The London Borough of Hackney v Secretary of State for Housing, Communities And Local Government & Anor

This is an application by the Claimant for a statutory review under section 288 of the Town and Country Planning Act 1990 of the decisions of the First Defendant’s Planning Inspector on 13 December 2017:

The decision to grant planning permission resulted in the grant of permission “for a full town planning application for subdivision into three self-contained flats providing one x three bed – 5 person and two x one bedroom – 1 person at 5 Clifden Road Hackney London E5 0LL in accordance with the terms of the application, Ref 2016/4574, dated 12 December 2016, subject to the following conditions:

The Inspector’s costs decision was that the application “for a full award of costs is allowed”.

On 15 March 2018, His Honour Judge Bird sitting as a Deputy Judge of the High Court, granted permission on the first of the Claimant’s grounds of challenge to the Inspector’s decision to grant planning permission; namely, that she arguably erred in law in failing to take into account relevant considerations. These considerations concerned the Claimant’s stance in relation to the construction, at 2^nd Floor level, at the rear of the property, of living space above what is described as an outrigger. The outrigger was a two storey construction, at right angles to the main elevation of the house. The construction at second floor level I shall call the second floor extension.

The Deputy Judge refused permission on the four other grounds relating to the Inspector’s decision to grant planning permission. The Deputy Judge did not, however, make any decision on the arguability of the challenge to the Inspector’s decision on costs.

At the hearing before me, Ms Dring did not raise any material objection to Ms Thomas’ application to “roll up” the costs challenge. In the circumstances, I consider that it is appropriate to deal with the matter in that way.

The second floor extension is crucial to the Claimant’s challenges to both of the Inspector’s decisions. It features in the plans mentioned in the Inspector’s planning decision (see paragraph 2 above). The second floor extension does so, however, on the basis that it is shown as an existing, rather than a proposed, element of the property. This is because, when the Second Defendant applied to the Claimant for planning permission to bring about the conversion of the property into three self-contained flats, the second floor extension had already been constructed.

This had come about as follows. In 2016, the Second Defendant had applied to the Claimant for a certificate of lawfulness of proposed use or development (CLOPUD) under section 192 of the 1990 Act. The Second Defendant hoped by this to establish that the construction of the second floor extension would be recognised by the Claimant as lawful proposed development, pursuant to Class B, Part 1 in Schedule 2 to the Town and Country (General Permitted Development Order) (England) Order 2015 (GPDO).

Condition B.2 of the GPDO provides that development is permitted by Class B subject to specified conditions, of which one reads as follows:-

Although it is common ground that the Inspector did not see them, the plans submitted by the Second Defendant in connection with the CLOPUD application showed the second floor extension as being set back from the edges of the outrigger by 20cm.

The Claimant granted the Second Defendant a CLOPUD on 29 March 2016, acknowledging that development would be lawful, as at the date of that decision, as shown in the submitted plans.

The Second Defendant constructed the second floor extension. As built, however, the extension was not inset by 20cm. Indeed, it was not inset at all. Those advising the Second Defendant contended to the Claimant that the second floor extension nevertheless fell within the CLOPUD in that, it had not, in the event, proved to be “practicable” to achieve the inset. Reasons were given for this view. For reasons we shall see, the Claimant did not accept them. So far as the Claimant was concerned, the second floor extension had been constructed in breach of development control.

This, then, was the position when the Second Defendant applied to the Claimant for the planning permission that was refused on 20 February 2017. The Claimant’s reasons for the refusal were as follows:-

The Claimant’s refusal of planning permission needs to be read in conjunction with the delegated report of the Claimant’s planning officer, Mr Bovaird, who on 10 February 2017 recommended refusal of the Second Defendant’s application. This delegated report described the proposal as comprising the excavation of a basement; the erection of a single storey side infill extension (that is to say, infilling between the longer sides of the outrigger and the property boundary with no. 3 Clifden Road); elevation or alterations including extensions to chimney stacks and an addition of a roof light; rear bifold doors at ground level “associated with a conversion of the property into three self-contained residential units”.

