CHRISTOPHER TAYLOR-DAVIES (R on the application of) v WANDSWORTH

The Claimants seek judicial review of the decision of the Defendant (“the Council”), dated 19 April 2021, not to take enforcement action in respect of an alleged breach of planning control at 244 Dover House Road, Putney, London SW15 5DA (“the Property”), which is owned by the Interested Party, Mr Cook.

The Claimants live next door to the Property at 242 Dover House Road (“No. 242”).

In summary, the issue is whether, under the terms of the planning permission (“the Permission”) granted by the Council for a roof extension to the Property, the rooflight (commonly known by the brand name “Velux window”) which overlooks the Claimants’ top floor bedroom, study and bathroom, was subject to Condition 3, which requires windows in the side elevations to be fitted with obscured glass, and to be non-opening, in order to control overlooking and to safeguard the privacy of neighbours. Mr Cook has only complied with Condition 3 in respect of the dormer window, not the rooflight. The Council contends that Condition 3 only applies to the dormer window, and therefore it has not pursued enforcement proceedings. The Claimants contend that Condition 3 applies to the rooflight as well, and therefore the Council has erred in failing to enforce the breach of planning control at the Property.

Following a refusal of permission on the papers, permission was granted at an oral renewal hearing by Tim Smith, sitting as a Deputy Judge of the High Court, on 7 October 2021.

On 16 December 2019, Mr Cook applied to the Council for planning permission for a roof extension to the main roof at the Property, to include the construction of 3 dormer windows and 6 rooflights.

The application was accompanied by detailed drawings. A03 Revision P1, dated 6 April 2019, included a Site Plan, and individual plans for the First Floor, Loft Floor, Front Elevation, Rear Elevation, Side Elevation 1, and Side Elevation 2. The drawing of Side Elevation 1 showed a dormer window with a rooflight on either side, and a further rooflight towards the front of the Property. An annotation above the roof stated “All windows to be obscure” with a line pointing to the top of the dormer window, over the centre pane. The drawing of the Rear Elevation had a similar annotation and line.

Drawing A04 P1, also dated 6 April 2019, showed sections of the development proposed. It had an annotation stating “All windows to be obscure” with a line pointing towards a dormer window on one of the side elevations.

The Property is a detached house, as is No. 242. The north elevation of the Property (identified as Side Elevation 1 in the drawing A03 Revision P1) faces the side of No. 242. The dormer window and the rooflight/s on Side Elevation 1 look directly at the top floor of No. 242 where the Claimants have their bedroom/study and a bathroom. Dover House Road is built on a steep slope, and therefore the Property is on higher ground than No. 242. In consequence, a person looking through the north facing rooflight and dormer window of the roof extension of the Property can see down into the rooms on the top floor of No. 242. At the hearing, the Council did not dispute this.

For these reasons, the Claimants objected to the application on grounds of overlooking and invasion of privacy. Their objection related to both the dormer window and the rooflights. Their objection was summarised in the planning officer’s report (“OR”) which stated:

The proposed north facing dormer and velux windows look directly into our property, straight into our bathroom (and clear sided shower box), the hallway between bathroom and bedroom, and the bedroom and study itself.

The velux window on the north west corner directly overlooks our bed. The slope of the ground means that 244 is higher than 242 and so looks down into the rooms, where we sleep and my wife studies.

We would be overlooked day and night and feel very uncomfortable about this. Therefore we feel we have to raise objections to all windows on the north side of the property, being an invasion of privacy to our home where we have lived for 27 years.”

On or about 23 January 2020, Mrs Cook (Mr Cook’s wife) sent the Second Claimant an electronic message stating “Re the planning windows on the sides we will have obscure glass and fixed panes (can’t open) for privacy reasons …”.

