Meritgold Ltd v First Secretary of State & Anor

J U D G M E N T

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision made by an Inspector appointed on behalf of the First Defendant contained in a decision letter dated 20th May 2002.

2. The appeal was concerned with a block of flats, Foley Court, 55 Nether Street, Finchley N12. As the Inspector said in his decision letter:

"Foley Court comprises of a brick- built four- storey block of flats located at the junction of Nether Street and Birkbeck Road in the Finchley area of the Borough. The first three floors of accommodation are broadly similar in form."

He then describes the nature of the six flats contained in the first three floors. The decision letter continues:

"No 7 consists of a two- bedroom flat on the fourth floor. It occupies just the western side of the building and has a box- like appearance under a parapet roof. The fenestration is somewhat different from the remainder of the apartments."

3. As the Inspector noted, the appeal scheme, which was for the retention of and alterations to flat No 7, had a long and complicated planning and legal history, going back as far as 1985. In brief, planning permission was granted in 1985 for the erection of a three- storey block of six flats. Rather than build six flats, a four- storey building was erected, with a seventh flat on top of the three- storey block of six flats. That resulted in an Enforcement Notice in 1989, which was in due course upheld in 1990. The Enforcement Notice required the demolition and removal of the fourth storey.

4. There was a series of applications for permission, essentially seeking to retain the seventh flat, with varying degrees of alteration or modification. All of those applications were refused. The latest refusal to go to appeal was dismissed in June 1998.

5. The Inspector noted that, so far as the application the subject of the appeal before him was concerned, the Claimants regarded it as a positive, pragmatic attempt to resolve the matter without further recourse to law. He said this:

"A number of alterations are proposed to Flat 7 in order to reduce its visual impact in the street scene and to address the detailed criticisms made by the last Inspector in 1998. They comprise: (a) a reduction in the height of the building by 1m throughout reducing the floor- to- ceiling height from 2.6m to 2.2m and by removing the 600mm tall brick parapet; (b) conversion of the external walls to a 'mansard' roof appearance, clad with slates; (c) insertion of patio doors and balcony railings in the rear (south) elevation to align with those in the three floors below; (d) replacement of brick piers around the roof terrace with railings; and (e) insertion of two additional landing windows in the front elevation at first and second floor levels."

6. The Inspector carried out an unaccompanied inspection of the site and the surrounding area on 13th May 2002. He said at the outset of his decision letter that he considered the main issue in the appeal to be the effect that the retention of flat 7 as altered would have on the character and appearance of the area. The Inspector in paragraph 11 of the decision letter said this:

"The appeal premises occupy a prominent site at the junction of two roads. Travelling towards the appeal site along Nether Street in either direction from its junctions with Gainsborough Road and Ballards Lane, Flat 7 stands out harshly against the skyline. When viewed from the west that effect is highlighted by the gradient of Nether Street. Seen from that direction the development competes with and obscures views of the adjacent church tower. Looking along the length of Birkbeck Road from the junction with Hutton Grove the effect is equally severe with the rear elevation of the appeal premises rising above the roofs of neighbouring dwellings. The unit has all the appearance and attraction of a rectangular brick box placed, in my view, rather ungainly on top of Foley Court. I give little credence to the argument that Foley Court is today an established part of the street scene ... In its present condition I believe Flat 7 to have a severe adverse impact on both the Nether Street and Birkbeck Road street scenes which, in general, are characterised by architecture of a more domestic scale and appearance."

The Inspector then went on to consider what the effects of the proposed alterations would be. He said this:

"I accept that the external alterations now proposed to Flat 7 represent an improvement over the existing situation. A reduction in the height of the building by 1m, its cladding with slates to create the appearance of a 'mansard' roof, and the removal of brick piers around the perimeter supporting the metal balustrade will all help in a fairly modest way to reduce its visual impact. Moreover, changes to the fenestration to improve the symmetry of the fourth floor elevations to make them relate better to the rest of the building would create a more balanced and inclusive appearance, less jarring to the eye. However, the basic underlying design objection would remain. That relates to the actual and perceived bulk of the scheme. It would not, in my view, be adequately addressed by these measures, many of which are fairly cosmetic in nature."

In paragraph 13 he concluded:

"My site inspection confirms that even after the works proposed are carried out, the bulk of Flat 7 would still be highly visible from both Nether Street and Birkbeck Road, breaking the skyline and soaring over neighbouring buildings. It would remain an unduly obtrusive feature at this very prominent corner location, out of scale and keeping with the character and appearance of its domestic surroundings. Such a building mass, albeit somewhat reduced, would I believe continue to harm the street scene. That adverse impact would not be outweighed by the benefit to the housing stock of maintaining an existing dwelling unit in an area where there is pressure on housing accommodation. I find the appeal proposal to be in conflict with the aims of the development plan, emerging planning policies and the design advice set out in PPG1 that together seek to ensure that the buildings respect and harmonise with the scale and form of surrounding development."

