Krystyna Knight, R (on the application of) v London Borough of Harrow

In this case Ms Krystyna Knight has applied for an order to quash the decision made by the London Borough of Harrow on 7^th June 2022 to grant planning permission to develop land at 31, Blythwood Road, Pinner, Harrow HA5 3QD (“the Site”) by erecting a “Single storey side to rear extension; pitched roof over existing side extension; external alterations (Amended Description)”.

Permission to proceed with the application for judicial review was granted by Timothy Straker KC sitting as a Deputy High Court Judge at a hearing held on 20^th October 2022.

At the hearing which took place on 8^th February 2023 I gave directions allowing the parties to make further written submissions on the approach to be taken to the construction of the provisions of Class A of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”).

Further written submissions were made on behalf of the Claimant. The Defendant replied to the Claimant’s submissions and the Claimant provided a response to the Defendant’s submissions.

The Claimant lives at 33, Blythwood Road, Pinner, Harrow, HA5 3QD.

By an application made on 17^th February 2022 the Interested Parties sought prior approval of details of an extension to their property at 31, Blythwood Road. The drawing submitted in support of that application (drawing EX-HWN-400 A) included the following annotation: “Proposed single storey side extension to extend 6m beyond original rear wall. To be no higher than 3m to the eaves, no higher that (sic) 4m to the highest point.”

In a letter dated 6^th March 2022, the Claimant and her husband made representations on the application for prior approval. In that letter, Mr and Mrs Knight drew attention to particular provisions of the Harrow Residential Design Guide SPD.

By a decision notice dated 30^th March 2022 the Defendant granted prior approval. The decision notice included the following:

“GRANT PRIOR APPROVAL

Ref: P/0541/22/PRIOR

Application Type: Notification of Intention Householder Extension

With reference to the application received on 17 February 2022 accompanied by Drawing(s)

Notification for Prior Approval for a Proposed Larger Home

Extension Application Form; EX-HWN-400

Single Storey Rear Extension: 6.00 metres deep, 4.00 metres maximum

height, 3.00 metres high to the eaves

31 Blythwood Road, Pinner, HA5 3QD”

(“The Prior Approval”)

On the 8^th April 2022 the Interested Parties applied for planning permission to develop the Site by:

“Single storey side to part rear extension”

(“the Planning Application”)

On 9^th May 2022 the solicitors instructed by the Claimant wrote to the Defendant stating (amongst other things):

“The application is wholly reliant upon the prior approval recently granted under reference P/0541/22. The (only) plan, a site location plan that accompanied that application is attached for easy reference, dated 17/02/22. It shows the original dwelling footprint, but in conflict with that, the legend (on the left side) asserts that the proposal would lay beyond original rear wall. As a question of fact, that proposal would not project beyond an original rear wall. The dwelling had been extended to the side as the planning history demonstrates, and it can also be seen on Google Earth that there was no structure to the side of what the applicant admits is the original house footprint (even in this application - see dwg '400') in 1999.

………………

The upshot of the above is that the council's decision to grant the prior approval was waste paper, and it is not possible to lawfully grant planning permission for this proposal which is combined with the prior approval scheme and is predicated upon it (and confirmed by the description).”

The Defendant’s planning officer prepared a report on the Planning Application (“the OR”). The purpose of the report was to inform the officer to whom the decision to determine the Planning Application had been delegated.

By a decision notice dated 7^th June 2022 the Defendant granted planning permission for the following development:

The Claimant relies upon the following two grounds of claim:

The principles to be applied when a challenge is based on criticism of an officer’s report to a planning committee were set out by Lindblom LJ at paragraph 42 in Mansell v. Tonbridge and Malling BC [2017] EWCA Civ 1314. This case is not concerned with a report prepared for consideration by a planning committee. The OR in this case was prepared to inform a decision which was taken by a planning officer to whom the powers to determine the planning application were delegated. In my judgment the broad principles which apply to reports prepared to inform planning committees also apply to reports prepared to inform decisions taken by officers. Indeed, reports prepared to inform decisions taken by officers are often shorter than those prepared for committee, and it is reasonable to assume that there is little need for the attention of a senior planning officer to be drawn to each and every policy that may be applicable, or to the general policy background.

The ability of a landowner to carry out development without the need to obtain a further express planning permission is a well-established type or category of material considerations to which a decision maker may have regard. The circumstances in which a landowner can carry out development without the need to obtain express planning permission includes cases where the development falls into a class described as permitted development in Schedule 2 of the GPDO.

