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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rumsey v Secretary Of State For Environment Transport & Regions & Anor [2000] EWHC Admin 399 (11 October 2000) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/399.html Cite as: [2000] EWHC Admin 399 |
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Case no: CO/563/2000
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Wednesday 11 October, 2000
MR J. PERERIRA (Instructed by Shuttan Paul & Co, Middlesex UB1 1SW)
appeared on behalf of the Appellant
MR M GIBBON (Instructed by the Treasury Solicitor, London SW1H) appeared
on behalf of the Respondent
MR DUNCAN OUSLEY QC:
The Claimant sought planning permission for an extension to his house, by way
of adding a floor to the existing bungalow, and approximately doubling its
present size. The house "Beechnut House", Green Lea Wood, Frensham Hall
Estate, Haslemere, is one of a number scattered in the countryside of Waverley
Borough Council, beyond the Green Belt, in an Area of Outstanding Natural
Beauty and an Area of Great Landscape Value. Waverley Borough Council refused
planning permission because of the harmful conflict, which it thought the
proposal had, with various policies for the protection of the countryside and
with its restrictive policy, HS7, for extensions to dwellings in such a
location.
The Claimant's appeal to the Secretary of State was dealt with by an Inspector
at a hearing. His dismissal of the appeal is now challenged under S288 Town
and Country Planning Act 1990.
Mr Pereira, who appeared for the Claimant, relies upon three grounds of
challenge which all focus upon deficiencies which Mr Pereira contends arise
from the way in which the Inspector dealt with the question of precedent and
cumulative impact. This was an issue which was not, it is said, the major
thrust of the Council's case but was an issue which the Inspector was
particularly concerned to discuss. No complaint is made about that.
In essence, Mr Pereira submits that the Inspector did not dismiss the appeal
because of any particular harm to the character or appearance of the
surrounding area, or to the natural beauty of its landscape, which the proposed
development would by itself cause. Rather, it was dismissed because the
Inspector thought that it would act as a precedent for similar extensions, and
that cumulatively such developments would be harmful to the character and
appearance of the area. Mr Pereira, in brief, says that the Inspector had no
basis for reaching such a conclusion, misunderstood the real point on precedent
which the Council was making and gave legally inadequate reasons for his
conclusions on the precedent point.
It is convenient at this juncture to set out the relevant parts of the
decision letter.
The Inspector identified the main issue in paragraphs 2 and 3:
"The main issue
2. From the representations made at the hearing and in writing and from my
inspection of the site and its surroundings I consider, having regard to
prevailing planning policies, that the main issue in this appeal is the effect
of the proposed development on the character and appearance of the surrounding
area.
3. As the site lies in the Surrey Hills Area of Outstanding Natural Beauty
(AONB) I have also taken into account whether the proposed development would
conserve the natural beauty of the landscape of this area."
He then examined the relevant development plan policies:
"Planning Policies
4. The development plan for the area is the Surrey Structure Plan 1994 and the
Waverley Borough Local Plan 1993. My attention has also been drawn to an
emerging plan, the Waverley Borough Replacement Local Plan Deposit Draft
January 1999 and the Proposed pre-inquiry changes. The early stage of this
plan towards adoption reduces the weight that may be attached to it.
5. The development plan contains policies to strictly control development in
the countryside, to protect countryside designated as AONBs and Areas of Great
Landscape Value (AGLVs), and to ensure good design. The emerging Local Plan
contains policies with similar objectives.
6. Previous Structure Plans dating from 1980 have contained policies to control
residential extensions in the countryside. The current Structure Plan does not
have policies dealing with this. However, the explanatory text to this Plan
says that it is expected that Local Plans will establish policies for this type
of development and that they will be exercised in the light of the policies of
restraint on development in the countryside.
7. Local Plan Policy HS7 says that the extension of houses in the countryside,
both within and beyond the Green Belt, will not normally be permitted unless
certain criteria are met. The criteria relevant to this appeal are that the
proposal will not:
- significantly change the scale of the original dwelling;
- be more intrusive in the landscape or otherwise detract from the rural
character of the area;
- adversely change the character, appearance, bulk, massing and setting of the
original dwelling."
In paragraphs 9-15, he set out his reasoning:
"Main issue
9. Originally a dwelling of 58.4 square metres stood on the appeal site. That
was replaced by a bungalow with an 88.7 square metres floor area, built in
accordance with a 1973 planning permission. In 1992 permission was given to
extend the bungalow at ground floor level to 126.2 square metres, and that
extension has now been built.
