space”. The inspector found that there would be no policy objection to development on the appeal site. The two applicants were owners of the adjoining properties and sought to quash that decision on the ground, inter alia, that the inspector had failed to properly understand the policy of the borough plan: see Grandsen v Secretary of State for the Environment [1987] JPL 365; Turner v Secretary of State for the Environment [1992] 2 PLR 33; and South Somerset District Council v Secretary of State for the Environment (shortly to be reported in Estates Gazette).
Held The application was refused.
1. It was accepted by all three counsel that policy LE9 was the norm or the generality and that a departure from that generality would be a departure from the policy.
2. The dispute thus centred on the word “valuable” in LE9. In that regard the court could not accept the submission that the inspector had failed to have a proper understanding of the policy, as could be seen from his decision letter, where he considered the merits of the proposal in terms of its impact “and the relative value of the garden area to the locality, rather than in terms of the loss of open space … or backland development”.
3. It was elementary that there were different degrees of value — almost everything had some value. It was not surprising therefore that the inspector had regard to the “relative value of the garden area” and not to the entire “loss of open space” irrespective of its value, and “whatever the size concerned”. Nor was it surprising that there were some passages of the decision letter which indicated that he thought the particular open space had some value.
4. It was also to be noted that the inspector was fully alive to the implication of section 54A of the Town and Country Planning Act 1990 that an application should be determined in accordance with the provisions of the development plan unless material considerations determined otherwise.
5. For those reasons, the court concluded that the inspector had not failed to understand LE9, but understood it very well — in particular that the word “valuable” was a relevant ingredient in the policy.
Christopher Katkowski (instructed by Gamon Arden & Co, of Liverpool) appeared for the applicants; David Elvin (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Matthew Horton QC (instructed by Speechley Bircham) appeared for the third respondent, Z; Camden London Borough Council did not appear and were not represented.