Under the heading "Other Matters" the Inspector said:

"I have taken into account all of the other matters raised in the representations including the minor visual improvements that would result from the amended on- site parking arrangements ... and the encouragement given by PPG3 to higher densities and maximising the development potential of brownfield sites. I have also had regard to comments made by the Finchley Society at application stage who considered the appeal scheme to offer a realistic compromise, together with the lack of objections from local residents and others. But neither these nor any other matters brought to my attention outweighed the considerations which lead me to my overall conclusions."

Those overall conclusions were:

"I conclude that the physical alterations proposed are insufficient to overcome the serious harm that the retention of Flat 7 would cause to the character and appearance of the area."

Consequently the Inspector saw a clear conflict with policies in the UDP and with emerging planning policies and he therefore dismissed the appeal.

7. It might be thought that that decision was preeminently a question of planning judgment for the Inspector, giving rise to no conceivable issue of law appropriate to a challenge under section 288. The claim form - - which, I should emphasise, was not drafted by Mr Dagg, who appears on behalf of the Claimant today - - contended that the First Defendant, through his Inspector, had "erred in law" in one or more of the following respects, namely by:

"(i) failing to have regard or sufficient regard to the evidence before him concerning the alterations to the appeal property in that he failed to consider the fact that the Second Defendant had failed to supply him with any fresh evidence supporting their refusal to grant planning permission. The only evidence submitted to the Inspector was historic dealing with previous applications and appeals at the appeal site

(ii) failing to have regard or sufficient regard to the evidence before him namely that the modified plans have the support of the Finchley Society, which considered that this plan was a 'real attempt to find an acceptable compromise and the Finchley Society does not [in] all the circumstances object to it';

(iii) failing to have regard or sufficient regard to the evidence before him namely that sixteen local residents had been consulted about the proposal and that save for the Finchley Society no objections had been received;

(iv) failing to have regard or sufficient regard to the First Defendant's Inspector's concerns in his decision letter dated 15th June 199[8] and the fact that the Claimant had dealt with many of his concerns through the alterations submitted in the current application;

(v) failing to have regard or sufficient regard to the fact that the appeal property does exist in a street scene along with other buildings of similar height;

(vi) failing to have regard or sufficient regard to the fact that the property has been in its present form for fourteen years and has become part of the street scene;

(vii) failing to have regard or sufficient regard to the extensive modifications to the property proposed by the Claimant;

(viii) wrongly concluding based upon insufficient evidence that many of the modifications proposed by the Claimant were 'fairly cosmetic in nature';

(ix) wrongly identifying as a major issue and placing undue weight upon the fact that the other buildings of a similar height are institutional in nature;

(x) wrongly identifying as a major issue and placing undue weight upon the history of the building and failing to consider the matter in isolation."

There is an alternative suggestion that the Inspector failed to give adequate reasons.

8. The first point to make in respect of those grounds of challenge is that applications under section 288 are not to be used as an opportunity to have a rerun of the arguments on the planning merits. There has to be some error of law or procedure on the part of the Secretary of State. An allegation that an Inspector has paid overmuch or insufficient regard to a particular factor does not raise any issue of law. It is well established that the weight to be attached to a particular piece of evidence is for the Inspector to decide. A contention that an Inspector has failed to have any regard to a material factor does potentially raise a question of law. Very often the factor that the Inspector has omitted to consider in his decision letter will have been a consideration that the Inspector has not regarded as important. It is part of the Inspector's job to decide what is and what is not an important issue.

9. That does not arise in the present case because it is apparent from the passages from the decision letter that I have read that the Inspector did have regard to each and every one of the factors mentioned in the grounds of challenge in so far as it was necessary for him to do so. He had regard to the proposed alterations put forward by the Claimant. He sets them out in paragraph 10 of the decision letter. He had regard to the fact that the Finchley Society had made supportive comments at the application stage. He had regard to the fact that there was a lack of objection from local residents. He had regard to the earlier decision letter and the appeal which was dismissed in June 1998. He was well aware of the fact that the Claimant was contending that the alterations were sufficient to deal with the concerns expressed at that stage. Whether they did so was, of course, a matter for the Inspector's planning judgment. It is plain from the Inspector's description of the surrounding area, which I have not read out, that he did have regard to the neighbouring street scene. It is also plain that he had regard to the argument that Flat 7 had been part of the street scene for a number of years. He did not attach any great weight to that argument. He was perfectly entitled to adopt that view, particularly bearing in mind the enforcement history of the site. It was a matter for the Inspector's planning judgment as to whether the modifications could be described as "fairly cosmetic" in nature or more substantial. The Inspector was perfectly entitled to have regard to the history of the matter and to the characteristics of the other taller buildings in the area.

10. As to the point about the Second Defendant failing to supply any fresh evidence, it is plain that the Council did refuse permission and the Inspector was therefore required to form his own view. He concluded that, although changes were proposed, they were fairly cosmetic in nature and did not remove what he described as the "basic underlying design objection". That would explain why the Council felt it unnecessary to adduce any further evidence: the basic underlying objection remained.

