R (on the application of Scott Bailey) v St Albans City and District Council
| Jurisdiction | England & Wales |
| Judge | Grubb |
| Judgment Date | 16 January 2020 |
| Neutral Citation | [2020] EWHC 24 (Admin) |
| Date | 16 January 2020 |
| Docket Number | Case No: CO/1708/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 24 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
UPPER TRIBUNAL JUDGE Grubb
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/1708/2019
and
James Neill (instructed by Solomon Taylor Shaw) for the Claimant
Andrew Parkinson (instructed by the Solicitor to St Albans City and District Council) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 21 November 2019
Approved Judgment
UT Judge
INTRODUCTION
The Claimant seeks to quash a grant of planning permission by the Defendant dated 8 March 2019 for the creation of a detached dwelling following demolition of existing garage and outbuildings at 3, Hamilton Road, St Albans, Hertfordshire (“the development”). The Claimant owns and lives at the adjacent property at 5, Hamilton Road, St Albans. The Interested Party is the owner of 3, Hamilton Road, St Albans, who made the successful application for planning permission which the Claimant now seeks to quash.
The development is, in effect, an “infill” between the properties of the Claimant and Interested Party in Hamilton Road to create a new property at 3A, Hamilton Road.
Planning permission was granted by the Council's Planning Officer pursuant to delegated powers on 8 March 2019 on the basis recommended in the Officer's Report (“OR”) dated 6 March 2019.
Permission to bring these proceedings was initially refused on the papers by Neil Cameron QC (sitting as a Deputy High Court Judge) on 28 May 2019. However, following an oral renewal hearing on 19 June 2019, Lane J granted permission on three of the original grounds (Grounds 1, 2 and 6).
Subsequently, the Claimant sought permission to add an additional ground (Ground 2A) in an application filed on 10 September 2019. Before me, Mr Parkinson who represented the Defendant, raised no objection to the amendment of the grounds to include Ground 2A and I granted permission to amend the grounds to add it. For convenience, I will retain the original numbering of the grounds as set out in the Claimant's ‘Statement of Facts and Grounds’.
THE GROUNDS
There are, therefore, four grounds of challenge (Grounds 1, 2, 2A and 6) which may be summarised as follows.
Grounds 1, 2 and 2A relate to the so–called ‘terracing effect’ that might result from the development. Ground 6 relates to the absence of a condition relating to the parking provision as part of the development.
Ground 1 contends that the Defendant failed to take into account Policy L23 of the Emerging St Albans City and District Local Plan 2020–2036 (“the Emerging Plan”) Local Plan.
Ground 2 contends that the Defendant failed to take into account Policy 72 of the St Albans and District Council Local Plan Review 1994 (the “Local Plan”). In particular, it is contended that the Defendant failed to apply Policy 72 consistently with other planning decisions.
Ground 2A contends that the Defendant failed to have regard to the cumulative impact of the proposed development on the character of the area.
Ground 6 contends that the Defendant irrationally failed to impose a condition in the grant of planning permission that the proposed parking spaces in the development should be maintained permanently.
THE PLANNING BACKGROUND
The present application for planning permission was identical to an application that had been previously made, and for which planning permission had been granted, in 2018. That earlier planning permission was quashed by the High Court by a consent order sealed on 2 November 2018 following a claim for judicial review filed by the Claimant.
In relation to the application which led to the challenged grant of permission in these proceedings, the Claimant, together with others, submitted detailed objections to the planning permission on a number of grounds, including that the development was contrary to emerging and existing Local Plan policies.
For the purposes of these proceedings, the central issue concerned the proximity of the proposed development to the Claimant's property (at No.5 Hamilton Road) to the north of the proposed development and to the Interested Party's property (No.3 Hamilton Road) to the south of the proposed development.
It is common ground that there is less than one metre between the new dwelling and its boundary with the Claimant's property at No.5, Hamilton Road. The precise gap is assessed at either 0. 8 or 0.9 metres by the Claimant and Defendant respectively. It is common ground that there is no gap between the proposed building and the boundary with the Interested Party's property at No.3, Hamilton Road. The new building runs along that party boundary.
