Dunster Properties Ltd v The First Secretary of State & Anor

This is an appeal from an order of Burton J made on 20 July 2006 under section 288 of the Town and Country Planning Act 1990 by which he refused an application by Dunster Properties Limited for an order quashing a decision of the Inspector on 25 November 2005 by which Dunster’s appeal against a refusal of planning permission by the Royal Borough of Kensington and Chelsea was dismissed. The judge refused permission to appeal but permission was granted on a paper application by Sir Henry Brooke on 19 October 2006. Kensington and Chelsea have played no part in the proceedings. The appeal is resisted, as it was below, by the Secretary of State, now the Secretary of State for Communities and Local Government, who is represented by Miss Katherine Olley. Dunster, as below, is represented by Mr Philip Petchey. The learned judge’s judgment is at [2006] EWHC 2079 (Admin).

The relevant premises are at 64 and 65 Glebe Place, London SW3. The planning permission sought was for, so far as relevant, a first floor extension to No. 65. The property lies within the Cheyne Conservation Area. Two successive inspectors’ decisions are relevant. The first dated 6 May 2003 by Mr Sargent dismissed an appeal against the refusal of an earlier planning application. The second, directly in point on the appeal, was by Mr Mead and was dated 25 November 2005.

Dunster’s ground of appeal essentially was before the judge and is before this court that Mr Mead took an entirely different view from Mr Sargent on a point which was before both of them but without explaining the reasons why he did so, thereby offending against the requirement that a planning appeal decision must be properly reasoned.

Mr Mead accepted Mr Sargent’s description of the property and its relevant context in paragraph 4 of Mr Sargent’s decision letter, which I will read:

“The north-eastern side of Glebe Place, from No. 52 to King’s Road, is notable for being an eclectic mix of attractive properties of differing styles and ages, which, with the exception of a gap next to No. 62, give the impression of forming a continuous built up frontage at ground floor level. Although the roof line varies significantly, houses along this length are predominantly 2 or 3 storeys in height. However the appeal property, positioned roughly in the centre, comprises 2 of the lower units. When viewed from the front, No. 64 appears as 1½ storeys high, whilst No. 65 appears as being only single storey, so resulting in a pronounced gap being apparent at upper floor level within the streetscene.”

At the time of the first planning application, which was made in April 2002, Kensington and Chelsea took an objection in principle to there being any extension to No. 65 at first floor level. However, Mr Sargent did not consider that objection to be valid. At paragraph 5 of his decision letter he said this:

“The Council considers the gap above No. 65 plays an important role in providing a context for the neighbouring terrace to the north, and, for this reason, it contends it enclosure should be resisted. However I have not been advised this terrace is listed, and I believe its visual balance and symmetry have already been affected to some degree by the partial painting of the external brickwork and by the presence of a 2 storey block close to its northern end. Furthermore, as stated above, this side of Glebe Place is characterised by its variety of buildings, and I consider each of them is of a strong enough design to contribute to the street scene despite the close proximity of its neighbours. I therefore do not believe an extension of a sympathetic appearance, scale and siting on the upper floor of No. 65 would erode the contribution made by the neighbouring terrace to the appearance of the conservation area.”

Nevertheless he dismissed the appeal on the particular designs rather than in principle, as he explained at paragraph 6. The details of that I think do not matter for present purposes, but he concluded at the end of paragraph 6 that the proposal would neither preserve nor enhance the character and appearance of the Cheyne Conservation Area and as such would be contrary to the objectives of the development plan. With that decision, Dunster went away and sought to devise an alternative design which would qualify as, in Mr Sargent’s words, “an extension of a sympathetic appearance, scale and siting”.

On 28 May 2004 Dunster applied for planning permission on the basis of different design proposals. Kensington and Chelsea again refused on 6 May 2005, still on the ground that no first floor extension should be allowed. Dunster appealed and Mr Mead, the inspector charged with determining that appeal, rejected Kensington and Chelsea’s objections to the particular design. At paragraph 5, he said:

“The Council suggested the new roof at No. 65 would appear dominant and overbearing in its position on the frontage. However, the new roof would copy the form of the roof of No. 64. Although No. 64 is a slightly taller property, I consider that any degree of imbalance will hardly be perceptible and as a design the roof will visually integrate with the building on which it will sit and also with the roof of No. 64, with which it would have a comfortable relationship.”

So far so good for Dunster, but he went on to dismiss the appeal. His reasons expressed in paragraph 6 were that the extension:

“… would remove the majority of the recessive view created by the juxtaposition of the single storey property with the end of the 3 storey terrace next door.”

The loss of the view he considered:

“… would erode the perception of depth which is an attraction of the existing townscape of the north east side of Glebe Place.”