Under the heading “Relevant History”, the delegated report referred to what is described as the proposed erection of a single storey rear extension at the second floor level. Seventeen “neighbour notification letters” in respect of the application had been sent. No objections had been received.

The delegated report referred to a number of relevant development plans, including the London Plan, the development management local plan, the core strategy and “the Mayor’s Housing SPG (March 2016)”.

Under the heading “Assessment and Reasons” we see the following:-

The Second Defendant exercised her right under section 78 of the 1990 Act to appeal to the Planning Inspectorate against the Claimant’s refusal of permission. The questionnaire, completed by the Claimant in connection with the appeal, referred to extracts from relevant development plans, which were submitted with the questionnaire.

The Second Defendant, for her part, filed an appeal statement, through her advisers, PlanningSense. The appeal statement referred to provisions of the London Plan and the Hackney Core Strategy and local plan as well as the Mayor’s Housing SPG.

The appeal statement pointed out that the single reason for refusal was that the Claimant said it was unable to consider an application for a development where there were unauthorised works and the proposal was reliant on the unauthorised development. The appeal statement contended that the Claimant had, however, gone on to determine the application by refusing it. In any event, the appeal statement “strongly contends that the rear extension is unlawful” (sic; presumably “lawful” is meant).

The appeal statement submitted that although the second floor extension, as built, differed “slightly from the plan submitted”, it was still considered that the extension fell within the relevant general permitted development criteria for such a structure.

We then find the following:-

After a series of submissions relating to the status of the second floor extension, the appeal statement turned to the “planning merits” of that extension:-

The appeal statement then addressed the impact on amenity of what it described as “the scheme”, which included the second floor extension:-

The Inspector dealt with the appeal by means of written representations. She also made a site visit to the property.

On 13 October 2017, the Planning Inspectorate wrote to the Claimant to note that no local planning authority statement had been received for the appeal. In the absence of such a statement, the Planning Inspectorate required the Claimant to submit a list of suggested conditions as soon as possible, albeit that these would be provided “entirely without prejudice to the outcome/decision”. The letter said that in the absence of a statement, it would be assumed that the Claimant was relying on the officer’s delegated report and enclosures submitted with the questionnaire.

16 October 2017, Mr Bovaird replied by email to say that the Officer’s report was the Claimant’s statement of case:- “the matter is dealt with quite simply there and no new evidence has been brought to light in our subsequent conversations with the applicant to make us question our findings”. No specific conditions were requested outside the standard ones of (1) development in accordance with submitted plans; and (2) materials to match.

On 16 November 2017, the Planning Inspectorate sent an email to the Claimant, as follows:-

On 24 November 2017, Mr Bovaird replied as follows:-

I have already set out the relevant parts of the Inspector’s decision to grant planning permission. Having set out the history of the matter leading up to that decision, I need now to refer to the Inspector’s process of reasoning. This was as follows:-

The Inspector’s reasons for awarding costs against the Claimant were as follows:-

For the Claimant, Ms Thomas submitted that, in granting planning permission by reference to the plans submitted by the Second Defendant, as contained in condition (ii) in the Inspector’s decision, the Inspector had expressly granted planning permission for the secondfloor extension, as part of the operational development that would give effect to the conversion of the property into three self-contained flats. In doing so, however, the Inspector had not taken into account relevant considerations; namely, the Claimant’s objections to the second floor extension. The Inspector could not have avoided consideration of the planning merits of second floor extension, if she were to grant permission for it.

Ms Thomas said the fact there had been no neighbour objections to the Second Defendant’s planning application counted for little or nothing, given that the second floor extension had been shown on the application plans as an existing feature of the property. Anyone looking at the plans would, accordingly, have assumed that it was not part of the application.