10. The proposed development would add a floor to the existing bungalow. This
would approximately double its present floorspace, and add even more
substantially to the original floorspace of the bungalow as granted permission
in 1973. In my view the scale of the extension now proposed would result in
development that would significantly change the scale of both the bungalow as
permitted in 1973 and the bungalow as it presently stands on the site.
Assessed against the dwelling on site in 1968 the proposed development would be
even more disproportionate in size.
11. The appeal building as extended would be well screened by trees from nearby
properties, from the immediately surrounding area and from the main road to the
east. From what I saw it would be seen in more distant views from properties
on the other side of the valley from which the site lies, though its visual
impact from such views would be reduced by the wooded hillside backdrop to the
appeal site.
12. Taken in isolation I consider that the proposed development would have a
limited effect on the character and appearance of the surrounding area.
However, the site is in an area characterised by scattered housing of varied
sizes set amidst extensively wooded land. Much of the attraction of the area
lies in the fact that, in the main, only glimpses of dwellings are seen, thus
preserving the sylvan quality of the landscape. If permission was granted in
this instance it would make it difficult for the Council to resist proposals
for similarly large extensions in this rural area. Cumulatively such
development would, over time, detract from the character and appearance of this
area. Additional weight is attached to this harm because of the designation of
the site and surrounding area as an AONB.
13. In arriving at this view I have had regard to the fact that many of the
dwellings close to the appeal site are fairly substantial, and that most, if
not all, are larger than the appeal premises. However, there are also some
relatively small properties in the area, and the variety of house sizes is part
of the character and attraction of the area. Thus, I do not consider that
extending the appeal premises to bring it more in line with the larger
dwellings in the vicinity would make the proposed development more
acceptable.
14. On the main issue I conclude that the proposed development would, through
making it difficult for the Council to resist similarly large extensions to
dwellings in the countryside, be detrimental to the character and appearance of
the surrounding area. The proposal would be contrary to those policies on
residential extensions in the development plan and emerging development plan in
so far as they seek to avoid such harm. It would also be contrary to the more
general policies of those plans which have the objective of protecting the
countryside, and would not conserve the natural beauty of the landscape of this
part of the Surrey Hill's AONB.
15. I have taken into account in reaching the above conclusion the advantages
that the appellants say would arise from improving the appearance of the appeal
building, and their requirement for additional accommodation. However, I did
not find the existing building as unattractive as was alleged, and in my view,
whilst there would be some improvement to its design, this would not outweigh
the harm I have found. Nor do I consider the existing dwelling to be so small
that the requirement for additional accommodation should override the harm I
have identified."
Certain observations may usefully be made at this stage as to the Inspector's
approach. Mr Pereira submits, that the Inspector has found that the proposed
extension by itself would cause no harm. He focuses on the references in
paragraphs 11-14 to the extended building being "well-screened", with the
impact on distant views being reduced by the wooded backdrop; there would be a
"limited effect" taking the dwellinghouse in isolation; only glimpses of
dwellings are seen, preserving the "sylvan quality of the landscape". In
particular the proposal would be contrary to policies on residential extensions
"in so far as they seek to avoid such harm" which is a reference back to harm
caused by the Council's inability to resist similar proposals were this appeal
to be allowed, rather than any direct harm caused by this proposal on its
own.
I do not consider that the Decision Letter can be read in quite that way. It
is important, as Mr Gibbon who appeared for the Secretary of State pointed out,
to read the Inspector's decision as a whole and these particular comments in
their planning context.
The development plan policies to which the Inspector makes general reference
in paragraphs 5 and 6 of his Decision Letter are restrictive of development
such as that proposed. HS7, to which particular reference is made in paragraph
7, is supported in the Local Plan by explanatory notes at paragraphs 3.38 and
3.41-2 (Bundle p 57 and 54 respectively), which identify the objectives of the
policy and the relevance to its application of avoiding ever-increasing numbers
of smaller dwellings being enlarged, (3.38). The Inspector concludes in
paragraph 10 that the proposed extension would significantly change the scale
of the bungalow as it presently is, and even more so when compared to the
original. It is a requirement of HS7 that there should not be a significant
change of scale compared to the original, a requirement proposed to be amended
to a comparison with the building as it currently stands.
