Islington London Borough Council v First Secretary of State

MR JUSTICE RICHARDS: The court has before it two linked cases. The first is a challenge brought by Islington London Borough Council under section 288 of the Town and Country Planning Act 1990 to an inspector's decision on an appeal to grant planning permission for a roof extension at 58 Canning Road, London, N5. The second is a challenge by way of an application for judicial review to a decision by the same inspector to award the costs of the planning appeal against the Council. It is convenient to deal first with the section 288 application.

The appeal before the Inspector related to a property, 58 Canning Road, standing on the south eastern corner of the junction between Canning Road and Mountgrove Road. The property is a two-storey, Victorian end of terrace house with a semi-basement, divided into three flats. The appeal proposal would create an additional floor with internal alterations to make the top flat into a maisonette.

The Council refused planning permission on grounds that the proposed extension would fail to respect the character of its surroundings and would be inappropriate to the overall streetscape, contrary to policy D1 of the Revised Islington Unitary Development Plan 2000, and that the proposed extension was unsympathetic to the building and its surroundings, contrary to policy D2A of the plan.

At the hearing before the Inspector it was an important part of the Council's case that the proposed development would be an overdevelopment and would be out of scale and harmful to the character of the existing buildings and the relevant streetscape. It should be noted that the Council did not complain about the use of modern materials and a modern design for the proposed extension.

In his decision, dated 1st August 2003, the Inspector identified the main issue as being the effect of the proposal on the character and appearance of its surroundings. No complaint is made as to the formulation of that main issue.

The Inspector went on to summarise the policy framework, noting in particular the two policies, D1 and D2A, relied on in the Council's reasons for refusal. Policy D1 stated:

Those were the policies of the Second Deposit Version of the UDP, which was the relevant draft at the time of the Council's refusal. They were subsequently carried through into the adopted plan, though with one change in the numbering of a policy.

Having set out the policy framework, the Inspector moved to his detailed reasoning. In paragraphs 5 and following he described the appeal site itself and then, in some detail, the nature of the buildings in Canning Road and in Mountgrove Road. He went on as follows:

The submissions advanced by Mr Langham on behalf of the Council are centred on the role played in the Inspector's reasoning by the reference in paragraph 11 of the decision to recently built examples of new buildings in older terraces and of roof extensions on older buildings elsewhere in the borough. Although it is accepted that development permitted elsewhere can sometimes be a material consideration, it is submitted that, in context, it was here a wholly irrelevant consideration which contaminated the reasoning process. What needed to be considered, in order to deal with the Council's objections to this development, was the relationship of the particular proposal to the other buildings in the particular vicinity. As to that, in paragraphs 9 and 10 of the decision the Inspector identified an impact that the development would have, saying, for example, that it would be noticeable on Canning Road and would look prominent from Mountgrove Road, but he then failed to give any proper reason for his conclusions in the last two sentences of paragraph 11 as to compliance of the proposal with the relevant policy criteria. The only matter to which he made reference in between was the existence of other developments with a modern design approach and modern materials for which permission had been granted. That, however, was simply irrelevant. It did not grapple with the Council's complaint, which was not about the modernity of the design and materials, but related to the scale and size of the particular proposal and its unacceptable relationship with its particular surroundings. Accordingly, the submission made is that the Inspector reached his conclusion on a flawed basis.