In February 2020, Mr Cook submitted a further drawing - A03 Revision P3 – which replaced A03 Revision P1. It is wrongly dated 6 April 2019. The drawing of Side Elevation 1 was amended. The rooflight near the front of the Property was removed. The wording of the annotation was amended to read “Windows to be made obscured glass” and the line ran down to the top of the dormer window, above the right hand pane. In the drawing of the Rear Elevation, the annotation was amended to read “Rear dormer window to be made of clear glass”.

The Claimants were not afforded an opportunity to comment on the amended plan.

In the OR, which was dated 26 February 2020, the planning officer set out the Claimants’ objection and commented as follows:

However, the Claimants denied that they had ever withdrawn their objection, and the Council was unable to provide any evidence to support what the planning officer said, or to explain the basis for it. Mr Beglan said, on instructions, that there may have been a misunderstanding between the parties.

In the OR, the planning officer twice referred to the requirement for obscured glazing in the side-facing dormer windows. There was no mention of the glazing in the rooflights, nor their impact on the privacy of the neighbours.

The OR also recorded an objection from the Council’s Conservation and Design (“CAD”) team, including on grounds that rooflights on neighbouring houses have harmed their character and appearance.

On 26 February 2020, planning permission was granted in the following terms:

The material conditions were as follows:

In June 2020, Mr Cook installed a dormer window and only one rooflight on Side Elevation 1, to the left of the dormer window. Curiously, there is no record of an amendment to permit the removal of the rooflight on the right hand side of the dormer window, though nothing turns on that in this claim. The dormer window has obscured glass and could not be opened, in accordance with Condition 3. But the rooflight has clear glass and can be opened, even though it is (in part) less than 1.7 metres above the floor of the room. Mr Cook has added an obscuring film to part of the rooflight, but it is not suggested that this complies with Condition 3, as it can easily be removed, and the rooflight can still be opened. Furthermore, Mr Cook periodically installs a mannequin in the rooflight, which gives the impression that there is a person at the window looking out at No. 242. This suggests to me that he is not taking the Claimants’ concerns seriously, and so he is unlikely to maintain obscuring film voluntarily. According to the evidence of the First Claimant, there is nowhere within the top floor of No. 242 where they can undress without being seen from the rooflight at No. 244, except behind one bookcase. The Council does not dispute this evidence.

The Claimants raised their concerns with the Council which carried out an investigation. The Council concluded that there was no breach of planning control because Condition 3 only applies to the dormer window, not the rooflight, on Side Elevation 1. The reasons given, in a series of emails which post-dated the Permission, were that the approved plan shows that the dormer window would be obscure glazed, not the rooflight. The planning officer who wrote the OR, and made the decision to grant the Permission, only intended to impose Condition 3 in respect of the dormer window as it has a side-facing view that would have most impact in terms of overlooking. The planning officer did not intend to impose Condition 3 in respect of the rooflight because it faces the sky, and so has less impact.

By section 70(1)(a) of the Town and County Planning Act 1990, a local planning authority “…may grant planning permission, either unconditionally or subject to such conditions as they think fit”.

Local planning authorities should consider whether otherwise unacceptable development could be made acceptable through the use of conditions. Planning conditions should only be imposed where they are necessary, relevant, enforceable, precise and reasonable in all other respects (National Planning Policy Framework (February 2019) (Footnote: ¹), paragraphs 54 and 55).

The proper interpretation of a planning permission is a matter of law for the Court (Barnett v Secretary of State for Communities and Local Government [2009] EWCA Civ 476, [2010] 1 P & CR 8, per Keene LJ at [28]).

In Trump International Golf Club Scotland Ltd v Scottish Ministers [2016] 1 WLR 85, Lord Hodge, giving the leading judgment, set out the approach to be taken, as follows:

Lord Carnwath reviewed the planning cases, and concluded:

In Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] PTSR 1388, Lord Carnwath cited the passages from Trump which I have set out above and concluded:

In applying those principles to the case before him, Lord Carnwath observed, at [28], that the reasonable reader should be “assumed to start by taking the document at face value, before being driven to the somewhat elaborate process of legal and contextual analysis hypothesised in Lewison LJ’s para 52” in the judgment of the Court of Appeal. Adopting that approach, he found that the natural meaning of the words used in the grant was clear and unambiguous, and so it was unnecessary to look beyond its terms (at [29] – [30]).

