Burgess, R (on the application of) v Guildford Borough Council

MR JUSTICE RICHARDS: This is an application under section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector appointed by the first Secretary of State to determine the claimant's appeal against a refusal of planning permission by Guildford Borough Council in respect of a proposed development at the claimant's home at Ringwood Cottage in Holmbury, St Mary, Dorking. The development, as described by the inspector, consisted in alterations to a dormer window, new tiled garage/office/playroom roof, external staircase and balcony -- although I should note that the claimant takes issue with aspects of that description. The appeal was dealt with by the written representations procedure. The inspector made a site visit on 9 December 2002. She dismissed the appeal in a decision dated 27 January 2003.

In paragraphs 1 and 2 of her decision the inspector described the proposal and noted that no concerns had been raised relating to the proposed dormer window in the main dwelling. She went on in paragraphs 3 and 4 to describe the site and surroundings. She explained that the site lay within an area of countryside that formed part of the Green Belt, an Area of Outstanding Natural Beauty (AONB), an Area of Great Landscape Value (AGLV) and a conservation area. The existing garage was located to the south west of the main dwelling and stood in a prominent elevated position on the edge of the main built up area of the village and was visible from a number of locations and properties.

In the course of his submissions, the claimant has explained that the existing garage has a low pitched concrete tiled roof and that the intention is to replace that with a new clay tiled roof which will involve an increase in pitch and in the height of the ridge. The area within the new roof is to be used as additional recreational space, with areas currently used for recreation being taken up by the claimant's office space.

In paragraphs 5 and 6 of the decision, under the heading "planning policy", the inspector referred to government policy in PPG2 which explains that the most important attribute of Green Belts is their openness, and that one of the purposes of including land within them is to safeguard the countryside from encroachment. She pointed out that in the Green Belt there is a presumption against inappropriate development, which should not be approved except in very special circumstances. No criticism is made of her discussion of Green Belt policies as set out in PPG2.

Next, in paragraphs 7 to 11, the inspector dealt with relevant policies of the development plan. She referred to certain policies of the Guildford Borough Local Plan 1993. Of particular relevance is her reference to Policy 12RE which she said "advises that there is presumption against development within the AONB and AGLV which would be detrimental to their character and appearance". The claimant submits that she misread that policy. I will come back to that.

The inspector also referred to the Guildford Borough Local Plan Deposit Version 1999, as it then was, to which she said she had given weight in accordance with the advice in PPG1. In fact, it became the adopted plan after her decision had been reached but before it was issued. Although some point was made of this in the claim form it has not been pursued before me and it is clear that the inspector took full account of the relevant policies as they appear in the Deposit Version. She mentioned a number of policies but two are of particular relevance.

In paragraph 9 she stated that Policy 99RE2 advises that new building in the Green Belt is inappropriate unless it falls within certain listed categories. It includes the limited extension of existing dwellings, but does not include any ancillary buildings. In paragraph 10 she stated that Policy 99H9 allows for the extension of dwellings in the countryside provided it accords with certain criteria, although in the Green Belt there is a presumption against disproportionate additions. The claimant complains that the inspector was not given part of the explanatory text to Policy 99H9 and submits that in consequence she fell into error. Again, I will come back to that point.

Having summarised the policy framework, the inspector identified two main issues. First, whether the proposal amounted to inappropriate development in the Green Belt, and if so, whether there were very special circumstances sufficient to overcome the presumption against such development; and secondly, the effect of the proposal on the character and appearance of the AONB and AGLV.

In her subsequent reasoning, she concluded first, under the heading of "appropriateness", that the proposal amounted to inappropriate development in the Green Belt and was contrary to certain local plan policies (see paragraphs 14 and 15). In the course of reaching that conclusion she observed that the garage is sited over 20 metres from the house and on higher ground, and that as such she considered it could not reasonably be regarded as an extension to the dwelling.