The extension would also remove or significantly reduce:

“the view of the rooftop garden at No.65 and the tree to the rear”.

In these respects Mr Mead said that the extension would fail to preserve either the character or the appearance of the relevant area so as to be contrary to a number of policies in the adopted unitary development plan, in particular CD61 and CD62. In this respect he clearly took an entirely different view from that expressed by Mr Sargent in his paragraph 5. Mr Mead referred to Mr Sargent’s decision and specifically to that paragraph in his own paragraph 8. He said this in the last sentence:

“I have no comments on either of those two remarks other than to state that each case is judged on its own merits and my conclusions on the current scheme are given above.”

Mr Petchey submits that that is a somewhat casual reference to a point which is at the heart of Dunster’s case on the principal issue. He submits that it is all very well and correct so far as it goes to say that each proposal must be judged on its own terms and on its own merits. But the two inspectors have taken mutually contradictory positions as to the principle of a first floor extension to this property and Mr Mead has not offered his reasons for differing from the view supported by reference to specific factors expressed by Mr Sargent. There may be such reasons but just to disagree and to make no comment on the reasons in the earlier decision, Mr Petchey submitted, is not enough in the present case.

Appeals in ordinary civil litigation based on the inadequacy of the judge’s reasons have come to greater attention in recent years in the light of decisions in this court in such cases as Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377 and English v Emery Reimbold and Strick Limited [2002] EWCA Civ 605. In the context of planning decisions, it has had the attention of the House of Lords on several occasions, including in Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 and South Bucks District Council v Porter (No. 2) [2004] UKHL 33. The relevance of a decision on a previous planning appeal was considered specifically in this court in North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P & CR 137. The speech of Lord Brown of Eaton-under-Heywood in the South Bucks case is the most recent and authoritative statement. At paragraphs 24 through to 36 he reviewed the law as to the obligation to give reasons. He noted a passage in a judgment of Phillips J in 1975 which had been approved by Lord Bridge in Save Britain’s Heritage and he offered a broad summary of the authorities as regards the proper approach to a reasons challenge in the planning context at paragraph 36 of his speech, which I will read. I regard as of particular relevance and importance to the present case the second and the seventh sentences of this paragraph:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

In North Wiltshire District Council v Secretary of State for the Environment there had been a previous refusal and an unsuccessful appeal, the objection to which relied on the ground that the application site did not form part of the village so that the development for which permission was sought could not be justified as infilling. There was a later application which was refused by the Council on the same grounds but was allowed on appeal on the basis that the site did form part of the village without the inspector explaining the divergence from the previous decision or even referring to it although it was in his papers. The Council appealed. It was agreed that the earlier decision was a material consideration which had to be taken into account. Mann LJ said this at page 145:

“One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.

“To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in a previous case? The areas for possible agreement or disagreement cannot be defined but they would include an interpretation of policies aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate.”

Mr Petchey submitted that the two decisions in the present case were, as regards the objection to any first floor extension, materially so similar that the earlier decision had to be a material consideration in relation to the later. Miss Olley accepted that proposition to that extent and I consider it correct. He further submitted that although Mr Mead clearly knew of and thought about the earlier decision, his own decision letter left it unclear really what his conclusion was and certainly as to why he disagreed with Mr Sargent’s position. In that regard, he submitted, Mr Mead had not complied with the obligation to give proper reasons and Dunster was prejudiced because it could not see whether the objection was one that could be addressed on any future application or appeal. In such a case there would just be two contradictory decisions, with no explanation or justification for the divergence on the part of the later from the reasoning in the earlier.

Burton J accepted that on its face Mr Mead’s reasoning is inconsistent with that of Mr Sargent (see paragraph 16 of the judgment). However, he dismissed the appeal on the basis that, despite the words in paragraph 8 of Mr Mead’s decision letter by which on their face Mr Mead expressly declined to explain why he disagreed with Mr Sargent’s view, he found that Mr Mead was “albeit ham-fistedly” saying “I disagree with Mr Sargent” and that it was sufficient for him to say that. I will quote from the judgment paragraphs 31 and 33 to 35:

“31.

In those circumstances, says Miss Olley, what the inspector was doing was, albeit not wholly clearly, stating the position, namely that he was not bound by the previous inspector’s view and therefore had no need to comment upon it. As I have indicated, it seems to me that it would have been better if he had stated, as is obvious, that his decision is in contradiction of it, as it is entitled to be.”

“33.

