Material consideration — Conservatory — Unitary development plan — Supplementary planning guidance not put before inspector — Failure to have regard to supplementary planning guidance — Whether extension should be refused unless “exceptional circumstance” can be demonstrated — Whether decision of inspector challengeable where material not relied upon by parties not before her
The claimant was the owner of a first-floor flat directly above the flat of the second and third defendants, Mr and Mrs B. Mr and Mrs B’s application for planning permission, for the erection of a conservatory at the rear of their ground-floor flat, was refused by the fourth defendant council. The inspector allowed an appeal against that decision. The claimant applied for that decision to be quashed, on the grounds that the inspector had failed to apply policy HSG 2.9 in the unitary development plan, or to have regard to advice contained in a supplementary planning guidance.
Held The application was dismissed.
The supplementary planning guidance was a material consideration; it was not put before the inspector through the neglect of the council. Accordingly, the inspector did not take the supplementary planning guidance into consideration. Where the parties making representations before an inspector do not treat a matter as material, it is not incumbent on the inspector to seek it out, even if he or she does have notice that it might be material: see [29]. Materiality is a matter of degree. The treatment of a matter as being immaterial by the parties may be relied upon by the inspector. Disregarding such matters does not make his or her decision beyond his or her powers: see [30].
Horsham District Council v Secretary of State for the Environment (1991) 63 P&CR 219; [1992] 1 PLR 81; [1992] JPL 334, CA
Taylor v Secretary of State for Wales [1985] JPL 792
This was an application under section 288 of the Town and Country Planning Act 1990 by the claimant, Hanna Taussig, seeking to quash a decision of an inspector who allowed an appeal by the second and third defendants, Mr and Mrs Berg, against a decision of the fourth defendant, Haringey London Borough Council, refusing permission for a development (a conservatory) at the rear of their ground-floor flat. |page:22|
JUDGE RICH QC:
[1] This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of the first defendant’s inspector, dated 19 March 2003. By that decision, she allowed an appeal by the second and third defendants, against the decision of the fourth defendant, refusing permission for a development consisting of the erection of a conservatory at the rear of their ground-floor flat, at 28 Southwood Lawn Road.
[2] The application to this court is made by the owner of the flat above that of the appellants’, who had made representations in the course of the appeal, which was conducted by way of written representations. On her behalf, two grounds are relied upon to impugn the decision of the inspector.
[3] First, it is said that she failed to apply a policy in the unitary development plan (UDP), HSG 2.9. Second, it is said that she failed to have regard to some advice contained in a supplementary planning guidance issued by the local planning authority.
[4] Policy HSG 2.9, in the local plan, reads:
Applications to extend converted properties will normally be refused unless exceptional circumstances can be demonstrated.
As is apparent from the fact that the parties have flats one above another, the building in which they are contained, originally erected as a single, large, Victorian dwellinghouse, has been converted, as I understand, into seven separate flats.
[5] This policy was recited almost word for word in para 3 of the inspector’s appeal decision letter. She wrote:
In recognition of the detriment to neighbours’ amenity that may result from overintensive use of a converted property, Policy HSG 2.9 states that extensions to converted properties will normally be refused unless exceptional circumstances can be demonstrated.
In spite of having so recited the policy, it is said, however, that the decision letter failed to identify any exceptional circumstances that had been demonstrated to justify the granting of a permission to extend this converted property which otherwise, in accordance with the policy, should normally be refused.
[6] Mr Strachan, for the Secretary of State, accepts that the decision letter does not, in terms, identify any exceptional circumstances. But, he says, and of course it is right, this court should not take a legalistic view |page:23| of the form of the decision letter. There is no single required method of setting out a decision, and, providing that this court can be satisfied that the inspector asked herself the right question, her decision on what is, after all, a matter of planning judgment, namely whether or not exceptional circumstances did exist, is not to be impugned.
[7] I do not wish to be gratuitously offensive to the local planning authority, but I think it is fair to say of the inspector’s decision letter that it was not helped by the form in which the local planning authority had made its decision, or in which it made its representations in support of its decision. The grounds of refusal adopted by the local planning authority were directed to the appearance of the proposed conservatory, and relied upon certain policies, particularly those referring to alterations and extensions in conservation areas (the appeal site was in the Highgate Conservation Area), and not to the policies which were referred to in para 3 of the decision letter.
