Town and Country Planning – Planning permission – Judicial review – Defendant local authority granting planning permission for development of riverside moorings – Claimant property owner seeking to quash decision – Whether defendants misunderstanding earlier planning decision regarding exclusion zone – Whether proposed development falling within exclusion zone – Claim allowed in part
The claimant owned and occupied a glass-fronted diamond shaped property on the south bank of the Thames down-stream from Tower Bridge. Opposite, and to the side of his property, were moorings, comprising a series of “roots” or ground anchors and chains in the riverbed. Moored to those were a collection of collar barges which themselves provided moorings for a number of house boats. The moorings were owned by the interested party which was granted permission by the defendants to erect a purpose built moving brow (or bridge) and floating platform to service the collar barges and house-boats.
In 2004, the defendant local authority had taken enforcement action against the interested party in connection with the location of barges. A planning inspector had taken the view that, since vessels moored close to the property and the nearby block of flats had created a strong sense of being overlooked, there had to be a minimum distance of 25 metres between flat and house windows and the moored houseboats. The windows to the side, upstream and downstream had the protection of a 21 metre radius exclusion zone.
The claimant had historically endured barges very close to his property. However, following the 2004 planning decision he became concerned that there was room for misunderstanding as the plan showing the layout did not in fact show the full 21 metre exclusion zone. That plan was produced at the planning inquiry but had never been formally considered. He therefore wrote to the defendants on 1 August 2006 seeking their agreement that a revised drawing prepared by him accurately set out the position. The defendants’ reply indicated that a development as close as 17 metres to the windows of his property was not permitted.
In June 2011, the defendants granted the interested party planning permission to erect a purpose built moving brow and floating platform to service the collar barges and house boats. The claimant challenged that permission on the basis that the defendants had misinterpreted the 2004 planning decision and granted permission for development on approved drawings showing an exclusion zone reduced to a radius of 17 metres.
Held: The claim was allowed in part.
(1) The position after the 2004 planning decision had been made was that no development was permissible within 25 metres of the windows to the front and side of claimant’s windows that oversailed the river and that there should be further exclusion zone with a radius of 21 metres from the corners of the windows of the return of claimant’s property. There appeared to be four panels of windows across the front of the property which had the benefit of a 25 metre exclusion zone going straight out perpendicular to the river. The other windows to the side, upstream and downstream had the protection of a 21 metre radius exclusion zone. There were therefore overlapping exclusion zones in a series of arcs from the side windows and straight out from the front windows and any development in the form of brows or moored vessels within those zones was not permitted.
(2) The development permitted by the 2011 planning permission was at no point as close as 21 metres to the windows on the upstream side of claimant’s property. However, the approved drawings showed a reduction in the exclusion zone and there was no justification for ignoring what the inspector had said in terms that anything less than 21 metres “would unacceptably prejudice” the living conditions of the occupiers of claimant’s property. The approved drawings show an exclusion zone which reduced to a radius of about 17 metres. Since that distance left a gap between the development permitted and the exclusion zone it was asking for future disputes. Since the permission had been granted in accordance with applicant’s drawings which showed an exclusion zone of less than the requisite 21 metres, the claimant was entitled to some relief and it was in the interests of the defendants that this matter was not left as it was.
(3) The defendants had acted to seek to protect those who occupied the buildings on the South Bank and had been doing their best within their statutory powers and duties to find a solution which removed any controversy. Leaving things as they were would not achieve that. Both parties could claim some success in this litigation and they should now, perhaps in consultation with the interested party, try and agree the terms of an appropriate order for the court’s approval. Absent agreement, the court would have to hear argument on what each party considered to be the correct order and form of relief: R (on the application of Godfrey) v Southwark London Borough Council (BDW Trading Ltd, interested party) [2012] EWCA Civ 500; [2012] PLSCS 91 considered.
James Maurici (instructed by Lee Bolton Monier Williams) appeared for the claimant; Alexander Booth (instructed by Southwark Borough Council legal department) appeared for the defendants.
