[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Creed -Miles, R (on the application of) v Tower Bridge Yacht and Boat Co Ltd [2013] EWHC 853 (Admin) (17 April 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/853.html Cite as: [2013] EWHC 853 (Admin)

[New search] [Printable RTF version] [Help]

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		17 April 2013

Mr Christopher Symons Q.C.:

1. The Claimant, Mr Creed-Miles, owns and occupies Creeds Wharf, a glass-fronted diamond shaped property on the south bank of the Thames down-stream from Tower Bridge. Opposite, and to the side of his property, are the Downing's Roads Moorings. Those moorings comprise a series of "roots" or ground anchors and chains in the riverbed. Moored to these are a collection of collar barges which themselves provide moorings for a number of house boats. The Downing's Roads Moorings are owned by the Tower Bridge Yacht and Boat Co Ltd, the interested party in this case.
2. The interested party was granted planning permission on 16 June 2011 ("the 2011 permission") by the London Borough of Southwark, the Defendant (Southwark), to erect a purpose built moving brow (or bridge) and floating platform to service the collar barges and house-boats. The planning permission is challenged by the Claimant on the basis that it is unlawful in that it has been granted in error by Southwark which has misinterpreted an earlier planning decision and effectively granted permission for development within an exclusion zone referred to in that earlier decision.
3. The Claimant has historically endured barges very close to his property and that fact, together with the Claimant's understandable desire to preserve his river outlook, has made the planning history of the site somewhat controversial. The absolute distance of any infringement into the exclusion zone is small or, on the Council's case non-existent, but this has not prevented this litigation being hard-fought.
4. Since the issue of whether the 2011 permission infringes the earlier exclusion zone is central to this application for judicial review to quash the 2011 permission it is necessary to go back to examine earlier events.

History

5. In 2004 enforcement action was taken against the interested party. While it was apparent that barges had been moored in this location for many years they were no longer moored while in the course of navigation of the river or awaiting employment. They were moored to form a residential and work complex. The number of barges moored had increased substantially. The Inspector took the view that the situation was wholly unacceptable with vessels moored close to Creeds Wharf and the nearby blocks of flats which "created a strong sense of being overlooked" with an "unacceptably overbearing impact".
6. The inspector proceeded to examine appropriate distances to be observed between the barges and the residential development:

"56. There are some parallels here with the sort of standards and reasonable expectations that apply with conventional housing, including flat developments. The council's approved SPG (Supplementary Planning Guidance) indicates the normal requirement for minimum distances between windows of residential properties. This distinguishes between front and rear windows, the latter being where a degree of privacy might be expected. At the front, where an elevation fronts onto a highway, 12m is recommended and at the rear a minimum distance of 21m is recommended. I reject the concept that the river immediately in front of the affected properties should be considered to be a highway for these purposes. Such a suggestion is plainly wrong and misconstrues the concept of private space embodied in the SPG. For the affected properties their limited areas of private space face the river.

57. The council identified the main differences between applying the SPG standards for minimum distance between windows on land based development and the appeal situation as being vertical movement with the tide; lateral movement because of the effect of the wind, tide and current on vessels moored to ground anchors; and that houses are separated by garden fences which help privacy. The appellants accept that there will be a degree of lateral movement but provided no evidence to suggest how much that might be. In the absence of that information it is appropriate to err on the side of caution in applying appropriate minimum distances...

58. Based on these considerations and on what I observed on the site from the vessels, flats and house I conclude that it would be appropriate and prudent to achieve a minimum separation of 25m between flat and house windows and, on the other hand, vessels on the moorings. I include in that the collar barges since these are in effect the main pedestrian routes and to some extent leisure areas where people may meet."

7. The Inspector accepted that it was appropriate to allow some reduction in distance for oblique views. He decided that Creeds Wharf deserved some degree of privacy and freedom from overlooking. He went on:

"62. Creeds Wharf presents the additional constraint in that its facade has glass on the side as well as the front windows where it oversails the river wall. This means that the level of privacy which the occupants might reasonably anticipate is directly affected by the proximity of vessels at the side – the first collar barge for example. Although a full 25m would not be necessary because of the oblique views I consider that the access arrangements to the moorings need to be rearranged to give adequate standards for privacy and freedom from overlooking."