[8] As to the appearance of the proposed conservatory and its effect upon the conservation area, the inspector was satisfied. Nothing arises upon that part of her decision, so far as this court is concerned.
[9] On the basis, however, of the present applicant’s representations, the inspector referred to another aspect of policy, namely the impact of the proposed development on the living conditions of occupiers of adjoining premises. There were two such policies: HSG 2.9, which I have already read, and another policy, DES 1.9, of which the inspector said, at para 3:
[It] aims to protect the privacy and amenity of neighbouring residents.
[10] DES 1.9 provides that:
In order to protect the reasonable amenity of neighbours, planning permission for development or change of use should meet the following criteria:
1. The scheme would not be unacceptably detrimental to the amenity of adjacent users, residents and occupiers, or the surrounding area in general.
The other matters to which consideration has to be given in respect of policy DES 1.9 need not concern the court.
[11] The inspector dealt with that policy in paras 10 and 11 of her decision letter in the following terms:
As requested, I viewed the appeal site from the flat immediately above it, no. 28C, [that is to say, the present applicant’s flat] which is the flat most likely to be affected by the proposal. During my visit I saw that the proposed conservatory would be directly below the main living room window, although the ridge of the roof would not extend as far upwards as the window ledge. To anyone standing at the window, the roof of the conservatory would be clearly visible but it would fill only a small proportion of the existing open and extensive view down the rear gardens of the houses in Southwood Avenue and Southwood Lawn Road. Moving only one step back from the window would further reduce the extent of roof which would be visible. In my opinion the proposed conservatory would not result in an unacceptable degree of visual intrusion to the occupiers of no 28C or to any of the other adjoining neighbours. |page:24|
In my experience patio areas such as the appellant’s can be used extensively for entertaining for much of the year and often have outdoor lighting installed. The enclosure of such activity and the provision of lighting within a conservatory would in my view reduce any disturbance to the adjoining residents, including noise, and would increase the privacy of all parties. I have taken into account the neighbour’s comments on glare, dirt, damp, noise of rain on the roof, and security. However, none of these considerations alters my view that the proposal would not result in such an adverse impact on the living conditions of neighbouring residents that it should not be allowed.
That is clearly a direct reference to criterion 1 in DES 1.9, which I have already read.
[12] The next paragraphs of the decision letter, which lead to the conclusion, at para 14, that the proposal would not cause significant harm to the living conditions of adjoining residents, and would not conflict with the objectives of policy DES 1.9, nor undermine the objectives of policy HSG 2.9, are, in my judgment, the critical paragraphs for determining whether or not the inspector has satisfied the court that she did address the right question in reaching her decision.
[13] Paragraph 12, in effect, recites the explanatory statement to policy HSG 2.9 which reads as follows:
3.37. Conversion of a property results in the intensification of use of the original dwelling house. Extensions, including conversions of lofts, are normally resisted when permission is sought to convert a property in order to avoid an over-intensification of use that would be detrimental to amenity of adjoining residents. It would therefore be inconsistent and inappropriate to accept extensions once a property has been converted. Exceptions to this policy may be made where an applicant can demonstrate exceptional circumstances relating to their particular case. The Council will have regard to Supplementary Planning Guidance; SPG 2.4.
[14] She summarised what was there said in para 12:
Turning to the matter of the increased intensity of use of the converted building, Policy HSG 2.9. explains that conversion of one property into several units will in itself increase the intensity of use compared with a single dwelling. It suggests that extensions, either during conversion or afterwards, could result in overintensive use of a property, which would be detrimental to the amenity of adjoining neighbours.
