Dacorum Borough Council v The First Secretary of State

MR JUSTICE ELIAS: Mr and Mrs Cannon, the second defendants in this appeal, but not represented before me, sought planning permission from the claimant, Dacorum Borough Council for the construction of a pergola and gates at their property at 19 Ringhall, Berkhamsted. That application was refused on 17th March 2003. There was an appeal to the planning inspector appointed by the First Secretary of State, the first defendant. It was heard on the papers alone, and that appeal was allowed. The decision was dated 15th December 2003. The claimant appeals pursuant to section 288 of The Town and Country Planning Act 1990 and contends that the inspector erred in law in her decision.

Mr and Mrs Cannon proposed that the gates and pergola should be constructed at the rear of their 19th century cottage with the gates giving access to a private road which provides rear access to a number of properties in the road. The question to be determined is whether or not it was in accordance with planning policy. The relevant policy is the Dacorum Borough Local Plan which, as the inspector noted, is moving towards adoption. The proposed modifications to the plan were published in August 2003. Policy 5 sets out the forms of development accepted in a rural area, which this is. In respect of extensions to dwellings it is accepted on all sides that the relevant policy is Policy 23. That requires an extension to comply with five criteria which, put succinctly, are that the extension should be compact and well related to the existing buildings; that it should be well designed having regard to the size and shape of the site; that it should not be visually intrusive; that it should not result in the retention of any significant trees or hedgerows; and, finally, that it should be limited in size.

The inspector took the view that proposal complied with the first four of these criteria and there is no appeal against that. The appeal relates only to the fifth of these relevant criteria.

The only issue therefore was whether it was open to the inspector to find that the criterion in relation to size was satisfied. Policy 23 provides that for proposed development within rural area:

The question is whether the extension infringed that particular principle. In this connection it is pertinent to note that the house has been extended in the past on two occasions so that the floorspace of the house itself is 161% of its original size. In addition, there was subsequently permission to build a double garage, and the floorspace as a consequence of that, increased to 254%. The basis on which the council refused the proposal in this case was that it took the view that the proposed development would involve a yet further extension of 13 square metres to the floorspace, taking the increase up to 276% above the original floorspace. The inspector accepted that if the pergola could be regarded as creating any additional floorspace then the council's position was wholly sustainable. She said that on the premise that the pergola could be considered as floorspace, "I would have no hesitation endorsing the council's position". However, the inspector concluded that the council's premise was mistaken. She held that the extension did not involve any increase in floorspace and that, accordingly, Policy 23 was not engaged.

She gave her reasons on this particular point as follows:

The appellant submits that the reasoning of the inspector can be described as follows. First, she has implicitly accepted that if the space beneath the pergola could be used for any purpose then it would constitute floorspace. Second, she has concluded that the space could not be used for practical purposes, but the reason given by the inspector is that if it were to be so used `it would render the gates unusable'. However, submits Ms Busch for the appellants, it plainly would have that effect only if it were intended that the gates should open inwards; the gates would always be useable if opened outwards. It is only if opened inwards that they would be affected by the use to which the space was put. In fact, as the plan makes plain, the proposal is that they should open outwards. Accordingly, say the appellants, the inspector obviously acted under the misapprehension that the gates on the proposed development would open inwards. It follows that she either failed to take a relevant consideration into account (namely, that the gates would open outwards and not inwards) or she acted on a fundamentally false factual premise. Alternatively, it is alleged that if she were aware that the gates opened outwards, then it was irrational for her to have concluded that the space beneath the pergola was not floorspace since then it could obviously be used for a practical purpose without affecting the use of the gates at all.

Ms Busch for the appellants understandably places considerable significance on the comment by the inspector, to which I have made reference, after commenting that the gates would be unusable, that it is "for that reason" that she did not regard it as floorspace. Ms Busch submits that this demonstrates that it was only the limitation of the gates which prevented the inspector from treating the space as floorspace within the meaning of Policy 23.

Mr Palmer, counsel for the Secretary of State, rejects this analysis. He says that it is plain from the plans that the gates were to open outwards and there is nothing in the decision which is inconsistent with that, nor was there anything in the submission of the parties that placed any significance on the direction in which the gates opened. The council had contended that the space beneath the pergola was floorspace, whereas the Canons had asserted otherwise. I interpose, however, that it is right to observe than in submissions made on their behalf it had been said "because of its shape the covered area could not be put to any useful purpose".

Mr Palmer submits that the inspector's decision is rational and cogent. She had accepted that sometimes an open-sided structure could enclose usable floorspace, and cited a carport as an example. It was, however, common ground that this was not large enough to be a carport. Indeed, an earlier planning application for such a construction had been refused. Here the inspector considered that the shelter was of aesthetic rather than practical significance and that the floorspace was not changed in character from essentially being part of the drive. When the inspector stated that the gates would be unusable, Mr Palmer submitted that she simply meant there would be no purpose in opening the gates if the floorspace were to be used for some purpose such as storage because it would not be possible for any vehicle to enter the gates. In other words, he says that the only reason for opening the double gates would be to let a vehicle in, but that would not be possible if the floor were to be used for purposes which would inhibit its use as a drive, whether the gates opened inwards or outwards. Although technically the gates would be useable, there would be no purpose in opening them and therefore in practical terms it was not inapposite to say that they would be unusable.

