Trend Properties Ltd., R (on the application of) v Borough of Islington & Anor

MR JUSTICE CRANE: This is an appeal under section 288 of the Town and Country Planning Act 1990. The appeal decision which is challenged of the Planning Inspector was dated 14th May 2004. There was previously an issue relating to delay which was resolved by Ouseley J. No issue arises in that respect.

The site is at 2A Almorah Road, London N1, within the East Canonbury Conservation Area. Until recently there was on this site a small single storey building used for office purposes. On 17th July 2002 a planning application was made, and granted in the following September, for change of use to a single storey residential dwelling, subject to certain additional words. There was in fact a subsequent permission for the erection of a single storey residential dwelling of which the Inspector would have known. Meanwhile, this present application had been made on 17th April 2003 in the following terms: alteration of existing building (single storey) and building a two storey residential dwelling.

By the time of the appeal before the Inspector, the former single storey building had been demolished and the Inspector indicated that it would be more accurate to describe the proposal as the erection of a two storey dwelling house. However, essentially the question was whether a single storey dwelling house would be erected on the site or whether a two storey dwelling house would be permitted.

The buildings on each side are shown on plans and also a set of photographs which I have seen. On one side is a substantial block, variously described as mid-19th century or Georgian but of four storeys, and on the other a terrace of cottages of two storeys. The proposal was that the two storey building, if it was erected, would in effect continue and be at least consistent with the two storey row of cottages.

I remind myself, although matters of law are common ground, that the Inspector had a duty under section 54A of the 1990 Act to have regard to any relevant development plan and I shall refer to the relevant plan. The interpretation of such a plan is on the authorities a matter for the court, unless there are clearly two alternative interpretations. The authority for that proposition is R v Derbyshire County Council ex parte Woods [1997] JPL 958, particularly at 967-8. The giving of reasons is covered by the words in Bolton MDC v Secretary of State for the Environment [1995] 3 PLR 37 at pages 42 and 43, and in particular by the words of Phillips J, as he then was, in Hope v Secretary of State for the Environment [1975] 31 P&CR 120 at page 123. Finally, it is clear that matters of weight and opinion are primarily for the Inspector and it is not for the court to substitute its judgment in such matters.

I am grateful for the skeleton arguments and the oral arguments of both counsel. The grounds of challenge to the Inspector's decision have been conveniently divided into four, and both counsel have helpfully concentrated on those four areas of challenge. I deal with them in turn.

The first ground of challenge relates to the interpretation of the Development Plan at paragraph D3. D3 reads:

Then there follows a series of nine sub-paragraphs:

I select those particular sub-paragraphs because they relate to the interests of neighbouring properties. In the reasoned justification at paragraph 12.1.5 it is said, inter alia:

In paragraph 12.1.6 the following phraseology occurs:

The Inspector reached the following conclusion in paragraph 9:

It is submitted by Mr Greatorex on behalf of the present applicant that the Inspector was wrong to interpret the plan as permitting him to place weight on outlook and "sense of enclosure". Mr Kolinsky on behalf of the defendants points out that section 12(4) of the Act makes the reasoned justification part of the plan. In my view, if one construes D3, it is clear from the use of the word "amenity" in the first sentence and from the references to a direct relationship to adjoining buildings in 12.1.5 and to outlook in 12.1.6, that the Inspector was entitled to have regard to those matters. Although a sense of enclosure is not specifically mentioned, even in the reasoned justification, it is effectively one aspect of outlook.

It is submitted by Mr Greatorex that the wording of policy D3 did not require, as the Inspector indicated, that amenities must be preserved. It talks in terms of safeguarding, minimising and respecting. But in my view the Inspector was not stepping outside what the plan required. It is further submitted by Mr Greatorex that the decision on this point should not be allowed to stand because it would be open to be relied upon in the future. In my view, so be it. Finally, it is submitted that inadequate reasons were given for the Inspector's finding on that issue. In my view, in the context of the particular decision he had to reach, the reasons were adequate.

I turn to ground 2. The complaint is made that in this case, which proceeded on the basis of written submissions, the Inspector's site visit should have included a visit to the neighbouring properties whose outlook and sense of enclosure he regarded as important. There is quoted in support of this ground Taylor v Secretary of State for Wales [1985] JPL 792. That was a case in which an Inspector inspected the site but failed to make clear whether he had inspected the inside of the premises which, in the context of that case, was important because matters relating to the inside of the house could not be adequately judged from outside.

