The King on the application of Krystyna Knight v London Borough of Harrow
| Jurisdiction | England & Wales |
| Judge | Neil Cameron |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWHC 678 (Admin) |
| Docket Number | Case No: CO/2572/2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2023] EWHC 678 (Admin)
Neil Cameron KC
sitting as a Deputy High Court Judge
Case No: CO/2572/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Kate Olley (instructed by Kingsley Smith Solicitors LLP) for the Claimant
Meyric Lewis (instructed by HR Public Law) for the Defendant
The Interested Parties did not appear and were not represented
Hearing date: 8 th February 2023
The Deputy Judge ( Neil Cameron KC):
Introduction
In this case Ms Krystyna Knight has applied for an order to quash the decision made by the London Borough of Harrow on 7 th June 2022 to grant planning permission to develop land at 31, Blythwood Road, Pinner, Harrow HA5 3QD (“the Site”) by erecting a “Single storey side to rear extension; pitched roof over existing side extension; external alterations (Amended Description)”.
Permission to proceed with the application for judicial review was granted by Timothy Straker KC sitting as a Deputy High Court Judge at a hearing held on 20 th October 2022.
At the hearing which took place on 8 th February 2023 I gave directions allowing the parties to make further written submissions on the approach to be taken to the construction of the provisions of Class A of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”).
Further written submissions were made on behalf of the Claimant. The Defendant replied to the Claimant's submissions and the Claimant provided a response to the Defendant's submissions.
The Background Facts
The Claimant lives at 33, Blythwood Road, Pinner, Harrow, HA5 3QD.
By an application made on 17 th February 2022 the Interested Parties sought prior approval of details of an extension to their property at 31, Blythwood Road. The drawing submitted in support of that application (drawing EX-HWN-400 A) included the following annotation: “Proposed single storey side extension to extend 6m beyond original rear wall. To be no higher than 3m to the eaves, no higher that (sic) 4m to the highest point.”
In a letter dated 6 th March 2022, the Claimant and her husband made representations on the application for prior approval. In that letter, Mr and Mrs Knight drew attention to particular provisions of the Harrow Residential Design Guide SPD.
By a decision notice dated 30 th March 2022 the Defendant granted prior approval. The decision notice included the following:
“GRANT PRIOR APPROVAL
Ref: P/0541/22/PRIOR
Application Type: Notification of Intention Householder Extension
With reference to the application received on 17 February 2022 accompanied by Drawing(s)
Notification for Prior Approval for a Proposed Larger Home
Extension Application Form; EX-HWN-400
Single Storey Rear Extension: 6.00 metres deep, 4.00 metres maximum
height, 3.00 metres high to the eaves
31 Blythwood Road, Pinner, HA5 3QD”
(“The Prior Approval”)
On the 8 th April 2022 the Interested Parties applied for planning permission to develop the Site by:
“Single storey side to part rear extension”
(“the Planning Application”)
On 9 th May 2022 the solicitors instructed by the Claimant wrote to the Defendant stating (amongst other things):
“The application is wholly reliant upon the prior approval recently granted under reference P/0541/22. The (only) plan, a site location plan that accompanied that application is attached for easy reference, dated 17/02/22. It shows the original dwelling footprint, but in conflict with that, the legend (on the left side) asserts that the proposal would lay beyond original rear wall. As a question of fact, that proposal would not project beyond an original rear wall. The dwelling had been extended to the side as the planning history demonstrates, and it can also be seen on Google Earth that there was no structure to the side of what the applicant admits is the original house footprint (even in this application — see dwg ‘400’) in 1999.
………………
The upshot of the above is that the council's decision to grant the prior approval was waste paper, and it is not possible to lawfully grant planning permission for this proposal which is combined with the prior approval scheme and is predicated upon it (and confirmed by the description).”