8. The Inspector concluded that none of the layouts before him met the legitimate and reasonable objections concerning overbearing impact and loss of privacy. He granted planning permission for the use of land for the mooring of barges and other marine vessels for mixed uses and left the details of the layout to be agreed and he hoped that by offering clear guidance the matter could be resolved without recourse to a further appeal process. Unfortunately his hopes were not realised. An application for approval of details, including the arrangement and layout of vessels including exclusion zones, made on 30 November 2004 was refused by Southwark by notice dated 31 March 2005. The matter went to an appeal before an Inspector, Claire Sherratt, who held an inquiry on 27 and 28 June 2006.
9. In the meantime a layout providing a 25m radius exclusion zone including the downstream corner of Creeds Wharf had been approved. The Inspector was considering a different layout which did not provide the same protection to the upstream area from Creeds Wharf. The parties agreed that any layout had to provide 25 metres from the front windows and any vessel on the moorings including collar barges. Where there was disagreement was the extent of reduction of that distance that was appropriate for oblique views; and what constituted an oblique view.
10. The Inspector considered the earlier decision letter and concluded that some reduction was appropriate for oblique views. Ms Sherratt at paragraph 8 referred to the minimum distance of 25m from the glazed facade and said:

"I take "glazed facade" to refer to the glazed windows to the front and side of Creeds Wharf windows that oversail the river...the reduced distance (i.e. for oblique views) refers to the distance from glazed windows on the return of the main bays of Creeds Wharf ..."

11. The Inspector rejected a distance of 9.5m and then went on:

"10. Whilst I accept that it is in respect of views upstream and downstream of the river, that there can be a reduction from 25 metres, the degree of overlooking that would occur due to the large expanse of glazing to the window return in Creeds Wharf ... is still significant. Bearing this in mind and that the previous Inspector accepted a distance of 21 metres or thereabouts between the access brow and the windows on the return of Creeds Wharf would be acceptable, I consider this would be an appropriate "reduced" distance. Anything less would unacceptably prejudice the living conditions of the occupiers of Creeds Wharf... contrary to Policy E.3.1 of the London Borough of Southwark UDP and the Council's SPG.

11. I notice that Layout S indicates an exclusion zone, extended to the west of Providence Tower and east of Creeds Wharf, based on a 21 metre radius from the corner of the respective windows. For the avoidance of doubt, I consider such a radius would also need to be projected from the western corner of the window of Creeds Wharf that oversails the river to ensure that no vessels could be moored off the first collar barge or Reeds Wharf."

12. The Inspector then turned to consider another development The Harpy and said:

"13. I do not consider that it would be necessary to achieve a minimum distance of 25 metres or 21 metres in respect of all the windows to the Harpy."

13. The importance of that statement seems to me to be that the Inspector is contrasting the position between The Harpy where the minimum distance is not required and the position with Creeds Wharf where that minimum was required. The Inspector concluded:

"20. I therefore intend to allow the appeal subject to a condition that requires the arrangement and layout of vessels to be implemented only in accordance with the details indicated on Layout S, together with an additional exclusion zone of 21 metres radius from the western corner of the window of Creeds Wharf that oversails the river."

14. That condition was repeated in the formal part of her decision in paragraph 22. Mr Creed-Miles was concerned after he saw the decision that there was room for misunderstanding as the plan which showed Layout S did not in fact show the full 21m exclusion zone. That plan was produced at the planning inquiry after another layout had been refused but had never been formally considered. He therefore wrote to the Council on 1 August 2006 seeking their agreement that a revised drawing which he had prepared in fact accurately set out the position. That drawing showed an arc starting at the 25m mark perpendicular to the front of Creeds Wharf and ended at the river wall at 21m. Thus apart from at the wall the zone was always more than 21m extending to 25m at the perpendicular.
15. Southwark replied on 16 August 2006 having taken Counsel's advice. They said in effect, and this is my interpretation, that the decision had to be read as a whole, that what the Inspector intended was apparent from paragraphs 14, 15 and 16 and that it was not intended that Layout S should be scaled particularly if that conflicted with the decision. That reply gave some comfort to Mr Creed-Miles. I do not believe the letter approved of his arc starting at 25 m and reducing down to 21m but he would have believed, and I so find, that the Council agreed with him that development as close as 17m to the windows of Creeds Wharf was not permitted.
16. In view of the decision I have reached I do not have to decide what, if any, legal effect this exchange had. A local authority is bound to act in the public interest and it is only if a failure to keep a promise is so unfair as to amount to an abuse of power that it might override other considerations R (on the application of Godfrey) v London Borough of Southwark [2012] EWCA Civ 500.
17. The position after the second inspector's decision had been made was in my judgment that no development was permissible within 25 metres of the windows to the front and side of Creeds Wharf windows that oversail the river and that there should be further exclusion zone with a radius of 21m from the corners of the windows of the return of Creeds Wharf. Translating that into the building which I could see in a photograph at p. 277 of the bundle there appear to be 4 panels of windows across the front of Creeds Wharf. They have the benefit of a 25m exclusion zone going straight out perpendicular to the river. The other windows to the side, upstream and downstream have the protection of a 21m radius exclusion zone.
18. There are therefore overlapping exclusion zones in a series of arcs from the side windows and straight out from the front windows. As it seems to me any development in the form of brows or moored vessels within those zones is not permitted.

