CAB Housing Ltd v Secretary of State for Levelling UP, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Lady Justice Andrews,Lady Justice Whipple |
| Judgment Date | 23 February 2023 |
| Neutral Citation | [2023] EWCA Civ 194 |
| Docket Number | Case No: CA-2022-000552 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 194
Sir Keith Lindblom
(SENIOR PRESIDENT OF TRIBUNALS)
Lady Justice Andrews
and
Lady Justice Whipple
Case No: CA-2022-000552
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
MR JUSTICE HOLGATE
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Streeten (instructed through Direct Public Access) for the Appellant
Thea Osmund-Smith (instructed by the Government Legal Department) for the First Respondent
The Second Respondent did not appear and was not represented.
Hearing date: 29 November 2022
Approved Judgment
This judgment was handed down remotely at 4.30pm on 23 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The Senior President of Tribunals:
Introduction
How should a local planning authority approach an application for prior approval under Class AA of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”), which provides for “permitted development” rights to enlarge dwelling houses by the construction of additional storeys? That is the central question in this appeal.
With permission to appeal granted by Lewison L.J., the appellant, CAB Housing Ltd., appeals against the order of Holgate J. dated 3 February 2022, by which he dismissed its application under section 288 of the Town and Country Planning Act 1990 for statutory review of the decision of an inspector appointed by the first respondent, the Secretary of State for Levelling Up, Housing and Communities, dismissing its appeal against the refusal by the second respondent, Broxbourne Borough Council, of an application for prior approval for the addition of a single storey to the existing single-storey dwelling at 31 Gaywood Avenue, Cheshunt.
The main issues in the appeal
There is a single ground of appeal, which asserts that the judge erred by misinterpreting Class AA of Part 1 of Schedule 2 to the GPDO. It has given rise to three main issues, all of which involve an exercise of statutory interpretation: first, whether the judge was wrong to hold that the “the decision-maker may decide that the scale of the proposal … is too great, acting within the ambit of the prior approval controls in paragraph AA.2.(3)(a)” (paragraph 80 of the judgment); secondly, whether he was wrong to reject CAB Housing's submission that the words “adjoining premises” in paragraph AA.2(3)(a)(i) refer only to “those properties which abut, or are contiguous with, the subject property” (paragraph 82); and thirdly, whether he was wrong to reject the submission that paragraph AA.2(3)(a)(i) limits the consideration of “amenity” impacts to overlooking, privacy or loss of light, and to hold that the design or architectural features of elevations other than the principal elevation and any side elevation fronting a highway may be considered under paragraph AA.2(3)(a)(ii) (paragraphs 94 to 97), and that the control on the “external appearance” of the dwellinghouse under that provision goes beyond the building itself and includes impacts on neighbouring premises and the locality (paragraph 98).
Part III of the 1990 Act
In Part III of the 1990 Act, “Control over development”, section 58(1) provides that planning permission may be granted in several ways, which include “(a) by a development order …”, and “(b) by the local planning authority … on application to the authority … in accordance with a development order”.
Section 60, under the heading “Permission granted by development order”, provides that “[planning] permission granted by a development order may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order” (subsection (1)); that “where planning permission is granted by a development order for building operations in England, the order may require the approval of the local planning authority … to be obtained … (a) for those operations, or (b) with respect to any matters that relate to those operations, or to the use of the land in question following those operations, and are specified in the order” (subsection (1A)); that “[without] prejudice to the generality of subsections (1) and (1A), a development order may include provision for ensuring … (b) that, where within that period an owner or occupier of any adjoining premises objects to the proposed development, it may be carried out in reliance on the permission only if the local planning authority consider that it would not have an unacceptable impact on the amenity of adjoining premises” (subsection (2B)); and that “[in] subsection (2B) “adjoining premises” includes any land adjoining … (a) the dwelling house concerned, or (b) the boundary of its curtilage” (subsection (2C)).
