Monday 10 July 2006
MR JUSTICE COLLINS:
- This is an appeal under section 288 of the Town and Country Planning Act 1990 against the refusal by an inspector to accede to an application made under section 73A of the 1990 Act in relation to development which had been carried out in breach of conditions. The application was that, notwithstanding that those conditions were not complied with, nonetheless the permission should stand.
- The conditions in question related first to the ground floor windows on the south-west and north-east elevations of the appellants' house which were required to be obscure glazed and be non-opening to a minimum height to 1.7 metres above internal floor level in accordance with details/samples of a type of glazing pattern to be submitted to, and approved in writing by, the local planning authority. The second condition was that, notwithstanding the materials shown in the submitted plans, the elevations of the dwellings approved should be finished above plinth level in painted render or timber cladding in accordance with details submitted to, and agreed in writing by, the local planning authority prior to the commencement of the work.
- The house in question is the house in which the Fullers live. It is in Shepperton, on the banks of the River Thames, in a "plotland area". It is in the Green Belt and is subject to planning policies as a result of which, among other things, the desire is that brick-built houses should not be permitted in order to prevent the area from looking like an urban development. However, as Mr and Mrs Fuller point out, there are in fact a number of brick-built buildings in the area. They draw attention to a boat yard which has been recently constructed in brick, but there are other houses which are the same.
- The Fullers tell me, and I have no reason to doubt, that they had no intention whatever of failing to comply with the conditions under which they had obtained the planning permission. They employed an architect and they relied upon his expertise. Unfortunately, they were badly let down. They were informed that there would be no problem in relation to the construction as the architect had designed it. They were informed that any problems with conditions could easily be dealt with, and indeed believed had been dealt with before the construction of the building commenced. In addition, they tell me that representatives of the local planning authority, Spelthorne District Council, attended at the construction site. They were aware of what was going up and were aware that bricks were to be used in the construction, but said nothing until the building had reached an advanced stage. It was only at that time that they began to raise the objections which have led to these proceedings.
- In due course the application was made by Mr and Mrs Fuller to the council. The council rejected it, asserting that the windows needed to be as they had directed in order to avoid overlooking, which otherwise would occur, and pointing out that the brick building would be contrary to relevant policies in the Local Plan and that those policies were not outweighed by the suggested benefits.
- The appeal was dealt with on the papers, although the inspector went to view the claimants' house. The windows were labelled "Appeal A" by the inspector. As Mr and Mrs Fuller point out, one of the windows in question is in their child's bedroom. They drew attention to the problems that they thought would occur if windows could not be opened and there was, for example, a need to escape in case of fire. Although the windows are described as "ground", they are not close to the ground because of the need for the building itself to be raised a little above ground level to deal with flooding from the river. The inspector's decision in relation to the windows was that, although he recognised constraints arising from the shape of the site and the fire escape considerations, he was not convinced that those were overriding factors. He regarded the imposition on the original permission as having been reasonable and necessary in protecting the living conditions of neighbouring occupiers.
- Mr Fuller has drawn my attention to the fact that there is a covenant that fences between properties should not exceed four feet in height, but that one of his neighbours has a fence that is six feet in height and that therefore the overlooking cannot be intrusive. In any event, if fences should only be four feet, it is difficult to see how overlooking could be avoided even by somebody, for example, out in the garden.
- Be that as it may, it was a matter for the inspector's judgment whether the overlooking was such as would result in a loss of privacy and thus be in conflict with the relevant policy in the local plan. He decided from what he saw that such would the situation. Accordingly, he decided as he did.
- As I have indicated to Mr Fuller, the problem that I face is that it is only if there is an error of law that I can help him. He draws attention to the fact that he has since had a letter from the fire brigade which confirms his concerns that the windows should be able to be opened because otherwise they might be a fire hazard. That letter was not before the inspector. Although Mr Fuller had raised his concerns, there was no positive evidence to support them, other than the fact that it was a child's bedroom and there might be a need to escape in case of fire.
- So far as the brick is concerned, the Local Plan identifies a number of characteristics of plotland properties, including the fact that they are traditionally constructed in wood. As the inspector indicated, most of the dwellings within the vicinity of the appeal site had a weather-boarded or painted finish. On the other hand, as Mr Fuller points out, there are a significant number of buildings which consist of brick. It is, in his view, not essential that brick should be totally avoided. There have been permissions given for the construction of some brick-built dwellings and the boat yard to which I have already referred. The inspector makes the point that brick which was there before 2001 (the date of the Local Plan) may not have been constructed at a time when the constraints were as strong as they now are in relation to brick. Mr Fuller tells me that he was informed by his planning consultant that there was no significant difference between pre-2001 and post-2001. However, the inspector's judgment, I fear, is something which must prevail in that respect. It is a question for him whether in all the circumstances it was reasonable to require that brick was avoided to the extent that it was by virtue of the condition and to decide whether, looking at the situation as it now is, it should be possible to retain the brick. He decided no, in conformity with the local planning authority's view. That again, I fear, was a matter for his judgment.
