Case No: CO/8194/2010
Neutral Citation Number [2010] EWHC 3686 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG
Date: Monday, 20th December 2010
Before:

MR JUSTICE SIMON
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Between:

	MMF (UK) LIMITED
	
  Claimant	
	- and -		
	
1)	SECRETARY OF STATE FOR
COMMUNITIES AND LOCAL GOVERNMENT

&

2)	SUNDERLAND CITY COUNCIL

1st Defendant

   2nd Defendant	
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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
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Tel No:  020 7404 1400  Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
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Mr Giles Cannock (instructed by Messrs Walker Morris) appeared on behalf of the Claimant.

Mr Ian Ponter (instructed by the Treasury Solicitor) appeared on behalf of the 1st Defendant.

The 2nd Defendant did not appear and was not represented.
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Judgment
Mr Justice Simon:

1.	This is an application under section 288 of the Town and Country Planning Act 1990 as amended to quash a decision of an Inspector appointed by the first defendant, the Secretary of State for Communities and Local Government, dated 18 June 2010.  By that decision, the Inspector refused to grant planning approval for a development at 812 Murton Street in Sunderland.  The decision is challenged on two grounds. First, that the decision was outside the powers of the Inspector, and secondly, that the reasons given by him were inadequate to explain his decision.  For reasons which I will come to, I have concluded that I am only concerned with the first of these challenges.

2.	The legal principles which guide the court in such a case are largely common ground.  The court can interfere if the decision maker has taken into account a consideration which is immaterial, or failed to take account of a consideration which is material; see for example, Ashbridge v Ministry of Housing [1965] 1 WLR 1320 at 1326 per Lord Denning MR.  

3.	In Clarke Homes v Secretary of State for the Environment [1993] 66 PMCR 263 at page 271 to 272, Sir Thomas Bingham MR summarised the approach to construing a decision letter: 

…the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.

4.	In an application identified as 07/01170/OUT dated 12 March 2007, the claimant made an application to the local planning authority, the second defendant, Sunderland City Council, for outline planning permission for a development of up to 45 apartments and six commercial units on the site at Murton Street.  Layout, appearance and landscaping were reserved for subsequent approval.  Scale and Access were to be determined at the outline stage.  One of the main issues in this application is what is meant by “Appearance”, and what is meant by “Scale”.

5.	The outline application was recommended for approval, subject to conditions.  On 8 June 2007, the second defendant granted outline planning permission for 45 apartments and six commercial units, subject to a number of conditions.  Condition one provided that the outline permission was subject to approval by the second defendant of the reserved matters; Layout, Appearance and Landscaping, within three years.  Condition two reduced the maximum number of residential units from 45 to 24. This condition was challenged by the claimant and in an appeal the permission was varied to delete condition two.

6.	On 17 August 2009, the claimant applied for approval of the reserved matters, but in error included Scale and Access among the reserved matters to be determined. As already noted, these had been the subject of the outline planning permission granted on 8 June 2007.  The second defendant refused the reserved matters application on 14 January 2010, for five reasons.  Reason one concerned the “layout, height and design” of the development, which were said to constitute an overdevelopment of the site “out of scale and character with the area”.  It was perhaps hardly surprising that the decision addressed Scale, since this was said in the application wrongly to be one of the reserved matters. 

7.	The claimant appealed, and the appeal was heard and determined by an Inspector appointed by the first defendant, Mr Richard McCoy, in the appeal under challenge.  It is clear from paragraph 2 of the decision that the Inspector understood that the issue did not concern five reserve matters, but three: Layout, Appearance and Landscaping.  In paragraph 4, he set out the main issues: 

I consider the main issues to be the effect of the proposal on; 1) the character and appearance of the area, 2) the setting and the listed buildings, 3) the living conditions of future occupiers and 4) highway safety.

Items 1) and 2) were plainly relevant to one of the reserved matters, Appearance, and 3) and 4) were relevant to another, Layout. The Inspector concluded in paragraph 25: 

While I find in favour of the proposal in terms of living conditions, highway safety and other matters, these considerations would not be sufficient to outweigh the harm that the proposal would cause to the character and appearance of the area and the setting of the listed buildings.  Therefore, for the reasons given above I conclude that the appeal should be dismissed.