The one unfortunate aspect of paragraph 8 are the words that I have not specifically addressed, namely that he said ‘I have no comments on either of those two remarks other than to state that each case is judged on its own merits.’ It is those words which have caused me a little doubt before coming down, as I do, in favour of Miss Olley’s arguments, because while he has of course judged this application, as any application, on its merits, he has concluded in favour of the in principle objection. But once again, I am persuaded that, albeit ham- fistedly, this inspector has stated, in effect in paragraph 8, by way of supplementation to the report, that he is obliged to deal with these arguments, but that he has no specific comment to make on them. The basis on which he has decided this appeal is in my judgment clear and is unaffected by the balance of paragraph 8. He did support the in principle position of the council. He did of course judge the case on its own merits, but he decided those merits by reference to his conclusion that the gap must be preserved and the recessive view left unaltered, in order to comply, as he saw it, with CD62.

“34.

The answer therefore to Mr Petchey’s very proper question, namely that his client should be left in no doubt as to what the basis was of this second inspector’s report, so that they could go forward able to adjust their conduct, is that this inspector, in my judgment, clearly rejected this application because of his view, right or wrong, different from Mr Sargent’s view, that the application should be refused because of his conclusion that the gap should be preserved.

“35.

In those circumstances, this decision is not defective for lack of reasons. On analysis, it does not contain mutual inconsistencies. It does not fall to be construed as a statute. On analysis, I accept Miss Olley’s arguments as to the conclusion that this inspector reached, and it is one, as I have indicated, contrary to that of Mr Sargent, but nevertheless binding, for the moment, on this developer.”

The judge had raised with counsel the question whether the matter could be referred back to Mr Mead for him to give further reasons by analogy with the practice approved in the Court of Appeal in the English v Emery Reimbold case and by reference to the practice as between Employment Appeal Tribunal and Employment Tribunals considered in Barke v SEETEC Business Technology Centre Limited [2005] EWCA Civ 578. He accepted that the planning legislation is incompatible with such a process, although he said at paragraph 28 that if it had been open to him it would have been an ideal case in which to use such a procedure so that the parties and the court could understand clearly what Mr Mead’s reasons were.

Mr Petchey submitted that this is a telling comment in showing that the decision leaves the reader at least in doubt and uncertainty as to what were the reasons for the decision. For the Secretary of State, Miss Olley submits that the judge was justified in what he said at paragraphs 33 to 35, and it was not necessary for Mr Mead to explain why he disagreed with Mr Sargent. It is plain, she said, from Mr Mead’s decision that he did disagree. He was entitled to do so and it is not a position which is susceptible of much, if any, reasoned exposition. Moreover, she took issue with the idea that Dunster was materially prejudiced by the absence of any reason or other comment by Mr Mead on Mr Sargent. Dunster knows that two inspectors have taken different views on the principle and if the matter were to be pursued again on a fresh planning application a third inspector could take either view.

I agree with Miss Olley and the judge that it is clear from Mr Mead’s decision that he did disagree with Mr Sargent’s judgment as regards the importance of the gap, created by the fact that No. 65 appears as only a single storey building, in contributing to the character and the appearance of the conservation area. Mr Mead gave his assessment of that in his paragraph 6. He did not deal with Mr Sargent’s rather different reasons at his paragraph 5 for coming to a different view. Accordingly, I approach the case on the basis that there is no doubt what Mr Mead’s decision was and that the deficiency, if there is one, is in Mr Mead’s not having explained or expressed his reasons for differing from Mr Sargent’s points set out in his paragraph 5.

Miss Olley accepts, as she has to, that Mr Mead did not say why he took a different view of the importance of the single storey format of No. 65. A comparison of the two decision letters at the relevant paragraphs suggests that Mr Sargent was considering the issue in terms of the appearance of the street frontage of the various properties in the terrace and did not focus on the question of the value of the view through the gap, whereas Mr Mead was not interested or less interested in the design and appearance of the frontage and regarded the view through the gap as the important factor. She submits, correctly, that it was for Mr Mead to exercise his planning judgment in relation to the application before him. Not only was he not in any sense bound by the reasoning in the previous decision but it was not even a starting point for his process of judgment and reasoning.

Nevertheless, Mr Sargent’s observations on the point of principle were a material consideration which Mr Mead had to take into account. As regards the oddly expressed last sentence of Mr Mead’s paragraph 8, she submitted that it was a refusal to comment not on any point of substance but on forensic points made for Dunster. That last point seems to me to be fairly taken as regards the second sentence of paragraph 8 of Mr Mead’s decision letter, which was a submission by Dunster complaining, as it were, that Kensington and Chelsea had reasserted their in principle objection notwithstanding the rejection of that by Mr Sargent.

I do not see that the same explanation can fairly be given for the refusal to comment in relation to the first sentence of paragraph 8, which records Dunster’s reliance on paragraph 5, and in particular the last sentence of paragraph 5, of Mr Sargent’s decision letter. I accept the force of another point made by Miss Olley, namely that inspectors’ decision letters should not be subjected to too close analysis or approached in a way which makes it necessary for them to become over lengthy, formalistic or over burdened with legalism. This is a point made by Lord Bridge in Save Britain’s Heritage at pages 170 to 171 in a passage quoted by Lord Brown in South Bucks at paragraph 32.