I accept that the inspector has not perhaps expressed her conclusions as felicitously as she might have done. Nevertheless, I prefer the submissions of the Secretary of State. I do so for these reasons in particular. First, it must have been plain to the inspector that the gates were opening outwards. The proposal did not conceal that fact in any way and it would have been an elementary error for her to have thought otherwise. Second, it seems to me that, read fairly, paragraph 6 is saying that this particular pergola is of an aesthetic rather than a practical nature; it is not intended to alter the character of the floorspace itself and accordingly does not engage Policy 23. Third, whilst I accept that the reference to the gates being "unusable" is strictly inaccurate, I think that the gist of the observation is that the drive as a drive would be unusable and the double gates redundant. I accept Mr Palmer's observations about that sentence, whilst rejecting his submission that the meaning is plain. As I have said, the language does not bear too close a scrutiny. However, it has often been said that one does not read decisions letters like statutes, and I am satisfied that the thrust of the reasoning is sufficiently clear. The inspector was entitled to take the view that a structure of this kind could not properly be said to add to the existing floorspace of the dwelling and that therefore the local plan policy was not infringed.

This conclusion is strengthened by Mr Palmer's observation that even if the gates had been shown to open inwards it would have been open to the developer to have altered that without the need for planning consent. It would have required a separate condition to prevent such a change.

It follows that I do not accept that the inspector erred as alleged, nor do I consider that on the assumption that she was aware that the gates opened outwards her decision was irrational. It seems to me that the question whether the space enclosed by a building of this nature is floorspace within the meaning of Policy 23 depends significantly on the purpose for which it is being constructed. Here the inspector accepted that it was essentially for aesthetic purposes. That was a justification that had been advanced by the second defendants. The fact, if it be a fact, that it could be used for other purposes is at best a factor to which regard should be had. It was not suggested here that it would be used for any particular purpose, and there is no obvious reason why it should be assumed that it would be used for storage or as a sunroom, to take just two examples referred to by Miss Busch in argument. The mere fact that it may be possible to give the space some such use does not in my judgment compel the conclusion that it must be treated as floorspace within the meaning of the policy. That, in my judgment, is too narrow a definition of the concept and the inspector was entitled to take a broader view of what the floorspace envisaged.

Accordingly, I reject this appeal.

MR PALMER: I am much obliged. I have an application on behalf of the Secretary of State for his costs. There is a schedule.

MR JUSTICE ELIAS: Yes, I have seen that. Have you seen that, Ms Busch?

MS BUSCH: I have not seen it.

MR PALMER: It was faxed yesterday.

MR JUSTICE ELIAS: Never mind. Can she see it now?

MR PALMER: Perhaps a copy could be provided. (Handed) My Lord has seen it is for a modest amount of £2,605 and I ask for the Secretary of State's costs to be assessed in that amount.

MR JUSTICE ELIAS: Let us take it in stages. You do not resist costs, I take it.

MS BUSCH: No, my Lord, I do not.

MR JUSTICE ELIAS: By all means, if you want some time to look at this I can give you 10 minutes but I have to say, on the face of it, it does not seem a very significant sum as these things go.

MS BUSCH: No, quite. I do not need 10 minutes. (Pause) My Lord, we have no objection to this.

MR JUSTICE ELIAS: Are you sure. I know you have not had much chance to look at it but I have to say it does not seem a very significant amount. I am sometimes shocked at how high these things are.

MS BUSCH: Quite, my Lord.

MR JUSTICE ELIAS: Right. I will award costs in the sum of £2,605 to the Secretary of State. Thank you both.

MS BUSCH: My Lord, I do actually have an application myself to make for permission to appeal.

MR JUSTICE ELIAS: Sorry, yes.

MS BUSCH: My Lord, I appeal on the prescribed grounds, namely that in my submission the case raises an issue of general public importance and also has realistic prospects of success. The issue of importance is both an issue that is important in principle and in practice. The in principle issue is the question of the correct conception of floorspace which has not been covered in case law previously and that issue is not simply an academic issue but also an issue of considerable importance so far as local authorities rule in protecting the rural area and green belts is concerned. To give an example of this, the local authority has recently received an appeal decision, the facts of which are effectively identical to the one that was challenged in this case in which permission was refused on the basis that floorspace was enclosed. So we have a situation where certainly inspectors are coming to different decisions and, in my submission, there is justification for having the issue argued again before a higher court. Certainly notwithstanding your Lordship's judgment, in my submission there are reasonable prospects of success. It is arguable that the inspector's decision turned on the distinction between useable and unusable floorspace and that she erred either on the basis of erroneous considerations or simply failed to take into account the fact that the floorspace was eminently useable for the reasons I have previously made. So I make my application.

MR JUSTICE ELIAS: Mr Palmer, do you want to say anything?

MR PALMER: My Lord, yes. In my submission, no general principle of public importance was raised by this case. Each policy of each local plan in each context, whether it was residential or (inaudible) and so forth, falls to be construed on its own terms and in its own context. The use of the word "floorspace" is not one of general application which is immutable in its meaning in any context. The application of a policy in each individual case would also differ from case to case based on the individual circumstances of each case. Although it is said there is a very similar case in which the inspector has come to a different conclusion, inevitably there are circumstances in each particular case which may make all the difference. My Lord, the reasons for which you have come to your conclusions turn on a perfectly unimpeachable analysis of the role of the assessment of floorspace in this particular case with regard to the policy and with regard to the application of the inspector, in my submission the Court of Appeal is unlikely to come to any different view.

MR JUSTICE ELIAS: The winner always tells me how good my decision is and the loser always tells me tactfully how awful it is.

MR PALMER: That may never change.

MR JUSTICE ELIAS: Very well. I am sorry, I am not going to give leave here. It seems to me that the only basis in truth on which it could be said that there was a (inaudible) floor is if it could be said that the concept of floorspace must require that if something can be used for any purpose, then it is floorspace. But I do not think that argument has a realistic prospect of success as a principle of law in your case and then it turns on the facts. I have explained briefly why I am against you, but you can try and persuade the Court of Appeal otherwise.