Eileen O’Grady, barrister
R (on the application of Creed-Miles) v Southwark London Borough Council
Town and Country Planning – Planning permission – Judicial review – Defendant local authority granting planning permission for development of riverside moorings – Claimant property owner seeking to quash decision – Whether defendants misunderstanding earlier planning decision regarding exclusion zone – Whether proposed development falling within exclusion zone – Claim allowed in partThe claimant owned and occupied a glass-fronted diamond shaped property on the south bank of the Thames down-stream from Tower Bridge. Opposite, and to the side of his property, were moorings, comprising a series of “roots” or ground anchors and chains in the riverbed. Moored to those were a collection of collar barges which themselves provided moorings for a number of house boats. The moorings were owned by the interested party which was granted permission by the defendants to erect a purpose built moving brow (or bridge) and floating platform to service the collar barges and house-boats.In 2004, the defendant local authority had taken enforcement action against the interested party in connection with the location of barges. A planning inspector had taken the view that, since vessels moored close to the property and the nearby block of flats had created a strong sense of being overlooked, there had to be a minimum distance of 25 metres between flat and house windows and the moored houseboats. The windows to the side, upstream and downstream had the protection of a 21 metre radius exclusion zone.The claimant had historically endured barges very close to his property. However, following the 2004 planning decision he became concerned that there was room for misunderstanding as the plan showing the layout did not in fact show the full 21 metre exclusion zone. That plan was produced at the planning inquiry but had never been formally considered. He therefore wrote to the defendants on 1 August 2006 seeking their agreement that a revised drawing prepared by him accurately set out the position. The defendants’ reply indicated that a development as close as 17 metres to the windows of his property was not permitted.In June 2011, the defendants granted the interested party planning permission to erect a purpose built moving brow and floating platform to service the collar barges and house boats. The claimant challenged that permission on the basis that the defendants had misinterpreted the 2004 planning decision and granted permission for development on approved drawings showing an exclusion zone reduced to a radius of 17 metres.Held: The claim was allowed in part. (1) The position after the 2004 planning decision had been made was that no development was permissible within 25 metres of the windows to the front and side of claimant’s windows that oversailed the river and that there should be further exclusion zone with a radius of 21 metres from the corners of the windows of the return of claimant’s property. There appeared to be four panels of windows across the front of the property which had the benefit of a 25 metre exclusion zone going straight out perpendicular to the river. The other windows to the side, upstream and downstream had the protection of a 21 metre radius exclusion zone. There were therefore overlapping exclusion zones in a series of arcs from the side windows and straight out from the front windows and any development in the form of brows or moored vessels within those zones was not permitted.(2) The development permitted by the 2011 planning permission was at no point as close as 21 metres to the windows on the upstream side of claimant’s property. However, the approved drawings showed a reduction in the exclusion zone and there was no justification for ignoring what the inspector had said in terms that anything less than 21 metres “would unacceptably prejudice” the living conditions of the occupiers of claimant’s property. The approved drawings show an exclusion zone which reduced to a radius of about 17 metres. Since that distance left a gap between the development permitted and the exclusion zone it was asking for future disputes. Since the permission had been granted in accordance with applicant’s drawings which showed an exclusion zone of less than the requisite 21 metres, the claimant was entitled to some relief and it was in the interests of the defendants that this matter was not left as it was.(3) The defendants had acted to seek to protect those who occupied the buildings on the South Bank and had been doing their best within their statutory powers and duties to find a solution which removed any controversy. Leaving things as they were would not achieve that. Both parties could claim some success in this litigation and they should now, perhaps in consultation with the interested party, try and agree the terms of an appropriate order for the court’s approval. Absent agreement, the court would have to hear argument on what each party considered to be the correct order and form of relief: R (on the application of Godfrey) v Southwark London Borough Council (BDW Trading Ltd, interested party) [2012] EWCA Civ 500; [2012] PLSCS 91 considered.James Maurici (instructed by Lee Bolton Monier Williams) appeared for the claimant; Alexander Booth (instructed by Southwark Borough Council legal department) appeared for the defendants.Eileen O’Grady, barrister
