Neutral Citation Number: [2009] EWHC 1179 (Admin)

Case No. CO/6198/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Tuesday, 28th April 2009
 
B e f o r e: 

SIR MICHAEL HARRISON 
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Between: 
REHANA CHOUDHRY 
Claimant

v 

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT 
First Defendant
and
LONDON BOROUGH OF HARROW 
Second Defendant 
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Shelley Griffith (instructed by Tanburghs) appeared on behalf of the Claimant 
Richard Wald (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant (Justine Thornton appeared for judgment)
The Second Defendant did not attend and was not represented 
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J U D G M E N T 

1.	THE DEPUTY HIGH COURT JUDGE:  This is an application under section 288 of the Town and Country Planning Act 1990 to quash the decision of the first defendant's Inspector, Mr Ware, dated 21st May 2008 when he dismissed the claimant's appeal against the refusal of the second defendant, the London Borough of Harrow, to grant planning permission for a two‑storey rear and a single‑storey rear extension of the claimant's house at 83B Hindes Road, Harrow.  
2.	The appeal was dealt with under the written representation procedure and the Inspector carried out a site visit on 23rd April 2008. 
3.	The appeal premises are at the western end of a run of properties in Hindes Road which are all close to each other consisting of semidetached pairs with narrow spaces between each pair.  The appeal premises are detached with a narrow gap to the house immediately to the east, but to the west of the appeal premises there is a pair of single‑storey garages followed by 85 Hindes Road which is on the corner of the junction of Hindes Road with Radnor Road.  85 Hindes Road has a return frontage to Radnor Road and it physically joins onto 1 Radnor Road.  Apart from the garages, the western boundary of the appeal premises adjoins a number of properties fronting onto Radnor Road.
4.	In his decision letter, which consists of two pages, the Inspector identified two main issues.  First, the effect of the proposed development on the street scene and, second, the effect of the proposed development on the living conditions of residents in Radnor Road in relation to outlook.  
5.	In dealing with the first issue relating to the effect on the street scene, the Inspector stated in paragraphs 4 to 7 of the decision letter as follows:
"4.  The development would not be seen from directly in front of the property.  However, given its location close to the junction with Radnor Road, and at the end of the line of properties in Hindes Road, it would be clearly visible from a range of locations close to the junction.  
5.  The proposal would be clearly visible from both Hindes Road and Radnor Road.  It would appear as a bulky and obtrusive addition to the building, which would overbalance the host property.  It would not be perceived as being subordinate to the main building and would significantly increase the perception of built development in the area behind the frontage properties.  This would be harmful to the appearance of the area.
6.  The appellant has particularly drawn my attention to two other extensions in the area.  Nos. 63‑65 Hindes Road is not a corner property, and the extension is not noticeable from the street.  No. 86 Hindes Road is more comparable, being located in a similar position on the opposite side of the road.  Whilst the developments are not dissimilar, each application and appeal must be treated on its individual merits.  In any event, the effect which the development at number 86 has had on its surroundings reinforces my view that the appeal scheme would harm the area.
7.  For the above reasons, I consider the proposal would harm the streetscene.  It would conflict with policies D4 and D5 of the Harrow Unitary Development Plan 2004 (UDP), which seek a high standard of design and layout.  It would also conflict with the Council's 'Extensions — A Householder's Guide' 2003, which advises that extensions should harmonise with [the] scale of the build and the area."
6.	Mr Griffith, who appeared on behalf of the claimant, raised four grounds relating to that part of the Inspector's decision letter dealing with the effect on the street scene.  The first ground was that the Inspector made a mistake of fact in treating the appeal premises as a corner property, which led him to apply the wrong policy guidance contained in a supplementary planning guidance document (SPG) entitled "Extensions — A Householder's Guide", approved in March 2003.  It was submitted that, by comparing some words used by the Inspector, such as "bulk" and "subordinate", with similar words used in paragraphs B.15 and B.16 of the SPG relating to corner sites, the Inspector had wrongly applied the guidance relating to corner sites, rather than the guidance relating to rear extensions.  Alternatively, it was submitted that the Inspector had failed to apply the detailed guidance in the SPG.  
