Mills-Owens, R (on the application of) v The First Secretary of State & Ors

MR JUSTICE OUSELEY: This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of the First Secretary of State given by an inspector dated 24th May 2005. The inspector granted planning permission to raise the roofline of an existing building at Hangersley House St Aubyns Lane Ringwood in Hampshire "...in accordance with the terms of the application... 9 July 2004, and the plans submitted therewith..."

The scope of the planning permission is one of the issues raised in this application. The existing building to which the inspector refers is a substantial detached residence, as he described it, occupying a large secluded plot on the south side of St Aubyns Lane within the New Forest Heritage Area and proposed National Park. The National Park has now been designated. The existing building to which the inspector referred is one of two existing outbuildings towards the northeast corner of the grounds of Hangersley House.

Permission was granted on 3rd February 2004, following an earlier appeal, for a new building which would fill in the gap between those two outbuildings, seemingly to make them one dwelling. Conditions were imposed on that grant of planning permission, one of which reads:

The building in question in this application would have a roofline that would be 0.7 metres lower than the roofline of the new infill building when it was built. Permission was therefore sought to raise the roofline of the existing building to match that of the proposed infill.

The claimant (Mr Mills-Owens), who appears in person, is a neighbour, though the house in which he lives is some 150 metres away. He has appeared in person because the solicitor originally instructed, Richard Buxton, applied successfully, shortly before the commencement of the hearing today, to come off the record. In his letter he said that he had at last received unambiguous instructions from the claimant that his firm was no longer instructed and was to have nothing to do with the application.

At the outset of his application today, the claimant sought an adjournment. He put the application on three bases. First, he needed time, he said, in which to absorb the Secretary of State's skeleton argument which he had only received on the Friday, today being Monday. He needed time to absorb the associated statutes and cases. He also wished to see if he could obtain the services of a solicitor, and perhaps counsel, who would put the points which he said that Mr Buxton and counsel were unwilling to put and which had led to the claimant withdrawing his instructions.

I refused this application. I considered that he had had ample time to read and absorb the skeleton argument in particular, given his familiarity with the essential subject matter of the application. Few of the statutory provisions and authorities would be relevant. I also said that if anything substantial emerged during the course of his argument, where I felt that the assistance of a lawyer was really necessary for the point properly to be made, I would reconsider the question of an adjournment. In the upshot nothing remotely warranting an adjournment transpired.

The first series of points which the claimant raises concerns the information in the application form and the impact which he said that the deficiencies in that had had on the ability of the inspector to give the application for permission the consideration that it legally demanded. In summary Mr Mills-Owens submitted that the application was for an unspecified number of dwellings, for an unspecified change of use, without any indication as to the extent of demolition, and the curtilage of the application was inadequately delineated. Hence he submitted that the inspector either did not realise what he was granting permission for, or failed to take into account the considerations that were relevant to the very wide permission which it is said he has in fact granted, if granting permission for an application thus described.

The genesis of these submissions is the planning application submitted in July 2004. It is relevant to note that the brief description of the proposals was: "raise roofline of existing building". The plans which accompanied the application demonstrate which building is at issue and enable the degree of raising to be seen, and to see that it is to match the roofline of the permitted infill.

On the application form, the developer applicant has to tick a number of boxes to indicate what the application is for. Mr Mills-Owens drew particular attention to the boxes at B2. But it is necessary to read the boxes at B1 first. The B1 boxes are to deal with this question: "Is this a full application for alteration/addition to an existing single dwelling?" The box "yes" has been ticked. What then follows in boxes B2 has to be read with that in mind. The boxes relate first of all to: "A full permission for New Works/Operations Change of Use." That box has been ticked. Boxes B, C, D and E relate to other types of application, ie outline permission, approval of reserved matters, relief from conditions of previous permission, renewal of a temporary permission.

Mr Mills-Owens drew attention to the fact that the words "Change of Use" had not been deleted when the box against the reference to a full permission had been ticked. He pointed to the area of the application site as being given as 0.65 of a hectare when he contended, as indeed is the case, that the total plot of Hangersley House is somewhat larger than that, in excess of 2 hectares. No tick appeared, consistently with what had been ticked elsewhere, in relation to any of the matters shown in the section headed "Outline Application for Reserved Matters".

There was a tick to denote that a building or part of a building was to be demolished. Mr Mills-Owens said that the extent of demolition was wholly unclear. That reference to demolition has to be read with the approved plans from which the nature of demolition associated with the removal of one roof and the insertion of another, higher, can be deduced, and the minor changes to the ground floor front can be seen.

Under the heading "Use of Land/Buildings", the existing use was given as, "Garage With Accommodation Over - Outbuildings". Under the heading "Dwelling Units" the "Existing on Site" was given as one. There was no number filled in for the heading, "Intended on completion".