In the delegated report, the relevant planning policies had been listed by Mr Bovaird. Ms Thomas accepted that Mr Bovaird had not expressly referred to any policies in the paragraphs under “Procedural matters” but the relevant policies had been copied and sent to the Inspector.

Ms Thomas pointed to the paragraphs (6.6.2 to 6.12) of the Second Defendant’s planning appeal statement, which engaged with the merits of the scheme including (at paragraphs 6.10) the second-storey extension’s roof.

The fact that the second-storey extension needed to be considered by the Inspector was, Ms Thomas submitted, made plain by the Planning Inspectorate’s email to the Claimant of 16 November 2017, in which it was stated that it was “not apparent” that this extension was part of the development which had been appealed. Mr Bovaird’s reply of 24 November pointed out that “the proposed development relates to the use of the property. That includes the second-floor roof extension (and the rear extension)”.

Turning to the Inspector’s reasoning, Ms Thomas stressed the Inspector’s statement at paragraph 4 under the heading “Procedural matters” that the Claimant’s refusal of the planning application on grounds relating to the construction of the second floor extension was “not a matter for me to consider or comment on as part of an appeal under section 78 of the Town and Country Planning Act 1990.” Thus, despite the fact that the Second Defendant’s appeal statement had gone into the planning merits of the second floor extension, the Inspector had wrongly decided to ignore them.

Turning to the costs decision, Ms Thomas submitted that the Inspector was wrong to treat the Claimant as having acted unreasonably in refusing the planning application. The second floor extension had not been a part of that application. The Claimant had explained why it had not been appropriate to grant permission, in the circumstances. This had included consideration of the second floor extension by reference to relevant development plan policies.

Anticipating Ms Dring’s submission relating to the Court’s discretion not to quash the Inspector’s decision, Ms Thomas submitted it could not be said that the Inspector’s decision would necessarily have been the same, but for her error. She would have had to have dealt with the planning merits or otherwise of the second floor extension. The same is true of the fact that neighbours had not been statutorily consulted about that aspect.

For the First Defendant, Ms Dring said that her client’s position was that there was an error of law in the Inspector’s decision, in that she had failed to give adequate reasons why she had decided to grant permission for the second floor extension. That was, however, the extent of the Inspector’s error. On the basis of the material and submissions that have been put to the Inspector, her decision regarding the second floor extension would have been bound to have been the same, absent the “reasons” error. Very little had been put to her by the Claimant. This contrasted with what Ms Dring said had been considerable elaboration and expansion by the Claimant in the course of the present proceedings.

Under the heading “Reasons for decision” in the Claimant’s written refusal of planning permission, the sole reason given was that the second floor extension had been unauthorised. It had not been stated by the Claimant that the second floor extension breached any development plan policies. Section 38(6) of the 1990 Act provides that a determination made under the Planning Acts “must be made in accordance with the [development] plan unless material considerations indicate otherwise”. The comments in the delegated report that the second floor extension “would be unlikely to gain planning permission” failed to discharge the Claimant’s statutory obligations. It was, Ms Dring submitted, too late now for the Claimant to try to add value to what was just a bare list of policies, and some extracts from them.

Ms Dring pointed to paragraph 9 of the Claimant’s statement of facts and grounds, served in the present proceedings, in which the Claimant states that “the scheme sought approval of the enlarged second floor rear extension. The Claimant refused to grant permission for the proposal on the basis that the proposal was reliant on the unauthorised development”. That, according to Ms Dring, was entirely right. It was also fatal to the Claimant’s case. Subsequently, the Claimant had tried to submit that the second floor extension was not part of the Second Defendant’s application for planning permission. The Claimant could not, in Ms Dring’s words, have it both ways.

Read in this light, Ms Dring said that the Inspector’s decision was justified, albeit that she should have gone into some more detail about the matter.

