Cubitt -Smith v Secretary of State for Communities and Local Government & Anor

The Claimant applies under section 288 of the Town and Country Planning Act 1990 to quash the decision of the Inspector, appointed by the Defendant, which was made on 11 October 2010, dismissing her appeal against the refusal of planning permission by the London Borough of Wandsworth.

In an application dated 12 May 2010 the Claimant applied for planning permission at 23 Sefton Street, Putney, London SW15 1NA, which is a late Victorian terraced house. The proposed development was:

The London Borough of Wandsworth refused the Claimant’s application for planning permission by a notice dated 16 July 2010.

On 11 October 2010 the Inspector, Mr Perrins, dismissed an appeal by the Claimant against the refusal of planning permission. The inspector made a site visit on 28 September 2010 and received written representations.

The inspector gave the following reasons for his decision:

“Main Issues

2)

I consider the main issues in this case to be the impact of the development upon the character and appearance of the original dwelling and street scene and upon the living conditions of occupiers of neighbouring properties.

Reasons

3)

The appeal property is situated within a terrace of residential properties to the west of Sefton Street. When viewed from the street the terrace has a regular roof line save for No 19 which has a front dormer which interrupts the regular rhythm of the roofs. To the rear there are a number of roof extensions in view.

4)

I accept that the proposed front dormer would reflect a more traditional method of lighting a roof space and various examples of dormers can be found in adjacent streets. The window would also reflect the width and position of the existing first floor window; I also have no reason to dispute the appellant’s claim that a dormer is more ecologically superior to a velux type window. In addition the proposed dormer window would provide a more habitable space in a small house and a more accessible means of escape in a fire. It would also afford no more overlooking than that afforded to the current first floor window.

5)

However, as can be seen from the sole front dormer window in the street, the proposed dormer would be at odds with the prevalent character of the roofscape. It would be an incongruous addition drawing the eye and leading to unacceptable harm to the street scene and the character and appearance of the original dwelling. It would be at odds to all of its neighbours save for one which does not alone justify repetition.

6)

I now turn to the rear mansard extension and see no reason to disagree with the Council’s view that, designed in accordance with Council policy, it would not result in unacceptable harm by way of overlooking or loss of daylight to the adjoining properties. In addition, given the number of rear roof extensions in the locality, it would not result in harm to the character and appearance of the locality.

7)

However, given the original layout of the terraced properties the mutual boundary with No 21 is formed by the side elevation of the existing two-storey rear projection. Therefore, the existing outlook from windows of rear habitable rooms of No 21 is already restricted. The addition of the roof extension above that projection would, to my mind, add further pressure upon the outlook and create an unacceptable sense of enclosure. It would be an overbearing addition leading to unacceptable harm to the living conditions in No 21.

8)

For these reasons, I find the proposal, as a whole would lead to unacceptable harm to the character and appearance of the original dwelling and street scene and to the living conditions of occupiers of No 21. It would therefore conflict with saved Policies TBE5 and H4 of the Wandsworth Unitary Development Plan 2003 which set out, amongst other things, that development will only be permitted if it respects the character of the building itself and neighbouring buildings and does not harm the amenity of neighbouring properties.

9)

Finally, the appellant has referred to the Conservation Area guidance published by the Council and I do not doubt it has been taken into account; the property does not however fall within a Conservation Area. Thus, for the reasons given above and having taken full and careful account of the views of local residents and other interested parties in reaching this decision I conclude that the appeal should be dismissed. “

The Claimant’s first ground of appeal was that the Inspector’s decision

It is apparent from paragraph 4 of the Inspector’s reasons that he broadly accepted the points made by the Claimant in favour of a dormer window. However, he decided that the proposed dormer would be at odds with the prevalent character of the roofscape - he described it as “an incongruous addition leading to unacceptable harm to the street scene.”

