Hayden, R (on the application of) v Kelly

1. 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.

2. 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

3. 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.

4. 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.”

5. Planning permission was granted on 17 March 2011 by officers under delegated powers. After judicial review proceedings by Mr Hayden this decision was quashed.

6. 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.

7. 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.”

8. 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

9. 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

10. The policy cited by the Claimant is extensive and extracts are to be found reproduced in the Appendix to this judgment.

11. 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”.

12. 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”.

13. 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

14. 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.”

15. 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 then said “it seems to me that any consideration which relates to the use and development of land is capable of being a planning consideration.” (Page 1294). He continued on page 1294 to state: “Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances.” (My underlining).

16. The Applicant in Stringer had argued that the Minister must only have regard to the public interest as opposed to private interest (i.e. the interests of Jodrell Bank). The judge said (page 1295): “It seems to me that it would be impossible for the Minister and local planning authorities to carry out their duties as custodians of the public interest if they were precluded from considering the effects of a proposed development on a particular use of land by a particular occupier in the neighbourhood. The public interest, as I see it, may require that the interests of individual occupiers should be considered. The protection of the interests of individual occupiers is one aspect, and an important one, of the public interest as a whole.

17. There are many cases which support the proposition stated by Pill LJ in West Midlands Probation Committee v Secretary of State for the Environment (1998) 76 P and CR 589; 597, namely: “The impact of a proposed development upon the use of and activities upon neighbouring land may be a material consideration.” In that case the Court of Appeal held that a justified fear of crime emanating from a proposed development at a bail hostel was capable of being a material planning consideration as the Inspector had found. See also, for example, Blum v Secretary of State for the Environment [1987] JPL 278 where the court upheld the Inspector’s decision to refuse planning permission to a riding school. Simon Brown J (as he then was) rejected the contention that it was immaterial and impermissible to have regard to the environmental impact of the development upon the visual amenities of the surrounding land.

18. In R (Sainsbury’s Supermarkets Ltd) v Wolverhampton City Council 2010 UK SC 20; 2011 1AC 437, Lord Collins of Mapesbury referred (paragraphs 63 – 68) to the earlier House of Lords case of Tesco Stores Ltd v Secretary of State for the Environment 1995 1WLR 759. Lord Collins said (66): “…The ratio of the decision is that for the purposes of section 70(2) any benefit whose connection with the development is more than de minimis will be a material consideration, but that the weight to be given to any particular material consideration is entirely a matter for the decision maker.”

19. A recent example of the application of the question whether a matter is capable of being material consideration, and whether the Council has acted unlawfully in deciding whether to take it into account, is to be found in R (Copeland) v London Borough of Tower Hamlets [2010] EWHC 1845 (Admin) ; [2011] JPL 40. There the Claimant submitted that in approving a change of use for premises to enable a fast food takeaway to operate, the Council did not take into account the proximity of those premises to a school and its potential impact on the school’s attempts to encourage healthy eating by pupils. The development plan contained no policies which restricted hot food takeaways because of their proximity to schools. The Officer’s report to the Council stated “while this is a valid concern, it is not a material consideration that can have weight in determining this application against Council policy.” Mr Harwood appeared in that case also; on that occasion for the Council. He submitted that the planning officers were not expressing a view as to whether the issue was capable in law of being material. They accepted the point as a valid concern and said it was not material in relation to the application (27). This was rejected on the facts by Cranston J (30), saying “…councillors were specifically advised that such matters could not be material planning considerations…it was a clear direction to the effect that the points about proximity of a fast food outlet to Bishop Challoner School could not be taken into account. It was a recommendation that that factor could not be given any weight at all.”

20. In the Sainsbury’s Supermarkets case, Lord Collins (65) cited the speech of Lord Keith of Kinkel in the Tesco case. He had said: “It is for the court, if the matter is brought before them, to decide what is a relevant consideration. If the decision maker wrongly takes the view that some consideration is not relevant, and therefore has no regard to it, his decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense…”

21. As to the overlap between planning considerations and other controls, both parties were content to proceed on the basis that the principles established in a number of cases dealing with pollution control applied generally. In summary the existence of regulatory regimes parallel to the planning regime is not a determinative factor in considering the planning merits. It is, like other considerations, something which has to be weighed in the balance. ( Gateshead MBC v Secretary of State for the Environment 1995 Env. LR 37; Hopkins Developments Ltd v Secretary of State [2006] EWHC 3823 (Admin) ; [2007] Env. L.R. 14 and Harrison v Secretary of State for Communities and Local Government (2009) EWHC 3382 (Admin); [2010] Env. L.R. 17 . The Issues in the Appeal

22. Therefore: (i) The effect of development on neighbouring land, including the potential for physical damage, is capable of being a material consideration. (ii) Whether other regulatory regimes may render a consideration, which is otherwise capable of being material, immaterial in the planning process depends on the circumstances of the case.

23. The battle ground in relation to ground 1 crystallised in the appeal, given that the Defendant concedes that the risk of subsidence is capable of being a material consideration (subject to the other regulatory regimes point). The Defendant’s case is that in the Supplementary Report the Council were not advised that a risk of subsidence could never be a material consideration. The Defendant’s submission is that it was not a material consideration on the facts of the instant application. As Mr Hogan put it, the question as a point of law, is whether in the circumstances of this case, as at 15 November 2011 when the decision was made, the Defendant should have concluded that the risk of subsidence was a relevant one? And, if so logically accord it some weight in the balance? The Defendant submits that the answers, in the context of this application for this domestic extension, are both negative.