Under the heading of "harm" she pointed out first that inappropriate development is by definition harmful to the Green Belt. In addition, she identified a number of specific harmful effects of the proposal. To summarise, the impact of the new tiled roof and associated external staircase and balcony would diminish the sense of openness of this part of the Green Belt (paragraph 16). Given the isolation of the ancillary building from the main residence, the proposed alterations would make the outbuilding highly visible and prominent from views from protected areas (paragraph 17). The height and mass of the proposed roof was excessive and use of the balcony would lead to a perceived extension and intensification of residential use of the building (paragraph 18). The overall height and mass of the roof proposed, the external staircase and fenestration outweighed the benefits of the introduction of the more appropriate roofing material (paragraph 19). For all those reasons the proposal would harm the openness of the Green Belt.

In paragraphs 21 to 22, under the heading of "very special circumstances", she considered the claimant's reliance on a number of existing developments in the locality which were said to include features similar to the proposal. But she drew a number of distinctions between the proposal and those other developments, and did not consider that the existence of similar features elsewhere in the area amounted to very special circumstances.

She then made a number of findings under the heading of "character of appearance". In paragraph 24 she considered that the proposed window and balcony arrangement would add significantly to the residential character of the building and would not be sympathetic to the distinctive character of the surrounding landscape, and that the roof lights would be particularly noticeable. In paragraph 25 she found that the proposed external staircase and balcony area would likewise add to the residential character of the building and would form a prominent and uncharacteristic domestic feature when viewed from the conservation area or the woodland to the rear. In paragraph 26 she stated that, for these reasons, she had come to the conclusion that the proposal would cause harm to the character and appearance of the landscape, and the landscape character of the AONB and AGLV. As such it would be contrary to relevant policies of the adopted local plan and the local plan deposit version, as well as conflicting with other policy material.

She turned to examine other considerations in paragraphs 27 to 32. In paragraph 28 she found that the proposed roof lights and the balcony were not sympathetic to the part of the conservation area within which the building was situated. In paragraph 30 she emphasised her concerns about the material effect of the external staircase and balcony area on the privacy of the neighbouring property called Heathcote. On the other hand, in paragraph 31 she said that in view of the distance between the appeal building and all other existing dwellings she did not consider that the proposal would materially harm the living conditions of the occupiers of any other properties. There followed in paragraph 33 her overall conclusion that the appeal should be dismissed for the reasons given.

It is fair to observe at this stage that the decision letter amounted to a detailed and emphatic rejection of the proposed development as being harmful and incompatible with policy in a number of important respects. The claimant's case however is that there were serious errors in the inspector's approach which resulted in an erroneous and unfair decision. I turn to consider that case, which the claimant has presented in person, helpfully taking me through typed documents containing his submissions and his comments on the skeleton argument filed by Mr Kolinsky on behalf of the Secretary of State.

The first two points made by the claimant can be run together since they relate to the same basic issue. The essence of the case is that the inspector fell into error and the claimant was treated unfairly as a result of the omission from the material given to the inspector of a relevant part of the supporting text to one of the policies of the Deposit Version of the Local Plan. Policy 99RE2 of the then Deposit Version states:

One of the policies to which reference is there made is Policy 99H9 which states:

There were several paragraphs of supporting text to the policy. The last (paragraph 5.41) reads:

The claimant submits that paragraph 5.41 shows that certain ancillary buildings fall within the scope of Policy 99H9. In particular, the extension to the garage in this case was to be treated as an extension to the dwelling even though the garage was not physically attached to the dwelling. Such a development would therefore be permitted provided that the relevant criteria were met. An extension permitted under Policy 99H9 would fall in turn within the exception of the Policy 99RE2 as provided for in paragraph 3 of that policy. Because paragraph 5.41 was missing from her material, however, the inspector failed to appreciate this point and wrongly stated in paragraph 9 of her decision that Policy 99RE2 "includes the limited extension of existing dwellings but does not include any ancillary buildings". She drew her own erroneous conclusion that the garage could not be regarded as an extension to the dwelling and was accordingly inappropriate development. Had she had the missing paragraph she would have realised that the garage came within the scope of the policies and was to be regarded as appropriate development. Accordingly, there was a misinterpretation of the policy and/or a failure to take into account a material consideration and the claimant suffered unfairness in consequence. That is the claimant's case on this issue.

