Millgate Homes Ltd., R (on the application of) v First Secretary of State

J U D G M E N T

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and County Planning Act 1990 ("the Act") to quash a decision of an Inspector appointed by the first defendant contained in a decision letter dated 29 April 2003. In that decision letter, the Inspector dismissed three appeals made by the claimant company in respect of land to the rear of 6 and 8 Linkswood Road, Burnham in Buckinghamshire.

2. The appeal site is situated about half a mile to the north of the centre of Burnham Village. Linkswood Road is a residential cul-de-sac. The site is to the south of Linkswood Road and comprises part of the substantial back gardens of nos 6 and 8. Access from Linkswood Road was proposed to be obtained between numbers 6 and 8. To the west, there is a junction between Linkswood Road and Dropmore Road. To the south of that junction there is a further junction between Dropmore Road and another residential cul-de-sac, Pipers Close.

3. In the three appeals before the Inspector, the claimants sought outline planning permission for three different schemes: (i) the erection of two detached houses, the erection of three 4-bedroomed bungalows, and the erection of twelve 2-bedroomed flats respectively. The dismissal of the appeals relating to the proposals to erect bungalows and flats is not challenged in these proceedings, which relate solely to the proposal for two detached houses.

4. Although the application form dated 16 March 2001 stated that design, in addition to siting and means of access, was to be dealt with as part of the application, it appears from the Planning Officer's report that, although no formal application to amend the application for planning permission had been made, design was nevertheless treated as one of the reserved matters. The planning officer in his report recommended that planning permission should be granted subject to conditions. But, in view of the previous planning history (there had been a refusal of planning permission for three detached houses on the site in 1988) and the issues raised by the current proposal, a councillor had suggested a site visit by the committee. The planning officer commented that, "Such an approach would add value to the decision making process". The evidence before the court does not disclose whether the members did in fact conduct such a visit. The second defendant was not represented before this court.

5. In the event, the members disagreed with the planning officer's recommendation that planning permission should be granted. They decided to refuse planning permission for two reasons as follows:

"(1) The proposal would result in a form of backland development which would be incompatible with the layout and character of existing development in Linkswood Road, and would also be likely to appear obtrusive to adjoining dwellings to the detriment of their amenities. Consequently the proposal is contrary to policies H9 and EP3 of the South Bucks District Local Plan (adopted March 1999).

(2) Furthermore, the proposal, if permitted, would be likely to act as a precursor of further applications for similar forms of development in respect of other sites in the vicinity of the application site, which the District Planning Authority would find increasingly difficult to resist, and which, cumulatively would bring about an undesirable and significant change in the character and amenity of the area."

6. The appeal was dealt with by an exchange of written representations. The Inspector made her site visit on 31 March 2003. In its representations, the council's description of the site and its surroundings included the following:

"Dwellinghouses in this locality comprise of reasonably sized two storey houses fronting on to Linkswood Road with the majority of dwellings filling the width of the plot. The size and depth of rear garden areas in Linkswood Road are generous, and are particularly so in respect of those associated with Nos 6 and 8 Linkswood Road. The density of development in this area is therefore fairly low. Development which borders the site to the south and south east (ie Pipers Close and The Fairway) consist of more modest sized dwellings set within substantially smaller plots. Mature screening in the form of conifers, trees and shrubs exist along the south and south east boundaries of the site."

7. The council amplified its reasons for refusal saying, inter alia:

"The proposed layout of the dwellings would contrast markedly with surrounding development insofar as Linkswood Road and Pipers Close consist entirely of dwellings fronting the highway. The siting of dwellings in the position and manner proposed would introduce a much more built up appearance to the locality and would be of detriment to the amenities of nearby dwellings particularly those in The Fairway and Pipers Close by virtue of their appearing obtrusive when viewed from these properties."

8. So far as precedent was concerned, the council said:

"Although each application must be determined on its own merits, the precedent argument is of obvious relevance in this appeal ... By means of explanation, if development plan policies seek to encourage development which is compatible with the character and amenities of the surrounding area and which should safeguard and where possible enhance the character of the surrounding area, if proposals which would result in overdevelopment of the site through backland development were granted planning permission, there may be increasing pressure in the future to allow similar residential development of the same or even smaller plot lengths and sizes to the rear of existing dwellings which over time would erode the spacious character of the area of Linkswood Road/Dropmore Road in general. Should subsequent proposals be put forward for backland development in the vicinity (for example on the opposite side of Linkswood Road accessed via the side of No 11 Linkswood Road or a site accessed for example to the side of No 68 Dropmore Road) in a similar way to that proposed to the rear of Nos 6 and 8 Linkswood Road, such a proposal would be difficult to resist if the Council had allowed the current proposal. Clearly, such developments over time would lead to an erosion in the general spacious character of the area. A precedent could clearly have been set therefore if the Council had taken a lenient view over this application."