The 2011 Planning Permission

19. The terms of the Planning Permission granted to the interested party and which is the subject of challenge before me was in these terms:

"Replacement of existing pedestrian and cycle access to Downing's Road moorings with new purpose built moving brow and floating platform. The new platform will comprise 40 sqm accommodation below deck – amenity room for moorings manager and staff, storage, two WCs and shower. ..."

Subject to the following nine conditions:

...

2. The development hereby permitted shall not be carried out otherwise than in accordance with the following approved plans: 3160, 3161D, 3177C, 3178E, 3179E, 3181D, 3182, 3183, 3184…."

20. The development permitted is at no point as close as 21m to the windows on the upstream side of Creeds Wharf. That is apparent from drawings 3161D and 3177C referred to above.
21. It was Mr Creed-Miles's case that the effect of the decisions was that he had the protection of an arc as drawn by him and sent to Southwark in August 2006 which extended from 25m reducing to 21m at the river wall. If he was right then it was agreed the permission granted to the Interested Party crossed that line and was arguably unlawful. The problem I have with that is that it is not suggested for oblique views that any distance beyond 21m is required. The Inspector was quite specific in saying that a 21m radius was appropriate and anything less would be unacceptable. I do not read the words "or thereabouts" as suggesting that some different and lesser distance was acceptable. While it is correct that if you draw an arc from 25m at the perpendicular to a point along the river wall 21m from the upstream window you achieve what Mr Creed-Miles is suggesting it does not seem to me that is what the Inspector was saying. I therefore reject that part of the case advanced.
22. Southwark's position was first of all that no part of the permitted development infringed the exclusion zone and that being the position the challenge was bound to fail. While Southwark's case was that the zone was less extensive than I have found it to be, it argued that because the development did not at any point infringe the 21m arc the challenge was "academic". However while in a normal situation that might be right as I have explained this planning site has caused very considerable controversy. Southwark in granting permission has permitted development in accordance with plans which show on their face an exclusion zone which narrows to 17m at the river wall. The Council has taken the figure of 21m at the 45 degree angle and then continued the arc to the wall. Mr Creed-Miles makes the point that this is precisely the situation that he feared might arise and why he wrote the August 2006 letter.
23. Since the drawings do show a reduction in the exclusion zone it seems to me the issue is not academic and I ought to deal with it. I am aware that Southwark may well have shown the exclusion zone on the drawings merely to show that the development lay outside it but that does not seem to me to be the point nor will it assist in avoiding future disputes.
24. I can see no justification for ignoring what the Inspector said in terms that anything less than 21m "would unacceptably prejudice" the living conditions of the occupiers of Creeds Wharf. If that was not clear enough she insisted on a 21m radius from the western windows. The approved drawings show an exclusion zone which reduces to one of about 17m. Since this distance leaves a gap between the development permitted and the exclusion zone it seems to me it is asking for future disputes. The sort of dispute I have in mind that is likely to occur is if a vessel was to be moored in what I have termed the gap. Indeed Southwark's own witness, Graham Fisher, in his evidence which was before the 2006 inquiry, expressed concern about the mooring of vessels close to Creeds Wharf - see paragraphs 8.6-8.10.
25. Since the Permission was granted "in accordance with Applicant's Drawing Nos Location plans 3161D, 3177C and 3182" all of which show an exclusion zone of less than the requisite 21m it seems to me that the Claimant is entitled to some relief and indeed it also seems to me it is in the interests of Southwark that this matter is not left as it is. Southwark have acted to seek to protect those who occupy the buildings on the South Bank and have been doing their best within their statutory powers and duties to find a solution which removes the controversy to which I have referred. Leaving things as they are will not, I believe, achieve that.
26. I will hear the parties on the form of relief that is appropriate in this case. It seems to me that both the Claimant and the Defendant can claim some success in this litigation and I believe now is the time for them, perhaps in consultation with the interested party, to try and agree the terms of the order which is appropriate. In the absence of an agreement, which could then be submitted to me for my approval, I order that the parties exchange brief skeletons on what each considers to be the correct order and form of relief and the matter can then be relisted for a hearing, I would suggest, for an hour. If the parties can reach agreement and provide me with the suggested order in advance it maybe the matter can be listed for a rather briefer hearing for me to hand down this judgment and make a suitable order.
27. I would like to pay tribute to the parties and their representatives for the helpful and courteous way that this matter has been presented to me.