8.	The parties agree that the relevant statutory and regulatory background are set out in the Town and Country Planning (General Development Procedure) Order 1995 as amended, (‘GDPO’).  Paragraph 3(1) provides:

Where an application is made to the local planning authority for outline planning permission, the authority may grant permission subject to a condition specifying reserved matters for the authority’s subsequent approval.

“Scale” is defined in paragraph 1(2) of the Order: 

‘Scale’ means the height, width and length of each building proposed within the development in relation to its surroundings

“Appearance” is defined in the same paragraph as:

the aspects of a building or place within the development which determine the visual impression the building or place makes, including the external built form of the development, its architecture, materials, decoration, lighting, colour and texture.

It can be seen that the terms “Scale” and “Appearance” are concerned with different matters.  Scale is concerned with the physical relationship of the proposed development to its surroundings; how does its size relate to adjacent buildings?  Appearance is potentially a wider definition, and covers most physical aspects of the proposed development.  The reference to “the visual impression of the building” might seem from the definition to include its physical relationship to other buildings; however, since scale covers that quality, at least as a matter of impression, Appearance must exclude issues of height, at least as far as it is concerned with the building’s physical relations with its surroundings.

9.	For the claimant, Mr Cannock submits that the Inspector fell into error.  In paragraph 11, he made a number of favourable observations about the building design, and how its appearance was acceptable in the context of the Sunderland City Centre, and how its proposed materials and finishes, and its relationship to the urban grain were in its favour.  However, he went on in paragraphs 12 to 13 and 15 to 17 to confuse scale with appearance: 

12. However, the proposed height, at around 16 metres and over 5 storeys, would result in a development that would be of significantly larger bulk than surrounding buildings.  I note the appellant’s argument that the setting back of the top storey would reduce the perceived height of the building to around 12 metres from street level and the terrace opposite sits at a higher level than the appeal site.  Nevertheless, the proposal would be visually dominant when seen in wider views, particularly from the major thoroughfare of Tatham Street, from where its overall height and bulk would be all too apparent.

13. This would be contrary to the advice in the SPDF which recommends limiting the height of new development in the area to 2-4 storeys with an eaves height of between 8-12 metres.  I consider that such an approach is reasonable in order that new developments might integrate themselves into the established urban grain in terms of respecting the scale and bulk of existing buildings.

...

15. The appeal site is situated close to the Grade II listed Bethesda Free Church and the Grade II listed terrace at 17-21 Murton Street.  Given the height and bulk of the proposal as set out above, I consider it would have an overbearing presence in the streetscape.  As a result it would relate poorly to the smaller scale of both the church and the terrace.

16. While the principal elevation of the church is on Tatham Street, its setting includes the view along Tatham Street Back which takes in the appeal site and the rear of the church.  It forms an important visual element in this street and would be read, as it presently is, with any building that stands on the appeal site.  I consider that the setting of both the church and the terrace owe their character, in no small part, to the relationship between them and surrounding buildings.  The proposal would be a major design intervention within this setting as it would form an integral part of this grouping.

17. Having acknowledged that the existing buildings on the appeal site make a limited contribution to the streetscape, I nevertheless consider that the proposal, due to its scale and bulk, would fail to take the available opportunity to improve the quality and appearance of the area and would not contribute a development that would politely and harmoniously blend with the character of the nearby listed buildings, to the detriment of their settings.”

Mr Cannock submitted that the Scale parameters plainly include height, as is clear both from the definition of that term and from paragraphs 52 and 90 of the June 2006 Departmental Guidance on Changes to the 	GDPO.  

10.	For the first defendant, Mr Ponter accepted that consideration of a building’s height involved questions of scale; but he submitted that it also involved questions of its Appearance, since it would be part of its visual appearance.  He submitted that in the present case, the height of a building had always been treated as a different matter to its Scale.  In this context, he referred to the Planning Officer’s report prior to the consideration of planning consent, and to an earlier Inspector’s report, where the height of the building was expressed to be a matter of concern.  He argued that the parties proceeded on the basis that the building’s height could be considered under the reserved heading “Appearance”.