Lewison LJ has since reiterated that, since the context includes the legal framework within which planning permissions are granted, the reasonable reader must be equipped with some knowledge of planning law and practice: Swindon Borough Council v Secretary of State for Housing, Communities and Local Government [2021] PTSR 432, per Lewison LJ at [64]. This principle does not appear to be in dispute, though I consider it can be inferred from Lord Carnwath’s criticism of Lewison LJ’s approach in Lambeth that the level of knowledge to be attributed to the reasonable reader is not that of a planning professional or planning lawyer.

The principles applicable to the use of other documents as an aid to interpretation were summarised in R v Ashford Borough Council, Ex p Shepway District Council [1999] PLCR 12, per Keene J. at pp 19C-20B (as approved by the Court by Lord Hodge in Trump at [33]):

Shepway was distinguished in Barnett v Secretary of State for Communities and Local Government [2008] EWHC 1601 (Admin) on the basis that, on a grant of full planning permission (as opposed to a grant of outline permission), the plans and drawings which describe the building works that have been permitted should be used in interpreting the permission since as they are “as much a part of the description of what has been permitted as the permission notice itself” per Sullivan J. at [24], approved by the Court of Appeal (supra)per Keene LJ at [20], [21].

Further guidance was provided by Lieven J. in UBB Waste Essex Ltd v Essex CC [2019] EWHC 1924 (Admin), at [53] – [57]:

As Mr Whale pointed out, Lieven J.’s reference to “intention” in UBB Waste at [57] (supra) must surely be understood to refer to the objective intention of the condition, as identified by the Court through the eyes of the reasonable reader, not the subjective intention of the planning officer or committee that imposed the condition.

On behalf of the Claimants, Mr Whale submitted that, on the authorities, the Court should interpret the planning permission objectively, through the eyes of the reasonable reader, not by reference to the subjective intentions of the planning officer who wrote the OR and drafted the Permission.

The Permission approves the submitted plans i.e. the drawings A03 Revision P3 and A04 Revision P1. Condition 2 also expressly incorporates drawing A03 Revision P3. Therefore these drawings are to be treated as part of the Permission.

Applying the guidance of Lord Carnwath in Lambeth,the reasonable reader should take the Permission at face value and identify “the natural and ordinary meaning” of the words used. Condition 3 and the drawing A03 Revision P3 require that the “windows” (plural) in the side elevations at loft level are to be “obscure-glazed and non-opening”. The reasonable reader would understand that requirement to apply to all the windows at loft level in Side Elevation 1, as the natural and ordinary meaning of the word “window” includes both a dormer window and a rooflight. This meaning accords with the definition of the word “window” in the Shorter Oxford Dictionary (page 3641):

Condition 3 does not distinguish between the different types of window and so it ought to be read as referring to all windows in the side elevations which are at loft level. The height restriction (windows more than 1.7 metres above the floor are excluded) is only likely to be relevant to a rooflight, not a dormer window. Condition 3 could have been expressly limited to dormer windows, just as Condition 5 is expressly limited to rooflights, but it was not. The progression from Condition 3, applying to all windows, to Condition 5, applying only to a specific type of window, is a progression from the general to the particular.

If the Permission was limited to the dormer window on Side Elevation 1, the drawing would have used the word “window” in the singular, not the plural. This is illustrated by the drawing of the Rear Elevation (A03 Revision P3) which specifically refers in the singular to the “Rear dormer window to be made of clear glass”.

The reasonable reader would conclude that this interpretation of the Permission accords with common sense, and gives effect to the purpose of Condition 3, namely to “control overlooking and safeguard the privacy of neighbours”, since both the rooflight and the dormer window overlook the neighbours in No. 242.