In my view this situation is different. While it is true that the Inspector did not view directly the outlook and the sense of enclosure which he described, he did visit the site. He is a qualified and experienced Inspector, and in my view it would not have been difficult for him to envisage how matters would look from the properties which he in fact was looking at rather than from. It would, it is true, have been perfectly easy to request such a view, but he was not specifically asked to. The submission is made that the procedure adopted was unfair. Whether or not it would have been an advantage to visit the particular properties in the way suggested, I am quite satisfied that the failure to do so cannot be characterised as unfair.

The third ground is that the Inspector, so it is said, erred in ignoring the fallback position. This ground relates to the consideration that the site fell within a conservation area. It was, I accept, important that the Inspector judged the effect of this particular proposed development against the development that could take place under existing permissions. Effectively, he needed to bear in mind that a single storey building, which in the future would be residential if the development proceeded, needed to be compared with the two storey building to which this application related. If authority were needed for that proposition, the authority is the Brentwood Borough Council v Secretary of State for the Environment [1996] 72 P&CR 65.

In my view it is not correct to say that the Inspector ignored the fallback position. Although he reworded the proposal to read "the erection of a two storey dwelling house", it is quite clear from the decision that not only was he aware that until recently there had been a single storey building on the particular site, but that he needed to make a comparison between one storey and two storeys. In paragraph 9 of his decision, to which I have already referred, he makes it clear that he was having regard to the fact that it was a two storey building which was in question. In my view it is not a tenable proposition to submit that he ignored the fallback position.

Ground 4 is in fact linked with ground 3 quite closely, and Mr Greatorex's submissions are set out in paragraphs 33 to 36 of his skeleton. Essentially what the Inspector had to weigh were the merits of a building which continued the line of the cottages up to the wall of the substantial four storey buildings against the advantages of maintaining a visual gap between the two. In this connection it is necessary to refer back to the plan. D4 reads as follows:

It is particularly pointed out that the Inspector was not accepting the views expressed in expert evidence provided to him by Brian Morgan, a chartered architect and chartered town planner. It is true that he did not refer directly to the views of Mr Morgan on this particular topic, but he did quote directly from Mr Morgan's evidence and had plainly therefore read it.

If one returns to D4, it is clear that the Inspector had to have regard to the appropriate infilling of gaps. He had to have regard to avoiding faceless walls, but again the word "appropriate" is included in (iii), where it is a question of ensuring that the building relates to the street and/or waterside setting, and finally he had to have regard to the requirement that all alterations and extensions are sympathetic to the building and its surroundings.

One comes back to this: that the Inspector plainly reached the conclusion that the blank wall of the substantial 19th century buildings had apparently always been designed to be the end of that terrace. The cottages had apparently never abutted on that substantial building. He had to value the planning and aesthetic advantages of bringing the one series of buildings up to the other against the advantages of a clear visual gap. He reached a clear conclusion that the gap was important and, if one reads paragraphs 11 to 13 of his decision, his reasons for coming to that conclusion are in my view adequately set out. He had the advantage not only of considering all the material before him, but of a site visit. In my view it is not open to the court to disagree with him on this conclusion. It was a decision that in my view was clearly open to him in making the choice he had to make and it was, as I have said, very much a matter for him.

For those reasons, despite the force and cogency of Mr Greatorex's submissions, I disagree with those submissions and I accept the submissions made to the contrary, and for those reasons this application must be dismissed.

MR KOLINSKY: I am grateful to my Lord for his judgment. On the question of costs, my Lord, a summary schedule was served. There has been some discussion on the basis of that schedule and my understanding is that there is an agreed position as to the quantum for the costs.

MR JUSTICE CRANE: Yes.

MR KOLINSKY: My Lord, does my Lord have the original schedule?

MR JUSTICE CRANE: Yes.

MR KOLINSKY: The agreed position, as I understand it, is there should be an order of costs in the first defendant's favour for £4,300. I invite my Lord to make a summary assessment of costs.

MR JUSTICE CRANE: Give me the figure again.

MR KOLINSKY: £4,300.

MR JUSTICE CRANE: In other words, Mr Greatorex would apparently agree to summary assessment in those terms.

MR GREATOREX: That is right, my Lord.

MR JUSTICE CRANE: Very well. Costs which I summarily assess at £4,300. Thank you both again. Presumably the order can be drawn up and submitted to me for approval between you.

MR KOLINSKY: My Lord, yes.

MR JUSTICE CRANE: Very well. I shall be in this building, so tomorrow or later in the week would be fine.