9. The claimant responded to these contentions as follows:

"Reference to the submitted Layout Plans submitted in respect of the three appeals show that the proposed development will not impose markedly on the surrounding development. It is agreed that existing dwellings in Linkswood Road and Pipers Close consist of dwellings fronting the highway but the erection of the proposed development in the spacious Appeals Site will not be widely viewed from the street scenes such as to have any harmful visual impact. The Layout Plans also illustrate that the siting of the proposed developments will be set well away from surrounding development and will be orientated to avoid any unacceptable amenity objections.

...

It is a basic tenet of the planning system that each application should be considered on its own individual merits. Having considered the other areas referred to by the LPA as under risk for future development should these appeals be allowed it is respectfully considered sufficient to say they are not directly comparable to the subject site either in size, relationship to surrounding development, landscape and various other matters of detail. Should applications ever be submitted to the LPA for the development of the other sites referred to they will duly need to be considered according to their own particular merits."

10. It was against the background of these submissions and in the light of her site visit that the Inspector had to determine the appeal. She dealt, first, with procedural matters. In paragraph 1 she said:

"The applications were all submitted in outline. In the application pertaining to Appeal A [the appeal with which we are concerned], the matters of external appearance and landscaping were reserved for a subsequent application and therefore siting, means of access and design were part of the outline application. In the cases of Appeals B and C, design was additionally reserved."

11. On behalf of the claimant Miss Carrington contended that the Inspector had made a factual error since design was not treated as part of the application. I can see no error on the part of the Inspector. What she said was strictly correct; design was not part of the application.

12. Despite the terms of the application, it appears that design was treated by both the appellant and the council as a reserved matter. No material relating to the design of the two proposed detached houses was before the inspector. Understandably, therefore, there is no comment on design in her report. In paragraph 3, the Inspector identified the main issue as follows:

"The main issue is the effect of the proposal on the character and the appearance of the surrounding residential area.

13. There is no dispute that the Inspector correctly identified the main issue. Having done so, she referred to the relevant policies in the development plan and to Government Advice in PPG3 Housing. No issue is taken with her identification of the relevant policies.

14. So far as the local plan was concerned, it did not set its face against backland development per se. Proposals for backland development would be resisted if there would be an unacceptable relationship between existing and proposed development (see paragraph 5 of the decision letter). Having set out the policies the Inspector set out her reasons as follows:

"8. The appeal site comprises parts of the substantial back gardens to 6 and 8 Linkswood Road. Both gardens are currently mainly grassed, except at the very rear where they are overgrown and unkempt. They both include a number of trees and mature shrubbery, including the protected false acacia at no 6 and mature screening at the site boundaries. Around the site, Linkswood Road is an attractive street, characterised by single detached dwellings sited in large plots and fronting the road. Nearby streets such as Pipers Close are also developed along these lines, but to somewhat higher densities. ...

9. In my view, the surrounding residential area has a distinctive and cohesive character based, not least, on the ubiquity of frontage plots. The proposed development would considerably alter the layout of the site and I consider that the introduction of backland housing would be detrimental to that character. The proposed access way would be formed from the existing drive to 6 Linkswood Road; however as it would serve the proposed dwellings as well as this house, so the development would effectively change this drive into a minor estate road created between two detached properties. The proposed dwellings would be visible, particularly from surrounding properties, and they would appear to be at variance with the surrounding estate. Were this proposal to be allowed, it would establish a precedent, in my view, for development of similar backland locations, particularly other properties in Linkswood Road that have large gardens, and this would cause unacceptable harm to the quality of the townscape of the area. I consider that the proposed development would be incompatible with and cause unacceptable harm to the character and appearance of the surrounding area. It would thus conflict with relevant policies of the development plan to which I have referred."

15. Paragraph 10 of the decision letter deals with the other two appeals. Under the heading "Other Matters" the Inspector said:

"11. Third parties have raised numerous other matters, which include the following. There are many objections in relation to highway safety, including the safety of the junction with Dropmore Road, the safety of the access road, the private ownership of and the bend in Linkswood Road, and the increase in traffic that would result from the proposed development. I note, however, that the Council was satisfied with the proposals in these respects, and I see no reason to disagree with their assessments. I also take the view that the proposed developments would not cause harm to nearby residents in respect of privacy, overbearance, noise or loss of light, due to the distances between the site and adjacent houses. I am unable to take account of the external appearance of the three schemes in the context of these appeals; as this is a matter which is reserved for subsequent approval in each case. Finally, there is no evidence to suggest that the proposed development would reduce security, jeopardise protected wildlife species or put pressure on local facilities or services in the area. Nonetheless, these matters do not outweigh my conclusions on the main issue of these appeals."