7.	I do not accept those submissions.  Whilst it is right to say that the Inspector remarked by way of comparison in paragraph 6 of the decision letter that 63‑65 Hindes Road was not a corner property, he would have been well aware that 85 Hindes Road was the corner property at the junction of Hindes Road with Radnor Road.  In paragraph 4 of the decision letter he described the appeal premises as being at the end of the line of properties in Hindes Road, close to the junction with Radnor Road, and thus clearly visible from a range of locations close to the junction.  That is what he saw and there can be no objection to that description.  The appeal premises are at the end of the line of properties in Hindes Road that are close together, whilst 85 Hindes Road is at the corner of the junction with Radnor Road separated from the appeal premises by the single‑storey garages.  I do not accept that the Inspector made a mistake of fact as to the nature of the location of the appeal premises.  There is no evidence that the Inspector applied the detailed guidance relating to corner sites rather than the guidance relating to rear extensions.  He stated in paragraph 7 that the proposal would conflict with the SPG, which advises that extensions should harmonise with the scale of the building and the area.  That is precisely what paragraph 2.1 of the SPG states when dealing with the issue of harmony under the heading of design principles and elements.  There was no need for the Inspector to go any further.
8.	The second ground raised by the claimant in relation to the first issue identified by the Inspector was that the Inspector failed to give adequate reasons for his conclusion in paragraph 7 of the decision letter that the proposal was in conflict with policies D4 and D5 of the Harrow Unitary Development Plan, in that he failed to identify what parts of those policies the proposal was said to conflict with.  It was submitted that there was not a sufficiently clear explanation to enable the claimant to assess the prospects of succeeding with an application for some alternative form of development (see Save Britain's Heritage v Secretary of State for the Environment [1991] 2 All ER 10).  
9.	I do not accept that submission.  Paragraph 5 of the decision letter makes it abundantly clear what was objectionable about the present proposal and what would therefore have to be overcome for a future proposal to be acceptable.  It was not incumbent on the Inspector to go any further than he did in explaining that the proposal conflicted with policies D4 and D5 of the UDP, because those policies seek a high standard of design and layout.  He had already explained in paragraph 5 why the design and layout of the proposed development was objectionable.
10.	The third ground raised by the defendant in relation to the first issue identified by the Inspector was that the Inspector failed to consider whether the proposal complied with some of the criteria contained in paragraph 3.2 of the SPG dealing with such matters as design and character of existing and neighbouring houses, distance of existing buildings and the siting of windows to habitable rooms on neighbouring properties.  
11.	There is no force in that submission.  This was a written representation appeal, involving the exercise of planning judgement by the Inspector.  There was no need for him to go into the kind of detail relating to policy criteria sought by the claimant.
12.	The fourth and final ground raised by the claimant in relation to the first issue identified by the Inspector related to the way in which the Inspector dealt with the comparison with 86 Hindes Road in paragraph 6 of the decision letter.  It was said that there was a breach of natural justice in not allowing the claimant to comment on the Inspector's adverse view of the development at 86 Hindes Road.  It was claimed that the grant of permission for that development created a legitimate expectation that similar schemes would be granted permission.  It was said to be irrational to allow the extension of number 86 but not at the appeal site.
13.	Those are bold submissions which I do not accept.  As the Inspector said in paragraph 6 of the decision letter, each application must be treated on its individual merits.  The exercise of planning judgment is involved.  The grant of permission for number 86 does not create any legitimate expectation of the kind relied on by the claimant.  It was the claimant who relied on number 86 as a comparator.  She cannot now claim a breach of natural justice for not having an opportunity to comment on the Inspector's adverse comments on her comparator, nor can it be said that the Inspector's decision on this aspect was irrational.  Indeed, it could even be argued that, having formed the view that number 86 had an adverse effect on the area, it would have been irrational for the Inspector to have granted permission for what he described as "a not dissimilar development".  This was an exercise of planning judgement by the Inspector treating the application on its own merits, and the arguments of legitimate expectation, breach of natural justice and irrationality relating to the Inspector's conclusions in respect of number 86 are, quite simply, wrong.
14.	I now turn to the second issue identified by the Inspector, namely the effect on the living conditions of residents in Radnor Road in relation to outlook.  That issue was dealt with by the Inspector in paragraphs 8‑11 of the decision letter where he stated as follows:
"8.  The rear elevations and gardens of numbers 1‑5 Radnor Road would have a very clear view of the appeal proposal.  However, visibility does not equate to harm, and I have approached the question of outlook on the basis of any harm which could be caused by an overbearing development, rather than in the sense of a loss of view.
9.  A substantial part of the proposal would be a full‑height rear extension with a pitched roof at the same level as the main roof.  Although there would be no overlooking issue, the depth and height of the development would mean that the outlook from the rear of the neighbouring properties would be of an imperforate wall at a relatively close distance.  Even in an intensively developed part of London, I consider this would represent a serious loss of amenity to adjoining residents.
10.  In addition, due to the orientation of the property and the extension, I consider there would be some overshadowing of the adjoining gardens.  The appellant has stated that the proposal complies with the '45 degree code', but this does not deal with overshadowing to gardens.
11.  For the above reasons, I consider the proposal would harm the living conditions of residents in Radnor Road in relation to outlook.  It would conflict with policies D4 and D5 of the UDP, and the Householder's Guide." 
