Zipporah Lisle-Mainwaring and Another v The Mayor and Burgesses of the Royal Borough of Kensington and Chelsea
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 23 July 2015 |
| Neutral Citation | [2015] EWHC 2105 (Admin) |
| Docket Number | Case No: CO/1027/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 July 2015 |
[2015] EWHC 2105 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: CO/1027/2015
Paul Brown QC and Harriet Townsend (instructed by Richard Max & Co) for the Claimants
Timothy Straker QC and Dilpreet K Dhanoa (instructed by the Royal Borough of Kensington and Chelsea Legal Services Department) for the Defendant
Hearing dates: 7 & 8 July 2015
The Claimants apply under section 113 of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004") to quash the Defendant's adoption of a revision to its development plan – the "Basements Planning Policy" ("BPP") — on 21 January 2015.
The Defendant is the planning authority for the Royal Borough of Kensington and Chelsea. The First Claimant is a freehold owner of a house in the Borough, who wishes to build a basement extension. The Second Claimant specialises in the design and construction of basements. They are affected by the new policy because they consider that it will restrict their ability to construct basement extensions in future.
Summary of the Defendant's planning policies
Prior to 21 January 2015, the Defendant's Core Strategy policies CE1 and CL2, adopted in December 2010, made provision, inter alia, for basement development.
Policy CE1 (Climate Change) required:
i) extensions over a specified size to achieve Code for Sustainable Homes/BREEAM standards (at a); and
ii) an assessment to demonstrate that the entire dwelling where subterranean extensions are proposed meets EcoHomesVeryGood (at design and post construction) with 40% of the credits achieved under the Energy, Water or Materials sections or comparable when BREEAM for refurbishment is published (at c).
Policy CL2 (New Buildings, Extensions and Modification to Existing Buildings), opened with the statement:
"The Council will require new buildings, extensions and modifications to existing buildings to be of the highest architectural and urban design quality, taking opportunities to improve the quality and character of buildings and the area and the way it functions. To deliver this the Council will, in relation to:"
The policy then set out a range of requirements.
Sub-paragraph (g) related specifically to "subterranean extensions" (i.e. basements) and required them to meet the following criteria:
i) The proposal does not involve excavation under a listed building;
ii) The stability of the existing or neighbouring buildings is safeguarded;
iii) There is no loss of trees of townscape or amenity value;
iv) Adequate soil depth and material is provided to ensure sustainable growth.
In response to an increase in basement development in the Borough, and concerns about its impact, the Defendant had earlier adopted a Supplementary Planning Document on "Subterranean Development" in 2009 ("SPD 2009"). This was not part of the development plan but it was a significant material planning consideration, and it remained in force after the 2010 Core Strategy was adopted.
Paragraph 1.2.2 stated:
"This SPD provides further guidance and builds upon the criteria used to determine planning applications for subterranean development, as set out in Unitary Development Plan (UDP) Policy CD32, as saved by the Secretary of State, which "resists subterranean development where:
a. the amenity of adjoining properties would be adversely affected; or
b. there would be a material loss of open space; or
c. the structural stability of adjoining or adjacent listed buildings or unlisted building within conservation areas might be put at risk; or
d. a satisfactory scheme of landscaping including adequate soil depth has not been provided; or
e. there would be a loss of trees of townscape or amenity value; …"
The key provisions in the SPD 2009 were as follows (all references to development are references to basement development):
i) Construction and structural stability must incorporate the advice of a chartered civil or structural engineer.
ii) Proposals for development under listed buildings or directly attached to existing basements, cellars or vaults of listed buildings will normally be resisted, though proposals for development under the gardens of listed buildings may be considered.
iii) Visible signs of development should be well designed and discreet. The Defendant will discourage light wells and railings that are visible from the street if not a characteristic feature of the street. Restrictions on size of light wells.
iv) All development used as sleeping accommodation must have natural light and ventilation.
v) Basement storeys should be a minimum of 2.4m high and accord with minimum room sizes specified.
vi) Restrictions on the grant of planning permission in flood risk areas.
vii) Sustainable urban drainage is required.
viii) No mature trees should be removed or damaged, especially those with Tree Preservation Orders, in Conservation areas, or within the curtilage of a listed building.
ix) To protect the green and leafy appearance of the Borough, the Defendant will require:
a) 1m of permeable soil above the top cover of the basement;
b) the basement should extend to no more than 85% coverage of the garden space (between the boundary walls and existing building) with the remainder of the space used for drainage, planting and tree pits.
x) Conditions will be attached to the grant of planning permission to minimise noise and nuisance for neighbours and pedestrians, traffic flow and parking.
The BPP superseded the above policies, in so far as they related to basement development. Against a background of an increasing number of basement extensions in the Borough, it introduced further restrictions on basement development, in response to concerns about the harmful impact of construction works. The text of the BPP is set out in Appendix 1.
The Claimants' grounds
The Claimants submitted that the Defendant failed to act "within the appropriate power", within the meaning of section 113(3)(a) PCPA 2004, when it adopted the BPP because:
i) the Defendant and the Inspector failed to take account of a material consideration, namely the permitted development rights for basement development, and the risk of greater reliance on them if the BPP were adopted, without the benefit of any planning control over construction noise and loss of amenity;
ii) the Defendant and the Inspector did not consider and/or assess the "reasonable alternative" of a "case by case" approach put forward by the Second Claimant, and so the Defendant failed to carry out an adequate environmental assessment, as required under reg. 5 of the Environmental Assessment of Plans and Programmes Regulations 2004 ("SEA Regulations 2004");
iii) in rejecting the Second Claimant's reasonable alternative, the Defendant belatedly relied upon a new objective of "bearing down on the volume of excavation" which was a "false objective", as the Defendant's previously stated objective was to ensure that basement development was of the highest quality; and
iv) the "false objective" was contrary to section 39 PCPA 2004.
The Claimants further submitted that procedural requirements had not been complied with, and they had been substantially prejudiced thereby, within the meaning of section 113(3)(b) PCPA 2004, when the Defendant adopted the BPP because:
i) the Claimants and others were deprived of the opportunity to be consulted on the "false objective" of "bearing down on the volume of excavation", and so the consultation process was flawed;
ii) the Inspector did not give adequate reasons in his report, as required by section 20 PCPA 2004, to indicate his conclusions on the points raised by the Claimants concerning the effect of the BPP on permitted development rights and the "reasonable alternative" of a 'case by case' approach.
The scope of a challenge under section 113 of the Planning and Compulsory Purchase Act 2004
It was common ground between the parties that the BPP was a revision of a development plan document, and therefore fell within section 113(1)(e) PCPA 2004. For the purposes of section 113, it was a "relevant document".
Section 113(3) provides:
"(3) A person aggrieved by a relevant document may make an application to the High Court on the ground that–
(a) the document is not within the appropriate power;
(b) a procedural requirement has not been complied with."
In the case of a revision to a development plan document, "appropriate power" means Part 2 of the 2004 Act: see section 113(9).
Section 113(10) defines "procedural requirement" as:
"… a requirement under the appropriate power or contained in regulations or an order made under that power which relates to the adoption, publication or approval of a relevant document."
The High Court may quash the relevant document and remit it to the Council, with such directions as may be appropriate, under section 113(7) and (7A), but section 113(6) provides that it may only do so where it is satisfied that:
"(a) that a relevant document is to any extent outside the appropriate power;
(b) that the interests of the applicant have been substantially prejudiced by a failure to comply with a procedural requirement."
Section 113 of the 2004 Act is the only route by which the validity of a development plan document, or any revision of such a document, may be called into question: section 113(2).
It is not disputed that the...
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