There were then references to materials, drawings and other matters.

The issue that is generated by those matters is whether the effect of the inspector's decision is to grant a permission as wide as the claimant contends it is. If it is as wide as the claimant contends it is then it is perfectly clear that the inspector has not applied his mind to many of the issues to which such an application would give rise. So the issue is: what is the extent of the permission granted?

The local authority explained to the claimant how it saw the application in letters of 3rd September and 20th September 2004. The local authority itself had no difficulty, though in opposition to the proposal, in understanding what the proposal comprised. The points were repeated briefly to the inspector in the course of the claimant's written representations, but the inspector appears to have had no difficulty in understanding what the application was about.

In understanding what permission was actually granted, it is material to look at what the inspector said. He granted permission, according to the summary, for development described as "The development proposed is to raise the roofline of an existing building". I have already read out the terms of the grant of permission under the heading "Formal Decision". Permission was granted "to raise the roofline of an existing building ... in accordance with the terms of the application ... and the plans submitted therewith."

It is perfectly clear that the permission is, and only is, for the extension of the raising of the roofline of that existing building, together with the inherent demolition. There can be no doubt about that, because the application type is described as an "application for alteration/addition to an existing single dwelling". There can be no doubt, when the box at B2 is read, that this is not an application for a change of use at all. The failure of the applicant's agent to delete those words could not possibly lead to any doubt as to the fact that the permission was for development by building works. The fact that "Change of Use" is part of the type of application to be contrasted with others, such as "Outline Permission", does not leave one in sensible doubt that this was not an application for a change of use. There is no reference in the proposed development to any change of use, no use is specified to which the change is proposed. The idea that there is permission for an unspecified change of use is simply nonsense.

The understanding of the extent of demolition can be gleaned from the plans which are incorporated as part of the application. The contention that there was a permission for an unknown or unspecified number of dwelling units, because no number is given for that intended on completion, is again a simple misreading of the documents and a misunderstanding of the significance of the absence of an answer to that point. No different number was intended on completion from that which there was already. That can be gleaned from the nature of the application to raise the roof of an existing building and the plans which accompany it which explain what that is. The fact that the site area was not shown as the complete site area for Hangersley House is neither here nor there in the context of this application. Accordingly, the concerns which Mr Mills-Owens has raised over the, to him, alarming extent of the permission, are all misconceived.

The second and not unrelated point that he raises concerns the absence of an equivalent to the condition, to which I have made reference, imposed on the February 2004 permission, on this current one. He is concerned that the effect of that is to mean that either the infill or this existing building, or both, could be used independently from each other and independently from Hangersley House.

The inspector considered whether to impose conditions and it does not appear that a specific condition, of the sort for which the claimant contends, was put forward for his consideration. What he said was this: that the council had not asked him to consider imposing any conditions, and that the appellant had suggested a condition in relation to materials, but he did not think that that was necessary because they were already specified on the application form.

The position in relation to this condition is, in my judgment, this: it is clear that the decision at issue here did not have the effect of removing condition 3 on the February 2004 permission. That remains in effect. It is possible, I add, though this was not the initial submission on behalf of the Secretary of State, that that condition applies to the whole of the building which would be the new annex, which that permission creates through permitting the new build infill. If that is right, there is even less for the claimant to be concerned about. But if that possibility is wrong and the third condition applies only to the infill building, the absence of such a condition on this permission does not alter the position as it already existed. Either it would not have been, and would not be, a breach of planning control for this part of the building to be used separately from the rest, or separately from the main house, in which case there is no change wrought by this planning permission, or else it would be a breach of planning control for this part to be used separately from the other outbuildings or from the main house, in which case it still would be a breach of planning control for the existing building with a raised roof to be used in that way.

There is, accordingly, no error of law on the inspector's part in not imposing a condition of the sort which Mr Mills-Owens has contended for in those circumstances. The inspector was also entitled to look at the realities of the internal arrangements envisaged by the infill and the raising of the roof in deciding whether any separate use from the rest of the annex was likely given that the infill part at least could not be used separately from the main house.

Accordingly the absence of such a condition does not give rise to an arguable error of law. The position is unchanged by the grant of this permission from what it was before.

The next point made by the claimant was that the inspector had ignored statutory provisions related to national parks which precluded the grant of permission which would have a harmful impact, however negligible, on the interests of the National Park in terms of the conservation and enhancement of its natural beauty. There is no such statutory provision and none has been pointed to me, either by the claimant or by Mr Warren on behalf of the Secretary of State, and none has been referred to in the materials which Mr Buxton, at various stages, has laid before the court.

