Williams, R (on the application of) v First Secretary of State & Anor

1. MR JUSTICE GIBBS: This is an appeal made by the claimant, who acts in person, pursuant to section 288 of the Town and Country Planning Act 1995, against a decision of the Secretary of State through his Inspector, Mr Gillis, dated 28 November 2002. By that decision the Inspector dismissed the claimant's appeal against a refusal of planning permission by Hambleton District Council for a utility laundry and amended roof to be incorporated in a dwelling for which the planning authority had previously granted planning permission. The property is known as Greenacres, Bullamoor Road, Northallerton.

2. The claimant has set out his grounds of appeal in the claim form. He has amplified the grounds in a detailed letter dated 30 December 2002 and he has pursued orally before this court four of the matters previously relied on, amplifying them in the course of his submissions today.

3. I think that the most useful order in which to deal with matters is to come finally in detail to the forur matters pursued today, but first to deal with the issues taken in writing by the appellant in addition to those pursued today.

4. The first issue is that of Reasoning Point 11 in the appellant's letter of 30 December 2002. The point taken is that the Inspector states that the proposed extension would be poorly related to the approved dwelling. It is submitted by the appellant that this is not valid as the proposed extension balances the visual elevation of the east side, which is flat and has only one small window and looks unfinished. That essentially is a matter of judgment so far as the Inspector is concerned and cannot form the basis of a legal challenge.

5. Reasoning Point 12 in the letter refers to the previous planning process and a compromise which was reached, as the appellant has explained today, which enabled the planning permission to go ahead for the appellant's building as it now stands. In particular, the appellant recites the following. Shortly before the Planning Committee of 4 January 2001, that planning committee being in connection with the permission granted for the house as it stands at present, the appellant was asked to indent 75 per cent of the western elevation by one metre, affecting significant rooms in the property. After in depth discussions with his architect, who strongly advised against this owing to the problems which would ensue with the fireplace and chimney, the matter was not pursued by the respondents. When the appellant discussed the problems with the planners, he was told that, if he eliminated the utility room from his application, he would not have to indent the western elevation. He was informed that he could apply for the utility at a later date and this would be treated as a minor amendment following planning approval for the main house. Based on that understanding, he withdrew the application for inclusion of the utility room within the building which is was the subject of the original and main planning permission.

6. He contends that the planning officers reneged on the agreement, in that, when the application subject to the present appeal was made, they refused it.

7. On the basis of what Mr Williams has said, I can understand his disappointment at the outcome of those negotiations, but essentially the complaint here relates to the way in which planning officers dealt with this matter at an earlier stage and cannot in itself amount to a sustainable ground of appeal against the Inspector's decision.

8. That brings me to the points pursued orally by the appellant today. The first point is that the Inspector was in error when he described the new building as 70 per cent larger than the old building. It has to be explained that the new building for which the planning permission was given was to replace an earlier building which was smaller in volume. Today I have helpfully been shown photographs which illustrate the earlier building that has been demolished and show the present building as it stands, save for the addition of a porch, which, I am told, is not shown in the photographs before me, and which is not relevant to this appeal.

9. In the appeal decision the Inspector states as follows in paragraph 7 of his reasoning:

"The previous dwelling on the site was significantly smaller than that approved and now existing - having been a bungalow of fairly modest proportions, while the approved dwelling is of a much greater size, scale and form, including dormers. I understand that the approved dwelling is some 70% larger than that previously on the site. Allowing for full use of permitted development rights for extension of the former dwelling, the approved dwelling would still be significantly larger than that which could have been developed without the need for express planning permission."

Mr Williams submits, and indeed it is not disputed, that "70%" was an error. The true facts were that the new house was 57 per cent larger than the previous house. Allowing for permitted development rights, that 57 per cent was to be contrasted with a 34 per cent increase in volume which had been permitted.

10. I can say straight away that, if I had been satisfied that the Inspector's reasoning was based on the premise that this amounted to a 70 per cent increase, then that reasoning would have been flawed and I would have allowed the appeal. But what is the situation? Mr Williams, who is entirely moderate and does not exaggerate his case in any way, accepts that the Inspector is not guilty of any dishonesty or impropriety.

11. The Inspector, when notified of this appeal on 3 March 2003, made a witness statement accompanied by a statement of truth. In that he says as follows:

"The claimant is correct in his contention that the figure should have read 57%. This was simply a typographical error on my part. I was aware that the correct figure was 57%. This was the figure given in paragraph 5.4 of the District Council's Committee Report, and was the figure I had in mind when reaching and writing my decision, and to which the comments in paragraph 7 of my decision letter relate. At no time was I under the impression that the approved dwelling was 70% larger than that previously on the site."