- Mr Fuller complains that there seems to have been something of a vendetta against them by the local planning authority. He is concerned that the matter has always been dealt with through delegated authority by an officer rather than by members of his local council. He has tried to persuade members to have the matter put before a committee because he feels that if it were, he might receive a better consideration. He complains that the council, through its observer, knew at all times what was happening. He also makes the point that he has had no intention of breaching the planning obligations, but was badly let down by the expert whom he employed -- an architect who, sadly, has disappeared from the scene and who Mr Fuller believes is suffering from some form of mental disorder (though that unfortunately did not manifest itself at the time that he was employed by the Fullers).
- It may well be that Mr and Mrs Fuller have good cause for their concerns that they have not been fairly treated in all this in that the local planning authority should have stepped in before it did and, when they knew that the building was being constructed as it was, should not have let it go ahead. That would have made it clear at a very early stage that there were problems because the architect had not achieved the removal of the necessary conditions. I am not in a position to judge because I have no material from the local planning authority, who are not present at this appeal, as to what case, if any, they would wish to put forward against that.
- If this appeal fails, as I am afraid it must because there is no error of law that I can identify, that is not necessarily the complete end for the Fullers. The council will have to decide whether, in all of the circumstances, it is expedient to enforce these conditions either to the full extent or to a partial extent. At that stage Mr Fuller's concerns, and any evidence that he may have to support those concerns, for example that the council stood back when it ought to have been more proactive in preventing the construction, will become material. The mere fact that a building is erected in breach of conditions of planning does not of itself mean that there has to be enforcement, even though permission has been refused. It is perhaps a case where they start at a disadvantage, having regard to the loss of this appeal, but if they do have relevant material which was not before the inspector, that should be placed before the local planning authority. They will have to await a decision on the question of enforcement. If enforcement is decided upon, they have a right of appeal against that decision. I do not offer them huge hope because the fact that consideration has already been given whether planning permission should be granted, and has been refused, will be very much against them. On the other hand, if there is relevant material which, for whatever reason, was not before the inspector, that can be relied on in relation to any enforcement proceedings if any materialise. I appreciate that that is not any great hope for the future and there is a degree of clutching at straws, but I am afraid that there is nothing I can do in this court to assist because there is no error of law which has been identified and which would permit the overturning of the decision of the inspector. Accordingly, this appeal must be dismissed.
MR GREATOREX: My Lord, there is an application for costs. Has your Lordship seen the schedule?
MR JUSTICE COLLINS: Yes. Well now, Mr Fuller, you have seen this, have you, this application for costs?
THE FIRST APPELLANT: Yes.
MR JUSTICE COLLINS: The problem is that if you take proceedings in court and lose, the general rule is that you have to pay the costs.
THE FIRST APPELLANT: Yes.
MR JUSTICE COLLINS: And there are those who believe -- and I am one of them -- that these appeals ought to be a subject of the permission stage to see whether they are arguable because if this had been put before a judge he would have told you that, with regret, it was not arguable and you would not have had to pay anything other than the court fees. But as it is, you have the appeal as of right and you have exercised your right and you have sadly lost. Now, I do not think that I can justify not making an award of costs, but that does not mean that it will be in the full amount. Do you have any comments on the amount they are claiming?
THE FIRST APPELLANT: No.
MR JUSTICE COLLINS: You simply do not know. Let us see what it amounts to. I can assure you, sadly, that although it seems an awful lot, it is rather cheaper from the Treasury Solicitors than from private solicitors. Mr Greatorex, I am quite sure that your fees are not excessive, having regard to amounts I know are payable. What about the time spent on the documents? There was not a great deal of material here, was there?
MR GREATOREX: My Lord, with respect, there was because there were questions raised about what was and what was not before the inspectors.
MR JUSTICE COLLINS: I suppose so, yes. It is a total of about ten hours for work done on documents, which does seem rather a lot.
MR GREATOREX: My Lord, if I can assist, that obviously runs from the moment the appeal was first received --
MR JUSTICE COLLINS: I know.
MR GREATOREX: -- and the work done in relation to that and the need to assess court documents which came in, and, my Lord, documents came in in two tranches -- the original main core and then your lordship will see the documents attached -- and your Lordship will notice from the bundle that by way of some response I think it was to my skeleton that in the final tab --
MR JUSTICE COLLINS: Well, they are mainly photographs.
MR GREATOREX: They are, that is true. But all of this has to be considered --
MR JUSTICE COLLINS: I am just thinking of the time it took me to read through this. Even if I treble it -- or quadruple it -- I do not arrive at ten hours.
