Paterson, R (on the application of) v First Secretary of State

MR JUSTICE RICHARDS: This is an application pursuant to section 288 of the Town and Country Planning Act 1990, to quash a decision dated 30th July 2003 of an inspector appointed by the first Secretary of State to determine an appeal by Wexford Resources against a refusal of planning permission by the London Borough of Hounslow for the erection of 4 town houses and ancillary works at Hogarth Place, 12 Annandale Road, Chiswick. The Inspector allowed the appeal and granted planning permission subject to conditions.

The appeal site is in fact located between the rears of residential properties that front on to Annandale Road and Brackley Road. The claimant is a resident of 6 Brackley Road and appeared as an interested party at the hearing before the Inspector. He was one of a group of local residents who submitted a detailed written statement of planning issues in respect of the proposed development.

A number of previous applications for planning permission on the site have been refused. In particular, an application by Wexford in 2001 was refused planning permission by the council and an appeal was dismissed by an inspector in January 2002. Wexford then submitted a further application which sought to deal with the objections raised by the Inspector on the previous appeal. The council again refused the application, but, as I have indicated, planning permission was granted by the Inspector on appeal.

In the decision letter the Inspector stated in paragraph 5 that he considered the main issue to be the impact the development would have on the living conditions of the occupiers of neighbouring residential properties by way of loss of privacy and visual intrusion.

In paragraphs 6 to 8 he described the policy background. He referred to the Hounslow Unitary Development Plan adopted in 1996 and to the emerging UDP which included policies corresponding to those in the adopted plan, though with some detailed changes of wording. He also referred to the council's Supplementary Planning Guidance on private amenity space adopted in 1997.

In paragraph 9 the Inspector described the location of the appeal site and referred to the background; in particular the appeal dismissed in January 2002.

He went on in paragraphs 10 and following to examine the main issue:

This led to his conclusion on the main issue as expressed at paragraph 15 that:

The Inspector then dealt with other matters, including at paragraph 19 concerns about design:

Finally he dealt with the question of conditions before reaching the overall conclusion and formal decision expressed in paragraphs 26 and 27.

In relation to that decision there are three remaining grounds of challenge.

This ground is based on Appendix 2 to the adopted UDP which is in materially identical terms to the corresponding appendix of the emerging plan. Appendix 2 reads:

The claimant's case relates to the 21 metre standard in paragraph 2 of that appendix. No complaint is made of the Inspector's findings concerning the application of that standard to the distance between the windows of the proposed houses and those of neighbouring properties. The complaint relates to the application of the standard internally, within each of the proposed houses. The point arises in this way. The design of the houses is such that the two bedrooms at the rear of each house have windows at right angles to the rear elevation within a recess, so that each bedroom has directly facing views into the other bedroom of the same house. The two facing windows are 3 to 4 metres apart across the recess. This, it is submitted, is in direct conflict with the 21 metre standard.

It is further submitted that the Inspector dealt with that conflict solely at paragraph 13 of the decision, where he said of the potential views between the facing two rear windows:

That, it is submitted, provides a wholly inadequate explanation for such a substantial departure from the 21 metre standard. The planning system, it is said, exists to ensure that certain objective standards, including those relating to the protection of privacy, are met and individual limitations to or departures from those standards cannot be justified simply on the basis that they may be acceptable to incoming residents.

Counsel for the Secretary of State and Wexford submit that the claimant's case is based on a false premise; namely, that the standard in Appendix 2 to the UDP applies to habitable rooms within the same dwelling, as well as to the distance between neighbouring properties. In their submission, the Inspector correctly understood it as applying only to the distance between neighbouring properties. He dealt with the issue of privacy within the same dwelling as a separate issue and gave adequate reasons, in paragraph 13, for concluding that the proposal was, in that respect, acceptable.

It proved to be common ground, in the course of argument, that the interpretation of a policy is, in the first instance, a matter for the decision maker; in this case the Inspector. The court can interfere only where the decision-maker has adopted a meaning, an interpretation, that the policy is not reasonably capable of bearing. Because of the way in which the matter arose counsel did not come equipped with authorities on the subject, but for reasons I shall explain, nothing turns in this case on the precise test formulated in the authorities, and I have not, therefore, thought it necessary to ask for copies of relevant authorities to be supplied.

I am satisfied that the Inspector approached the matter on the basis that the 21 metre standard applied to the distance between neighbouring properties and not to facing windows within the same dwelling. He dealt with it on that basis at paragraphs 10 and 11 of his decision. When, in paragraph 13, he addressed the issue of potential views between the bedroom windows of the same dwelling, he did so not as an issue arising under the 21 metre standard in Appendix 2, but as an altogether separate issue.

If he was right to adopt that approach, the reasons he gave for concluding that the proposal was acceptable cannot be criticised. It is only if they are viewed as reasons in support of a departure from a 21 metre standard that their adequacy could be called into doubt.