12. A number of possible reasons why there should or should not have been a typographical error were canvassed before me, and indeed I have suggested some possibilities myself. Mr Williams suggests that the planning authority had earlier themselves mentioned higher figures in the order of 70 per cent as constituting the increase in volume, and submitted that that was an error which may have been carried forward into the Inspector's report and, therefore, into his reasoning. Another possibility is that, when one looks at the District Council's Committee Report, the figure of 70 does appear in that in a previous paragraph in connection with a completely different issue and might have been mistakenly transposed in the typing. Another possibility, suggested by Ms Davies, is that somebody simply could not read the Inspector's writing.

13. All those matters are, however, speculative. The important point is that the Inspector has declared in a solemn witness statement that he based his reasoning on 57 per cent. It is, in my judgment, one of those cases in which it is proper for an Inspector to make an amendment to correct a typographical error. Since it is not suggested, let alone demonstrated, that the Inspector's statement is false, I have to proceed on the basis that he founded his decision on the increase of 57 per cent.

14. Once that proposition is established, the only question which remains is whether the Inspector was entitled to regard that 57 per cent increase in volume, having regard to the 34 per cent involved in the permitted development, as being a significant increase. In my judgment it cannot possibly be said that the Inspector was in error in reaching that conclusion. Accordingly, that ground of appeal must fail.

15. The next matter canvassed orally by Mr Williams was Reasoning Point 6 in the letter of 30 December 2002. Mr Williams argues, with a degree of force, that the visual impact could not be described as being of the importance which the Inspector attributed to it. He says that there would be no one, or practically no one, who would ever see the visual impact of the proposed development from the only angle from which it was visible. In Reasoning Point 6 in his letter he says that the Inspector fails to mention the undertaking to extend a line of trees to minimise still further the visual impact from the angle from which the extension can be seen. He points out that the land around is agricultural land without a right of way and that the land in the vicinity of the house is owned by him in any event.

16. May I say at once that I can understand Mr Williams' feelings on this matter. Having seen the photograph of the house which he has had built, it is built from excellent materials and is an architect designed house. The development which he has been seeking would, I have no doubt, be built of the same materials. But the fact remains that the judgment on the visual impact of the development is one for the Inspector. Unless his decision on the visual impact of the development is one to which no reasonable Inspector could come, this court has no power to interfere with it. The Inspector, whether one agrees with his decision or not, was entitled in law to come to the view which he did on the question of visual impact.

17. The third ground raised by Mr Williams refers to Reasoning Point 10 in his letter of 30 December 2002. Mr Williams here complains that the Inspector is in error in describing the form of the extension as materially different to that of the existing building. As I pointed out to him in argument, it was my provisional view, and is now my final view, that the Inspector was entitled to use the expression "form" in the sense of shape. Plainly, the extension which was proposed would alter the shape of the building and the Inspector was therefore entitled to conclude that the form of the building would be altered.

18. The final ground to consider is that in Reasoning Point 13, the fourth matter relied on by Mr Williams in his oral submissions. This was a matter which caused me some concern because this court must be careful to ensure that there is no material procedural unfairness, in the sense that an applicant for planning permission or an appellant to this court is, because of something said or something done or because of the way the procedure was conducted by an Inspector, deprived of an opportunity to make a point which might otherwise have been made.

19. Here I have been reminded by Ms Davies that this was an appeal to the Inspector on written representations which were followed by a site visit. The history of the matter in that regard was that written representations, or at any rate some of them, were submitted by both parties, including the appellant, before the site visit. The site visit took place on 18 November 2002. By written representations contained in the letter of 16 September 2002, the appellant put forward an argument in favour of the grant of his appeal based on the planning history of Ardmore Farm. That is again, like the appellant's house, a relatively newly built development. The points that the appellant sought then and seeks now to make are that there was in the case of Ardmore Farm delegated planning permission, the permitted development involved an 80 per cent increase to the volume of that building, there was a two metre height increase in the building, there was an extension to an existing dwelling; and that was granted in spite of the fact that advice was received from the planners to the effect that the agricultural holding attached to the property could not support the financial cost of the extension to that farm.

20. Mr Williams says, and has said in the material in support of this appeal, that he was told by the Inspector on the site visit that each property had to be looked at on its own merits and, effectively, that the Inspector was not persuaded to and did not wish to consider any local precedents, including Ardmore Farm. The complaint is made by the appellant that, having said that, the Inspector then went on in his decision at paragraph 13 to say as follows:

"I have had regard to all other matters raised, including the Appeal Decisions and other properties referred to, but none of them is sufficient to outweigh those that have led to my conclusion. I consider that the proposed extension, due to its location, size, scale, form and design would result in significant harm to the character and appearance of the Special Landscape Area and the existing building. It would thus conflict with Policies H26, L2 and L9 of the adopted development plan, and with the Council's amended policy H26 originally prepared as part of the Alteration to the Local Plan."