Mr Kolinsky, for the Secretary of State, seeks to meet it in this way. First, he submits that paragraph 5.41 does not have the meaning which the claimant seeks to attribute to it. It does not apply to extensions to existing outbuildings. This is so, he submits, both as a matter of the wording of the paragraph and when one considers the policy context. The criteria in Policy 99H9 can be applied sensibly to the original construction of an outbuilding, but cannot be applied sensibly to the extension of an existing outbuilding. It is not clear, for example, whether questions of the adverse effect on scale and character and of proportionality would fall to be assessed only by reference to the original dwelling or also by reference to the existing outbuilding that is to be extended. Such matters point against the application of the policy to an extension of an outbuilding such as the garage in this case.

For reasons to which I shall come, it is not necessary for me to reach a concluded view on this point. I should, however, indicate that I tend to the view that the distinction that Mr Kolinsky seeks to make is an unduly fine one, and that it would at least have been open to the inspector as a matter of reasonable construction of the policy in the light of paragraph 5.41 to find that an extension to the garage was capable in principle of falling within Policy 99H9 and therefore within the exception to Policy 99RE2, subject always of course to meeting the specific criteria in Policy 99H9. So I make clear that I regard Mr Kolinsky's first point as far from decisive in his favour.

He submits in the alternative, however, that even if the proposal was capable in principle of coming within the scope of Policy 99H9, it is plain from the inspector's conclusions as to the impact of the proposal that it would not have satisfied the criteria in that policy and would not, therefore, have complied with the policy or have fallen within the exception to Policy 99RE2. In particular, the inspector's findings at paragraphs 16 to 20 of the decision as to various harmful effects of the proposal are such that it plainly did not satisfy the criteria that "it will have no adverse effect on the existing context and character of the adjacent buildings and immediate surroundings" and would not result in a "disproportionate" addition.

In my judgment, that alternative submission is well-founded. Having regard to the strong findings made by the inspector throughout the decision letter and in particular in paragraphs 16 to 20, it seems to me that the proposal necessarily failed to satisfy the criteria in Policy 99H9. It would not, therefore, have been regarded as a development permitted under that policy even if the inspector had treated the policy as applying in principle to an extension of this kind. It follows that it would not have come within the exception to Policy 99RE2 and, on the ordinary application of that policy, it would still have been deemed inappropriate development. The inspector's conclusions as to the conflict of the proposal with policy would necessarily have been the same.

What is the consequence of all that? Mr Kolinsky submitted that it meant that there was no misunderstanding of the policy at all. I am not persuaded of that. If Policy 99H9 was capable in principle of applying to an extension of an existing outbuilding then the inspector erred in treating it as having no possible application. There was a misunderstanding of the policy and to that extent there was an error. On the other hand, I am satisfied that she would have reached exactly the same conclusion on the application of the policies, and overall, if she had treated the policy as being capable in principle of applying to an extension of this kind. I am also satisfied, and should mention this for completeness, that the claimant suffered no unfairness as a result of the omission of paragraph 5.41 from the material before the inspector. He had an opportunity, which he took, to make representations to the inspector which included reference to any policies upon which he wished to rely. He did so and, in fact, did no more than express doubt as to whether Policy 99H9 was relevant to the proposal. The omission of paragraph 5.41 from the inspector's papers did not give rise to any procedural unfairness. It only gave rise to the problem with which I have already dealt. The absence of any unfairness is reinforced by the fact that the decision would have been the same if the relevant text had been included.

In conclusion on this issue, I have no doubt that if the inspector did err in the way I have indicated, the error was immaterial, did not give rise to unfairness and should not lead to the quashing of her decision. The grant of withholding of relief is in the discretion of the court. It is well established that, if the court is satisfied that although there was an error it did not affect the outcome, it can withhold relief: see the test in Simplex Holdings v Secretary of State for the Environment [1988] 3PLR 25. So far as the first issue is concerned, this is such a case. I proceed to consider the other issues.

The contention here is that the inspector misread Policy 12RE of the Guildford Borough Local Plan 1993. The wording of Policy 12RE was as follows:

The claimant contends that the inspector was wrong to state in paragraph 7 of the decision letter that the policy "advises that there is a presumption against development within the AONB and AGLV". The policy confirms that a development within the relevant area is possible, whereas the inspector mistakenly proceeded on the basis of a presumption against it.