Conclusion
11.	Scale and Appearance (as defined) are concerned with two different aspects of a building.  As Mr Cannock submitted, at the most simple analysis, if one considers a building as a simple three-dimensional shape, a box, the size of the box, and importantly its relationship with other buildings, is a question of Scale.  How the box is designed within that overall shape is its Appearance. That too may involve a consideration of its relationship with other buildings, but if so, it is applying a different criterion to one of Scale.  

12.	This construction, as well as giving meaning to the terms used in the GDPO, is at least consistent with paragraphs 52 and 90 of 12 June 2006 Guidance, which makes clear that if Scale is reserved, then the upper and lower limits of the height should at least be indicated; and with the definitions set out in the CABE paper, where Scale is defined in terms of both height and massing: 

 Scale: height ... is the size of a building in relation to its surroundings ... Height determines the impact of development on views, vistas and skylines.  

Scale: massing -- the combined effect of the arrangement, volume and shape of a building ... in relation to other buildings.

13.	In paragraphs 12 to 13 and 15 to 17, the Inspector confused Scale and Appearance.  Indeed, he refers to Scale in the last sentences of paragraphs of 13, 15 and 17, although these were not matters for consideration.  In this, he may have been led into error by the second defendant, whose submission is recorded at paragraph 7: 

The Council is concerned that the proposal would be an over development of the site which would be out of scale and character with the area.

14.	What the Inspector is saying in those parts of paragraphs 12, 13, 15 and 17, to which I have referred, is that the building is too big for its surroundings.  To refer to the Bulk of the building was unhelpful, since Bulk may cover both Appearance and Scale.  If he had confined himself for observations about the Bulk of the building as a matter of its appearance, that would have been unobjectionable; but in paragraphs 13 to 17 he refers to Scale in a way which makes it clear that he is considering a matter which had not been reserved.

15.	Whereas Appearance may include the issue of height, at least in the abstract, the argument does not assist Mr Ponter on this appeal.  The matter can perhaps be tested in this way: the issue of the height of the building in this context was not an issue in any other sense than a comparative sense.  Height was relevant, because of the building’s relationship to other buildings, not because it was out of proportion when looked at simply as an individual building too thin or too broad a box.  If it was adjudged to be too high by some aesthetic measurement, that would be a matter of appearance, but that was not how the Inspector dealt with the matter.

16.	Finally I do not consider that the way in which the parties addressed this matter prior to the determination by the Inspector, assists either side on what is properly a matter of the construction of the decision.  

17.	I will, for these reasons, hear the parties on the appropriate order.

MR CANNOCK:  Thank you, my Lord.  In those circumstances, I would ask for an order as set out, I think, in fact in the skeleton argument at paragraph 45, firstly --

MR JUSTICE SIMON:  Just one moment, if you will.  45, yes.  Quash the decision of the Secretary of State.  Mr Ponter?

MR PONTER:  I do not resist that, my Lord.

MR JUSTICE SIMON:  No.  Well, I will make that order.  The decision

MR PONTER:  8 June --

MR CANNOCK:  18 June 2010.

MR JUSTICE SIMON:  18 June, Waterloo day, is hereby quashed.  Right.

MR CANNOCK:  My Lord, I was going to ask that it is remitted back to the Secretary of State for a fresh determination, but I think that follows in any event.

MR PONTER:  It does, my Lord.

MR JUSTICE SIMON:  Yes, I do not think that is needed.

MR CANNOCK:  So secondly, my Lord, that the first defendant to pay the claimant’s costs, agreed helpfully in this case, in the sum of £12,500.

MR JUSTICE SIMON:  That is right, is it?

MR PONTER:  It is.

MR JUSTICE SIMON:  Anything else?

MR CANNOCK:  No, thank you, my Lord.

MR PONTER:  No, my Lord.

MR JUSTICE SIMON: Well, thank you both very much for your very helpful written submissions, your oral submissions, and your perseverance in waiting for me.