In Mansell, at paragraph 27, Lindblom LJ stated:

As with any ‘other material consideration’ the weight to be given to a fall back is a matter of planning judgment for the decision maker, subject to not lapsing into Wednesbury irrationality. (Tesco Stores Ltd. v. Secretary of State for the Environment [1995] 1 WLR 759 at page 780 F-G)

Article 3(1) of the GPDO grants planning permission for the classes of development described as permitted development in Schedule 2 of the GPDO.

Article 3(2) of the GPDO provides:

“(2)

Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2.”

Class A of Part 1 of Schedule 2 of the GPDO describes the following as permitted development:

“The enlargement, improvement or other alteration of a dwellinghouse.”

The breadth of the development described in Class A is reduced by the provisions of paragraphs A.1 and A.2, which set out the circumstances in which development is not permitted by Class A.

Paragraphs A.3. and A.4. impose conditions on the development permitted by Class A.

Paragraph A.4 provides (so far as relevant):

“(1)

The following conditions apply to development permitted by Class A which exceeds the limits in paragraph A.1(f) but is allowed by paragraph A.1(g).

(2)

Before beginning the development the developer must provide the following information to the local planning authority—

(a)

a written description of the proposed development including—

(i)

how far the enlarged part of the dwellinghouse extends beyond the rear wall of the original dwellinghouse;

(ii)

the maximum height of the enlarged part of the dwellinghouse; […]1

(iii)

the height of the eaves of the enlarged part of the dwellinghouse ; and

[ (iv) where the enlarged part will be joined to an existing enlargement of the dwellinghouse, the information in sub-paragraphs (i) to (iii) must be provided in respect of the total enlargement (being the enlarged part together with the existing enlargement to which it will be joined); ]

(b)

a plan indicating the site and showing the proposed development [ and any existing enlargement of the original dwellinghouse to which the enlarged part will be joined ] ;

(c)

the addresses of any adjoining premises;

(d)

the developer's contact address; and

(e)

the developer's email address if the developer is content to receive communications electronically [ , ]

[ together with any fee required to be paid. ]

(3)

The local planning authority may refuse an application where, in the opinion of the authority—

(a)

the proposed development does not comply with, or

(b)

the developer has provided insufficient information to enable the authority to establish whether the proposed development complies with,

the conditions, limitations or restrictions applicable to development permitted by Class A which exceeds the limits in paragraph A.1(f) but is allowed by paragraph A.1(g).

….

(5)

The local planning authority must notify each adjoining owner or occupier about the proposed development by serving on them a notice which—

[ (a) describes the development by setting out the information provided to the authority by the developer under paragraph A.4(2)(a); ]

(b)

provides the address of the proposed development;

(c)

specifies the date when the information referred to in sub-paragraph (2) was received by the local planning authority and the date when the period referred to in sub-paragraph (10)(c) would expire; and

(d)

specifies the date (being not less than 21 days from the date of the notice) by which representations are to be received by the local planning authority.

…

(7)

Where any owner or occupier of any adjoining premises objects to the proposed development, the prior approval of the local planning authority is required as to the impact of the proposed development on the amenity of any adjoining premises.

……

(9)

The local planning authority must, when considering the impact referred to in sub-paragraph

(7)—

(a)

take into account any representations made as a result of the notice given under sub-paragraph (5); and

(b)

consider the amenity of all adjoining premises, not just adjoining premises which are the subject of representations.

(10)

The development must not begin before the occurrence of one of the following—

(a)

the receipt by the developer from the local planning authority of a written notice that their prior approval is not required;

(b)

the receipt by the developer from the local planning authority of a written notice giving their prior approval; or

(c)

the expiry of 42 days following the date on which the information referred to in sub-paragraph (2) was received by the local planning authority without the local planning authority notifying the developer as to whether prior approval is given or refused.”

The effect of a written notice giving prior approval is to satisfy the condition imposed by paragraph A.4(10).

The relationship between conditions imposed on classes of development described as permitted development and the class of permitted development was explained by Lindblom LJ at paragraphs 32 to 35 in Keenan v. Woking BC [2017] EWCA Civ 438:

“32 The true analysis, in my view, is this. Under the GPDO 1995, and now under the Town and Country Planning (General Permitted Development) (England) Order 2015, various kinds of development have been authorised as “permitted development”. Some, though not all, of the classes of development described as “permitted development” in Schedule 2 to the GPDO 1995 were subject to particular conditions, specified class by class. This was expressly contemplated in article 3(2). So too was the provision, again class by class, of any relevant exceptions and limitations. We are concerned in this case with two classes of “permitted development”, Class A of Part 6, and Class A of Part 7, and in particular with development consisting of “the formation . . . of a private way”, neither of which was unconditional. Both were subject to relevant conditions.