On the issue of relief, although the threshold to be surmounted by the First Defendant was a high one, Ms Dring submitted that it was scaled in the present case. The issue regarding statutory consultation was, according to Ms Dring, of no material consequence. There had been a re-notification of those entitled to receive notification, in connection with the appeal to the Inspector. Anyone asking to see the relevant appeal papers would, therefore, have been made aware of the unauthorised nature of the second floor extension. No one had, however, made an objection.

The Inspector had undertaken a site visit and had viewed the final form of the development, save for the unconstructed works needed to achieve the conversion into three flats. The Inspector would, therefore, have seen the second floor extension. It was fanciful to think that the lack of a 20cm inset would have had any effect upon the Inspector’s conclusions.

As for the issue of costs, the Inspector was, in Ms Dring’s submission, entitled to reach the decision that the Claimant should pay the Second Defendant’s costs.

In reply, Ms Thomas said that although the second floor extension was within the scheme, as applied for, the building works necessary to create it were not part of the application. In order to grant permission, the Inspector would have needed to treat that aspect as retrospective. If the Inspector had told the Claimant that this was how she was intending to proceed, the Claimant could have explained the harm that would be caused by permitting the application.

The Inspector would also, according to Ms Thomas, have had to overcome the problem regarding consultation.

So far as discretion was concerned, Ms Thomas said that the Court could not substitute its own view of the planning merits for those of the Inspector. A section 38(6) approach would call for a proper analysis of the proposals by reference to the relevant plans.

Although it deals with the situation where the Secretary of State, rather than an Inspector, takes the relevant decision, the Judgment of Forbes J in Seddon Properties Limited v Secretary of State for the Environment & another (1981) 42P.&C.R.26 is nevertheless relevant to the task I face, in considering what the Inspector in this case said in her decision:-

More recently, at paragraph 19 of Bloor Homes East Midlands Limited v SSCLG [2014] EWHC (Admin) Lindblom J (as he then was) described the relevant law by reference to seven “familiar principles”, of which the following are relevant for present purposes:-

So far as concerns the discretion of this court not to quash the Inspector’s decision, the judgments of the Court of Appeal in Simplex GE (Holdings) v The Secretary of State for the Environment (1989) (57P.&C.R/306) established that the test is whether, assuming the Inspector had not committed the error or errors of law identified by the judge, the Inspector’s decision would necessarily have been the same.

In the recent case of Secretary of State for Communities and Local Government the South Gloucestershire Council & another[2016] EWCA Civ 74, the Court of Appeal explained the nature of the test in Simplex, and its justification, as follows: -

Despite Ms Thomas’ most able submissions, I find myself in agreement with Ms Dring on all relevant matters. The true position, is I find, accurately articulated in paragraph 9 of the Claimant’s statement of grounds; namely, “the scheme sought approval of the enlarged second floor rear extension. The Claimant refused to grant permission for the proposal on the basis that the proposal was reliant on the unauthorised development”.

In so finding, I am not in any sense saying that the Claimant is somehow fixed with that statement and cannot seek to resile from it. Rather, I find that what is said at paragraph 9 represents the reality of the matter. The Second Defendant’s application plainly fell to be construed as including an application for permission (albeit retrospective) to construct the second floor extension if (as turned out to be the case) the Claimant took the view that this extension was not permitted by the GPDO.

This fact is underscored by the acknowledgment of both parties that the Inspector granted planning permission for the second floor extension, by referring in condition (ii) to plans which showed it as an essential feature of the development necessary to effect the conversion of the property into three self-contained flats.

Like Ms Dring, I can, with respect, detect no legitimate rationale for the distinction that Ms Thomas sought to draw between, on the one hand, the “scheme” and, on the other, the various aspects of the operational development required to bring the scheme to fruition.

In one sense, I can understand Mr Bovaird’s reaction to discovering that the second floor extension had not, in fact, been built with the 20cm inset. He may well have been correct to reject the submissions made on behalf of the Second Defendant that it had not, in the event, been “practicable” to achieve the 20cm inset from the edges of the outrigger. However, as the Inspector said, that was not a matter for her in determining the section 78 appeal.