For the Secretary of State, Mr Forsdick reminds the court of relevant general principles: that an Inspector's decision must be read as a whole, as if by a well-informed reader who knows what are the principal controversial issues. He submits that, when the decision is read as a whole, it can be seen clearly that the Inspector was directing his attention to the particular proposal and its surroundings. That was the subject of the main issue identified in paragraph 2. It was the basis of the detailed description of the site and surrounding area, in paragraphs 5 to 7, and the further specific comments that I have quoted in paragraph 8. In paragraphs 9 and 10 the Inspector examined the effect of the proposal, referring to its being noticeable and prominent, though not in terms that suggested any criticism of the proposal. The purpose of his reference in paragraph 11 to other developments using modern designs and materials was to indicate that such developments can work in the streetscape. He was entitled to rely on other examples of this kind as on his general previous experience. It was a relevant consideration. The weight to be given to it was a matter for him. In no way, however, did it displace consideration of the particular proposal in its own particular surroundings. The Inspector's conclusions at the end of paragraph 11 were directed to that issue and to the rejection of the Council's case on the issue. In reaching his conclusion about the appropriateness of this particular development in the streetscape, the Inspector had regard to other modern developments, but formed his judgment about the particular proposal. He also concluded as a separate matter that the particular development would respect the scale, form and character of its surroundings and relate positively with existing buildings.

For my part, I accept the thrust of Mr Forsdick's submissions. In my judgment, it was open to the Inspector to have regard to examples of new buildings in old terraces and of modern roof extensions on older buildings elsewhere in the borough. I reject the argument that such matters were simply irrelevant to the issues before him. He had to make a judgment, first, on whether the appeal proposal would be appropriate in the streetscape. It was proper for that judgment to be informed by consideration of how new buildings or modern roof extensions elsewhere in the borough fitted in with their older surroundings. Just as an inspector in forming planning judgments is entitled to draw on his own wider experience, so the Inspector was entitled here to draw on specific examples of other developments put forward in evidence. I note too that no objection was made about the admission of that material at the time. I am satisfied that, although it was informed by wider considerations, the actual judgment made by the Inspector was a judgment about the particular appeal proposal and whether that proposal would be appropriate in the particular streetscape.

The Inspector also made a separate judgment on whether the particular proposal met the other aspects of the relevant policy, as dealt with in the last sentence of paragraph 11. This was indeed a separate aspect of policy D1, together with an aspect of policy D2A. If anything turns on the point, though I doubt whether it does, I accept Mr Forsdick's submission that it was in relation to appropriateness in the streetscape rather than in relation to these further matters that the Inspector had specific regard to the other developments.

Insofar as Mr Langham contends that the Inspector's reasoning, if considered in that way, was inadequate, I reject the contention. The fact is that the Inspector had given a detailed description of the surrounding area, including the extent to which the proposed development would be noticeable or prominent from different perspectives. He had focused on the modernity of the design and the materials. He did not need to give any more elaborate reasons in support of the conclusion that, having regard to all those matters, the proposed development would, in his judgment, be appropriate in the streetscape and would respect the scale, form and character of its surroundings and relate positively with existing buildings. This was a pure matter of judgment which needed only to be stated by way of conclusion once the context in which the conclusion was reached had been sufficiently explained, as was the case here. The conclusion reached was reinforced by the further considerations in paragraph 12, though nothing turns on that for present purposes.

Accordingly, I reach the conclusion that the challenge under section 288 to the Inspector's decision on the planning permission fails and that that claim must be dismissed.

I turn to the costs decision. An award of costs by an inspector is a discretionary matter, though guidelines to which the Inspector had regard in this case are given in the annexes to Circular No 8/93, Costs in Planning and Other Proceedings. Paragraph 6 of Annex 1 to the circular sets out the general conditions for an award, stating:

It is convenient in addition to mention at this point paragraph 27 of Annex 3, which provides:

In the present case, in a separate decision dated 1st August 2003, the Inspector made an award of costs against the Council. His conclusions were expressed as follows:

The Council seeks to challenge that decision by way of judicial review. Because of the link with the claim under section 288 challenging the substantive decision of the Inspector, it was directed that the application for permission should be listed for hearing with the section 288 claim, with the substantive hearing of the judicial review claim to follow immediately if permission was granted. In the event, I have heard full argument.