The conditions set out in paragraphs A.3 and A.4 apply only to development which falls within the description of permitted development in Class A.

The relationship between the grant of planning permission by the GPDO and the grant of prior approval was explained by Sir Keith Lindblom at paragraph 23 in CAB Housing v. Secretary of State for Levelling up Housing and Communities [2023] EWCA Civ 194:

Ms Olley, for the Claimant, submits that the statement in the OR (under the heading Character and Appearance) “Therefore, the proposed extension has the fall back position on the flank facing No. 33 Blythwood Road.” constituted a material mistake of fact. In support of that main submission she submits:

Mr Lewis submits:

The first issue to consider is whether reference to the prior approval played a material part in the decision making process.

I accept Mr Lewis’ submission that the reference to the previous prior approval did not play a material part in the decision making process, as the decision was based upon an assessment of the scheme as a whole on its merits. By stating that the scheme, assessed as whole, was “… on its planning merits to be acceptable in terms of visual and neighbouring amenity …” the officer made plain that the acceptability of the scheme was assessed on its own merits, and that the conclusion reached was not dependent upon the fact that prior approval had been granted. As a result Ground 1 fails as the decision was not dependent upon the alleged mistake.

As submissions have been made on the effect of the prior approval, I have gone on to consider them, although it is not necessary to do so in order to dispose of Ground 1.

A ‘fall back’ is capable of being a material consideration when determining a planning application. As with any material consideration, the weight to be attributed to it is a matter for the decision maker, so long as s/he does not lapse into Wednesbury irrationality.

As referred to at paragraph 27 in Mansell a fall back development can take the form of a statement by a developer or landowner that she or he intends to make use of permitted development rights available to her or to him.

As made plain in Keenan the planning permission granted by the GPDO arises as a result of the operation of Article 3(1).

The fact that information has been submitted and prior approval obtained pursuant to a condition set out in Schedule 2 to the GPDO, can be relevant when determining whether a ‘fall back’ development exists, and when determining the weight to be given to such a fall back. In particular, the obtaining of such approval is likely to be material when considering how a developer may intend to make use of permitted development rights available to him or her under the GPDO.

In this case the Prior Approval was granted pursuant to the condition set out at paragraph A.4 of Class A of Part 1 of Schedule 2 to the GPDO.

The decision to grant prior approval was not challenged, and is to be treated as valid unless and until quashed by a court.

I accept the submission made by Mr Lewis that the enlarged part of the dwellinghouse shown on the drawing referred to in the prior approval notice (drawing EX-HWN-400) did not fall within the ambit of the exception set out in paragraph A.1(g)(i). The exception in paragraph A.1(g)(i) is that the enlarged part of the dwelling house would have a single storey and:

“(i)

extend beyond the rear wall of the original dwellinghouse by more than 8 metres in the case of a detached dwellinghouse, or 6 metres in the case of any other dwellinghouse, or …”

The enlarged part of the dwellinghouse as shown in drawing EX-HWN-400 does not come within the exception described in paragraph A.1(g)(i) as it does not extend beyond that rear wall by more than 8 metres. The fact that enlarged part extends from a side extension to the original dwellinghouse does not bring it within the exception.

As the development shown on drawing EX-HWN-400 exceeded the limits in paragraph A.1(f) but was allowed by paragraph A.1(g), the condition at paragraph A.4 applied.

The notice giving the Prior Approval was a material factor to be taken into account when determining whether there was a fall back development and in deciding the weight to be given to such a fall back. The Defendant did not err in having regard to the notice giving prior approval. There was no material mistake.

For those reasons Ground 1 is not made out.

Ms Olley submits that no adequate reasons were given for the officer’s conclusion that the Planning Application scheme was acceptable in terms of neighbour amenity and that such reasons as were given were ‘infected’ by the material mistake of fact which formed the basis for Ground 1. She submits:

Mr Lewis submits

The approach to be taken when considering a reasons challenge is well established. In South Buckinghamshire DC v. Porter [2004] UKHL 33 at paragraph 36, Lord Brown summarised the law:

“36.. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

The planning officer considered the issue of residential amenity in his report. The officer filled out the proforma boxes found under the heading ‘Character and Appearance of the Area/Residential Amenity’.