The Defendant's planning officer prepared a report on the Planning Application (“the OR”). The purpose of the report was to inform the officer to whom the decision to determine the Planning Application had been delegated.
i) The planning officer identified relevant planning policies.
ii) The report contained a number of statements with boxes provided under the headings ‘yes’ or ‘no’.
iii) The planning officer ticked ‘yes’ against the statement “Prior Approval/Certificate “fall back position” P/0541/22/PRIOR”
iv) Under the heading ‘Character and Appearance’ the planning officer stated:
“Although the proposed single storey rear extension would extend 5.9m beyond the rear building line of the host dwelling, it would not project beyond the rear elevation of the approved Prior Approval extension under P/0541/22/PRIOR. Therefore, the proposed extension has the fall back position on the flank facing No. 33 Blythwood Road. The additional depth of 1.9m, beyond the 4m deemed acceptable under Paragraph 6.59 of the SPD, is deemed acceptable in this case. The proposed single storey rear extension is sufficiently set in from the side boundary of No. 29 Blythwood Road, approximately 4.5m, therefore in accordance with the two for one rule under Paragraph 6.61 of the SPD.”
v) Under the heading ‘Residential Amenity’ the planning officer stated:
“The proposed single storey side to rear extension is set away from the side boundary as shared with No. 29 Blythwood Road by approximately 4.5m. The proposed sliding doors on the flank elevation facing No. 29 Blythwood Road are therefore sufficiently set away and with the standard boundary treatment in situ, the proposed sliding doors would not impact the residential amenities of No. 29 Blythwood Road. A condition has been added to ensure that these sliding doors would not impact the residential amenities of No. 29 Blythwood Road.
It is noted that No. 33 have raised an objection to the proposed development. The proposed development has a fall-back position of P/0541/22/PRIOR, in which the Local Planning Authority also confirmed that the proposed works to the side could be done under Permitted Development under Class A of Schedule 2 Part 1 of the Town and Country Planning (General Permitted Development) (England) Order 2015. Therefore, there would not be an impact the residential amenities of No. 33 Blythwood Road.
Notwithstanding, the principle of side extension is acceptable and could be carried out under permitted development rights, a certificate of lawfulness is not obligatory. The Local Planning Authority considers that as the principle of a side extension is acceptable under permitted development rights a fall-back position is established. Furthermore, the scheme is assessed, as a whole, on its planning merits to be acceptable in terms of visual and neighbouring amenity and is in accordance with relevant planning guidance.”
vi) The planning officer came to the following conclusion:
“The development would provide an improvement in quality of accommodation for the occupiers of the property, whilst ensuring extensions would be sympathetic to the existing property and would not unduly impinge on neighbouring amenities. Accordingly, the development would accord with development plan policies and is recommended for grant.”
By a decision notice dated 7 th June 2022 the Defendant granted planning permission for the following development:
Single storey side to rear extension; pitched roof over existing side extension; external alterations (Amended Description)
(“The Planning Permission”)
The Grounds of Claim
The Claimant relies upon the following two grounds of claim:
i) The OR contains a factual error when the officer stated that proposed extension has a fall back on the flank facing 33, Blythwood Road. In determining the planning application on the basis of that advice contained in the planning officer's report, the Defendant made a material mistake of fact and/or took into account an immaterial consideration.
ii) The OR gave no adequate reasons for asserting that the proposed development was acceptable in terms of neighbouring amenity.
The Legal Framework
Officer Reports
The principles to be applied when a challenge is based on criticism of an officer's report to a planning committee were set out by Lindblom LJ at paragraph 42 in Mansell v. Tonbridge and Malling BC [2017] EWCA Civ 1314. This case is not concerned with a report prepared for consideration by a planning committee. The OR in this case was prepared to inform a decision which was taken by a planning officer to whom the powers to determine the planning application were delegated. In my judgment the broad principles which apply to reports prepared to inform planning committees also apply to reports prepared to inform decisions taken by officers. Indeed, reports prepared to inform decisions taken by officers are often shorter than those prepared for committee, and it is reasonable to assume that there is little need for the attention of a senior planning officer to be drawn to each and every policy that may be applicable, or to the general policy background.
Fall Back
The ability of a landowner to carry out development without the need to obtain a further express planning permission is a well-established type or category of material considerations to which a decision maker may have regard. The circumstances in which a landowner can carry out development...
To continue reading
Request your trial