R Mary Loughlin v Wiltshire Council
| Jurisdiction | England & Wales |
| Judge | Martin Rodger |
| Judgment Date | 13 July 2018 |
| Neutral Citation | [2018] EWHC 2493 (Admin) |
| Date | 13 July 2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5852/2017 |
[2018] EWHC 2493 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
UPPER TRIBUNAL JUDGE Martin Rodger QC
(Sitting as a Deputy Judge of the High Court)
CO/5852/2017
and
Mr J. Clay (instructed by DMH Stallard) appeared on behalf of the Claimant.
Mr M. Henderson (instructed by Wiltshire Council) appeared on behalf of the Defendant.
THE DEPUTY JUDGE:
In this application for judicial review, the claimant challenges a decision of the defendant on 14 November 2017 retrospectively to grant planning permission to the interested party to reposition a secure store in the front garden of a bungalow known as The Hollies at 18 Cold Harbour, Amesbury in Wiltshire and to clad it with timber waney boarding. The secure store is a large, metal container which is used to store motorcycles belonging to the interested party.
The claimant is the owner of another bungalow immediately adjoining The Hollies known as Marlen.
The claimant, who was then acting in person, issued her application for judicial review on 18 December 2017. Permission to make the application was initially refused on paper, but was granted on 22 March 2018 by Supperstone J on limited grounds which had, by then, been reformulated by newly instructed counsel.
The grounds for which permission was granted are as follows. First, it is said that in making its decision the defendant misdirected itself as to the meaning and effect of a national planning policy related to the requirement for good design in the National Planning Policy Framework (“NPPF”). Secondly, it is said that the defendant also misdirected itself as to the meaning and effect of a policy concerning design contained in Core Policy 57 of the Wiltshire Core Strategy 2015 (“CP57”). Thirdly, if the defendant claimed to have determined the application on the basis that the position of the container clad with timber in a prominent position in the garden of The Hollies constituted a high standard of design, this is said to have been irrational, perverse and unreasonable.
The claimant was represented at the hearing by Mr Jonathan Clay, and the defendant by Mr Matthew Henderson. I am grateful to them both for their assistance. I can deal with the facts first.
The facts
Cold Harbour is a residential street close to the boundary of the Amesbury Conservation Area and is described by the claimant as a quiet cul-de-sac surrounded by open green space. The Hollies is the last in a row of detached bungalows with the grounds of a large school on one side and those of another school directly opposite. The Hollies and Marlen are separated by a block wall with a close boarded fence above to a height of 1.8 metres. The Hollies is elevated slightly above street level and is reached up a short tarmac driveway, on either side of which are areas of lawn and flowerbeds. There is an area of hardstanding at the top of the drive on one side, immediately adjacent to the boundary with Marlen.
In June 2017, the interested party installed a green industrial style storage unit on the hardstanding. It is the sort of secure metal storage container that might be used to store tools on a building site and it was assembled on site from flat-packed components. It is not a commercial shipping container as it was originally described by the claimant. Accurate dimensions for the unit are not agreed, but it is common ground that it is at least 2.14 metres tall, 2.14 metres wide and 4.05 metres long, giving it a volume of at least 18.5 cubic metres. It has a flat roof, no windows, and a double door at one end facing The Hollies. The longer side of the container is parallel to the boundary with the interested party's land and the top of the unit is visible over the fence between the two properties.
The storage unit was installed without planning permission and following a complaint from the claimant the defendant considered enforcement action.
On 26 June 2017, the interested party submitted a retrospective application for planning permission for the retention of the storage unit, which was refused on 21 August. Further consultation then took place between the interested party and the defendant's Planning Department and a number of alternative options were discussed with the case officer concerned, Ms Louise Porter. In a witness statement made on 17 May 2018 Ms Porter explained that these options included appealing the refusal of planning permission, applying for permission to erect a detached garage in the front garden, applying for permission to retain the storage unit in its current location but to clad it in timber and screen it with vegetation and, finally, to use permitted development rights to relocate the storage container to the site of an existing car port by the side of the property. Ms Porter took the view that this final option would cause the storage unit to be in a more prominent location and would be more difficult to screen, so she did not favour it.
Following those discussions, the interested party submitted a second application for planning permission to clad the store with timber boarding and to reposition it slightly to maintain a satisfactory distance between the cladding and the boundary with the claimant's land. The claimant submitted objections to the second application, as she had done to the first, but on 14 November 2017 planning permission was granted under delegated powers in accordance with the case officer's report and recommendation. The permission was subject to a condition that within three months the storage container must be clad with waney edged larch cladding with a natural finish. A second condition required the establishment and maintenance for a period of five years of a planting scheme which, in practice, comprises the planting of conifers to screen the storage unit from the boundary with the claimant's land and from the road, and deciduous shrubs on the side parallel to the driveway.
The officer's reports
Both the decision to refuse the original application and the decision to grant the second application were made on the basis of reports prepared by Ms Porter. In her first report, which followed an inspection on 18 August 2017, Ms Porter identified CP57 of the Wiltshire Core Strategy on quality design and place shaping as a key policy consideration relevant to the determination of the application. Under the heading “Design, Scale and Siting” she assessed the application in the following terms:
“The container is, put simply, a metal rectangular box with corrugated sides, a flat roof and a single door at one end. It is a standard “off the shelf” container, most commonly used in an industrial setting. The container does not have a domestic appearance and is not considered to be in keeping with the bungalow. The container is situated on a residential plot and therefore the style of any development within that plot should primarily harmonise with that existing residential character rather than the adjacent school buildings. As such, the container is not considered to be in keeping with the character of the existing bungalow due to its industrial appearance and metal construction. In addition, the container has a rather bulky appearance, given its flat roof and bold colouring.”
Having considered and dismissed objections based on the possibility of commercial use and adverse impact on neighbouring amenity and parking, the officer concluded:
“The storage container, by nature of its metal construction, colour and box design, results in an industrial appearance which conflicts with the domestic character of The Hollies. The position of the container within the front garden of the property in an elevated position from the highway also has a detrimental visual impact on the wider street scene. The container is therefore considered to be contrary to the design principles of Core Policy 57 of the Wiltshire Core Strategy.”
The officer's second report was written after a further visit to the site on 16 October. It again identified CP57 as the relevant policy context before repeating a number of introductory paragraphs of the previous report and noting that it was now proposed to clad the container in timber and provide additional planting around it. Under the heading “Design, Scale and Siting” the report quoted the concluding paragraph of the original report, which explained the reasons for refusal of the first application. It then...
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