The Queen (on the application of Richard Hayden) v Erewash Borough Council Simon Timothy Kelly (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 14 November 2013 |
| Neutral Citation | [2013] EWHC 3527 (Admin) |
| Date | 14 November 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1031/2012 |
[2013] EWHC 3527 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stewart
Case No: CO/1031/2012
and
Richard Harwood QC (instructed by Freeth Cartwright LLP) for the The Claimant
Andrew Hogan (instructed by Erewash Borough Council) for the The Defendant
Hearing date: 6 November 2013
Approved Judgment
Introduction
Mr Hayden seeks to quash the Defendant's grant of planning permission issued on 16 November 2011. The planning permission was for the erection of a two storey side extension to the Claimant's neighbour's house. That neighbour is Dr Kelly the Interested Party.
Permission to apply for judicial review was refused on paper by Judge Cotter QC on 24 May 2012 and by Judge Mackie QC, after an oral hearing, on 15 October 2012. Patten LJ granted permission on 6 February 2013.
Outline Facts
Mr Hayden's property is 65 Stanton Road, Ilkeston. Dr Kelly's is No 67 Stanton Road, Ilkeston. They are both detached houses immediately adjacent to each other. They are sited above a coal seam in a former coal mining area. Dr Kelly seeks to build an extension. This would involve demolishing store buildings and the adjacent boundary wall and constructing a two storey side extension with a pitched roof.
On 26 February 2011 Mr Hayden wrote a letter of objection. This contained six reasons. The only one which is relevant to this application is:-
"3. Potentially cause structural damage to my house because of depth of excavation required to install foundations robust enough to support the new structure."
Planning permission was granted on 17 March 2011 by officers under delegated powers. After judicial review proceedings by Mr Hayden this decision was quashed.
Dr Kelly's application therefore fell to be reconsidered by the Council. In doing so they were to have regard to representations already received and any further representations. The delegated report prior to the March 2011 grant stated:
"In acknowledging the remaining concerns of the owner at No 65 Stanton Road which relate to the potential for structural damage to the property, devaluation of property and ownership issues, it is considered prudent to attach an informative note to advise the Applicant to obtain permission from the owner of the land for such access before beginning development. In regard to the potential structural damage and any devaluation of property in monetary terms, both are private matters and neither of these issues could be considered material to the determination of this planning application. "
An informative note in relation to "potential hazards arising from coal mining" was attached to the report.
On 27 September 2011 and 14 November 2011 Mr Hayden's Solicitors made further representations. The letter of 14 November 2011 included, as reasons for refusal of planning permission:
• The conclusion that there is no significant difference in levels between 67 Stanton Road and the adjoining property is not correct
• The threat towards the stability of the adjoining property (including the apparent feature of historic interest it contains) which will be caused by attempting to carry out works to construct the proposed development is not addressed adequately or at all;
Later the letter continued:
" Site levels
The report at page 46 provides that the "variance in ground levels…is not considered significant", but provides no reasoning or justification for this at all. The Applicant's land is in fact approximately 4ft lower than the adjoining property and the Applicant should have submitted information as to how the difference in levels will be dealt with. In our opinion this is a significant difference which would lead to difficulties during and post construction.
In order to be lawfully built the proposed extension would need solid strata to support it, which in order to provide would require extensive excavation to approximately 1.5 metres in depth and piling. This would be dangerous to attempt given the difference in site levels and would undermine and threaten the stability of the adjoining property and its garden. The potential implications to the adjoining property are considered unacceptable.
Potential Heritage Interest
In addition we are instructed that the part of the adjoining property in proximity to the boundary with No 67 Stanton Road incorporates an air raid shelter (which Mr Hayden believes may date back as far as the First World War era). We have had no opportunity to inspect or investigate this. Clearly the munitions manufacture at the Stanton works in both the World Wars establishes a general context for this but we cannot comment further as it was only drawn to our attention on 11/11/11.
Clearly a threat to the stability of the ground on this boundary between No 65 and 67 would be exacerbated if it undermined the stability or other characteristics of a feature of historic interest (for all that that the extent and significance of that interest clearly merit and require further investigation). The report includes no consideration of this historical feature."
For the Planning Committee, in response, was prepared a Supplementary Report of the development manager dated 16 November 2011. That response included:
"
• The level difference between the two properties is not considered significant in the assessment of the application. The application house is lower than the adjoining property so the levels are of benefit to the objector in terms of reducing the impact of the extension. The concerns about the construction of the foundations are noted but are not material to the outcome of this application. Such matters would be addressed through the Building Regulations and the Party Wall Act and should not influence the outcome of this application…
• It is noted that the objector's representatives were not made aware of the presence of an air raid shelter until 11 November. Similarly, the Council was not made aware until their letter was received on 15 November. This is the reason for it not being covered in the committee report. Notwithstanding this, the presence of an air raid shelter in the objector's property is not considered to constitute a material consideration of sufficient weight to delay the decision or change the recommendation and as is the case with all developments, if any damage is caused to the objector's property during building works, this would be a matter for the two parties concerned and is not material to the determination of this application."
The Grounds of Challenge
Mr Hayden sought to challenge the Defendant's decision on five grounds. However he subsequently withdrew three grounds and permission has been granted on two only, these being:
"Ground 1: EBC failed to have regard to material planning considerations namely: (a) ground stability; and (b) National planning policy in respect of unstable land in Planning Policy Guidance note 14. Further EBC failed to apply the policy in PPG 14 accordingly without giving any or any adequate reasons for departing therefrom. Further or in the alternative, EBC's approach towards ground stability as an issue was Wednesbury unreasonable/irrational.
…
Ground 5: EBC erred in law in failing to defer the determination of the planning application to enable the significance of the air raid shelter to be assessed. Further EBC erred in failing to have regard to National Planning Policy in PPS5 in considering whether or not to defer the determination of the planning application for that reason."
Policy Relied Upon by the Claimant
The policy cited by the Claimant is extensive and extracts are to be found reproduced in the Appendix to this judgment.
National Policy at the time was to be found in:
(i) Planning Policy Guidance note 14 (PPG14) "Developments on Unstable Ground"
(ii) Planning Policy Statement 5 (PPS5) "Planning for the Historic Environment".
PPG14 and PPS5 have been replaced by the National Planning Policy Framework, the cited paragraphs of which are relied upon by the Claimant as indicating the Government's view on matters within the scope of planning considerations and include "Land Instability".
Finally the Claimant relies upon the Defendant's local plan policy DC2 and EV7 and a paragraph from their Supplementary Planning Document on "Extending Your Home."
The Law
In relation to the determination of applications, section 70(2) of the Town and Country Planning Act 1990 was in force at the time of this application. It provided:
"70(2) In dealing with such an application the Authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."
In Stringer v Minister of Housing and Local Government [1971] 1 WLR 1281 Cooke J was concerned with the precursor to section 70(2), namely section 17(1) of the 1962 Act. That case concerned a proposed housing development which was likely to interfere with the efficient running of the Jodrell Bank Telescope in Cheshire. The builder argued that the likelihood of the development would interfere with the work of the telescope was not a material consideration in determining whether the permission for the development should be given. The learned judge made it clear that the considerations to which the Minister (or an Authority) must have regard must be considerations of a planning nature; he...
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