Mr Whale submitted that, as the meaning of the Permission is clear and unambiguous, it was impermissible to have regard to extrinsic evidence, such as the OR and the emails from the Council and the message from Mrs Cook, for the purposes of interpretation.

In the event that the Court found that the meaning of the Permission was ambiguous, it was permissible to have regard to the OR, but not the Council’s emails which post-dated the Permission, as these were not in the public domain, and could not be accessed by successors in title. Mrs Cook’s message showed that Mr Cook had agreed that both windows on Side Elevation 1 would have obscured glazing and be non-opening.

Little reliance could be placed upon the OR. It was plainly flawed as it was based on the mistaken assumption that the Claimants’ objection, made expressly on the basis that they were overlooked in their bedroom and bathroom from the Velux window, had been withdrawn because this issue had been addressed within the final plans. However, on the Council’s interpretation of the final plans (as revised), it was plain that the Claimants’ issue regarding the Velux window (i.e. the rooflight) had not been addressed. In the OR, the planning officer referred to the requirement to use obscure glazing in respect of the dormer windows, in the section headed “Amendments”, and the section headed “Amenity Impact”, concluding that there would not be an adverse impact on the privacy of neighbouring sites. However, he made no reference to the loss of privacy as a result of the rooflights, and how that had been addressed in the final plans.

On behalf of the Council, Mr Beglan agreed with Mr Whale’s submission that, on the authorities, the Court should interpret the planning permission objectively, through the eyes of the reasonable reader, not by reference to the subjective intentions of the planning officer who wrote the OR and drafted the Permission.

Mr Beglan submitted that the clear and unambiguous meaning of the Permission is that Condition 3 only applies to the dormer window, not the rooflight. Therefore it was impermissible to have regard to extrinsic evidence, such as the OR, the emails from the Council and the message from Mrs Cook, for the purposes of interpretation. However, he submitted that the Court should have regard to the OR, the emails of 17 June 2020 and 19 April 2021, and the Council’s pre-action letter dated 24 May 2021, in so far as they set out the planning implications of the application and their assessment by the Council, because they were part of the context in which the Permission was granted.

Mr Beglan also agreed with Mr Whale that the drawings A03 Revision P3 and A04 Revision P1 are to be treated as part of the Permission, though he submitted that A03 Revision P3 has primacy as it is expressly referenced in Condition 2.

Mr Beglan accepted that the dictionary definition of the word “window”, relied upon by Mr Whale is correct, and that it includes rooflights. It is the natural and ordinary meaning of the word “window”.

However, Mr Beglan submitted that the notional reasonable reader, who is equipped with some knowledge of planning law and practice, would be aware that dormer windows and rooflights were typically situated at different planes, and that the view from the upper part of a rooflight (at least when closed) was a view of the sky, unlike a dormer window which looked directly at neighbouring buildings.

Mr Beglan submitted that Mr Whale placed too much weight on the use of the plural when referring to the windows. The reason that Condition 3 referred to “windows” in the plural is that it refers to the three panes of glass in the dormer window. Alternatively, it refers to all the proposed dormer windows in the Property, not just the single dormer window in Side Elevation 1.

Furthermore, when drawing A03 was amended, the text of the annotation was altered from “All windows to be obscure” to “Windows to be made obscured glass”, which has a more restrictive meaning because of the removal of the word “All”.

The reason given for Condition 3 is to “control overlooking and safeguard the privacy of neighbours”. This does not necessarily mean that it eliminates overlooking altogether. A judgment could be made that it was necessary to block the view from the dormer window but not the rooflight, in order to comply with policy.

The wording of the conditions draws a clear distinction between windows and rooflights, which are dealt with by different conditions. Condition 3 only applies to dormer windows and Condition 5 is only concerned with the rooflights.

On the drawing of Side Elevation 1 on A03 Revision P3, there is a line pointing towards the dormer window from the annotation stating “Windows to be made obscured glass”, which clearly indicates that the requirement only applied to the dormer window, not the rooflights. There is no line to the rooflights. There is a similar line to the dormer window on the drawing of the Rear Elevation.