In addition the officer included a section headed ‘Residential Amenity’ in his report. Following consideration of the ‘fall back’ development based on permitted development rights, the officer stated:

“Furthermore, the scheme is assessed, as a whole, on its planning merits to be acceptable in terms of visual and neighbouring amenity and is in accordance with relevant planning guidance”

The degree of particularity of reasoning required, and the degree of investigation required, is dependent on the nature of the issues falling for decision. The officer identified impact on residential amenity as a principal issue. The officer considered impact on the two adjoining properties. It was for the officer to decide, in the exercise of his judgement, whether it was necessary to visit the adjoining properties. The decision to assess the impact by visiting the application site, and not to visit the adjoining property, was for the officer to make in the exercise of his judgement. The decision to assess impact on the basis of a visit or visits to the application site fell within the scope of the discretion vested in the officer, and reveals no error of law.

At paragraph 1 of the OR, the officer identified the Residential Design Guide Supplementary Planning Document (“the SPD”) as a main consideration.

Paragraphs 6.58 to 6.63 in the SPD give guidance in relation to rear extensions. Paragraph 6.59 of the SPD states:

“6.59

Where all other relevant permitted development criteria are met, single storey rear extensions to a depth (taken from the rear wall of the original house) of 4 metres on a detached house and 3 metres on a semi-detached or terraced house may not need planning permission(n). Where planning permission is required, the acceptable depth of extensions will be determined by the need for consistency with permitted development and:

•

site considerations

•

the scale of the development

•

impact on the amenity of neighbouring residents, and

•

the established character of the area and the pattern of development”

Paragraph 6.61 of the SPD refers to the “two for one rule”.

The OR contained a series of questions to which the officer gave a ‘yes’ or ‘no’ answer. Those questions were based, in part, on the guidance given in the SPD. The questions include those relating to depth of the extension and the ‘two for one rule’. In addition there is a question relating to prior approval and therefore to permitted development rights.

Insofar as the proforma questions were based upon the guidance given the SPD, the effect of working through the proforma boxes was to address material matters identified in the Residential Design Guide Supplementary Planning Document (“SPD”).

In addition, under the heading ‘Character and Appearance’ the officer stated:

“Although the proposed single storey rear extension would extend 5.9m beyond the rear building line of the host dwelling, it would not project beyond the rear elevation of the approved Prior Approval extension under P/0541/22/PRIOR. Therefore, the proposed extension has the fall back position on the flank facing No. 33 Blythwood Road. The additional depth of 1.9m, beyond the 4m deemed acceptable under Paragraph 6.59 of the SPD, is deemed acceptable in this case. The proposed single storey rear extension is sufficiently set in from the side boundary of No. 29 Blythwood Road, approximately 4.5m, therefore in accordance with the two for one rule under Paragraph 6.61 of the SPD.”

There is no indication that the officer misunderstood or misapplied the guidance in that SPD. Further, the officer expressly recognised that the depth of the extension (at 5.9m) exceeded the 4m figure referred to at paragraph 6.59 of the SPD, and came to the view that the depth was acceptable.

The officer took account of the ‘fall back’ when considering the relationship between the proposed development and No.33 Blythwood Road, and applied the ‘two for one rule’ when considering the relationship with 29, Blythwood Road.

Given the fact that this was a delegated decision, and the purpose of the report was to inform a decision by a local authority planning officer, and that the proforma section of the report had been completed, in my judgment no further elaboration was required beyond that given under the headings “Character and Appearance” and “Residential Amenity” in the OR. The Claimant has not established that she has been substantially prejudiced by a failure to give an adequately reasoned decision.

To the extent that this ground of claim is based upon the contention that the officer’s decision was ‘infected’ by a material mistake of fact, that contention is not made out for the reasons given when considering Ground 1. When considering both character and appearance, and residential amenity, the officer referred to the fact that prior approval had been granted, and therefore the applicant had the benefit of a ‘fall back’ position. For the reasons given above, when considering Ground 1, the notice giving the Prior Approval was a material factor to be taken into account when determining whether there was a fall back development and in deciding the weight to be given to such a fall back. The Defendant did not err in having regard to the notice giving prior approval. There was no material mistake, and no defect in the reasoning arose as a result of referring to the Prior Approval and to a fall back.

For those reasons, Ground 2 is not made out.

Mr Lewis seeks to rely on the provisions of section 31(2A) of the Senior Courts Act 1981 which provides that the High Court must refuse to grant relief on an application for judicial review if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

As no ground of claim has been made out, the question of relief does not arise.

If I had found that the Claimant had succeeded under either Ground 1 or Ground 2, I would have found that it was highly likely that the outcome for the Claimant would not have been substantially different if the conduct complained of had not occurred, as the officer formed the view that the scheme, assessed as a whole, on its planning merits, was acceptable in terms of visual and neighbourhood amenity.

For the reasons I have given the claim fails.

The parties should seek to agree a draft order. If consequential matters cannot be agreed, any further determination will be on the basis of written submissions.