The essence of the Claimant's case is that both emerging Policy L23 and Policy 72 of the Local Plan require that, in order to avoid a ‘terracing effect’, there must be a minimum of one metre between the proposed building and the boundary with No.5, Hamilton Road, and also with No.3, Hamilton Road.
Emerging Policy L23 is, so far as relevant to these proceedings, as follows:
“Detailed design and layout
All development is expected to achieve a high standard of detailed design and layout. Proposals that are assessed as successful against the following criteria will be approved:
….
(h) Infill development and extensions in established residential areas: Infill developments and extensions must relate to the domestic scale, character and appearance of the street. Development that could result in an undesirable terracing effect must be a minimum of 1m from the property/party boundary at first floor level and above…”
It is accepted that Emerging Policy 23 would apply to an infill, which is a detached property, such as the proposed development in this case.
Policy 72 of the Local Plan, so far as relevant, provides as follows:
“EXTENSIONS IN RESIDENTIAL AREAS
Planning applications for extensions to dwellings and other buildings in residential areas shall conform to the policies and principles below:
….
(vii) Side extensions – where the cumulative effect would lead to terracing of detached or semi-detached houses, extensions other than at ground floor level shall normally be a minimum of 1 metre from the party boundary;….”
On its face, Policy 72(vii) appears only to apply to “side extensions” to dwellings and buildings and not to an infill build of a detached property such as the proposed development. The Claimant's case (under Ground 2) is that it is not so restricted.
THE OFFICER'S REPORT
The OR, which was the basis of the Defendant's decision to grant planning permission, is at pages 43–57 of the hearing bundle where the parties have helpfully inserted paragraph numbering.
Having set out the background to the planning application, under the heading “Planning Policy” the OR referred to the National Planning Policy Framework (“NPPF”).
Reference is then made to the “Emerging St Albans City and District Local Plan 2012 – 2036” after which it is stated: “Limited weight for decision making”.
Then reference is made to a number of policies in that Emerging Local Plan including Policy L23 “Urban Design and Layout of New Development”. Reference is then made to the relevant Local Plan and a number of policies contained within it including, and I shall return to its relevance under Ground 2A, Policy 4. No reference is made, at this point, to Policy 72 in the Local Plan.
Having then set out a number of matters, the OR dealt with the substance of the planning application under the heading “Discussion” and identified the main issues for the determination of the application. So far as relevant to these proceedings, I need only set out the following paragraphs:
“ Main Issues:
1. The main issues of relevance to the consideration of this application relate to the principle of development, the impact on neighbouring amenity, car parking provision, impact on highway safety and the living condition of future occupiers.
Principle
2. In accordance with Section 38(6) of the Planning and Compulsory Purchase Act 2004, there is a presumption in favour of development which accords with the development plan unless material considerations indicate otherwise.
3. The site is in St Albans, which is identified as a Town in Local Plan Policy No.2, where Policy No.4 states that there will be a presumption in favour of housing.
4. Given the above, it is considered the creation of an additional housing unit is acceptable in principle, in compliance with the relevant Local Plan Policy and the aims and objectives of the National Planning Policy Framework in principle, subject to it proving acceptable in relation to other matters.
5. The Local Plan makes it clear that there must be compliance with other policies in the Local Plan, and the National Planning Policy Framework seeks to ensure that new residential development does not take place at the expense of other material planning considerations. Any proposal needs to also take into account design, layout, neighbouring amenity and highway considerations.
6. New housing development is acceptable in principle within a town location. This site is located within a predominantly residential area in a suitable location in close proximity to St Albans city centre. Taking these factors into consideration, as a land use, housing is acceptable and the proposed development with add to new housing within the District. The proposal therefore complies with Policies 2 and 4 of the St Albans District Local Plan Review 1994 and the aims of the NPPF 2019.
Character and Design
7. The proposed dwelling when viewed from the street scene would appear similar in design to the other infill properties...
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