So the Inspector's subsequent comments relate to an extension that has failed
to satisfy one of the policy criteria for such an extension exceptionally to be
permitted.
I read the reference to "limited effect" in this context as a clear indication
that the extension would have an adverse effect taken in isolation but that
that would not by itself be sufficient to warrant a refusal. That is the point
which he makes in paragraph 14. That limited adverse effect would also be a
component of the accumulation of harm which he saw this extension, if built,
then engendering through the precedent effect which it would have. I consider
that the cumulative effect was the real point of objection and the last
sentence of paragraph 14 should be read in that context.
I turn now in more detail to Mr Pereira's attractively made submissions. His
first and main ground is that the Inspector had no basis for his conclusion on
the precedent effect. He referred me to the well known comments of David
Widdicombe QC sitting as a Deputy High Court Judge in Poundstretcher Ltd v
SSE 1988 3 PLR 69 at p 74F:
"I accept Mr Hobson's proposition that where precedent is relied on, mere fear
or generalised concern is not enough. There must be evidence in one form or
another for the reliance on precedent. In some cases the facts may speak for
themselves. For instance, in the common case of the rear extension of one of a
row or terrace of dwellings, it may be obvious that other owners in the row are
likely to want extensions if one is permitted. Another clear example is
sporadic development in the countryside."
Poundstretcher concerned a relaxation of conditions on the range of
goods which could be sold from retail warehouses on two retail warehouse parks
in Liverpool. The Inspector had relied upon the prospect that similarly
constrained retail warehouses on two other identified retail warehouse parks in
Liverpool would become similarly unconstrained, thus undermining town
centres.
Mr Pereira submitted that there had to be a basis upon which the Inspector
could conclude that there was a connection between permitting this extension
and some planning harm which would be caused by subsequent cases which could
treat this appeal as a precedent. The Inspector had to have a basis for
concluding that there would be both a precedent created and that its effect
would be harmful. On the facts of this case, Mr Pereira submitted that another
extension, sufficiently similar to his client's proposal for his client's
proposal to be a precedent for it, would equally leave the sylvan quality of
the landscape preserved. If it did not, then the instant case could not be a
precedent for it. The Inspector's approach was baseless and paragraph 3.7
(Bundle p 30) of the Council's submission was merely a generalised concern. Of
course, it must be remembered that this comment in paragraph 3.7 triggered a
more extensive debate at the hearing.
Attractively presented though they were, I am unable to accept Mr Pereira's
submissions. First, as I have already said, I do not read the Decision Letter
as Mr Pereira would have me read it. The Inspector finds a limited effect but
insufficient by itself to warrant a refusal; it would become part of a wider
harmful cumulative effect. Second, he specifically identifies, in para. 13 of
his letter, the existence of some relatively small properties in the area;
these are clearly the ones which he has in mind as being at risk of similarly
large extensions, to which the precedent effect would apply. Third, he reaches
the planning judgment that those extensions would be difficult to resist; it is
clear that that is because, taken in isolation, each would say that it was
insufficiently harmful to warrant refusal, just like Mr Rumsey's case. Fourth,
he reaches the planning judgment that that consequential accumulation would be
harmful to the character and appearance of the area both in landscape terms
(paragraph 12 of the Decision Letter) and in reducing the variety of house
sizes which is part of the character and appearance of the area (paragraph 13
of the Decision Letter).
I do not consider that that approach is baseless: the Council provided some
written material, there was further discussion at the hearing, and above all
the Inspector had his planning experience, his site visit and view of the area.
The reasoning of the Inspector in the Decision Letter is clear and adequate.
Poundstretcher cannot be seen as providing some precise legal test as to
the nature of the material which an Inspector must have before him when
reaching a judgment on a precedent issue. The recognition of the inadequacy of
mere fear or generalised concern is no more than saying that an Inspector must
have some material on which to base his view, and the nature of what is
required will vary from case to case. But just using Poundstretcher as
a guide, the Inspector here appears to have had at least as much material as in
that case went sufficiently beyond a mere fear or generalised concern.
Moreover, in Poundstretcher, it was rightly recognised that the planning
judgment as to harm by precedent can be made in circumstances where the facts
speak for themselves. The Inspector here identified his concern as being with
the relatively small properties in the area; his conclusions as to precedent
and cumulative effect do not require greater exposition than he provided as to
the material upon which they were based. The circumstances which he has
identified can be treated as speaking for themselves.