In reality the question which the inspector had to address was the question raised by what is now section 38 of the Planning and Compensation Act 2004. Planning permission had to be considered and dealt with in accordance with the development plan unless material considerations dictated otherwise. The inspector considered the development plan. He reached a view that the impact of the proposal was negligible on the character and appearance of the National Park, and that the outbuildings as a whole would look better if they had a single roofline as opposed to one broken by the existing building's roofline.

There is nothing remotely perverse in the approach he adopted or the conclusion he reached. I emphasise, in the light of so much that Mr Mills-Owens had to say, that this court is not concerned in these applications with the merits of the inspector's decision. It is not for this court to re-examine the views he has expressed about the attractiveness or otherwise of the lane, the buildings, or the impact on the character and appearance of the National Park.

Mr Mills-Owens next complained that the inspector had failed to address properly policy NF-H3 which is the New Forest District Local Plan Policy dealing with extensions in the New Forest. It is not necessary to read out the whole of that policy. It says, in summary, that planning permission should not be granted for extensions unless they satisfy three criteria. They have to be: appropriate to the existing dwelling and its curtilage, not detrimental to the character of the New Forest, and not tantamount to the creation of a separate dwelling. Where the extension exceeds a certain percentage a larger extension can only be permitted in certain exceptional circumstances.

The inspector considered whether the extension was appropriate to the existing dwelling and its curtilage in paragraph 10. He concluded that it would be. He dealt with the detriment to the character of the New Forest in paragraphs 9 and 12. Although he expressed himself in terms of finding an impact which would be negligible, and it is possible that that did not meet entirely the limiting words of the policy, the difference between the two is itself of no obvious importance here.

So far as whether the development would be tantamount to a new dwelling, that rather depends upon the view taken of the scope of the permission and the significance of the absence of the condition that I have already dealt with.

The inspector recognised that the scale of the extension, including that which had already been permitted, which he regarded as important, did not satisfy the exceptions permitted within policy NF-H3. But the inspector was right to go on and consider whether outside the framework of that policy there were reasons for permitting the development. Mr Mills-Owens submitted that it would be illogical to treat an absence of impact, or a negligible impact, as itself an exception. Those were, in the policy, merely the conditions that had to be satisfied before one got to the stage of considering exceptions within the policy.

But the question of whether there is an impact, or a negligible impact, is obviously a relevant aspect of the consideration of whether there is an exception. But that was not the whole basis for the inspector's conclusion. Having considered that the impact of the proposal on the character and appearance of the area would be negligible and not conflicting then with other policies, he concluded that there would be an advantage to the appearance of the outbuildings because the new roofline, with the newly approved link extension, would create a better balanced and visually more attractive development. None of the other objectives of the policies would be harmed. Balancing matters in the way he did, he was entitled in law, in my view, to conclude that material considerations permitted him to come to a conclusion which he accepted was not in compliance with the relevant policy.

Mr Mills-Owens complains, next, that the inspector has failed to pay attention to the problem created by growth through planning permissions sought incrementally. I recognise that there is force, as a matter of planning merits arguments, that each successive planning permission alters the base from which an assessment of the next application is made. It could, at least in theory, lead to a situation in which planning permission is granted in the end, for a total development which, if sought in one single application, would not have been granted.

But that is not this case. The inspector here had to look at the existing permission to see if more should be permitted as a further exception to policy. He did so by looking at the whole of the development. He looked at the effect of the extension and he looked at the development as a whole. It is particularly important when considering this incremental argument that the inspector treated the link extension and this current application as all being part of the percentage increase in the size of the property for the purposes of the application of policy NF-H3. He did not apply the further increase to Hangersley House and outbuildings as already increased by that permission.

The inspector was clearly conscious of the importance of the location and of National Park policy, but did not see either the increment or the development that would result as a whole as warranting a refusal. It is clear that he could not re-examine the lawfulness or wisdom of the February 2004 permission.

Mr Mills-Owens next argued that a screening opinion was necessary because this development was development in a National Park which is a sensitive area for the purposes of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 SI No 293. However, a screening opinion is necessary to see whether development is EIA development. EIA development has to be schedule 2 development, likely to have a significant effect on the environment. Schedule 2 development means development "of a description mentioned in Column 1 of the table in Schedule 2 where - (a) any part of that development is to be carried out in a sensitive area; or (b) any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development." Therefore, if the development does not appear in column 1 of schedule 2, no screening opinion is required even though the development is in a sensitive area.

The raising of the roof, or even the raising of the roof and the infill link extension, does not come within any of the heads of development set out in column 1 to schedule 2. This could not remotely be described as an urban development project. Nor could it be described as a change or extension to an urban development project. That point is misconceived.