Class AA of Part 1 of Schedule 2 to the GPDO
Class AA of Part 1 was introduced by the Town and Country Planning (General Permitted Development) (England) (Amendment) (No. 2) Order 2020 (S.I. 2020 No. 755), which was made on 20 July 2020 and came into force at 9 a.m. on 31 August 2020. Its provisions are set out in full in an annex to Holgate J.'s judgment. I shall quote only those that have been referred to in argument in this appeal.
Class AA is the “enlargement of a dwellinghouse by construction of additional storeys”. The provisions under the heading “Permitted development” are these:
“AA. The enlargement of a dwellinghouse consisting of the construction of –
(a) up to two additional storeys, where the existing dwellinghouse consists of two or more storeys; or
(b) one additional storey, where the existing dwellinghouse consists of one storey,
immediately above the topmost storey of the dwellinghouse, together with any engineering operations reasonably necessary for the purpose of that construction.”
Paragraph AA.1, under the heading “Development not permitted”, identifies certain categories of dwelling house, locations, heights and other dimensions, to which the permitted development right under Class AA does not extend. It provides:
“AA.1. Development is not permitted by Class AA if –
(a) permission to use the dwellinghouse as a dwellinghouse has been granted only by virtue of Class G, M, MA, N, O, P, PA or Q of Part 3 of this Schedule (changes of use);
(b) the dwellinghouse is located on –
(i) article 2(3) land; or
(ii) a site of special scientific interest;
(c) the dwellinghouse was constructed before 1 st July 1948 or after 28 th October 2018;
(d) the existing dwellinghouse has been enlarged by the addition of one or more storeys above the original dwellinghouse, whether in reliance on the permission granted by Class AA or otherwise;
(e) following the development the height of the highest part of the roof of the dwellinghouse would exceed 18 metres;
(f) following the development the height of the highest part of the roof of the dwellinghouse would exceed the height of the highest part of the roof of the existing dwellinghouse by more than –
(i) 3.5 metres, where the existing dwellinghouse consists of one storey; or
(ii) 7 metres, where the existing dwellinghouse consists of more than one storey;
(g) the dwellinghouse is not detached and following the development the height of the highest part of its roof would exceed by more than 3.5 metres –
(i) in the case of a semi-detached house, the height of the highest part of the roof of the building with which it shares a party wall (or, as the case may be, which has a main wall adjoining its main wall); or
(ii) in the case of a terrace house, the height of the highest part of the roof of every other building in the row in which it is situated;
(h) the floor to ceiling height of any additional storey, measured internally, would exceed the lower of –
(i) 3 metres;
(ii) the floor to ceiling height, measured internally, of any storey of the principal part of the existing dwellinghouse;
(i) any additional storey is constructed other than on the principal part of the dwellinghouse;
(j) the development would include the provision of visible support structures on or attached to the exterior of the dwellinghouse upon completion of the development; or
(k) the development would include any engineering operations other than works within the curtilage of the dwellinghouse to strengthen its existing walls or existing foundations.”
Under the heading “Conditions”, paragraph AA.2 provides:
...“AA.2. – (1) Development is permitted by Class AA subject to the conditions set out in subparagraphs (2) and (3).
(2) The conditions in this sub-paragraph are as follows –
(a) the materials used in any exterior work must be of a similar appearance to those used in the construction of the exterior of the existing dwellinghouse;
(b) the development must not include a window in any wall or roof slope forming a side elevation of the dwelling house;
(c) the roof pitch of the principal part of the dwellinghouse following the development must be the same as the roof pitch of the existing dwellinghouse; and
(d) following the development, the dwellinghouse must be used as a dwellinghouse within the meaning of Class C3 of the Schedule to the Use Classes Order and for no other purpose, except to the extent that the other purpose is ancillary to the primary use as a dwellinghouse.
(3) The conditions in this sub-paragraph are as follows –
(a) before beginning the development, the developer must apply to the local planning authority for prior approval as to –
(i) impact on the amenity of any adjoining premises including overlooking, privacy and the loss of light;
(ii) the external appearance of the dwellinghouse, including the design and architectural features of –
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