R (Wall) v Brighton and Hove City Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 02 November 2004 |
| Neutral Citation | [2004] EWHC 2582 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2924/2004 |
| Date | 02 November 2004 |
[2004] EWHC 2582 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Sullivan
CO/2924/2004
MR J PEREIRA AND MR A BOOTH (instructed by Richard Buxton) appeared on behalf of the CLAIMANT
MS J WIGLEY AND MS M GREKOS (instructed by Brighton & Hove City Council) appeared on behalf of the DEFENDANT
Introduction
In this application for judicial review the claimant applies for a quashing order in respect of a grant of planning permission dated 18th March 2004 by the defendant for the demolition of an existing house "Ruston", Withdean Avenue, Brighton, and its replacement by eight self-contained apartments.
Ruston is a substantial two-storey house which is set in a large garden on the north side of Withdean Avenue. To the west there are the rear gardens of houses (Nos. 8 and 10) fronting Dyke Road Avenue, and to the north there are the rear gardens of houses (Nos. 6 and 8) fronting Hazeldene Meads. The eastern boundary of Ruston adjoins Lions Gardens. Lions Gardens comprises six bungalows in two groups of three. Nos. 1 to 3 face approximately westwards towards Ruston; Nos. 4 to 6 face approximately southwards. The two blocks form an inverted "L" shape enclosing communal gardens bounded by Nos. 4 to 6 to the north, Nos. 1 to 3 to the east, and Ruston to the west. Access to Lions Gardens is from Withdean Avenue to the south.
The claimant lives in No. 6 Lions Gardens. The windowless flank wall of No. 6 is separated by a narrow strip from the boundary with Ruston's garden, making it the nearest property to the boundary. A 3-metre high hedge runs along the boundary.
The grounds of challenge
The grant of planning permission was challenged on two grounds. Firstly, the defendant failed to take into account a material consideration, namely the effect of the proposed redevelopment on the claimant's property. Secondly, the defendant failed to comply with the requirements of article 22(1)(a) of the Town and Country Planning (General Development Procedure) Order 1995 (as amended) ("the Order") because its decision notice did not include a summary of the Planning Applications Subcommittee's (the Committee's) reasons for granting planning permission. A third ground of challenge in the claim form was not pursued by Mr Pereira on behalf of the claimant.
Ground 1: Submissions and Conclusions
It is clear from the officers' report to the Committee meeting on 17th March 2004 that the application for planning permission was a controversial one. The report notes under "Consultations" that two councillors were opposed to the development, and refers to a total of 160 letters of objection having been received. The addresses of those objectors are listed and they include Lions Gardens. Letters of objection are noted as having been received from Nos. 2, 3 and 6 Lions Gardens. The report stated that the letters had not been copied to all of the members of the Committee but had been placed on file and were available for viewing by the councillors.
The claimant's letter of objection said, in part:
"I am totally against this as my bungalow is right next door in (Lions Gardens) to the house and it will completely overshadow my bungalow blocking my light and I will have no privacy whatsoever as it would be overlooking into my lounge and also the other 5 bungalows in Lions Gardens. We all use our patio which would be substantially overlooked by the flats."
The report summarised the objections in a long list of bullet points. These included "New building will overlook surrounding houses/bungalows", and "New building will overshadow surrounding houses/bungalows".
Having referred to the relevant planning policies, the report set out the officers' view of the relevant planning considerations under a number of headings. Under the heading "Effect on amenity of adjoining properties" the report said this:
"The two most vulnerable boundaries are the east, adjoining Lions Gardens and the north, adjoining 6 and 8 Hazeldene Meads. The proposed new building is set back further from the eastern boundary than the existing house and the existing 3 metre high conifer hedge is to remain. Windows in the east elevation of the new building face numbers 1, 2 and 3 Lions Gardens, but the intervening distance is 24 metres, more than adequate to maintain privacy and comparable [to] the distance between the frontages of properties opposite each other in Hazeldene Meads.
"The two houses in Hazeldene Meads are set between 10 and 12 metres back from the boundary with Ruston. The part of the new building closest to this boundary is two storey and is set back 9 metres, the three storey elements, 12 and 15 metres. Again, these combined back to back distances are more than adequate and combined with the existing planting on both sites, will ensure that privacy is maintained.
"The new building would be higher than the existing house. However, due to the existing boundary fences and planting, it would be very difficult to argue that the development would either overshadow or block out day or sunlight to adjoining buildings, as demonstrated in diagrams submitted by the agent."
The conclusion in the report was as follows:
"The proposal to develop this site to provide 8 new dwellings accords with current national and local planning guidance which seeks to maximise land within built-up areas for residential development. The contemporary design of the new building is restrained, of high quality and refers to local architectural language.
"There will be no adverse effect on adjoining properties by way of overlooking or overshadowing and the maximum level of off-street parking is to be provided.
"The proposal meets all relevant policy requirements and approval is therefore recommended."
Mr Pereira submits that the impact on No. 6 Lions Gardens was not addressed in the report, despite the fact that it was the closest property to the proposed redevelopment. The existing house, Ruston, is situated roughly halfway along the eastern boundary of its garden, opposite the communal garden area of Lions Gardens and to the south of No. 6. Although set further back from the boundary, the proposed redevelopment would extend further northwards within the garden, so that the northernmost flats, with their windows facing east, would be some 6 metres away from the western flank wall of No. 6. Thus the proposed new building would be much closer to No. 6 and the intervening distance would be very much less than the figures quoted in respect of the other properties mentioned in the report.
The report referred to the diagrams submitted by the agent of the applicant for planning permission. TA1101/09A was a proposed cross-section which showed the relationship between the new flats and the flank wall of No. 6 Lions Gardens. It also showed, by dashed lines, the outline of Ruston, closer to the boundary than the new flats. Mr Pereira submitted that this cross-section was misleading because it gave the impression that the existing property was closer to No. 6 than the proposed flats, when the reverse was the true position. Viewed in isolation, by someone who was unfamiliar with architects' plans and drawings, cross-section TA1101/09A might have been misleading, but it would have ceased to mislead anyone as soon as it was considered in conjunction with the other plans and drawings, including in particular the site location plan, what was described as a "proposed contextural plan", and the proposed site layout, on all of which the position of Ruston was clearly shown.
Copies of all the plans were not supplied to each individual member of the Committee. Instead, they were on display in the Committee room and all the members of the Committee were provided with a location plan at the end of the report. Having looked at that location plan they would have been left in no doubt as to the position of the existing property within its garden, and would have been able to take that information into account when interpreting the cross-section.
The members of the Committee did not confine their attention to simply looking at plans and drawings. Prior to the meeting they carried out a site visit. During their site visit they visited 8 Hazeldene Meads. The rear garden of No. 8 backs on to the application site and the rear elevations of 4 to 6 Lions Gardens. No details of the site visit are available, but it is reasonable to assume that the members must have looked towards the application site (and hence towards the rear of No. 6) from No. 8 Hazeldene Meads, since they were trying to assess the impact of the proposed development upon the surrounding dwellings. Armed with the plans and drawings, and in the light of what they saw on the site visit, the councillors must have been made aware of the relationship between No. 6 and the proposed flats.
At the meeting three councillors spoke in objection to the proposals, as did a spokesman on behalf of the objectors. All of these speakers referred to the effect of the proposals on adjoining residents.
Against this background it is unrealistic to suggest that the Committee overlooked the impact of the proposed development on the claimant's property. It is true that the impact on No. 6 was not specifically referred to in the report, but the officers were not obliged to deal individually with each and every property that might be affected by the proposed redevelopment. It is important that officers' reports concentrate on the principal...
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