The King (on the application of MS Lesley Faherty) v Bournemouth, Christchurch and Poole Council
| Jurisdiction | England & Wales |
| Judge | Karen Walden-Smith |
| Judgment Date | 09 June 2023 |
| Neutral Citation | [2023] EWHC 1395 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2424/2022 |
and
[2023] EWHC 1395 (Admin)
Her Honour Judge Karen Walden-Smith sitting as a Judge of the High Court
Case No: CO/2424/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Katherine Barnes (instructed by ADDLESHAW GODDARD LLP) for the CLAIMANT
Andrew Parkinson (instructed by LEGAL SERVICES for BOURNEMOUTH, CHRISTCHURCH AD POOLE COUNCIL) for the DEFENDANT
Hearing date: 9 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on Friday, 9 th June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
HER HONOUR JUDGE Karen Walden-Smith
HHJ
The Claimant, Lesley Faherty, brings these proceedings to judicially review the decision made on 24 May 2022 by the Defendant, Bournemouth and Christchurch and Poole Council, to grant permission to the Interested Party, Kathy Tizzard, for:
“ The remodel of an existing bungalow to provide an extension to the side and rear and first floor accommodation”
at the property at 23 Wick Lane, Christchurch BH23 1HT (“the Site”).
The Interested Party has not taken any active role in these judicial review proceedings.
On 3 November 2022, I granted permission to apply for judicial review of the decision on grounds 6, 7 and 8 of the application. It is averred by the Claimant that there had been a departure from policy in assessing the impact on the Conservation Area (Ground 6); that there had been a failure to give adequate reasons for disagreeing with the conservation officer (Ground 7); and that there had been a failure to take into account a relevant consideration (Ground 8).
The Claimant has decided to take the three Grounds in reverse order, the principal ground being Ground 8. I will also deal with the three Grounds in reverse order. The issues the parties are agreed need to be dealt with in the agreed statement are:
(i) Whether in granting permission the members failed to take into account the advice of the conservation officer and/or were they misdirected as to the advice of the conservation officer?
(ii) Did the common law impose a duty to give reasons for the grant of planning permission;
(iii) Did the officer's report fail to explain adequately why the Defendant disagreed with the conservation officer in relation to the impact of the proposed development on the setting of the Conservation Area.
The Factual Background
The Claimant owns and occupies property at 2 Wickfield Avenue, Christchurch which adjoins the Site at 23 Wick Lane. The south-east boundary immediately adjoins the Christchurch Central Conservation Area (the “Christchurch Conservation Area”). The heritage significance of Wick Lane is set out in the Conservation Area Character Appraisal:
“ Wick Lane (also known historically as Pig Land and Dolphin Lane) is a remnant of the Saxon street plan and forms one of the key entry points to the town and the conservation area. Wick Lane comprises a number of residential elements including small terraces, individual houses and flats above shops. Its modest scale provides a pleasant foil for the larger scale of the High Street and Church Street. The Post Office Arcade makes a striking but unsuccessful termination to the street and dominates the historic street plan and passing through the former Saxon Burgh. Wick Lane has early origins as one of the principal routes in to the town defences from the west. Its status appears to have been maintained as a side street with modest buildings and service buildings; stables, outbuildings interspersed with domestic dwellings.”
The Interested Party had applied for planning permission on 27 April 2021 [application 8/21/0387 HOU] for the purpose of adding a single storey rear and side extension to the existing house together with a box dormer to the first floor.
The conservation officer responded to the consultation on the proposed development on 17 September 2021 in these terms:
“ It is considered the modest of scale of no.23 helps it to sit comfortably within the street scene. Looking at the proposed scheme (albeit revised), concern is express that the new work is overscale with the host property. The front dormers are large, and to the sides the significant bulk being added with its large area of flat is very noticeable, with the former bungalow unrecognisable. It is considered there is scope for alterations and extension of the property, however concern is expressed that the current proposal overstretches the additional accommodation, resulting in a bulky property that would stand out rather than remain in keeping in the street scene. In terms of the impact of the setting of a conservation area as a whole the impact is only slight, but nonetheless is adverse.