So the Inspector in dismissed the appeal.

16. It might be thought that these conclusions of the Inspector are pre-eminently matters of planning judgment for her having seen the site; matters which raise no issue that is susceptible of challenge under section 288. Undaunted, Miss Carrington advanced four grounds of appeal as follows. Ground 1 -- The Access Way

17. It was submitted that it was wholly unclear from the decision letter what significance the Inspector had attached to the proposed modification of the access way to number 6, and it was not clear why the Inspector considered that such modification would result in any harm. The Inspector did not explain why, what she described as a "minor estate road", would be undesirable or detrimental in planning terms. This was by no means self-evident. The Inspector had not concluded that the access way would be harmful in visual terms or that there would be an inadequate access to the site. Thus, it was submitted that her comment about what she described as a minor estate road bore no obvious logical relationship to the rest of her reasoning. It was not clear why the observation had been included in the decision letter at all.

18. I agree with Miss Davies, who appeared on behalf of the Secretary of State, that, when the decision letter is read as a whole, the reason is perfectly obvious. It is plain from paragraph 11 of the decision letter that the Inspector was not concerned with issues of highway safety or traffic generation. It is equally plain from paragraph 9 that she was concerned with the effect of the proposal overall on the character of the area. The proposal was not merely to construct two detached dwellings in the rear gardens of nos 6 and 8, it included the provision of access to them. Thus, by comparison with the relatively short front drive leading to the individual garage at the side of number 6, there would have to be a lengthy access way serving three dwellings penetrating into the rear garden area. The Inspector described this as a "minor estate road". She considered that construction of such a road would be detrimental to the character of the surrounding area which was "distinctive and cohesive". It was distinctive and cohesive not least because it consisted of large dwellings which fronted the road. As is plain from a cursory inspection of the ordnance survey map, there is an absence of access ways, to use a neutral term, penetrating into the rear garden area.

19. Against this background, the claimant is, with respect, being forensically obtuse in contending that it is not clear why the construction of a minor estate road into the rear garden area would be detrimental to the character of the surrounding area. The Inspector is required to give adequate reasons for her decision. She is not required to spell out the obvious.

Ground 2 - Precedent

20. It was submitted that the Inspector's reasoning was inadequate because it was insufficiently particularised. Whether a grant of permission would or would not create a precedent was a matter of dispute between the parties in their written representations (see above). Residents' letters objecting to the proposal had raised precedent as a matter of concern. The Planning Officer responded to this concern as follows in his report:

"A number of the letters of objection received from local residents cited concern about this application setting a precedent for further similar proposals and, in fact, this formed one of the reasons for refusal with the application submitted in 1997. However, given the generous plot sizes proposed by this application and the screening surrounding the south and south east boundaries of the site, I consider that the opportunities for further similar development on a site with similar characteristics are limited within Linkswood Road."

It will be noted that the Officer did not discount the possibility of further similar development. His view was that the opportunities for such development were limited. In any event the members disagreed, hence reason 2 for refusal which was amplified in the council statement and responded to by the claimant as set out above.

21. Miss Carrington submitted that, since the matter was in dispute, the Inspector was obliged to deal with the issue of precedent in more detail. In effect, the Inspector was required to identify the properties in Linkswood Road with which she was concerned. Numbers 6 and 8 are on the outside of a sharp bend in Linkswood Road. Therefore, they have particularly large rear gardens.

22. Miss Carrington referred to the Inspector's reasoning in Rumsey v Secretary of State for the Environment, Transport and The Regions and Waverley Borough Council [2001] 81 P&CR 465. The Inspector's reasoning in that case was summarised by Mr Duncan Ouseley QC, as he then was, sitting as a Deputy High Court judge, in paragraph 13 of his judgment. He considered that the Inspector's reasoning in that case had been adequate. Miss Carrington sought to compare and contrast the Inspector's reasoning in the Rumsey case with what she alleged was the paucity of the Inspector's reasoning in the present case.

23. In my judgment that is not a permissible approach. First, Rumsey was a case where the Inspector's decision to refuse planning permission depended entirely on precedent. It had been acknowledged that the relatively modest extension proposed would of itself have a "limited effect", but the Inspector was concerned about the cumulative effect of such extensions within an area of outstanding natural beauty. In the present case precedent was but one of the Inspector's concerns.