Was the Inspector entitled to take the view that the 21 metre standard did not apply? In my judgment he was. The heading to Appendix 2, "Privacy and Spacing Between Buildings", suggests that the policy is concerned with the distance between buildings rather than with the distance between windows within the same dwelling. The general thrust of the policy seems to me to be directed towards ensuring privacy from those in other buildings and privacy of those in other buildings, rather than looking at internal arrangements within a proposed dwelling.

I take Miss Patry's point that paragraph 3 of Appendix 2 refers to neighbouring rooms or gardens, whereas paragraph 2, which contains the 21 metre standard, contains no such reference to neighbouring properties. But one does not approach the construction of a planning policy as strictly as one approaches the construction of a statute. In my view paragraph 3 can be deployed with equal force as an indicator of the general thrust of the policy, albeit that the word "neighbouring" does not also feature in paragraph 2.

Moreover, it would, in my view, be very surprising to find a planning policy laying down a 21 metre standard for the distance between facing windows of the same dwelling. It would mean that breaches of the policy would arise all too easily in the case, for example, of an L shaped design, where windows of habitable rooms within the same dwelling are quite likely to face one another. To my mind, that is a further factor pointing in favour of the interpretation adopted by the Inspector.

It should also be noted, though this is not determinative, that there does not seem to have been any suggestion before the Inspector that the 21 metre standard applied to the facing windows of the same dwelling. It is clear that Wexford proceeded on the basis that it applied only to the distance between neighbouring properties. It can reasonably be inferred from the evidence, including the absence of any objection by reference to the 21 metre standard, that the council shared that view. I have been shown various passages in the statement of planning issues submitted by the residents' group, of which the claimant was one, and I take the view that that document too raised the 21 metre standard only in relation to neighbouring properties and not in relation to the facing rear bedroom windows within each proposed dwelling.

The fact that the present issue was not canvassed before the Inspector does not necessarily preclude the point being taken in a challenge under section 288. In truth the opposition to the claimant's case has not been advanced on the technical ground that this is a new point. The reference to what happened before the Inspector is relied on more as showing that the point now taken did not occur to anyone at the time, which at the very at least may be thought to cast some doubt on the correctness of the interpretation now advanced as being the only correct one.

In any event, I am satisfied, in all the circumstances, that the Inspector did interpret, and was reasonably entitled to interpret, Appendix 2 as laying down a 21 metre standard only in relation to the distance between neighbouring dwellings. At the very least the policy was unclear and was properly open to that interpretation. But I would, if necessary, go further and spell out that if I were deciding the matter for myself I would adopt the same interpretation as did the Inspector. The challenge under ground 1 therefore fails.

It is submitted on behalf of the claimant that the Inspector failed to take into account a fundamental issue raised in the statement of planning issues put in by the residents. The relevant passage came in a section of the statement headed "Design". That section started with the following general criticism of the proposal in paragraph 4.36:

Three paragraphs later, in paragraph 4.39, it is stated:

The reference to the SPG is to the council's Supplementary Planning Guidance which has a section, section 3, headed "Safety & Security Guidelines". It lays down by way of general criteria in paragraph 1.1 that:

It is submitted by Miss Patry that the design of the proposed houses is such that no habitable rooms overlook the front entrance or the street at all, and that the Inspector has failed to deal at all with the issue raised with regard to paragraph 2.3(3). That, it is said, supports the inference that he failed to apply his mind to the issue.

Counsel for the Secretary of State and Wexford challenge the factual premise to the submission. It seems clear from the plan that each of the dwellings does in fact have a habitable room, with a clear glazed window, at ground floor level, overlooking the street. On the other hand, because some of the front windows are slightly set back it is doubtful whether they could be said to overlook the front entrance. I am therefore not sure that the factual point raised is a complete answer to this ground of challenge, though it does seem to me substantially to reduce any force that the ground might otherwise have.

In case the factual point is well-founded, Miss Patry sought to argue that on the proper interpretation of paragraph 2.3(3) all the habitable rooms, or at least the preponderance of them, have to overlook the entrance and the street. To my mind that is a plainly unsustainable proposition. It smacks somewhat of desperation. I do not need to dwell further on this factual issue.

It is fair to say that the main submissions for the Secretary of State and Wexford have been directed to the legal issue raised on the assumption that the factual premise is correct. It is submitted that there is no basis for concluding that the Inspector failed to have regard to the application of the relevant paragraph of the Supplementary Planning Guidance. The Inspector was obliged to state his conclusions only on the principal, important, controversial issues (see Bolton MDC v Secretary of State for the Environment [1995] 3 PLR 37). The broad points made under the heading of "Design" in the statement put in by the residents were those summarised in paragraph 4.36; namely, that the proposed building was out of character with the surrounding area and would provide unacceptable residential amenity for future occupiers. Those, it is accepted, could properly be said to have been important controversial issues, but it is submitted that the Inspector set out his conclusions on them, in particular in paragraphs 13 and 19 of the decision. He was not required to give more detailed reasons than he did. The particular point raised in paragraph 4.39 of the residents' statement, which was really a design issue and raised under the sub-heading "Design", was not itself a principal, important, controversial issue and did not have to be dealt with specifically by the Inspector.