There were then complaints made that the procedure was inadequately carried out by the inspector. He, it was said, ought to have consulted the Highway Authority. There was no need, in my judgment, for him to consult the Highway Authority as a matter of law.

Finally, it is said that Mr Mills-Owens' human rights have been breached. So far as Article 8 is concerned, where Mr Mills-Owens referred to his loss of peace and quiet enjoyment of the natural beauty of his surroundings, there is no possible breach of Article 8(1). The circumstances simply do not begin to engage it.

Mr Mills-Owens also said that it was a breach of his human rights because he had been put to expense in clarifying what the planning application was for and protecting that which ought to be protected. He chose to engage in the written representations procedures. There was no obligation, at least in the public interest, to clarify that which had confused nobody else, or to protect the environment, which before the inspector, the local authority were seeking to do, and, after the inspector's decision, he could only do if there was an error of law. The inspector concluded that there would be no damage to the environment. It is not easy to see what public interest was thereafter being protected.

Accordingly this application is dismissed.

MR WARREN: My Lord, in those circumstances, I ask for an order that the claimant pays the costs of the First Secretary of State in resisting his challenge. I am told that Mr Mills-Owens received a copy of the costs schedule by post at the end of last week, though there may have to be a very slight amend to attendance in court to the final sum.

MR JUSTICE OUSELEY: What do you say that amendment should be to?

MR WARREN: The court, I think, received one, my Lord?

MR JUSTICE OUSELEY: Yes, I have it.

MR WARREN: It is on the second page, "Attendance at Hearing". It anticipated a rather longer hearing than we have had at five hours. It should be four. So instead of 800 there should be 640. The final figure at the bottom should be £6,836.

MR JUSTICE OUSELEY: Yes. Mr Mills-Owens, what do you want to say about the principle? That is to say, should I make an order for costs or not?

MR MILLS-OWENS: I do not quite understand you.

MR JUSTICE OUSELEY: There is an application that I order you to pay the Secretary of State's costs in relation to this case. What do you say about whether I should make such an order? I will then ask you whether you want to make any submissions about the amount, if I do make the order.

MR MILLS-OWENS: Only that if the matters had been made clear then one perhaps would not be here.

MR JUSTICE OUSELEY: Yes.

MR MILLS-OWENS: I do not bring these things trivially.

MR JUSTICE OUSELEY: There will be an order for costs in favour of the Secretary of State, Mr Mills-Owens. You may feel that you have gained some benefit from clarification as a result of my judgment, but the authority had made its position clear to you, even though at that time it was on your side, if I can put it that way, in terms of resisting the development. The Secretary of State's decision gives no indication of the lack of clarity and I am afraid that I take the view that the confusion in that respect was all down to you. So there will be an order for you to pay the Secretary of State's costs.

Mr Warren seeks the order being made in the sum of £6,836. Do you want to say anything about that?

MR MILLS-OWENS: Is there any process of taxation?

MR JUSTICE OUSELEY: Yes, there is.

MR MILLS-OWENS: Would that be a sensible --

MR JUSTICE OUSELEY: It might be. You have seen the figures and the time spent.

MR MILLS-OWENS: I only received them very recently, I have not even looked at them apart from glance at them.

MR JUSTICE OUSELEY: You might end up having to pay more if the figures set out in here are upheld.

MR MILLS-OWENS: I think I sent a letter to the court this morning by fax to say that I would rely on your judgment in the matter of what was reasonable in the circumstances and that applied to my own costs as well as to the defence.

MR JUSTICE OUSELEY: Can you just help me, Mr Warren, with "Work Done on Documents": 13.6 hours, for what is not a very voluminous case.

MR WARREN: It certainly does not run to many bundles, that is true. I have taken instructions on that figure, it being the largest item. I do not have the precise breakdown, but it breaks down into the normal process of the Treasury Solicitor having to take a view on the merits in order to advise the First Secretary of State, writing a minute, as your Lordship will know, normally take place. That accounts for quite a sizeable proportion of that, because the Treasury Solicitor dealing with the matter had to take into account not only the claim form and the witness statement, but then the later change and expansion of the grounds which came in with the claimant's later skeleton argument. So despite it not being the most massive case, there was quite a lot of involvement for the Treasury Solicitor to advise on. That is why, as I understand it, 13.6 hours.

MR JUSTICE OUSELEY: It does seem to me to be high. I understand that it would have been an evolving situation, but I think rather than send this off to taxation, I am going to make a decision now. On the whole these hourly charges are reasonable and the hours spent are reasonable. I have some doubt over whether all of that work was necessary and I will cut the figure down to £6,000 round.

There will be an order that you pay £6,000. Thank you.