R (Carlton-Conway) v Harrow London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE ROBERT WALKER,SIR MARTIN NOURSE |
| Judgment Date | 14 June 2002 |
| Neutral Citation | [2002] EWCA Civ 927 |
| Docket Number | No C/2001/2543 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 June 2002 |
[2002] EWCA Civ 927
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR JUSTICE STANLEY BURNTON
Royal Courts of Justice
Strand
London WC2
Lord Justice Pill
Lord Justice Robert Walker
Sir Martin Nourse
No C/2001/2543
MR M EDWARDS (Instructed by Merricks of Chelmsford) appeared on behalf of the Appellant
MR TIMOTHY STRAKER QC (Instructed by Legal Department, London Borough of Harrow) appeared on behalf of the Respondent
This is an appeal against the decision of Mr Justice Stanley Burnton given on 7 November 2001 whereby he refused an application by Denis Carlton-Conway, the appellant, to quash a grant on 6 October 2000 of planning permission by the London Borough of Harrow, the respondent, for the extension of a dwelling house at 2 Southacre Way, Pinner Hill, Pinner, Middlesex. The appellant is the owner of the neighbouring detached dwelling house at 1 Southacre Way. Both dwellings are substantial detached houses built following a planning permission granted by the Secretary of State in 1978. The decision to grant planning permission was made by the respondent's chief planning officer, Mr Graham Jones, ("the planning officer") who purported to act under delegated powers.
The issue is whether the planning officer acted within the scope of the powers delegated to him by the respondent. Section 101 of the Local Government Act 1972 empowers a local authority to arrange for the discharge of any of its functions by an officer of the authority. The chief planning officer was authorised to exercise the respondent's functions in relation to applications under the Town and Country Planning Act 1990—
"….. other than those:
1.1 which, pursuant to the provisions of the Act, are required to be referred to the Secretary of State of the Environment, and the application would otherwise be dealt with under the terms of this delegation;
1.2 which, in his opinion would be refused, unless they involve minor development;
1.3 which involve a departure from the Development Plan for the time being applicable to the Borough;
…..
1.6 which involved development by another Local Authority, Statutory Undertaker or Government Department having, in his opinion, a material environmental impact;
1.7 where approval is recommended for development which, in his opinion, would have a material impact on the character of a Conservation Area;
…..
1.9 where approval of development is recommended and a written objection or objections have been received, except where the proposals do not conflict with agreed policies, standards and guidelines;"
I have referred only to a sample of the scheme which is sufficient to illustrate the points raised in this appeal.
The application for planning permission was made on 31 January 2000 and the description of the proposal was as a "two-storey/first floor side extension and single and two-storey rear extensions".
Notice of the application was given to the appellant, the notice describing the proposal as "part two-storey/part first floor front to side, part single/part two-storey rear extensions". The appellant inspected the plans which accompanied the application and subsequently objected to the proposal giving detailed reasons. The application was amended in certain respects before the permission was granted. The document granting the permission did so using the same terminology as the application. A condition attached to the permission provided that no windows or doors other than those shown on the approved plan can be installed in the flank wall of the development without the prior permission in writing of the local planning authority. There was a further condition that the window in the flank wall should be made of obscure glass and be permanently fixed closed, below a height of 1.8 metres above finished floor level. The development is now described by counsel on behalf of the respondent as a front and side extension.
The planning officer purported to act under paragraph 1.9 of the delegation scheme. The appellant's first submission is that in the absence of the expression "in his opinion", which has been included in other paragraphs of the delegation scheme, the judgment as to whether the proposal conflicted with "agreed policies, standards and guidelines" was to be made by the committee of the authority and not by the planning officer under the delegation scheme.
The second submission is that the planning officer could not, in the circumstances, reasonably decide that the case came within the exception in paragraph 1.9. The "agreed policies, standards and guidelines" relevant to the present proposal are policy E45 of the respondent's Unitary Development Plan, Part 4 of the respondent's UDP Supplementary Planning Guidance and the respondent's Guidelines on House Extensions, paragraph C9. Those are the policies which have been the subject of consideration; first, in a report of the planning officer to which I will refer and, secondly, in the arguments before the judge and his judgment. Policy E45 provides insofar as is material:
"Developers shall provide a high quality of design and layout in new residential development and extensions. In considering proposals the council will take into account the character of the Borough, the surrounding residential district and locality in which the development site is located and the development site itself, together with the design and layout of the proposed development, and will require that the proposal:
(A) respects the scale, massing, siting, size, height, character spacing, form, intensity and use of buildings in the district and locality;
(B) provide space around buildings which reflect the setting and character of neighbouring buildings and the district and locality, protects the privacy and amenities of the occupiers of adjoining properties and the occupiers of proposed buildings ….."
Notes to that policy explain its effect:
"2.122 The council wishes to ensure that new development and extensions respect the established setting and character of neighbouring buildings and the locality. An important element of this character is the amount of space around, and the distance between, buildings …..
2.123 Consideration should be given to the visual impact of a new development or extensions on neighbouring properties, particularly near site boundaries. Such impact is perceived from within the existing building and from the rear gardens of the properties ….. The Council will also issue supplementary planning guidance notes on matters such as design, to illustrate good planning practice."
The respondent also issued the following supplementary planning guidance. Part 4:
"In addition to the above, the relationship between buildings is also important, particularly the visual impact of new development or extensions on neighbouring properties, particularly near site boundaries. In respect of new dwellings or extensions:
(1) …..
(2) The visual impact of the flank wall of a new building (or extension) alongside the rear flank boundary of an existing property should be reduced by ensuring that the building is not sited directly against the boundary.
(3) Two-storey or first floor extensions to semi-detached or detached dwellings should not detract from the existing character or create terracing effects. Normally, the impact of such extensions should be reduced by setting back the front and/or side walls of the extension by one metre and provision of a subordinate roof.
The council will, as appropriate, issue planning guidance notes on matters such as design, to illustrate good planning practice."
Paragraph C9 of the respondent's Guidelines on House Extensions provides:
"There will be a general presumption against two-storey rear extensions abutting a side boundary because of the excessive bulk and loss of light and consequent damage to the amenity of the adjoining residents. Where appropriate the forty-five degree Code will be used in conjunction with site considerations to govern the depth of extension."
The planning officer did not, before deciding to exercise his powers and grant permission, prepare a document setting out the relevant considerations. He would have had before him a report of a case officer. There is no evidence as to what that report contained. There is no contemporaneous statement by the planning officer setting out the considerations he had in mind in deciding to exercise his delegated powers or in making his decision.
Following the grant of permission to apply for judicial review on 20 June 2001, the planning officer and the solicitor to the council prepared lengthy and comprehensive joint reports for submission to the planning committee dealing with the grant of permission which had been...
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Table of Cases
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