I accept those submissions. In my judgment the point made at paragraph 4.39 of the residents' statement was not, and did not become, in itself a principal, important, controversial issue. It was not something on which the Inspector was required to state a specific conclusion, though his consideration of it was encompassed within the conclusions he did express on the broad issues of design and residential amenity of future occupiers.

His failure to make express reference to the specific point in the decision letter cannot support an inference that he failed to take it into account. It is clear that he had the Supplementary Planning Guidance in mind. He referred to it as part of the policy background in paragraph 8. It is clear that he directed his attention to the representations that were put in on behalf of the residents. I see no basis for concluding that he failed to have regard to this particular, and in truth very narrow, issue arising under paragraph 2.3(3) of the Supplementary Planning Guidance. I therefore reject the second ground.

The third ground as addressed orally before me is in fact ground 4 in the claim form, ground 3 in the claim form not having been pursued. The ground relates to what was said by the Inspector in paragraphs 14 and 15 of the decision, about the application of emerging policy H.6.3 and whether there would be an unacceptable reduction of outlook and open aspect to neighbouring properties. The Inspector concluded that there would be no such unacceptable reduction.

It is submitted for the claimant that the Inspector simply did not have sufficient evidence upon which to base such a conclusion. He had some plans, a site survey and the results of his own site visit, but he should have obtained further evidence from the parties. It is pointed out that paragraph 4 of Appendix 2 to the UDP states that:

It is submitted that more information was required in this case on the natural features of the site and that detailed calculations were required about the slope of the land, the height of the buildings, and so forth. A reasonable decision-maker, it is said, would not have proceeded to a decision without seeking additional information of that kind.

I find that submission impossible to accept. The difficulties facing anyone seeking to advance a case that a planning judgment was unreasonable in the Wednesbury sense are well known. My attention has been drawn, for example, to what was said by Sullivan J in Newsmith Stainless Ltd v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74, at paragraphs 7 and 8, which are an elegant and emphatic restatement of well established principles:

It seems to me that precisely the same considerations apply to an argument of the kind advanced here. Whether a decision-maker has enough material upon which to proceed to a decision is a matter of judgment for that decision-maker. It will take a lot to persuade a court that it was unreasonable to proceed to a decision. That applies with particular force in this kind of planning context.

The Inspector had a large number of plans, including sections drawn to scale through the line of the existing properties and of the proposed development. He is, of course, an expert at evaluating such material and at assessing what a development built in accordance with the plans will look like and what effect it will have on neighbouring properties. He has the benefit of the written representations and of what was said at the hearing. He has the particular benefit of a site inspection. I note that the site visit here included a visit to this claimant's own house.

There is simply no basis upon which it could be said that an inspector armed with all of that information was unable to make a proper assessment of relevant planning issues such as that raised here, so as to make it unreasonable for him to proceed without requiring further information. Accordingly I have no hesitation in rejecting this third ground as well.

For the reasons I have given the application fails and the claim is dismissed.

MR KOLINSKY: I am grateful to his Lordship for his judgment. I am instructed to make an application for the Secretary of State's costs. My Lord, I would submit this is a matter suitable for determination by summary assessment. An appropriate schedule has been served on my learned friend's solicitors, although I am not sure whether --

MR JUSTICE RICHARDS: I have not seen it.

MR KOLINSKY: My Lord, may I hand one up?

MR JUSTICE RICHARDS: Certainly.

MR KOLINSKY: My Lord, the total figure on the schedule as served was £4,655. My Lord, an additional manuscript amendment to add £120 for, rather embarrassingly, my fees for advice, has been added. I am not sure if that has been missed off.

MR JUSTICE RICHARDS: Well spotted. Yes, I see.

MR KOLINSKY: My Lord, I will respond to any points made, but I would submit that we are dealing with this as a global matter, it is appropriate for summary assessment, and the figures claimed are entirely appropriate for the nature of the case.

MR JUSTICE RICHARDS: Thank you. There is no application, I take it, from --

MR HILL: There is not.

MR JUSTICE RICHARDS: Good, thank you. Yes?

MISS PATRY: My Lord, I think it is most helpful for me to simply say that I do not resist costs either in principle or amount.

MR JUSTICE RICHARDS: That is very helpful and very sensible. They all look perfectly reasonable. I will therefore make an order that the claimant pays the Secretary of State's costs, summarily assessed in the sum of £4,775.

MR KOLINSKY: Thank you, my Lord.

MR HILL: I simply wish to ask whether your Lordship wishes to relieve himself of the bundle?

MR JUSTICE RICHARDS: I quoted from Newsmith. I will leave that with the papers, otherwise you can have the bundle back. I am grateful for the loan.

Thank you all very much.