When assessing what the inspector said about the policy, it is important to have in mind the cautionary observations of Hoffman LJ in South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR 80 at 83:

What Mr Kolinsky submits is that the inspector plainly understood the effect of Policy 12RE. She paraphrased its effect in paragraph 7. In paragraph 26, however, she concluded that the proposal would cause harm to the character and appearance of the landscape and the landscape character of the AONB and AGLV. It is clear from that and the decision letter as a whole that she understood the substance of the policy and correctly applied it to the circumstances of the proposed development. I accept those submissions. In my judgment, if the decision letter is read as a whole and with due regard to the observations of Hoffman LJ, it is plain that the inspector did not fall into error in her understanding or application of the policy.

The description of the proposal as formulated in the decision letter resulted from a change introduced by the inspector herself. As paragraph 1 of the decision letter indicates, she considered the change appropriate for reasons of completeness so as to include mention of the external staircase and balcony area. The claimant, however, complains about this change, saying that the balcony was designed simply as a landing to gain access to the roof space and that the inspector was wrong to treat it as a balcony on which people would sit, and that this in turn led to her reaching an erroneous conclusion about the effect of the development on the privacy of the adjoining property, Heathcote. It is further submitted that it was unfair for the inspector to make this change without giving the claimant an opportunity to comment on it.

I cannot accept those submissions. As Mr Kolinsky points out, the description of the proposal is a matter of judgment for the inspector. She is not bound by the words used in the application. She has the power and, indeed, the duty to express the matter in a way that, in her judgment, best reflects the true position. Her judgment can be challenged only on grounds of irrationality. In this case she was, in my view, fully entitled to refer to a balcony and to take account of the possibility that people might sit on that balcony, irrespective of the claimant's own immediate intentions as to its use. In the material that was before the local planning authority, there are references that tend to support the description of a balcony, but it is not necessary to go into any of that material. What matters is that, although the claimant may disagree with the inspector's description, he has, in my view, no basis for challenging the rationality of that description. Moreover, I am satisfied that this is the kind of judgment that an inspector is entitled to make in her assessment of the case without putting the point back to the parties for comment. There was, in my judgment, no procedural unfairness.

I deal next with submissions made by the claimant about two passages in the decision letter where he says the inspector fell into factual error. The first is paragraph 25 where the inspector said that the proposed external staircase and balcony area "would form a prominent and uncharacteristic domestic feature when viewed . . . from the woodland to the rear". The claimant says that it is not possible to see the staircase or the balcony from the woodland to the rear. He also says that the inspector changed her position on this issue when responding in a witness statement to what was said in the claim form. In paragraph 4 of the inspector's witness statement, she says:

The claimant says that there is a considerable difference between seeing the whole of the staircase and balcony area, as is suggested in paragraph 25 of the decision, and seeing only the handrail which probably only represents some 2 per cent of the structure as indicated in paragraph 4 of the witness statement. In my view, there is no substance in that criticism. It was the inspector's duty to visit the site and to ask herself the relevant questions and make her own observations. She did all of that. She makes clear in her witness statement that she did visit the woodland at the back and that she did form a judgment about what could be seen from there. I see no material conflict between what she says in the witness statement and what she said in paragraph 25 of the decision, when she referred to the effect of the staircase and balcony "particularly when being used". Nothing in the evidence could justify my concluding that the finding made in the decision letter fell outside the area of reasonable judgment open to her. Accordingly, I reject the claimant's submissions on that aspect of the case.

Similar considerations apply to the second allegation of error that the claimant advances. In paragraph 30 of the decision letter, the inspector found that "it would be possible to sit in the balcony area and look directly up the driveway to Heathcote to the main house". In paragraph 5 of her witness statement, again meeting what was said in the claim form, the inspector states:

The claimant complains about this, stating, amongst other things, that no-one from Heathcote parks and walks up to the house which is some 100 metres away, as there is ample parking immediately outside the house. Again, in my view, there is no force in the complaint. The inspector made the kind of judgment that she is required to make in the course of a site view. The judgment that she reached cannot be impugned as an irrational one.