Although I have sympathy with the Claimant’s preference for a dormer window, an application under Section 288 of the 1990 Act is not an opportunity for a review of the planning merits of an Inspector’s decision. Sullivan J stated in R (Newsmith Stainless Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 [6] that whilst an allegation that the Inspector’s conclusion is perverse is in principle within the scope of a challenge under section 288, “the court must be astute to ensure such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits”.

It was for the Inspector to weigh up the relative importance of the factors relied upon by the Claimant against the harm to the appearance of the street. This was a planning judgment for the Inspector to make. Questions of planning judgment and of weight are within the exclusive province of the decision maker; it is not for the court to substitute its own judgment. (Tesco Stores v Secretary of State for the Environment [1995] 1WLR 759 (per Lord Hoffmann at 780).

Finally, the Claimant relied upon the Conservation Area Guidance, describing dormer windows as suitable, as indicating good practice. However, Sefton Street is not in a conservation area and therefore the Council and the Inspector were not required to follow it.

In my judgment the Inspector’s conclusion on the unsuitability of the front dormer window was an exercise of planning judgement with which the Court cannot interfere.

The second ground relied upon by the Claimant was that the inspector’s decision regarding the rear extension should be quashed on the ground of mistake of fact, or alternatively on the ground of unfairness arising from a mistake of fact. She said:

“With regard to the rear of the property, the Council state in their report that they consulted 16 neighbours and received 15 objections. What the Claimant believes the report fails to state is that the 15 objections received did not all come from the 16 neighbours consulted. Thus, many of the original neighbours consulted did not object, including those most closely affected. The misleading impression given by the report may have contributed to the Planning Inspector’s mistaken belief that No 21 had objected. Only 4 of the objections related to the rear extension, 2 of which were from people living on the opposite side of the road who would not be affected. The remaining 2, from No 11 and No 37 are not close neighbours, being five houses and seven houses away respectively. The immediate neighbour at No 21 did not object to this application.”

The Claimant also criticised a schedule of correspondence which was attached to the front of the consultation representations sent to the inspector by the Council on the ground that it was confusing and misleading. It was unclear why some recipients had been referred to as consultees and others as neighbours. Furthermore some addresses appeared twice, giving the impression that there were more objections received than was actually the case.

I agree that the Council’s summary of the response to the consultation was insufficient to give a full and accurate picture of the responses received. I also agree that the document headed “Appeal Correspondence” was confusing. However, in my judgement, the Inspector would not have relied on either of these documents in making his decision. The reason is that he had the benefit of the original source material, upon which these summaries were based. He was given copies of all the representations made, as was the Claimant.

Part 1 of the Town and Country Planning (Appeals) (Written Representations Procedure) (England ) Regulations 2009 (SI 2009/452) applies to Section 78 appeals concerning householder applications. Regulation 6 (1) provides that the local authority shall give notice of the appeal to any person notified or consulted about the application which has given rise to the appeal and any other person who made representations to the local planning authority about that application. Regulation 6 (2) provides that the notice must state, inter alia, that:

“….any representations made to the local planning authority in relation to the application, before it was determined, will be sent to the Secretary of State and the appellant by the local planning authority and will be considered by the Secretary of State when determining the appeal unless they are withdrawn in writing within 4 weeks of the starting date.”

Since the Inspector had copies of all representations which had been made, he was well aware who had objected to the proposed development and who had not objected. He must have been aware that no objection had been lodged by the occupants of No 21 Sefton Street. There is nothing in the Inspector’s decision to suggest that he mistakenly believed that the occupants of 21 Sefton Street had objected to the development.

There is no basis upon which to doubt the Inspector’s statement in paragraph 9 that he “taken full and careful account of the views of local residents and other interested parties in reaching this decision”.

Whilst the views of the occupants of No 21 Sefton Street were clearly relevant to the decision, they were by no means decisive because the Inspector was required to consider the impact of the development on any occupant of No. 21 in the future, not just the views of the current occupants.

In my judgment, the Claimant has failed to establish that the Inspector made a mistake of fact or that there was any unfairness.

For these reasons the Claimant’s application must be dismissed.