In the alternative, if extrinsic evidence could be relied upon because the Court found that the Permission was ambiguous, Mr Beglan relied upon the OR which explicitly states, on two occasions, that the glass in the dormer windows should be obscured, but makes no such statement in respect of the rooflights. He also relied upon two emails from the Council. First, the email from Mr Appah, the Council’s Senior Planning Enforcement Officer, dated 19 April 2021, in which he states that, according to the Area Team Leader (Planning), the condition was imposed in relation to the side-facing dormer windows only because they would have most impact in terms of potential overlooking. Second, the email from Mr Cook, dated 17 June 2020, setting out the view of the planning officer who wrote the OR, to the effect that Condition 3 did not require the rooflight to be obscure glazed because rooflights tend to face the sky, dormer windows have a side facing view. Mr Beglan was unable to produce any evidence to explain the statement in the OR that the Claimants had withdrawn their objection because the issues had been addressed in the final plans.

The legal principles set out above were agreed by the parties. The dispute arose on the application of those principles in this case.

The Permission comprises the permission notice, including the Schedule and the Conditions. The Permission approves the submitted plans i.e. the drawings A03 Revision P3 (which superseded Revision P1) and A04 Revision P1. Condition 2 also expressly incorporates drawing A03 Revision P3. Therefore these drawings are to be treated as part of the Permission.

The approach which the Court should take was set out in Trump International Golf Club Scotland Ltd v Scottish Ministers [2016] 1 WLR 85, per Lord Hodge:

In interpreting Condition 3 in this Permission, the reasonable reader would have regard to its stated purpose, namely:

The parties agree that the natural and ordinary meaning of the word “window” includes both a dormer window and a rooflight. This meaning accords with the definition of the word “window” in the Shorter Oxford Dictionary (page 3641):

I consider that the reasonable reader, with some knowledge of planning practice, would be aware of the different appearance, function, plane and outlook of a dormer window on the one hand, and a rooflight on the other, and take those matters into account in interpreting the Permission. However, for the reasons I address in more detail below, I do not consider that it is permissible to rely on post-permission emails from the Council, which are not in the public domain, as evidence of the planning implications of these different types of windows, as part of the context. In principle, the type of document that might be admissible for this purpose would be national or local planning policy or guidance documents, especially if referenced in the Permission. None existed in this case.

I accept Mr Whale’s submission that, as Condition 3 does not distinguish between the different types of window, and refers to “windows” in the plural, the reasonable reader could interpret it, on its face, as referring to all windows in the side elevations which are at loft level i.e. both dormer windows and rooflights. Condition 3 could have been expressly limited to dormer windows, just as Condition 5 is expressly limited to rooflights (for the different purpose of preserving the character and appearance of the conservation area), but it was not. The progression from Condition 3, applying to all windows, to Condition 5, applying only to a specific type of window, can be seen as a progression from the general to the particular.

In further support of Mr Whale’s submission, the height restriction in Condition 3, which excludes windows that are more than 1.7 metres above the floor, is only likely to be relevant to a rooflight, not a dormer window, as a rooflight may well be installed high above eye level, to provide light, whereas a dormer window typically provides an outlook at eye level. The reasonable reader would be aware that the lower part of the rooflight in issue here is at eye level, less than 1.7 metres above the floor, and so therefore Condition 3 potentially applies.

Turning to the drawings, I accept Mr Beglan’s submission that the reasonable reader would read the annotation “Windows to be made obscure glass”, on A03 Revision P3 Side Elevation 1, as only applying to the dormer window, because of the L-shaped line which points directly and exclusively to the dormer window below. I do not think that it is possible to read this line as also including the rooflights. In my view, the annotation drawing could only have been read so as to include the rooflights if there was no line at all, or if there were additional lines which pointed directly to the rooflights as well.