Finally in this section I should mention a further criticism that the claimant makes, again arising out of a passage in the witness statement. In paragraph 6 of the witness statement the inspector says, amongst other things:

The claimant refers to paragraph 31 of the decision letter where the inspector stated that, in view of the distance between the appeal building and all other existing dwellings, "I do not consider that the proposal would materially harm the living conditions of the occupiers of any other properties". The claimant's case is that there is a contradiction between those two passages. I disagree. It is clear from the overall context within the decision letter that paragraph 31 was referring to properties other than Heathcote. She had plainly found harm to the living conditions of the occupiers of Heathcote. There is nothing wrong with the way she summarised the matter in her witness statement, save possibly the use of the plural "other properties" rather than the singular "other property", namely Heathcote. In any event, this is a point that is wholly incapable of affecting the lawfulness of her decision.

I have covered the main points advanced by the claimant. I have not thought it necessary to deal specifically with certain of the language used by him where he has alleged that the inspector showed prejudice against him or lied. Nothing in the case justified such intemperate criticism of the inspector, but I thought it better to concentrate on the substance of the points advanced by the claimant. For the reasons I have given, the only respect in which I think the inspector may have erred is in relation to Policies 99H9 and 99RE2 as a result of the omission of paragraph 5.41 from the material before her. I do not have to reach a final decision on whether there was an actual error because I am satisfied that if there was it had no effect whatsoever on her conclusion concerning the application of the relevant policies or on her overall conclusion. The matters of substance identified by the inspector led inevitably to her dismissal of the claimant's appeal to her. They would have done so whatever view she had taken about the applicability in principle of Policy 99H9 to extensions to existing outbuildings. Accordingly, if there was an error it was a technical one and would not warrant the grant of relief. It follows that the claim to this court must be dismissed.

CLAIMANT: I am grateful for your Lordship's judgment. My Lord, I am instructed to make an application for costs. I do not know if your Lordship has seen the schedule.

MR JUSTICE RICHARDS: I have seen the schedule.

MR KOLINSKY: My Lord, the schedule was served well within, I think, last week so there is no question of the 24-hour rule. It comes to a total of £4,150. In my respectful submission, this is a case where costs should follow from the decision. When one starts High Court proceedings one inevitably takes a risk and if the judgment is found against one on any matter of substance or even a matter of discretion, in my respectful submission, costs should follow the event, and I respectfully observe the sums incurred by the Treasury Solicitor and, if I may say so, Treasury counsel are of the appropriate order and magnitude in a case such as this and that an order should be made in terms of the schedule.

MR JUSTICE RICHARDS: Thank you very much. Mr Burgess, I stopped you earlier when you were going to deal with the question of costs because I wanted to see whether it arose. It does now arise. You dealt with it on page 8 of the submissions you provided to me, asking that really there should be no order for costs so that the costs are borne where they fell; that is to say borne by the parties that incurred them. You say that that is so because there have been significant grounds for making the claim, in particular because the missing page was "withheld", as you put it, by the Council. Well, the page was not supplied to the inspector. Now I understand why you have these anxieties about the missing page, but my judgment made clear why, in the view that I have formed, it really made no difference. Your problem is that you pursued this claim on that and all the other points to court. You have caused the Secretary of State to incur costs. In the ordinary course the claimant, having lost the claim, will be required to pay the costs of the defendant who has been caused to incur them through resisting the claim. Is there anything else you want to put forward to me as a reason for departure from that ordinary rule?

CLAIMANT: I suppose not, your Lordship. If I may apologise to the court for the intemperate language --

MR JUSTICE RICHARDS: I have made clear that I did not allow that to affect my judgment in the matter. In any case one does need to be very careful before advancing accusations of lying and of misconduct of that sort. It is a very serious accusation made of an inspector. I have treated it with frankly the contempt which it deserved, but I have not allowed it in any way to colour my appreciation of the substance of your case.

CLAIMANT: I understand what you say, your Lordship.

MR JUSTICE RICHARDS: On costs I cannot myself see what else might be said in your favour in relation to it. You have not been taken by surprise in relation to any of the matters relied on by the Secretary of State or anything of that sort. It has been a perfectly ordinary contest, if I can put it that way, in which you have known the risks you were taking and you have lost, and unless there is anything else you want to advance to me I see no option but to make an award of costs against you.

CLAIMANT: My view, your Lordship, was that I was disadvantaged as I said and there was a missing page and it seemed to go to the heart of the matter. I clearly hear your summary of events which, of course, I have to respect, your Lordship. I cannot particularly express surprise, obviously, whilst you were delivering your verdict, so that is why --

MR JUSTICE RICHARDS: I appreciate you are in a very difficult position.