MR GREATOREX: My Lord, as I say, this runs from the moment the appeal was first received.
MR JUSTICE COLLINS: I know. I see the problem that if matters are raised, it is left to you to give the answers often.
MR GREATOREX: As your Lordship has said, at the end of the day when one goes through this all there really was nothing in it. But of course that was not apparent when it was first received.
MR JUSTICE COLLINS: Well ....
MR GREATOREX: The final matter, my Lord, is that the bundles were prepared by my instructing solicitors.
MR JUSTICE COLLINS: Yes, of course.
MR GREATOREX: The only thing that counterbalances that out -- your Lordship sees the hourly rate --
MR JUSTICE COLLINS: Yes, I read that.
MR GREATOREX: -- and the attendance at today's hearing, my Lord, is actually underestimated because attendance at hearing is simply down for one-and-a-half hours, with one hour travelling and waiting, and we have gone over that slightly.
MR JUSTICE COLLINS: Yes, I fully understand. Mr Fuller, anything you want to say?
THE FIRST APPELLANT: I would like to say one thing. Errors of law. What would be an error of law?
MR JUSTICE COLLINS: Well, as I told you, if the decision was perverse -- one which no reasonable person could reach -- if there had been a misunderstanding of a bit of planning law, that can happen; if the statute had not been properly applied.
THE FIRST APPELLANT: It seems to me it was perverse -- and to many other people.
MR JUSTICE COLLINS: I am afraid the standard of perversity is a high one. It has been described variously by some, but "barking mad" would be the sort of approach. It must be pretty extreme. As I say, the law says that it is a decision which no reasonable person could reach, which is a pretty high test.
THE FIRST APPELLANT: It is.
MR JUSTICE COLLINS: I appreciate you think that this is an unreasonable one, but I am afraid it does not fall into that category.
THE FIRST APPELLANT: I will point out though that we have also had permission to put Velux windows -- which is a big issue, Velux windows, because of the overlooking -- in the front of the house and we chose to take them out. So we just kept them on the back only. So how can you give permission for Velux windows that look out -- which is a big issue --
MR JUSTICE COLLINS: It depends --
THE FIRST APPELLANT: In the forms it actually says about it and in the plotland it says about the big issue about it.
MR JUSTICE COLLINS: You can say, as a matter of fact, this was a decision which was a surprising decision, and you think that it is a decision which really does not stand up on its merits. But that is not, I am afraid, sufficient to show that it is unlawful. People, you see, can have different views about things. One may be, on one view, right and another may be wrong, but it does not mean that they are so right or so wrong as to mean that any other view is one which no reasonable person could hold. That is the difficulty that one comes up against in this jurisdiction. I am bound to say, as I suspect any planning lawyer would have told you, it is to avoid challenges such as this, I am afraid, to the judgment of the inspectors that the law sets the test at a high level in this sort of situation.
THE FIRST APPELLANT: Would I be able to appeal this decision?
MR JUSTICE COLLINS: Only if you can persuade the Court of Appeal that my decision was wrong in law.
THE FIRST APPELLANT: No, I think your decision was good. I am really coming from the angle that the inspector's decision was perverse.
MR JUSTICE COLLINS: Yes, but I am afraid I have not been able to help you in that regard. You have a right to apply to the Court of Appeal but I do not think you will get anywhere and it will mean yet more costs. I am afraid it is the end of the line so far as this is concerned. That is why I raised the question of enforcement. As I say, you still have at least an arrow in your bow and you may be able to --
THE FIRST APPELLANT: It is not really for us, to be honest with you.
MR JUSTICE COLLINS: Well, I understand, but you still have a little bit of fight left.
THE FIRST APPELLANT: The only thing is that if permission several months before the last application and you get the first architect --
MR JUSTICE COLLINS: That is all material that you must put. You probably would do well to get a little bit of advice from someone who has a bit of expertise. Put this all together in a proper form -- do not go over the top with any allegations against the council because that will put their backs up -- but point out --
THE FIRST APPELLANT: We have.
MR JUSTICE COLLINS: Well, maybe you already have, but set it out clearly and focus on the points that matter. You have told me about them and I have indicated them in my judgment and you will be able to obtain a copy of that. I have expressed some sympathy for you, but you must appreciate that I have not heard from the local planning authority. That is the only hope I can give you.
So far as the costs are concerned, the amounts that they are claiming are not on the whole unreasonable. I suspect that I am letting my heart rule my head to some extent, but I am prepared to knock it down a little. I propose to make an order for costs in the sum of £2,500 altogether. How and whether that is enforced will be a matter between you and the Treasury Solicitor. The sensible think is to arrange, if you wish, to pay by instalments or something like that. I do not know quite what your position is. I am sorry that I could not help you.
THE FIRST APPELLANT: I appreciate that, my Lord.
