Town and country planning – Planning permission – National design guide – Local authority refusing application of respondent for planning permission for development to subdivide semi-detached dwelling house to create additional dwelling – Inspector appointed by appellant secretary of state dismissing respondent’s appeal – High Court quashing inspector’s decision – Appellant appealing – Whether judge right to hold inspector erred in law in concluding that proposed development would harm character and appearance of area – Appeal allowed
The second respondent local authority refused the first respondent’s application for planning permission for a development at 26 Highland Road, Northwood. The proposed development was the “[conversion] of existing dwelling to 1 x 3-bed unit and 1 x 2-bed unit with associated amenity space and parking”. It would subdivide the semi-detached dwelling house on the site to create an additional dwelling, with a garden and an area for car parking.
The first respondent appealed against that decision under section 78 of the Town and Country Planning Act 1990. An inspector appointed by the appellant secretary of state dismissed that appeal following a site visit. He concluded that the proposed development would “harm the character and appearance of the area”.
The High Court upheld the respondent’s challenge under section 288 of the 1990 Act and quashed the decision of the inspector. The judge concluded that it was irrational for the inspector to conclude that the existing extension would harm the “street scene” when the development had been carried out, given there was to be no change to the exterior of the building: [2022] EWHC 2301 (Admin).
The appellant appealed. The sole ground of appeal stated that the judge erred in restricting the inspector’s decision to contemplation of visual impact only. The single issue was whether the judge was right to hold that the inspector erred in law in concluding that the proposed development “would harm the character and appearance of the area …”. The second respondent took no part in the proceedings.
Held: The appeal was allowed.
(1) The task the inspector set himself was to exercise his own planning judgment in assessing “the effect of the proposal on the character and appearance of the area”. The conclusion he ultimately reached corresponded exactly to that issue: the proposal would harm the character and appearance of the area, contrary to the three policies of the local plan on which the second respondent had relied. Both at the beginning of his assessment and in its outcome there was a consistent description of the main contentious matter in the section 78 appeal.
The inspector was concerned to establish the effect of the proposed development not merely on the “appearance of the area”, but on the “character and appearance of the area”. That was the concept he adopted as the basis for his assessment. He was not using this expression as if it equated to the statutory concept of the “character or appearance of [a conservation] area” under sections 69, 70, 72 and 73 of the Planning (Listed Buildings and Conservation Areas) Act 1990. Nor was it an expression one found in any of the development plan policies on which the council relied. But it was self-evidently a larger concept than “appearance” alone. That would include matters of the kind to which the parties referred in their written representations: building lines, plot widths, plot sizes, the “composition of buildings” on the street, and so on. Distinguishing here between considerations of “character” and those of “appearance” was not necessary.
(2) In considering the likely effect of the proposed development, the inspector acknowledged that the property had a wider rear garden than most other properties in the street. Having done that, he went on to state that the subdivision of the plot and the addition of a fence to the rear of the building would cause the resulting two plots to appear narrower than other properties due to the resulting plot forms. He concluded that that would appear contrived and highlight the incongruity in the street scene. As a matter of planning judgment, that conclusion seemed to be unassailable. Taken at face value, it could only mean that in the inspector’s view the proposed development would harmfully change the “street scene”.
(3) The National Design Guide, as updated by the Government in January 2021, defined the concept of “street scene” as “The appearance of all of the elements of a street, including the carriageway, pavement, street furniture, planting, and the buildings or structures along its edges, particularly the composition of buildings on each side of the street”.
The idea of “the composition of buildings on each side of the street” had to encompass the considerations on which the inspector concentrated here: the front building line, the rhythm in the street scene, the resulting plot forms, the fact of the extension being “set well back from the established front building line of this side of the street”, the prevailing pattern of development on the road and the local context, including building plot sizes and widths, established street patterns and building lines and setbacks.
(4) Applying the well-known principles on which the lawfulness of an inspector’s decision-making was to be reviewed, the appellant’s submissions were essentially correct. In reaching his conclusion the inspector did not take into account any immaterial consideration. Nor was it an irrational conclusion in the light of the definition of “street scene” in the National Design Guide.
The inspector’s decision letter, read as a whole, did not betray any error of law. On a fair reading of his conclusions, he dealt appropriately with the decisive considerations in the section 78 appeal. His planning assessment was logical, coherent, properly reasoned and sufficient to discharge his statutory obligations as decision-maker under section 70 of the 1990 Act and section 38(6) of the Planning and Compulsory Purchase Act 2004. It was not infected by irrationality and was legally impeccable: St Modwen Developments Ltd v Secretary of State for Communities and Local Government and another [2017] EWCA Civ 1643; [2017] PLSCS 196; [2018] PTSR 746 applied.
Nina Pindham (instructed by the Government Legal Department) appeared for the appellant; Brendan Brett (instructed by Direct Access) appeared for the first respondent; The second respondent did not appear and was not represented.
Eileen O’Grady, barrister