24. Of greater significance, the Inspector in Rumsey was responding to the arguments that had been advanced in the appeal before him. The Inspector in the present case was doing likewise. We do not know what arguments were advanced before the Inspector in the Rumsey case. In the present case, the arguments relating to precedent were couched in relatively general terms, albeit the council's representations had referred by way of example to specific properties.

25. Confronted with generalised rival submissions, the Inspector was entitled to respond in kind. On any common sense reading of paragraph 9 of the decision letter, she accepted the council's case on the precedent issue as she was entitled to do. No more detailed explanation was required in the circumstances of this case.

Ground 3 - Frontage Plots

26. It was submitted that the Inspector's conclusions in respect of the character and appearance of the area were inadequately reasoned because they were ambiguous. The Inspector had concluded that the proposed development would "cause unacceptable harm to the character and appearance to the surrounding area," but it was not clear whether she considered that the proposed development would have an impact on the frontage plots which she had described as ubiquitous. If she had thought that there would be an adverse effect on the frontage plots, she was plainly in error. If, on the other hand, she had thought there would be no effect on the frontages, then, it was submitted, her argument was entirely circular. The proposal would be harmful because it was backland development. That was equivalent to approaching the matter upon the premise that backland development was harmful per se, which was not the approach set out in the local plan.

27. I accept Miss Davies' submission that there is no warrant for the contention that the Inspector approached the matter on the basis that backland development would be harmful per se. The inspector had set out the relevant policy in paragraph 5 of the decision letter. Her discussion of the issue in paragraph 9 of the decision letter would have been largely otiose if she had thought that backland development was unacceptable in principle. It is plain that the Inspector considered whether this particular backland development would be detrimental in the particular surroundings of Linkswood Road which she considered was "an attractive street characterised by single detached dwellings situated in large plots fronting the road".

28. It is beyond dispute that that surrounding area, comprising large dwellings situated at the front of spacious plots with extensive garden areas to the rear, would be considerably altered by the introduction of two dwellings, together with a mini estate road, into the rear garden area. The Inspector considered that that change would be for the worse. She was entitled to reach that conclusion as a matter of planning judgment.

29. The issue is a relatively simple one. Instead of looking over extensive rear gardens, the occupiers of the surrounding houses would be able to see two detached dwellings and a mini estate road. I can see no ambiguity. It was never suggested that the proposed development would have any material effect on the view of the site from the frontages of nos 6 and 8. Rather than ambiguity there is, in my judgment, a reluctance on the part of the claimant to face the obvious because it is unpalatable.

Ground 4 - Variance

30. It is was submitted that the Inspector's statement that the proposed dwellings would be at variance with the surrounding estate was not supported by any proper reasons, and it was simply unclear what conclusions the Inspector was intending to draw from this statement. It was further submitted that, in concluding that the proposed development would appear to be at variance with the surrounding estate, the Inspector had failed to take into account the fact that the design of the dwellings was a reserved matter in the application. Thus, there was uncertainty as to whether or not she had based her conclusion in some way upon design issues.

31. It is plain, in my judgment, that there is no question of the Inspector basing her conclusions upon considerations of design. There is no reference to design in the decision letter. No material relating to design was placed before her and, since she was unable to consider the external appearance of the proposed developments (see paragraph 11), that does not suggest that she was able to form any view about design.

32. I can see no mystery about the inspector's conclusion. It is accepted, on behalf of the claimant that, although there is extensive screening in the rear garden areas, that screening would not totally obscure the views of the two dwellings from houses surrounding the rear gardens of nos 6 and 8. The sight of two dwellings in what would otherwise be a rear garden area would be at variance with the surrounding estate. Having regard to the particular characteristics of this estate, the Inspector concluded that that would be detrimental to its character. Again, she was entitled to reach that conclusion.

33. In truth, attractively though they were presented by Miss Carrington, the four grounds of appeal amount to no more than a disagreement with the Inspector's conclusions on the planning merits. I realise those conclusions are disappointing to the claimant, particularly in view of the planning officer's report, but they are conclusions which were open to the Inspector and are not susceptible to challenge under section 288 of the Act.

34. For these reasons this application must be refused.

35. MISS DAVIES: May I hand up a statement of costs to your Lordship.

36. MR JUSTICE SULLIVAN: Is it a agreed?

37. MISS CARRINGTON: It is, both in principle and the amount.

38. MR JUSTICE SULLIVAN: You accept the principle and amount.

39. MISS DAVIES: Yes.

40. MR JUSTICE SULLIVAN: Let us make sure that we are all agreed -- £3,380?

41. MISS DAVIES: My Lord, yes.

42. MR JUSTICE SULLIVAN: The claimant is to pay the first defendants' costs. Those costs are to be summarily assessed in the sum of £3,380.

43. Thank you both.