It seems to me that, although not much by way of reasons may have been called for on the part of Mr Mead, it was not sufficient for him, having expressed the exact opposite view from Mr Sargent on the question of principle, to decline to comment on the inconsistency. Moreover, to explain the differences as being attributable to the different merits of the different schemes, as in the last sentence in his last paragraph, seems to me to be clearly inadequate when it comes to a general question such as whether any first floor extension could be consistent with the relevant planning policies. Nothing in the two proposals differed relevantly in that respect, although of course in terms of detailed design they did differ.

It seems to me that a factor which is relevant to the duty to give reasons in planning decisions is the point which emerges more clearly in cases such as Flannery than in the planning cases, that the requirement to give reasons concentrates the mind and if fulfilled is likely to lead to a more soundly based decision (see Henry LJ in Flannery at page 381). This particular reasoning does not seem to me to be foreign to the policy about adequacy of reasons in a planning context, although Lord Bridge made it clear in Save Britain’s Heritage at page 168 that it is always for the party challenging the decision to show that the statement of reasons is such as to raise a substantial doubt whether the decision was reached on relevant grounds and was otherwise properly reached. Merely to show a doubt in the reasoning is not enough. At page 176 at H he spoke of the requirement to give reasons as a “salutary safeguard” to show that the decision was based on relevant and rational grounds and that any applicable statutory criteria had been observed. If, as the judge accepted by his wish to have been able to remit the case for further reasons, the reader cannot tell why Mr Mead disagreed with Mr Sargent on the principle then the salutary safeguard has not performed its intended function.

In my judgment, notwithstanding Miss Olley’s submission to the contrary, Mr Mead did not adequately perform his obligation to give reasons for this decision in respect of his refusal to follow the basis of the earlier appeal decision which was a material consideration. In this respect it seems to me that by declining to comment, other than to refer to his own reasons already expressed, Mr Mead appears not to have faced up to his duty to have regard to the previous decision so far as it related to the point of principle as a material consideration. An omission to deal with the conflicting decision, as in the North Wiltshire case, might have been sufficient in itself. But Mr Mead’s last sentence in paragraph 8 suggests that he has not grasped the intellectual nettle of the disagreement, which is what is needed if he is to have had proper regard to the previous decision. Either he did not have a proper regard to it, in which case he has failed to fulfil the duty to do so, or he has done so but has not explained his reasons, in which case he has not discharged the obligation to give his reasons.

As to Miss Olley’s main submission that there is no or no substantial prejudice because the actual decision is clear, I would disagree. It seems to me that the unarticulated disagreement by Mr Mead with Mr Sargent causes Dunster a significant degree of prejudice by impairing its ability to consider whether a yet further application would have a reasonable prospect of being approved; not, I dare say by Kensington and Chelsea, but by an inspector on a yet further appeal.

The Council and such an inspector would have two decisions as material considerations. They are in conflict but the reasons why the later did not follow the earlier are not expressed. Of course a third inspector will have to form his own judgment as to the relevant planning factors, but the task of having regard to the two previous decisions will be substantially more difficult, and the process correspondingly more unpredictable, without some expression of the reasons why Mr Mead’s planning judgment on the principle, which involved a rejection of Mr Sargent’s reasons set out in his paragraph 5, did differ from that approach. As Mann LJ said in the passage that I have quoted from in the North Wiltshire case, the reasons can no doubt be short, for example in the case of a disagreement on aesthetics, which perhaps essentially this is. But it seems to me that there had to be some expression of Mr Mead’s reasons in order to show that he had focused on Mr Sargent’s paragraph 5 factors and that, having thought about it, he preferred for the reasons given, whatever they may be, his own conclusion as set out at paragraph 6.

I would respectfully disagree with the learned judge in paragraph 33 where he regards it as sufficient on Mr Mead’s part to say that although he was obliged to deal with the arguments he has no specific comment to make on them. It seems to me that by not commenting on them, and indeed by specifically declining to comment on them, he has at any rate failed to show that he has dealt with the arguments and he may not in fact have dealt with them even in his own mind. In my judgment, by therefore deliberately refraining from comment Mr Mead withheld from the view of Dunster and other interested parties a material part of his process of reasoning. Either it is not there, which would be one ground of invalidity, or if it was there, it is not expressed, which is another such ground.

For those reasons I would allow the appeal, set aside the judge’s order and quash Mr Mead’s decision, leaving Dunster’s planning appeal yet to be determined.

I agree.

I also agree.