R (Lough and Others) v First Secretary of State
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Keene,Lord Justice Scott Baker |
| Judgment Date | 12 July 2004 |
| Neutral Citation | [2004] EWCA Civ 905 |
| Docket Number | Case No: C3/2004/0183 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 July 2004 |
[2004] EWCA Civ 905
Lord Justice Pill
Lord Justice Keene and
Lord Justice Scott Baker
Case No: C3/2004/0183
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
MR JUSTICE COLLINS QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
MR R CLAYTON QC & MR C ZWART (instructed by Steele & Co) for the Appellant
MISS N LIEVEN (instructed by the Treasury Solicitor) for the Respondent
MR M LOWE QC & MR WOLTON QC for the Interested Party
This is an appeal against a decision of Collins J whereby, on 21 January 2004 he refused an application by Mr David Lough and others made on behalf of themselves and as Officers of BROAD ("The Bankside Residents for Appropriate Development"), an unincorporated association, ("the Appellants") to quash a decision of the First Secretary of State ("the Respondent") whereby on 9 June 2003 he granted Bankside Developments Ltd ("the interested party") planning permission to redevelop a site in the Bankside area of Southwark between Blackfriars Bridge and Southwark Bridge. Acting by an Inspector appointed by him, the Respondent allowed an appeal against a refusal of planning permission on 18 October 2002 by the Council for the London Borough of Southwark ("the Council") . The permission was for demolition of existing buildings and redevelopment to provide a 20-storey building with 28 dwellings and shops and restaurants on the ground floor, and associated facilities.
The decision
The Inspector conducted a local public enquiry at which over 30 witnesses were called, including 12 expert witnesses. The Appellants were objectors to the proposal. They were concerned, amongst other things, to protect the amenities of residents at Bankside Lofts and Falcon Point, which are near the site, and the amenities of the Tate Gallery of Modern Art ("the Tate Modern") into which the former Bankside Power Station, very close to the site, had been converted.
One of the Council's reasons for refusing permission had been that the proposal breached policy E3.1 of its Unitary Development Plan. That policy provides:
"Protection of Amenity
Planning permission for any development or change of use will not normally be granted where it would involve nuisance or loss of amenity to adjacent users, residents and occupiers of the surrounding area.
Reason: to protect the amenity of the area and of the people living, or working in, or visiting the area."
The Inspector, at paragraph 15 of his Decision, identified what he considered to be the main issues:
"Whether or not the proposed development would: firstly, affect the residential amenities of any neighbouring dwellings; secondly, affect the amenities of the Tate Modern; and thirdly, if such amenities are adversely affected, whether or not there is justification to allow the appeal and grant planning permission. In the light of evidence and submissions made by BROAD I have identified a main issue of equal importance, namely whether or not the design of the proposed development is of sufficiently high quality in relation to the location of the site in the Bankside area and adjacent to Tate Modern."
The Inspector resolved the last of those main issues in favour of the interested party and further consideration of it is unnecessary for present purposes.
The Inspector referred to Section 54A of the Town and Country Planning Act 1990 ("the 1990 Act") which provides:
"where, in making any determination under the planning acts, regard is to be had to the development plan, a determination shall be made in accordance with the plan unless material considerations indicate otherwise."
In relation to the first of the main issues he had identified, the Inspector concluded, first (paragraph 43), that "dismissal of the appeal for reasons relating to privacy and overlooking is not justified". However, he also concluded (paragraph 48) that "insofar as the matters of daylight, sunlight and overshadowing are concerned, the proposed development is not consistent with the relevant part of UDP Policy E3.1" He was not convinced that the proposed development caused unacceptable harm to Tate Modern and its facilities. As to the third issue, and having referred to what he considered to be a breach of Policy E3.1, the Inspector stated, at paragraph 54:
"However, by virtue of the technical evidence produced by the [interested party] at the inquiry I am not convinced that this issue is of such force as to warrant dismissal of the appeal when weighted against the advantages that would result from the proposed development".