15.	The claimant raises one ground in respect of this second issue identified by the Inspector.  It relates to the Inspector's conclusion in paragraph 10 that there would be some overshadowing of the gardens of the houses in Radnor Road.  The claimant argues that only 5 per cent of the garden of 1 Radnor Road would be overshadowed and that it would be disproportionate under Article 8 and under Article 1 of the First Protocol of the European Convention on Human Rights to deny the claimant an extension of her own property for such a small amount of overshadowing.
16.	As Pill LJ said in Lough v First Secretary of State and Bankside Developments Limited [2004] EWCA Civ 905 at paragraph 49, "the concept of proportionality is inherent in the approach to decision‑making in planning law".  In the present case the Inspector concluded that there would be some overshadowing of the adjoining gardens of the houses in Radnor Road.  The claimant now suggests that only 5 per cent of the garden of 1 Radnor Road would be overshadowed.  She is disagreeing with the Inspector's conclusion.  The Inspector decided the issue on the evidence before him.  I can find no error of law involved in his value judgment relating to overshadowing.  In any event, his main conclusion on this issue was in paragraph 9 of the decision letter where he concluded that the outlook of the neighbouring Radnor Road houses on to an imperforate wall at a relatively close distance would represent a serious loss of amenity to those residents.  The overshadowing point was simply an additional point which the Inspector merely referred to as "some overshadowing".  I therefore conclude that there was no error of law involved in Inspector's conclusion on this point and that, even if there had been, it would not have made any difference to the decision. 
17.	Finally, a new point was taken by the claimant relating to paragraph 12 of the decision letter where the Inspector stated:
"The appellant put forward family circumstances in support of the proposal.  The advice in 'The Planning System: General Principles' is that personal circumstances will seldom outweigh more general planning considerations, and it is likely that the development would remain long after the current personal circumstances cease to be material.  For this reason, I do not find that this matter adds greatly to my considerations of the proposal."
18.	It was submitted that, although the Inspector mentioned the claimant's case relating to family circumstances, he dealt with it in an irrational way, not as a matter of weight, but as a matter of disregard.  
19.	I reject that submission.  In my view, the Inspector dealt with it entirely rationally.  He explained why that aspect did not add greatly to his consideration of the proposal and I can find nothing wrong with his explanation.  
20.	Overall, this case involved the exercise of planning judgment.  The reality is that the claimant disagrees with the judgment made by the Inspector.  It is a disagreement on the merits dressed up as alleged errors of law.  I am quite satisfied that there was no error of law made by the Inspector and that there is no substance in any of the grounds of this claim.  The claim is therefore dismissed. 
21.	MISS THORNTON:  My Lord, I appear on behalf of the Secretary of State. 
22.	THE DEPUTY HIGH COURT JUDGE:  Yes, Miss Thornton.
23.	MISS THORNTON:  In light of your Lordship's judgment, I apply for an order for the Secretary of State's costs of the hearing.  Does your Lordship have a copy of the statement of costs? 
24.	THE DEPUTY HIGH COURT JUDGE:  Yes, I do.
25.	MISS THORNTON:  The only thing I would wish to add, my Lord, is costs to today.  They are calculated as 1 hour for my instructing solicitor, who sits behind me, at £200, and 1 hour for my attendance at £80.  That takes us to just over £6,040, but the Secretary of State is content to seek £6,000‑worth of costs.  
26.	I understand my learned friend has some submissions to make on the amount claimed.  I think the main dispute centres ‑‑ if I could ask your Lordship to look at work done on documents, which is on the second page, at the top.
27.	THE DEPUTY HIGH COURT JUDGE:  Yes, I have it.
28.	MISS THORNTON:  Your Lordship will see that there is a claim there for 13.1 hours at £200 an hour.  If I understood the situation correctly, my learned friend wishes to take a point on that.  If I could explain, my Lord, that 13.1 hours was spent by my instructing solicitor.  It consisted of analysing the claim, preparing instructions for counsel.  The largest part of the time spent was reviewing the documents provided by the claimant.  Your Lordship will be aware of the bundle of documents before the court.  Finally, my Lord, it also consisted of detailed legal advice, which I understand was then followed by counsel who appeared yesterday.  He followed that in his skeleton.  Therefore, it reduced counsel's fees.  I hope that assists your Lordship in understanding how that 13 hours was arrived at.  
29.	The only other point I would make whilst I am on my feet is that if there is a point taken on hours spent on documents, the schedule of costs put up by the claimant suggests 12 hours were spent on documents.  The Secretary of State spent 15 hours on documents.  So, my Lord, in my submission that speaks for the reasonableness of the claim. 