Conclusion
With the lack of heritage statement, it appears that little consideration has been given to the context of the property in drawing up the proposed scheme. If however the works can be amended/scaled back to ensure the property remains in keeping with the street scene, then the impact upon the adjacent heritage asset should be negligible.
Recommend: refuse or defer for negotiation over further amendment.”
A Heritage Statement, which had not been before the conservation officer when she was initially consulted upon the application, was provided by the Interested Party on 24 November 2021. Amendments were made to the application following the grant of a lawful development certificate on 23 December 2021 which was granted with respect to an extension scheme based upon permitted development rights. Those amendments did not reduce the bulk of the proposed development.
There was a further round of consultation subsequent to the amendments to the proposal. The conservation officer did not amend the opinion she expressed on 17 September 2021.
The Planning Committee considered the application, with the amendments, at a planning meeting on 19 May 2022. The committee had the benefit of the Planning Officer's Report (“the OR”) which recommended the grant of permission. Planning permission for 8/21/0387/HOU was granted on 24 May 2022.
In his report the OR had set out that the revised plan reflected “design similarities with the LDC scheme, with previously proposed rooflights being removed and replaced with a rear dormer.” The OR summarised in his report the response of the conservation officer in the following way:
“ With the lack of heritage statement, it appears that little consideration has been given to the context of the property in drawing up the proposed scheme. If however the works can be amended/scaled back to ensure the property remains in keeping with the street scene, then the impact upon the adjacent heritage asset should be negligible.”
That is an accurate report of the conservation officer's conclusion to her report.
The OR did give consideration to the impact of the proposed development upon the Conservation Area. In paragraph 35 of his report he set out that the proposed alterations to the bungalow “will result in a design of more contemporary appearance, and also increased height. This would give the proposal a similar appearance to properties which have already been extended/redeveloped on Wick Lane, which share a boundary with the Conservation Area.” Further, the OR set OUT that there was a distinct change at the boundary of the Conservation Area:
“ Here it changes from the more modest historic terraced properties that fall within the Conservation Area in the adopted Conservation Area Appraisal – such as 40–48 Wick Lane opposite the site – to the more modern bungalows located on the edge of the Conservation Area. Whilst the proposals will add bulk to the existing property by increasing the eaves line, ridge height and through the addition of two dormer windows to the front elevation, such alterations already prevail within the street scene.”
Ultimately, the OR came to this conclusion in his report:
“ As such, taking into consideration the similarities of the present scheme with those which have been completed in the immediate vicinity outside of the Conservation Area it is not considered the proposals would result in any significant impacts on the character and appearance of the adjoining Conservation Area and whilst the Council's Conservation Officer expressed concerns regarding the scale of the proposals, the nature of the property is such that the proposals are considered to be in keeping with those which have previously been completed to neighbouring properties and as a result would not be harmful to the setting of the Conservation Area and would comply with the provisions of Policy HE1 of the Core Strategy”
and permission was formally granted on 24 May 2022.
The Law
Planning determinations are to be made in accordance with the development plan, unless there are material considerations to indicate otherwise (section 38(6) of the Planning and Compulsory Purchase Act 2004).
The claimant contends that there was a failure to take into account the advice of the conservation officer or were misled with respect to that advice. To make good that allegation, the claimant relies upon the guidance given by Pill LJ in R (on the application of Lowther) v Durham County Council [2001] EWCA Civ 781, with respect to the duty of the planning officer when reporting to the Planning Committee:
“ That duty is broader than a duty not actively to mislead. It includes a positive duty to provide sufficient information and guidance to enable the members to reach a decision applying the relevant statutory criteria. In the end, it is a matter of fact and degree for the...
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