In the light of this, it seems anomalous that the annotation refers to “windows” in the plural. Mr Whale makes the valid point that, if the Permission was limited to the dormer window on Side Elevation 1, the drawing would have used the word “window” in the singular, not the plural. This is illustrated by the drawing of the Rear Elevation (A02 Revision P3) which specifically refers in the singular to the “Rear dormer window to be made of clear glass”. However, Mr Beglan submits that the plural was appropriate because the dormer window is designed with three separate sections, each with its own pane of glass which has to be obscured.

In my judgment, the Permission is ambiguous because the reasonable reader’s interpretation of Condition 3 lends support to the Claimants’ interpretation, but the reasonable reader’s interpretation of the drawings points in favour of the Council’s interpretation. In those circumstances, the Court is permitted to have regard to extrinsic evidence.

I consider that the only extrinsic evidence that can properly be considered is the OR, not the emails and message between the parties. My reasons are as follows. A planning permission is a formal public document. The permission runs with the land, and so may need to be relied upon by parties unrelated to those originally involved, many years after the original grant. It must also be borne in mind that planning conditions may be used to support criminal proceedings. For these reasons, as Lord Carnwath said in Trump, at [66], there are good reasons for a cautious approach limiting the categories of documents which may be used in interpreting a planning permission. I particularly endorse paragraphs 56 and 57 of Lieven J.’s judgment in UBB Waste Essex where she distinguishes between an officer’s report which is in the public domain and is easily accessible, and private documents passing between the parties or their agents, which are not in the public domain and are generally inaccessible. The Council’s emails and Mrs Cook’s message clearly fall into the latter category.

Additionally, in this case the Council emails were sent after the date on which the Permission was granted, in response to the Claimants’ complaints, including from their legal representative. Inevitably, they are defensive in nature and rely on ex post facto rationalisations which are not found in the contemporaneous documents, such as the Permission and the OR. They are of limited evidential value in the task of interpreting the planning permission objectively, through the eyes of the reasonable reader.

I turn now to consider the reasonable reader’s interpretation of the Permission, in the light of the OR. In my view, the following two passages in the OR make it abundantly clear that Condition 3 was only intended to apply to the dormer windows on the side elevations, as they make no mention of using obscured glass on the rooflights.

The sentence “the windows within the dormers will be obscure glazed” (underlined above) is consistent with Mr Beglan’s submission that the use of the plural “windows” in the annotation in the drawings refers to the three separate sections of the dormer window, each with its own pane of glass which has to be obscured. The same interpretation may be applied to the plural use of “windows” in Condition 3.

The planning officer concluded that the “amenity impacts have been considered and deemed acceptable” on the basis that the dormer windows on the side elevations would be obscured, and by inference, that the rooflights would not be obscured. That was a planning judgment upon which the planning officer proceeded to grant permission, subject to conditions. As Mr Beglan points out, the stated purpose behind Condition 3 is to control the overlooking, not to eliminate it. In interpreting the meaning of the Permission, the Court cannot investigate whether or not the planning officer’s assessment of amenity was flawed, perhaps because he mistakenly thought that the Claimants’ objection had been satisfactorily addressed. That is a different issue to the issue of the correct interpretation of the Permission.

I bear well in mind that the Court should interpret the planning permission objectively, through the eyes of the reasonable reader, and not by reference to the subjective intentions of the planning officer. It is quite possible that a planning permission, as granted, does not give effect to the intentions of the local planning authority, perhaps because of poor drafting or some other error.

However, in this case, the drawings which are part of the Permission unequivocally demonstrate that the obscure glazing requirement only applies to the dormer window. The OR clearly supports this interpretation. The ambiguity arises from the wording of Condition 3 which can be read as meaning that the obscure glazing requirement applies to the rooflight as well. However, upon considering all the documents and drawings, individually and as a whole, I am satisfied that the correct interpretation of the Permission is that Condition 3 only applies to the dormer window on Side Elevation 1, not to the rooflight.

For the reasons set out above, the claim for judicial review is dismissed.