Earlier in his appeal decision he had referred to policies, including policy L2, and at paragraph 4 he said:

"Policy L2 requires that development outside defined development limits should not have a significant impact on the open character and visual amenity of the countryside."

21. Setting aside, for the moment, the argument based on what the Planning Inspector is said to have told Mr Williams, there is nothing wrong in law with the approach of the Planning Inspector as disclosed in the written decision. The question is: does whatever he may have said to Mr Williams render the proceedings so unfair as to be unlawful and did they deprive Mr Williams of an opportunity to develop the case which he otherwise might have developed?

22. I have concluded that it cannot be so established. The reasons are that Mr Williams did in fact make the points in the letter of 16 September. He made them by way of written representations. It is clear, from what Mr Williams reports the Inspector as having said, that the Inspector took the view that little or no weight in this particular case could be given to any particular precedent, and indeed that view is reflected in paragraph 13 of his decision. He rightly states that he has had regard to matters raised, no doubt in the written representations, but he has formed the view that none is sufficient to outweigh those that have led to his conclusion.

23. Properly viewed, therefore, the situation is that, unfortunately for Mr Williams, the Inspector decided that a further exploration of precedents quoted to him would not assist him in the particular task in which he was engaged. That was the task of assessing the effect of Mr Williams' particular proposed extension on the character and appearance of the approved building in the specific surrounding area around that building. Thus my conclusion is on that point that there was no error of law or principle in the Inspector's approach.

24. For all those reasons, the appeal will have to be dismissed.

25. Yes, Ms Davies?

26. MS DAVIES: My Lord, I do have an application for costs. I do not know if you have the costs schedule?

27. MR JUSTICE GIBBS: I do. Has it been served on Mr Williams?

28. MS DAVIES: It has, my Lord.

29. MR JUSTICE GIBBS: Well, I must give Mr Williams the opportunity of making any specific objections to the amount of the costs and then I must scrutinise the costs carefully myself and come back to you with any queries that I have. Mr Williams, have you had an opportunity to look at the costs schedule?

30. MR WILLIAMS: I just received the final version of them yesterday and I would like the opportunity to go through those in more detail, if I may.

31. MR JUSTICE GIBBS: May I make a suggestion? As you can perhaps tell, Mr Williams, unfortunately I have had to be against you on the law, though may I thank you very much for the clarity of your arguments. My decisions on the law, as I think I explained during my judgment, are nothing to do with what may or may not be the merits of the applications.

32. So far as costs are concerned, I think the most helpful thing would be if you would be kind enough to discuss any reservations that you have with Ms Davies, so that further clarification can be obtained from the Secretary of State's representatives as to how the costs are calculated and why they are said to be reasonable. You can raises specific objections and secure explanations of them. I think the best thing, if it is not grossly inconvenient to anybody, is for me to deal with that matter perhaps at 12.50, if you are ready, or at 2.00pm, if you are not. Would that be grossly inconvenient?

33. MS DAVIES: Ten to one would certainly be fine for me, my Lord.

34. MR JUSTICE GIBBS: It is kinder to everybody to have it over before lunch, if for no other reason, but that the costs may be increased if we go over lunch. Do come in at ten to one and we will deal with it.

35. MS DAVIES: May I just say, my Lord, the Secretary of State's schedule of costs was served on 7 April, so Mr Williams has had it for some time.

36. MR JUSTICE GIBBS: Yes. We will allow any discussions and applications if necessary.

(short break)

37. MR JUSTICE GIBBS: Have matters now been explained and discussed?

38. MS DAVIES: They have, my Lord. Could I give you an annotated version of the schedule of costs? My instructing solicitors and I have been through it and attempted to make some reductions to reflect, principally, costs associated with the typographical error by the Inspector. I have been through those with Mr Williams and Mr Williams says that he is now content with the final figure that your Lordship sees at the end of that. So, subject to your Lordship's approval --

39. MR JUSTICE GIBBS: Can that be regarded as an agreed figure, having taken those matters into consideration? Is that right Mr Williams?

40. MR WILLIAMS: Yes.

41. MR JUSTICE GIBBS: Well, if I may say so, it is very proper and responsible for the Treasury Solicitor on behalf of the defendant to acknowledge the contribution that that error made to the bringing of these proceedings and I am happy to approve the costs in the sum of £2,363.75. I make a summary assessment in that figure.

42. Thank you very much.