She then sets out what I take to be her judgment on the issue raised by policy HSG 2.9 as follows:
In this case, however, the building is considerably larger than the majority of individual dwellings in the surrounding area and it is set on a spacious plot. The appellant’s flat has its own patio and garden area which could be intensively used in its current form. In my view, the patio could be considered as already forming part of the living space associated with the flat and the conservatory will do no more than enclose part of that space. I have considered above the impact of the proposal on the amenities of the occupier of the flat immediately adjacent to the proposal. |page:25|
I interpolate that was her consideration of the issues arising out of policy DES 1.9 which was concerned merely as to the satisfaction of a criterion, of not being unacceptably detrimental to the amenity of adjacent users. She continues:
The communal garden which is available for use by the residents of all 7 flats will not be affected by the proposed conservatory. As a result of these particular circumstances I do not consider that the purpose of the policy would be undermined by allowing the appeal.
[15] In Horsham District Council v Secretary of State for the Environment [1992] 1 PLR 81, the Court of Appeal considered a decision of an inspector when he had to consider the effect of a policy in the structure plan ENV 3. That policy is set out at p84 of the report. It provided:
Only in compelling circumstances will development be permitted where it would…
(2) be obtrusive in or damaging to the landscape, particularly in Areas of Outstanding Natural Beauty…
(8) be within a strategic gap between built up areas.
[16] The inspector said, as reported at p86H:
The site is designated as within both the strategic gap and the AONB, and the proposal was rejected by the council for non-compliance with the relevant policies. In those circumstances I see the question whether significant harm would result to those policy objectives as the primary issue in the case.
Having posed the question, I think the answer appears readily from what I saw of the site and surroundings, particularly in the light of the ongoing or imminent changes that the extension of Crawley and the provision of the south-west by-pass will bring about. I understand the Council’s concern to prevent coalescence and to protect the AONB. These are important considerations on the basis of which previous proposals for petrol filling stations and allied development along the A264 between the 2 towns have been quite properly rejected. However the site is at the very tip of the AONB, in a position where because of the landform it appeared to me very firmly visually linked to the land to the north, outside the AONB, and to the east, still within the AONB but consisting of only a small area of land soon to be severed by the by-pass, rather than to be associated with the major part of the AONB to the south and west. The prevailing character of these surroundings is therefore, and will become increasingly, one of a manmade environment with its predominance of housing development and pattern of roads and roundabout, into which I consider a service area as proposed, particularly with reasonable attention to design details, would fit quite happily without threatening the natural appearance of the remainder of the AONB. As to coalescence, it is making the same point in a different way to say, as is my view, that the scheme of development would not entail breaking out into the gap of countryside between Horsham and Crawley and would not therefore detract from the objective of that policy.
[17] Nolan LJ said, at p89H:
The difficulty… with the Inspector’s decision, is that it pays no regard at all to ENV 3(8). However limited the content of the decision-maker’s duty to have regard to the policies in the development plan may be, it surely |page:26| cannot allow him to ignore one of them altogether. I accept, of course, that for the purposes of ENV 6 the Secretary of State’s notice of approval makes it plain that there is no presumption against the development of strategic gaps and that the only purpose of that policy is to prevent coalescence. But the council do not rely on ENV 6. They rely, and have always relied, on ENV 3. They are entitled to know whether, and if so why, that reliance is misplaced.
For the sake of clarity I repeat the particular provision of ENV 3(8). It was:
“only in compelling circumstances will development be permitted… within a strategic gap between built up areas”…
Such policy being made without reference, as the AONB policy was, to its being obtrusive or damaging or any other such qualification.
[18] McCowan LJ said, at p94F:
The authorities plainly establish that an inspector is entitled to depart from the policies of the development plan, but, if he is making such a departure, it is his duty to say so and to make his reasons clear. Mr Howell [who appeared for the Secretary of State]… felt driven to submit, as I understood him, that here the inspector had in fact made a departure from those policies. He certainly does not say that he is doing so or give any reasons for it. The truth is, in my judgment, that he thought he was applying them, but he was wrong in so thinking. He ought to have been looking to see whether there were “compelling circumstances” for permitting this development in a strategic gap between built up areas. He found none. Indeed, he did not look for any. In those circumstances the result should, in my judgment, be that his decision is quashed.
[19] It seems to me that, in para 13 of this decision letter, the inspector is asking herself not whether exceptional circumstances exist, or can be demonstrated, to justify the development, but rather whether a departure from the policy that permission will not normally be given would “undermine the purpose of the policy”.