He stated, at paragraph 55, that the loss of daylight "would not be so great as to render the affected rooms [in the neighbouring dwellings] incapable of continued beneficial use. ….The loss of daylight and sunlight to neighbouring residential properties and their overshadowing are regretted, but from the evidence before me I am not persuaded that the effects would be so great as to prove unacceptable".
At paragraph 56, the Inspector stated:
"Set against the effects on these neighbouring dwelling are the advantages that would stem from the proposed development. In addition to compliance with the general thrust of national, regional and local planning policies the Appellants list them as:
a) the removal of an unsightly building:
b) the construction of a building of substantial design quality;
c) the provision of sustainable residential development;
d) the efficient use of previously developed land;
e) the provision of affordable housing;
f) the provision of funds for environmental improvement by means of a Section 106 planning obligation;
g) the erection, potentially, of a beautiful building that would make a positive contribution in urban design terms;
h) a contribution to the regeneration of this area of London.
I accept that these are indeed benefits that would result from erection of the proposed building. Having weighed the degree to which the proposed development fails to comply with UDP Policy E3.1 against all the other issues and foregoing matters, especially the advantages that would stem from the proposed development, I find that there is justification to warrant an exception to UDP Policy E3.1. In the circumstances I am disposed to allow the appeal and to grant planning permission."
Before setting out his formal decision, and the conditions to which the permission was to be subject, the Inspector then inserted the heading "Consideration of issues raised by reference to the Human Rights Act 1998". Having referred to the Appellants' wish to protect their amenities, to the imposition of conditions, and to other matters not now said to be relevant, the Inspector concluded, at paragraph 60:
"Bearing all these matters in mind I conclude that no interference with the European Convention on Human Rights ["the Conventon"] has been established. Accordingly, insofar as Articles 1, 6 and 8 of the Convention are concerned, I am satisfied that the rights of the residents of Falcon Point, and also the residents of Bankside Lofts, have not been violated".
(The reference to Article 1 was clearly intended to be a reference to Article 1 of the First Protocol) .
The Inspector added, at paragraph 64:
"Matters of property valuation and the financial status of the [developers] were raised at the enquiry, but I place no importance on them as they do not amount to material planning considerations".
That proposition is not challenged but it is submitted that the diminution in value is relevant to the extent mentioned in paragraph 11 of this judgment.
Submissions and judgment of Collins J
Permission to appeal was sought from, and granted by, Collins J only on the ground that there had been a breach of the Human Rights Act 1998 ("the 1998 Act") . It is submitted that Article 8, and possibly Article 1 of the First Protocol, which form part of the law of England and Wales by virtue of Sections 1 and 6 of the 1998 Act, were infringed by the Respondent's decision. Article 8 was engaged by a departure from the development plan involving loss of privacy, mutual overlooking, loss of a view and loss of light at Bankside Lofts and Falcon Point, the interference with television reception at Falcon Point for a year and the diminution in value in the properties at Bankside Lofts.
It is further submitted that the Respondent acted unlawfully in failing to address or apply, when making his decision, the proportionality principle. It is submitted that the loss of amenity represents an infringement of the neighbouring residents' right to respect for their private and family life and their homes. It is submitted, in the alternative, that the diminution in value of the homes infringes the right, under Article 1 of the First Protocol, to the peaceful enjoyment of them. The Inspector erred, it is claimed, in failing to consider three of the complaints made by the Appellants: loss of a view, interference with television reception at Falcon Point during the construction of the proposed building and the diminution in value of 15% to 20% in the properties at Bankside Lofts. Evidence of diminution to that extent appeared in a surveyor's report submitted in writing by the Appellants to the Inspector, though not agreed and indeed challenged by way of comment during submissions.
Having considered authorities, the judge concluded:
"28. A balance has to be struck in planning decisions such as the present between the rights of the developer and the rights of those affected by the proposed development. If an adjoining...
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