As part of his submissions to me, Mr Forsdick cited R v Secretary of State for the Environment ex parte London Borough of Ealing [1999] EWHC Admin 345, in which Sullivan J stated that because of the discretionary nature of the award of costs by an inspector, and the fact that the inspector would be in the best position to judge whether a party had acted unreasonably, it would only very rarely be proper for this court to intervene and strike down a decision. The judge also referred to the need to consider proportionality when considering whether to grant permission to challenge an award of costs in circumstances where the costs of judicial review proceedings were likely far to exceed the taxed costs of a relatively simple one day inquiry.

I do not disagree with any of that. In the present case, however, given that the matter has come before the court in the way I have described, and that the issue raised is one that, as it seems to me, this court can properly consider, the same inhibitions do not operate as regards the grant of permission. I consider there to be sufficient in the application to warrant the grant of permission, which I hereby grant, and to deal with it as a substantive claim.

The first ground of challenge is that the costs decision was predicated on the refusal of planning permission having been unreasonable, and that if the Council's complaint about the Inspector's decision on the appeal is well-founded, that should be sufficient to cause the costs decision to fall as well. Since, however, I have upheld the Inspector's decision on the appeal, it is the first ground of appeal to the costs decision, rather than the costs decision itself, that falls away. It seems to me that this ground cannot succeed in the light of my findings in respect of the Inspector's substantive decision.

Mr Langham, however, advances two further grounds of challenge. I can deal very briefly with the second of them, which is that in paragraph 10 of his costs decision the Inspector has made afresh the same mistake as he made in his decision on the planning appeal in relying on the grant of planning permission for modern buildings and extensions elsewhere in the borough.

It is sufficient to say that, for the reasons I have already given in relation to the planning permission decision, the Inspector was entitled to refer to those other developments. In any event, the main thrust of the sentence in question in paragraph 10 of the costs decision is the lack of significant evidence to indicate what justified refusal of permission in the particular case. In my judgment, nothing said in that sentence, or in the paragraph as a whole, involved any error of approach on the part of the Inspector.

So I turn to the remaining ground, which does have more to it. Mr Langham submits that if the Inspector was going to apply the guidance, as he purported to do, it was incumbent on him to apply it correctly. In paragraph 9 of his decision, however, he misdirected himself in relation to paragraph 27 of Annex 3. What is said in paragraph 27 of Annex 3 is that an award of costs may be made against the local planning authority if a more helpful approach would have enabled the appeal to be avoided; that is to say, it must be shown that if the local planning authority had acted reasonably, planning permission would have been granted and an appeal would therefore have been avoided.

The Inspector, however, uses the language of "could" rather than "would" in considering the issue of avoiding an appeal. The plain effect of what he says is that he treats it as sufficient that the result might have been different if the local planning authority had acted reasonably. That, submits Mr Langham, is an erroneous test: it simply mis-states the effect of paragraph 27 of Annex 3. Further, that erroneous test is plainly one that the Inspector applied to the facts in the second sentence of paragraph 9 of his decision, where he says that the evidence subsequently produced by the Council was "not so substantial or convincing as to indicate that the decision would necessarily have been the same if the application had been dealt with in an appropriate manner". That can only mean that the Council's decision might or might not have been different if the application had been dealt with in an appropriate manner. It is not the same as saying that the decision would have been different and it is not a proper basis for an award of costs.

Mr Langham submits that what is said in this passage in paragraph 9 constitutes the Inspector's unequivocal and explicit finding on a fundamental issue; a finding that embraces the subject matter of all the particular findings that the Inspector makes in other paragraphs of his decision. The conclusion reached in paragraph 12 is in direct conflict with the explicit finding in paragraph 9 and cannot stand in the light of it. The decision to award costs was therefore based on a misdirection and flawed reasoning.

Mr Forsdick submits, and it is I think common ground, that it is not appropriate to read the guidance like a statute. He stresses that the guidance does not say that the inspector must be satisfied that the local planning authority's decision would necessarily have been different before he can make an award of costs. It is open to the inspector, in accordance with the guidance, to award costs if he concludes that the decision should have been different if the local planning authority had acted reasonably, so that the need for an appeal should have been avoided.