30.	THE DEPUTY HIGH COURT JUDGE:  Thank you very much.  
31.	Yes, Mr Griffith.
32.	MR GRIFFITH:  My Lord, taking what my learned friend said last first of all, the reason for the amount of hours spent by the claimant was because they had to prepare all the documents.  None of the documents that were before my Lord had been prepared by the defendant's solicitors.  So that is the difference.  I hear what my learned friend says about a detailed advice being done, but it appears, on the second page, there is a fee against counsel for "advice/conference/documents".
33.	THE DEPUTY HIGH COURT JUDGE:  Wait a minute.  What are we looking at? 
34.	MR GRIFFITH:  My Lord, on the second page of the defendant's costs schedule.
35.	THE DEPUTY HIGH COURT JUDGE:  Counsel's fees? 
36.	MR GRIFFITH:  Fees for advice/conference/documents.
37.	THE DEPUTY HIGH COURT JUDGE:  Yes.
38.	MR GRIFFITH:  There seems to be some repetition in the costs.  There is money paid for counsel and there is money paid to the solicitor for drafting advice, from what my learned friend is saying.
39.	THE DEPUTY HIGH COURT JUDGE:  As I understand it, what was said was that there was a detailed advice.  Therefore, there was no need to pay so much for counsel's advice.  It reduced the amount of costs for counsel.
40.	MR GRIFFITH:  It would reduce the amount of costs, but it certainly was not made clear by my learned friend, but it looks as though counsel did the advice, rather than, as I explained to my learned friend, that the solicitors had done it within that 13 or 15 hours.  That is the first point.
41.	THE DEPUTY HIGH COURT JUDGE:  I have been told by Miss Thornton that there was, included in the 13.1 hours, the time spent for the legal advice being given internally then.  If you are disputing that, I cannot resolve that.
42.	MR GRIFFITH:  No, my Lord, my submission was there appears to be an amount for counsel's advice and an amount for solicitors' advice.  That does not seem reasonable to the claimant.
43.	THE DEPUTY HIGH COURT JUDGE:  I see. 
44.	MR GRIFFITH:  With regard to the amount of hours done, as a whole, that does not seem reasonable to the claimant.
45.	THE DEPUTY HIGH COURT JUDGE:  The amount of what? 
46.	MR GRIFFITH:  The amount of hours spent as a whole on this claim.
47.	THE DEPUTY HIGH COURT JUDGE:  Amount of hours, I see.
48.	MR GRIFFITH:  My Lord, it must be one of the most simple claims that the Secretary of State would face.  It is a single extension to one building.  It is nothing like the type of appeals they would normally face, in my submission, which may need something like ‑‑
49.	THE DEPUTY HIGH COURT JUDGE:  I would normally have some sympathy with that submission, that it was a simple case, but it seems to have led your clients to produce an enormous lot of bumph.
50.	MR GRIFFITH:  Indeed.
51.	THE DEPUTY HIGH COURT JUDGE:  Great big bundles, and it is all just for a small development.  The time spent is the result of the large amount of documents produced by the claimant, for what was a very small development.
52.	MR GRIFFITH:  Well, in my submission, both the amount of hours claimed and, in my submission, my Lord may feel that a solicitor, at £200 an hour, would not be necessary for all of that.
53.	THE DEPUTY HIGH COURT JUDGE:  I have not asked you the point of principle.  Do you seek to resist an order for costs, leave aside the quantum?
54.	MR GRIFFITH:  My Lord, obviously the claimant appreciates that the general case is that costs would be awarded.  In principle, it is contested on the basis that the very nature of the reason why the claimant had to come to court, they say, is to be heard.
55.	THE DEPUTY HIGH COURT JUDGE:  Are you saying that you should not pay the Secretary of State's costs, the claimant having lost this case?
56.	MR GRIFFITH:  My Lord, perhaps I can just take a moment and turn my back on my Lord.  (Pause).  My Lord, we do not reject the fact that costs must be paid; it is the amount of costs.
57.	THE DEPUTY HIGH COURT JUDGE:  But you say it is too much, £6,000 is too much, for the reasons you have mentioned? 
58.	MR GRIFFITH:  Indeed.
59.	THE DEPUTY HIGH COURT JUDGE:  I see.  Thank you very much.  Having heard what is said on behalf of the claimant, I am satisfied that the amount of costs that is claimed is reasonable.  There is quite a large amount of hours claimed for work done on documents by the defendant — it is large in relation to the size of this development — but it has been caused by the very large amount of documentation that has been produced on behalf of the claimant.  That has led to the extra costs.  I do not find myself able to say that the amount claimed by the Secretary of State is unreasonable.  In those circumstances, I will make an order that the claimant pays the defendant's costs in the sum of £6,000.