I should add that I do not accept an earlier submission which Mr Pereira made,
but then drew back from, to the effect that if no harm were found in any
individual case, then no harmful effect could follow from subsequent decisions
on all fours with that one. I consider that it is open to a planning
decision-maker to reach a contrary conclusion: one development is harmless, but
a second or more, each individually harmless, would lead to a harmful
accumulation; thus the first might be refused, because decisions could not be
taken in isolation, when in reality one decision led to another.
Mr Pereira's first and main submission is accordingly rejected.
His second submission is based upon paragraph 5 of the Inspector's witness
statement, which was submitted for the purpose of responding to and refuting an
assertion in the Claim Form that the Inspector had no evidence in relation to
precedent beyond that which the Claimant characterised as merely an assertion
contained in the Council's written submission, paragraph 3.7 Bundle p 30:
"3.7 The Council is concerned to avoid a gradual change in character from a
small dwelling into a large one through successive additions over a number of
years. The appeal proposal if allowed, could encourage further such proposals
resulting in the extension of similar dwellings which would, cumulatively, be
detrimental to the rural character of the countryside."
In paragraph 5, the Inspector said:
"5 The reference by the Council in its written statement was brief. The
claimant did not himself refer to or deal with the effect of precedent in his
written statement at all. At the outset of the hearing therefore I identified
this concern of the Council as an area for discussion and allowed both the
Council and the claimant to comment fully on it. It was clear from the
Council's representations that it was of the view that there was currently a
variety of sizes of properties in the area and that excessive increase in
floorspace in the proposed development would cumulatively result in very large
properties in the area. The claimant however contended that precedent
elsewhere was not relevant, and each site had to be considered on its own
merits. On site, the claimant's agent informed me that he had been keen for me
to inspect the site."
Mr Pereira submits that the fourth sentence shows that the Council was
concerned with the effect of the proposed extension when seen cumulatively with
other large existing dwellings, rather than with the effect which the proposed
extension would have as a precedent for yet more extensions. Thus the
Council's case or the case as understood by the Inspector, was irrelevant to
his conclusions which were based on the latter rather than the former point.
I accept Mr Gibbon's contrary submission, that this paragraph is simply not
happily worded rather than indicative of a misapprehension as to the thrust of
the Council's material. It is clear that paragraph 3.7 of the Council's
material is actually wholly in line with the Inspector's approach in his
Decision Letter, so he did not then misunderstand it. It is perfectly clear
from paragraph 7 of his witness statement that the Inspector there is clearly
setting out the Council's case as described in the Decision Letter. Paragraph
7 states [insrt p 81] Both relate to the precedent effect which the proposed
development would have rather than to the effect which it would have simply
added to the currently existing dwellings. He did not misunderstand the case
in paragraph 5 only to get it right in paragraph 7 of the Witness Statement.
In that context therefore it is clear that the third sentence of paragraph 5 of
the Inspector's statement is simply not expressed as clearly as it should be,
and affords no basis for quashing the decision.
Mr Pereira's final submission was that the Inspector's reasoning in his
Decision Letter was inadequate as it makes no findings as to the likelihood of
other applications coming forward or of their potentially harmful effect, nor
does he say that the facts speak for themselves. For the reasons which I have
given when dealing with Mr Pereira's main submission, I do not consider there
to be any inadequacy in the Inspector's reasoning. Of course, the Inspector
does not actually say that the facts speak for themselves; but he does not need
to; paradoxically the more obvious something is as a matter of judgment, the
less likely it is that elaborate reasoning will be found, or that an Inspector
will feel a need to say that it is obvious.
In reaching this particular conclusion, I have ignored paragraph 7 of the
Inspector's witness statement. It is wrong in my judgment for witness
statements to be used to supplement or clarify the reasoning in a Decision
Letter. I appreciate that the purpose of the statement was the legitimate one
of explaining what material was before the Inspector and in this context, a
hard and fast distinction between explaining that and avoiding any elaboration
of reasoning may be difficult to draw. But in so far as that material could be
used to supplement or clarify the reasoning in a Decision Letter, it should be
ignored.
In those circumstances, R v Westminster C.C. ex parte Ermakov 1996 2 All ER 302, does not fall to be considered. For the sake of completeness, in
so far as such a witness statement could be used itself to found a challenge, I
do not consider that what the Inspector says in paragraph 7 of his Witness
Statement is in any way at odds with his Decision Letter.
For all those reasons, this application is dismissed.