On the contrary, whether the second floor extension had been constructed in breach of development control was not determinative of whether the Claimant should grant permission to the Second Defendant. That, however, was the sole reason articulated by the Claimant in its refusal for permission. What the Claimant should have done was to have acknowledged that the application, examined as a whole, encompassed the second floor extension and then to have determined all aspects of the application in accordance with section 38(6) of the 1990 Act.

I do not consider that the Claimant can derive any material assistance from the comments in the delegated report that “the extensions represent development that would potentially not comply with adopted development plan policy, and would therefore not gain planning permission” and later, that “the works …represent development that would be unlikely to gain planning permission”. The fact that these observations were not intended by the Claimant to be a substantive determination of the planning merits of the second floor extension is, I find, made plain by the response of Mr Bovaird to the letter from the Planning Inspectorate. Mr Bovaird’s response reiterates “the reason for refusal” as being that, since works had been undertaken which were unauthorised, “the Council, as Local Planning Authority, is unable to consider an application for development where there are unauthorised works and the proposal is reliant on the unauthorised development”. The Claimant’s position could not, I find, have been made clearer.

In any event, as Ms Dring submitted, a statement to the effect that planning permission would be unlikely to be granted is in no sense a proper exercise of the Claimant’s function under section 38. In so saying, I am aware of the fact that various planning policies were listed in the delegated report. What was needed, however, was express reference to such provisions of the policies, as the Claimant regarded as telling against the grant of permission.

I do not consider that the issue regarding neighbour notification assists the Claimant. Given that notification took place in connection with the planning appeal, anyone who was interested enough to consult the relevant materials would have been made aware of the issue relating to the second floor extension and so could have objected to planning permission being granted, where that would result in the second floor extension remaining in place.

I turn to the issue of discretion. I remind myself that the threshold to be surmounted by the First Defendant is a high one.

Accepting as I do and as the First Defendant concedes that the Inspector could have given more reasons for granting planning permission in respect of the second floor extension, I find this is a case where her decision was bound to be the same, had she given those reasons. As we have seen, the Second Defendant’s appeal statement dealt expressly with the planning merits of the second floor extension. In particular, it pointed to the fact that the “design approach creates a subservient roof level structure” that had been “designed with a pitch to differentiate it from the host dwelling”. That is also evident from the drawings.

As against this, the Inspector had, as I have explained, nothing material from the Claimant.

The Inspector also conducted a site visit. Her observations at paragraphs 11 to 15 of her report are careful and detailed. Although the Inspector was concerned with whether the as-yet unbuilt elements would detract from the character and appearance of the area, she would obviously have had to reach her decision on that issue by reference to what had already been built. That would include the second floor extension. It is, I find, fanciful to the point of irrationality to find that the Inspector – had she appreciated the need to give fuller reasons – might have concluded that, although the as-yet unbuilt features would be acceptable, viewed in conjunction with what was already there, the failure of the second floor extension to be inset by 20cm, was such as to render the entire scheme unacceptable in planning terms.

In so finding, I am not in any way trying to insert my own non-expert view of the matter into the Inspector’s report. Had I been in any doubt on this issue, I would have quashed her decision.

The Claimant’s challenge to the Inspector’s decision to grant planning permission accordingly fails.

I turn to the challenge to the Inspector’s costs decision. Although I grant permission for the Claimant to bring the challenge, I find that the challenge fails.

For the reasons I have given, I agree with the Inspector that the Claimant gave a reason for refusal which did not relate to the development applied for (which included the second floor extension) and which was not based on planning policy, whether national or local. To repeat, the mere fact that an aspect of the scheme in respect of which permission was sought may have been built in breach of development control was not a justification for refusing the application. The Second Defendant was entitled to receive, but did not get, a determination which accorded with section 38(6) of the 1990 Act.

Both of the Claimant’s challenges accordingly fail.

I shall hear counsel on the form of the order, and on the issue of costs, unless these can be agreed.