As to the actual decision, Mr Forsdick accepts that the Inspector stated and applied the wrong test in paragraph 9. He submits, however, that overall it is clear that the legal approach adopted by the Inspector was in accordance with the guidance. The Inspector started with the right test in paragraph 7, he finished with the right test in paragraph 12, the error in paragraph 9 led nowhere.

It is further submitted that it is wrong to regard what is said in the second sentence of paragraph 9 as the Inspector's key finding. What is said there is simply a step on the way to the conclusion which is reached in paragraph 12: it is paragraph 12 which is key. In paragraph 9 the Inspector puts matters in a way that meets the Council's submission, summarised in paragraph 6 of his decision, that the application for planning permission would inevitably have been refused even if the matter had been dealt with appropriately. That, however, is not the Inspector's final conclusion on what the decision would or should have been if the matter had been dealt with appropriately. His final conclusion comes only at the end and takes into account not only what is said in paragraph 9, but also what is said in paragraph 8, for example the absence of a site inspection; paragraph 10, the absence of significant evidence to indicate what justified refusing permission; and paragraph 11, the failure to give precise and specific reasons. There is, submits Mr Forsdick, no inconsistency between the final conclusions stated in paragraph 12 and what was said in paragraph 9.

Again, I accept the thrust of Mr Forsdick's submissions. Looking at the decision as a whole, I am satisfied that although there was an error in paragraph 9 as to the effect of paragraph 27 of Annex 3, that error did not vitiate the decision. The Inspector started and ended with the right test. Overall he got it right and the error in paragraph 9 was not material.

Further, as regards the application of that test, it is again important to read the decision as a whole. In my judgment, adopting that approach, the key findings are in paragraph 12. That paragraph starts with the words "All in all ...". It is intended to be a statement of conclusions. It makes clear the Inspector's view that, had the Council acted reasonably, planning permission should have been granted, or that a reasonable local planning authority would have granted planning permission - I do not think it matters for present purposes which terminology one uses, the key difference between being "should/would" on the one hand and "might" on the other hand. In paragraph 12 the Inspector has moved beyond saying that the outcome might have been different and has concluded that the outcome would have been different if the Council had acted reasonably; or, expressing the matter in different terms but to the same effect, planning permission should have been granted by an authority acting reasonably.

I reject the contention that the key finding is in paragraph 9 of the decision. It seems to me that Mr Forsdick is right in his submission that what is said in paragraph 9 is just one element underlying the overall conclusion. Nor do I see any inconsistency between that element and the final conclusion itself. What is said in paragraph 9 does not go as far as the conclusion in paragraph 12, but it does not preclude the conclusion in paragraph 12. The contradiction asserted by Mr Langham is one that, in my judgment, is not present. Accordingly, I reject this ground of challenge too and, for the reasons I have given, I dismiss the judicial review claim in respect of the costs decision as I have rejected the section 288 claim in respect of the decision on the substantive appeal.

MR FORSDICK: My Lord, I am grateful. Can I confirm the terms of the order then that will be made overall.

MR JUSTICE RICHARDS: Yes.

MR FORSDICK: First of all, the application under section 288 will be dismissed. Permission for judicial review will be granted. The judicial review claim will be dismissed. That leaves the question of costs, and I ask for costs to be assessed. I understand that costs have been agreed between the parties in the total sum for both claims, the claimant to pay the first defendant's costs assessed in the sum of £5,514. I think that is an agreed figure.

MR LANGHAM: Yes, that is agreed, my Lord. There is a summary assessment of the costs.

MR JUSTICE RICHARDS: Thank you very much. I can see that there is no basis upon which you can oppose the application for costs. In that case an order will be made in those terms. Section 288 claim dismissed. Permission to apply for judicial review in the challenge against the costs decision, but the substantive review claim dismissed. The claimant to pay the Secretary of State's costs of the two claims summarily assessed together in the sum of £5,514.

Thank you very much. I am very grateful to both counsel.