[20] Section 54A of the Act requires:
Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.
That to depart from the requirements of the plan would not undermine the purpose of the policy might well be held to be an indication to the contrary of following the plan. The conclusion that it would not undermine the policy might therefore justify departing from the policy, so as to justify the grant of planning permission. But the inspector did not put her decision on that basis, and I think that, if she had realised that it was a necessary part of her reasoning that she should treat herself as departing from the policy of the plan, she might well have reached a different conclusion as to whether planning permission ought to be granted.
[21] For those reasons, following the decision of the Court of Appeal in Horsham, it appears to me that this decision ought to be quashed.
[22] As appears from the explanatory statement at para 3.37 of the UDP, the plan says that the council will have regard to the supplementary |page:27| planning guidance. The inspector, in her decision letter, at para 4, recorded:
There is reference in some of the above policies to Supplementary Planning Guidance (SPG) but the content and status of the SPG has not been made clear. I have not therefore been able to take it into account.
[23] I do not think that she was justified in saying that the status was not made clear, because the status is, in fact, made apparent by the reference which I have just quoted in the explanatory statement. But she was entirely justified in saying that the contents of that SPG had not been made clear, because it had not been placed before her by the council whose duty it appears to me it was, nor by the present applicant, who, if she had wished to rely upon anything contained in the SPG, had the opportunity and could likewise have placed it before the inspector.
[24] It now appears, however, that the SPG does contain the following guidance, which is specifically made with reference to HSG 2.9. It provides:
Extensions are generally only acceptable when they are designed to improve otherwise substandard facilities of an existing flat, such as to enable a separate bathroom to be provided or to make the kitchen bigger, provided it does not harm the neighbours amenity.
[25] Clearly, that is a material consideration. Although, if the proposed extension would not undermine policy 2.9, that may well be a reason, as a matter of planning judgment, for saying that transgressions against this guidance would not justify refusal of planning permission. That, however, would be a matter for the decision maker.
[26] The applicant now asks this court to quash the decision also on the ground that the inspector did not have regard to such material consideration as required by sections 79(4) and 72 of the Act.
[27] I accept that the possibility of there being something material in the SPG is indicated by the reference to it in para 3.37 of the UDP, but, in a written representations appeal such as this was, Hodgson J took the view in Taylor v Secretary of State for Wales [1985] JPL 792, at p794, that the approach to the review of the inspector’s task should be as follows:
In the course of argument… the extent to which an inspector should himself initiate inquires where he deemed such inquiries necessary before he could come to a fair conclusion was debated. It was not possible to lay down any general rules. An inspector had no duty to seek to put the parties’ own representations in order or to give them assistance. However, if an inspector came to the conclusion that he was unable to come to a fair decision on an issue on the basis of the material before him he [that is to say, the judge] did not think he was necessarily entitled to sit back and hold that, because of a lacuna which could easily be filled, a party has failed to fulfil a burden placed upon him.
[28] If, by reason of such a lapse on a local planning authority’s part, a materially determinative provision of the UDP itself was not considered by the inspector, I would feel bound to say that a decision that did not |page:28| have regard to such provision was not within the inspector’s powers, even if she was in no sense at fault for not considering such provision.
[29] But, so far as other material considerations are concerned, I would adopt Hodgson J’s approach. A matter that is brought to the inspector’s attention, or which he sees on his inspection, he must, if he considers it material, have regard to. If he is unable to come to a fair decision because he does not know the answer to a material question, he must ask. But, where the parties making representations before him do not treat a matter as material, it is not, in my judgment, incumbent on the inspector to seek it out, even if he does have notice that it might be material, just in case it turns out to be so.
[30] Materiality is a matter of degree. The treatment of a matter as being immaterial by the parties may, in my judgment, be relied upon by the inspector. His disregarding such matters does not, in my judgment, make his decision beyond his powers; but, even if I were wrong, the court should, in my judgment, as a matter of discretion, not quash the decision so made.
[31] The order is that the decision be quashed and remitted.
Application dismissed.