CLAIMANT: As I said it is a view I had and you have a contrary view. I have to accept that, of course, your Lordship, but I think the second defendants have, I am afraid, contributed in some way -- they did say the inspector should have noticed about the missing page. I thought that gave me some hope for a review of the decision. That is all I can say, your Lordship. I have not come here to be vindictive or, dare I say, be rude to the inspector at all. It is an honest view maybe not expressed perfectly. It is obviously a lot of money and I would prefer not to pay it, but I rest that in your hands.

MR JUSTICE RICHARDS: Thank you very much, that is very fairly put. Costs are never a happy topic in a situation of this kind, but the application has been made on behalf of the Secretary of State and, in my judgment, it is a proper application and well-founded. I see no reason why I should depart in this case from the ordinary rule that applies. You have brought the case through to a hearing and failed comprehensively for the reasons I have given in my judgment. In those circumstances I must order you to pay the costs of the Secretary of State. There is a second level of inquiry to be made which is as to the reasonableness of those costs. That is not a matter on which I would expect you to be able to contribute very much. The figure that is put forward is frankly a modest one by the standards of these cases. Of course if there is anything you want to say this is your chance to say it. Again, for my part, on the face of it I cannot see any reason to reduce the figure that is put forward by the Secretary of State.

CLAIMANT: I see, your Lordship. Is there an opportunity to pay it by instalments? Is there any discretion in that respect?

MR JUSTICE RICHARDS: There is certainly a discretion in that respect. What difficulties do you face in meeting what I accept is a large costs bill? Does this come out of a business or does it come out of private money?

CLAIMANT: It comes out of private money because it is a private matter, your Lordship.

MR JUSTICE RICHARDS: What proposal would you like to make to me?

CLAIMANT: Am I able to pay it over a year -- 12 equal instalments. I am not sure what is normally given discretion to.

MR JUSTICE RICHARDS: Well let me see what Mr Kolinsky has to suggest in relation to this. I am certainly prepared to allow some time within which to pay it. There are two possibilities really. One is to allow a number of months before the full whack is paid, which may be more convenient; the other is to allow a certain amount to be paid on a monthly basis which I suspect is less convenient. Mr Kolinsky, have you taken any instructions?

MR KOLINSKY: My Lord, I do not have specific instructions on the proposal for 12 months. I would imagine my Lord's instinct of administratively it may be better to have it in one chunk rather than drip fed. In the absence of a distinct hardship case, 12 months appears to be a long period, but certainly there is no application that it ought to be 14 days. Your Lordship plainly has a discretion and I will rest in your Lordship's judgment as to what the appropriate period is in the light of any specific financial observations that Mr Burgess wants to make. It is up to your Lordship's discretion generally.

MR JUSTICE RICHARDS: Thank you very much. Mr Burgess, Mr Kolinsky is quite right. I do regard 12 months as far too long a period in the absence of a very strong case about your difficulties. I am, however, prepared to allow you 3 months in which to pay the costs, and rather than provide for a certain sum each week or month I am simply going to say that the total must be paid within 3 months.

CLAIMANT: Thank you, your Lordship.

MR JUSTICE RICHARDS: Now the other thing I should draw to your attention is that, if you were minded to pursue this case on appeal, you would have to seek permission from me. This is a case where there is technically a right of appeal, is there not Mr Kolinsky? We are in section 288 not section 289, yes. I am in no way encouraging you to pursue an appeal as would be evident from the language I adopted in my judgment, but out of fairness to you I must indicate that there are tight time limits if you want to pursue an appeal and it would be dependent upon getting permission from me or from the Court of Appeal. You may be able to have a guess at what my reaction is likely to be, but it is for you to apply if you want to.

CLAIMANT: I understand.

MR JUSTICE RICHARDS: Thank you very much. I take it from that that you do not wish to make an application?

CLAIMANT: Indeed.

MR JUSTICE RICHARDS: If I may say so I think that is a very well advised course. Can I thank you for your assistance in dealing with what I know must be quite a difficult task in an unfamiliar setting such as the court room. You did assist me very much by having it set out so clearly in your written papers. That was very helpful, thank you, and thank you, Mr Kolinsky.