11. For these reasons, which I have expressed relatively shortly, it is plain that this application is simply an attempt to reargue the merits. Nothing has been identified which was not considered by the Inspector. The only complaint is, in essence, that the Inspector should have given different weight to those factors and should have agreed with the Claimant's view of the planning merits. The Inspector was entitled to disagree, and this court will not interfere with his judgment in such a matter, not least because he is the one who has visited the site and the surrounding area.

12. When the matter came on before me at 10.30 this morning, Mr Dagg appeared on behalf of the Claimant and asked for an adjournment. He had been instructed at very short notice and his instructions were confined to seeking an adjournment. He said, upon instruction, that the Claimant considered that it would be prejudiced if this application was heard before certain other matters that are apparently being litigated in relation to the site. When I enquired why it was thought that the claimant would be prejudiced, Mr Dagg very properly said that he had no instructions as to that. In the circumstances I considered that it would not be appropriate to grant the application for an adjournment. I can see no reason why the Claimant should be prejudiced in other litigation by resolving the outstanding challenge to this particular decision letter. As I have mentioned, the decision letter is dated 20th May 2002. The matter has already been adjourned. It is now a very old decision letter as these decision letters go. It is important, from the point of view not merely of the Claimant but of the Local Planning Authority, local residents and others, that questions as to the validity of appeal decisions such as this should be resolved as soon as possible.

13. In the circumstances, I therefore allowed Mr Dagg to return at 2 pm to give him an opportunity of taking instructions so that he could be placed in the position, if the Claimant so wished, to argue the merits of the matter. When the matter resumed at 2 o'clock, Mr Dagg made it plain that he had no further instructions beyond the instruction simply to press for an adjournment.

14. Had I thought that there might be some point of law lurking in this application then I might have been prepared to consider an application for the adjournment more favourably. I say 'might' because the principal Defendant in this matter is the First Secretary of State, not the Barnet London Borough Council. It would appear that the Claimant has sought adjournments from the Administrative Court Office. Adjournments have been agreed by the Council, but the Secretary of State has been kept out of the loop. In December 2002, the Secretary of State consented to an adjournment for four months, but to no further adjournments. It would appear that, as a result of correspondence between the Claimant and the Second Defendant, the case was taken out of the list and marked not to be heard before a date in August, in the hope that a further application for planning permission might resolve all outstanding issues. But there was no further communication with the Treasury Solicitor. Thus, whatever the attitude of the Second Defendant may have been, it is plain that the First Defendant did not agree to any further adjournment and the request to the First Defendant to adjourn came very late in the day on 3rd October. In these circumstances, I am satisfied it would not be right to grant an adjournment - indeed, it would be quite unjust to the First Defendant to leave a question mark hanging over this decision letter. For all of these reasons, I refuse an adjournment and, having considered the substantiative application, dismiss the application.

15. MR FORSDICK: I am grateful, my Lord. There is an application for costs. I hope my learned friend has received a schedule of costs?

16. MR DAGG: I have.

17. MR FORSDICK: There are two points I need to make on it. My Lord, has the court received it?

18. MR JUSTICE SULLIVAN: No, I do not have anything. (Handed.) Thank you.

19. MR FORSDICK: There are two points I would like to make. Over the page on page 2, solicitors' cost/attendance at the hearing, we need to adjust those to take account of what has happened today - extra travelling time but less hearing time. So the figure that currently stands as £3,360 should be reduced to £3,325, and that brings the total down to £4,385.

20. MR JUSTICE SULLIVAN: Yes.

21. MR FORSDICK: There is one further point I should raise with the court. The hours spent on documents, 14.3, constitutes a significant proportion of the whole. Rather unusually, this is a case in which I am instructed there has been a very strenuous effort to split up the costs of the three cases, because my Lord will be aware that there are three challenges. I am assured that that is a proper attribution of hours spent over the years in dealing with this application.

22. MR JUSTICE SULLIVAN: It is a heck of a lot of hours on one small decision letter.

23. MR FORSDICK: My Lord may take that view. There is a signature. As I say, those hours have actually been spent. Whether my Lord thinks it is appropriate to award the number of hours is a different matter.

24. MR JUSTICE SULLIVAN: Mr Dagg, what do you want to say?

25. MR DAGG: My Lord, in the circumstances I think there is nothing that I can say.

26. MR JUSTICE SULLIVAN: About the principle or the detail?

27. MR DAGG: Certainly about the principle, nothing. With regard to the detail, there is nothing that I could add beyond what your Lordship has already observed. I should emphasise that I do not have any detailed instructions to comment on this; I am simply making an observation along the same lines as your Lordship observed.

28. MR JUSTICE SULLIVAN: Yes, thank you very much indeed.

JUDGMENT ON COSTS

29. MR JUSTICE SULLIVAN: I am satisfied that the Claimant should pay the Defendant's costs. I am satisfied that they should be summarily assessed. I think what I am going to do is to shave just a little bit off the amount of work done on the documents, because 14.3 hours does seem to me to be quite a lot of hours to spend. So what I am going to do in fact is to knock off probably about 2- and- a- half hours. I am reducing the sum claimed from £4,385, as it now is, to around £4,000.