DUNSTER PROPERTIES Ltd v FIRST Secretary of State and ROYAL BOROUGH of KENSINGTON and CHELSEA
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Mr Justice Stanley Burnton,Lord Justice Chadwick |
| Judgment Date | 28 February 2007 |
| Neutral Citation | [2007] EWCA Civ 236 |
| Docket Number | Case No: C1/2006/1782 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 February 2007 |
[2007] EWCA Civ 236
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTUCE BURTON)
Lord Justice Chadwick
Lord Justice Lloyd and
Mr Justice Stanley Burnton
Case No: C1/2006/1782
MR P PETCHEY (instructed by Messrs Lewis Silkin LLP, LONDON EC4A 1BL) appeared on behalf of the Appellant.
MS K OLLEY (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
This is an appeal from an order of Burton J made on 20 July 2006 under section 288 of the Town and Country Planning Act 1990 by which he refused an application by Dunster Properties Limited for an order quashing a decision of the Inspector on 25 November 2005 by which Dunster's appeal against a refusal of planning permission by the Royal Borough of Kensington and Chelsea was dismissed. The judge refused permission to appeal but permission was granted on a paper application by Sir Henry Brooke on 19 October 2006. Kensington and Chelsea have played no part in the proceedings. The appeal is resisted, as it was below, by the Secretary of State, now the Secretary of State for Communities and Local Government, who is represented by Miss Katherine Olley. Dunster, as below, is represented by Mr Philip Petchey. The learned judge's judgment is at [2006] EWHC 2079 (Admin).
The relevant premises are at 64 and 65 Glebe Place, London SW3. The planning permission sought was for, so far as relevant, a first floor extension to No. 65. The property lies within the Cheyne Conservation Area. Two successive inspectors' decisions are relevant. The first dated 6 May 2003 by Mr Sargent dismissed an appeal against the refusal of an earlier planning application. The second, directly in point on the appeal, was by Mr Mead and was dated 25 November 2005.
Dunster's ground of appeal essentially was before the judge and is before this court that Mr Mead took an entirely different view from Mr Sargent on a point which was before both of them but without explaining the reasons why he did so, thereby offending against the requirement that a planning appeal decision must be properly reasoned.
Mr Mead accepted Mr Sargent's description of the property and its relevant context in paragraph 4 of Mr Sargent's decision letter, which I will read:
“The north-eastern side of Glebe Place, from No. 52 to King's Road, is notable for being an eclectic mix of attractive properties of differing styles and ages, which, with the exception of a gap next to No. 62, give the impression of forming a continuous built up frontage at ground floor level. Although the roof line varies significantly, houses along this length are predominantly 2 or 3 storeys in height. However the appeal property, positioned roughly in the centre, comprises 2 of the lower units. When viewed from the front, No. 64 appears as 1 1/2 storeys high, whilst No. 65 appears as being only single storey, so resulting in a pronounced gap being apparent at upper floor level within the streetscene.”
At the time of the first planning application, which was made in April 2002, Kensington and Chelsea took an objection in principle to there being any extension to No. 65 at first floor level. However, Mr Sargent did not consider that objection to be valid. At paragraph 5 of his decision letter he said this:
“The Council considers the gap above No. 65 plays an important role in providing a context for the neighbouring terrace to the north, and, for this reason, it contends it enclosure should be resisted. However I have not been advised this terrace is listed, and I believe its visual balance and symmetry have already been affected to some degree by the partial painting of the external brickwork and by the presence of a 2 storey block close to its northern end. Furthermore, as stated above, this side of Glebe Place is characterised by its variety of buildings, and I consider each of them is of a strong enough design to contribute to the street scene despite the close proximity of its neighbours. I therefore do not believe an extension of a sympathetic appearance, scale and siting on the upper floor of No. 65 would erode the contribution made by the neighbouring terrace to the appearance of the conservation area.”
Nevertheless he dismissed the appeal on the particular designs rather than in principle, as he explained at paragraph 6. The details of that I think do not matter for present purposes, but he concluded at the end of paragraph 6 that the proposal would neither preserve nor enhance the character and appearance of the Cheyne Conservation Area and as such would be contrary to the objectives of the development plan. With that decision, Dunster went away and sought to devise an alternative design which would qualify as, in Mr Sargent's words, “an extension of a sympathetic appearance, scale and siting”.
On 28 May 2004 Dunster applied for planning permission on the basis of different design proposals. Kensington and Chelsea again refused on 6 May 2005, still on the ground that no first floor extension should be allowed. Dunster appealed and Mr Mead, the inspector charged with determining that appeal, rejected Kensington and Chelsea's objections to the particular design. At paragraph 5, he said:
“The Council suggested the new roof at No. 65 would appear dominant and overbearing in its position on the frontage. However, the new roof would copy the form of the roof of No. 64. Although No. 64 is a slightly taller property, I consider that any degree of imbalance will hardly be perceptible and as a design the roof will visually integrate with the building on which it will sit and also with the roof of No. 64, with which it would have a comfortable relationship.”
So far so good for Dunster, but he went on to dismiss the appeal. His reasons expressed in paragraph 6 were that the extension:
“… would remove the majority of the recessive view created by the juxtaposition of the single storey property with the end of the 3 storey terrace next door.”
The loss of the view he considered:
“… would erode the perception of depth which is an attraction of the existing townscape of the north east side of Glebe Place.”
The extension would also remove or significantly reduce:
“the view of the rooftop garden at No.65 and the tree to the rear”.
In these respects Mr Mead said that the extension would fail to preserve either the character or the appearance of the relevant area so as to be contrary to a number of policies in the adopted unitary development plan, in particular CD61 and CD62. In this respect he clearly took an entirely different view from that expressed by Mr Sargent in his paragraph 5. Mr Mead referred to Mr Sargent's decision and specifically to that paragraph in his own paragraph 8. He said this in the last sentence:
“I have no comments on either of those two remarks other than to state that each case is judged on its own merits and my conclusions on the current scheme are given above.”
Mr Petchey submits that that is a somewhat casual reference to a point which is at the heart of Dunster's case on the principal issue. He submits that it is all very well and correct so far as it goes to say that each proposal must be judged on its own terms and on its own merits. But the two inspectors have taken mutually contradictory positions as to the principle of a first floor extension to this property and Mr Mead has not offered his reasons for differing from the view supported by reference to specific factors expressed by Mr Sargent. There may be such reasons but just to disagree and to make no comment on the reasons in the earlier decision, Mr Petchey submitted, is not enough in the present case.
Appeals in ordinary civil litigation based on the inadequacy of the judge's reasons have come to greater attention in recent years in the light of decisions in this court in such cases as Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377 and English v Emery Reimbold and Strick Limited [2002] EWCA Civ 605. In the context of planning decisions, it has had the attention of the House of Lords on several occasions, including in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 and South Bucks District Council v Porter (No. 2) [2004] UKHL 33. The relevance of a decision on a previous planning appeal was considered specifically in this court in North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P & CR 137. The speech of Lord Brown of Eaton-under-Heywood in the South Bucks case is the most recent and authoritative statement. At paragraphs 24 through to 36 he reviewed the law as to the obligation to give reasons. He noted a passage in a judgment of Phillips J in 1975 which had been approved by Lord Bridge in Save Britain's Heritage and he offered a broad summary of the authorities as regards the proper approach to a reasons challenge in the planning context at paragraph 36 of his speech, which I will read. I regard as of particular relevance and importance to the present case the second and the seventh sentences of this paragraph:
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the...
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