24. The Defendant relies essentially on this extract from the supplementary report: “The concerns about the construction of 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.” The Application of PPG 14

25. This has been a matter of considerable dispute between the parties. My decision on this matter and the reasons for it are as follows: (i) PPG14 is of some relevance but does not have the significance for which the Claimant contends. (ii) Because the two properties are situated in an area of historical coal mining the question of land instability is raised. Under paragraph 38 of Annexe 2, applicants for development in such a coal mining area were required to consult the coal authority for development. See also PPG14 paragraph 45. (iii) Mr Richard Snow the Development Control Manager in the planning department of the Defendant Council has provided a statement dated 12 March 2013. This is after the event but provides some explanatory background. He says that the Coal Authority has established a protocol which governs which consultations need to be made relation to development proposals. The protocol refers to certain standing advice which the planning authority is asked to pass on to the recipient of planning permission. (iv) The Coal Authority does not wish to be consulted on applications for householder developments, nor do they require a coal mining risk assessment for such developments. (v) In this sense the Defendant Council had regard to PPG14. The permission itself contains a relevant note to the Applicant about the coal mining. (vi) Apart from the above self contained matter, PPG14 was not relevant. It provides guidelines on planning controls “over development on land which is unstable or is potentially unstable” (paragraph 2). Three categories of causes of instability are identified. (Paragraph 13). The first one of these is “the effects of underground cavities” which include mining. The second and the one relied upon by the Claimant is “unstable slopes”. In this regard the Claimant relies also on paragraph 17 which says that where there are reasons for suspecting instability, investigations should determine whether “the development will initiate slope instability which may threaten its neighbours.” He relies also on paragraph 18 and 22. (vii) It is instructive that in paragraph 13 the explanation of unstable slopes, I accept it is not a definition, says “these may be natural, in both coastal and inland situations; or manmade, whether excavated, as in quarries or cuttings or constructed, as in tips and embankments;” this in my judgment strongly indicates the position. That position is that PPG 14, insofar as it deals with unstable slopes, is not relevant to any threat of instability by carrying out the works of development proposed by Dr Kelly. PPG14 applies to land which is inherently unstable or potentially so. See also paragraphs 1, 2, 31; also A43, A46 and A48. It is also of note that the other bullet points in paragraph 17 all clearly refer to inherently unstable land. (viii) Indeed it is to be noted that there is no reference to this being “development on land which is unstable or is potentially unstable” in the Claimant’s Solicitors letter of 14 November 2011 or the Claimant’s own letter 26 February 2011. It is the risk of structural damage due to the depth of the excavation required to install foundations which is referred to. (ix) PPG14 has been superseded by the National Planning Policy Framework. Although this does not fall for consideration in this judgment, I see nothing in the passages cited and contained in the Appendix which affects my decision on the applicability of PPG14 to this development. Indeed, the paragraphs set out in the Appendix to this judgment suggest to the contrary. (x) In the intervening period between the granting of planning permission and the judicial review proceedings, a structural inspection report dated 24 September 2012 has been produced on behalf of the Claimant. I shall refer to it later, but in my judgment it does not in any way undermine my conclusion. Indeed, rather the contrary. The Erewash Local Plan

26. The Claimant submits that Policy DC2 is concerned with the amenities of neighbouring residents; further that these will be affected if their building starts to collapse or work has to be carried out to protect it. The Claimant submits that an amenity impact would include anything which affects the comfort and enjoyment of the occupiers. This reliance on paragraph 2 of Policy DC2 must be seen in context. Paragraphs 9.11 – 9.13 which precede Policy DC2 provide that context. I determine that it does not have the effect for which the Claimant contends. The same goes for the “Extending Your Home” Supplementary Planning Document paragraph 2.6. Material Planning Consideration

27. The Claimant’s case is that the Defendant’s Committee proceeded on the basis that stability could not be considered. I have set out in paragraph 8 above the relevant extracts from the Supplementary Report. Nowhere in that report is it stated that the potential instability caused by the excavation on Dr Kelly’s land was not capable of being a material planning consideration. It is said that the level difference between the two properties “is not considered significant in the assessment of the application.” Later it is said that the concerns about the construction of foundations are noted “but are not material to the outcome of this application.” The Court must be very cautious in construing a document such as the Supplementary Report. It is not a legal document and was being addressed to Lay Councillors. In my judgment what it conveyed was that, in the circumstances of this application, these concerns were not “material.” This was because they would be addressed through the Building Regulations and the Party Wall Act.

28. This is not the same situation as in the case of Copeland (above). There the report stated “while this is a valid concern, it is not a material consideration that can have weight in determining this application against Council Policy.” (My underlining). In those circumstances Cranston J found that the Planning Committee Councillors had been specifically advised “that such matters could not be material planning considerations…it was a clear direction to the effect that the points about proximity of fast food outlet to Bishop Challoner School could not be taken into account. It was a recommendation that that factor could not be given any weight at all.” By contrast the Supplementary Report in the present case does not say that the potential structural difficulties “could” not influence the outcome of the application but that they “should” not influence its outcome. This is my judgment was not an error of law. The Supplementary Report was merely recommending that, in particular circumstances of the application, the consideration was not material (cf passage cited in Stringer’s case, above – paragraph 15).

29. Was there any error in the Supplementary Report in recommending that, in the circumstances of the application, the considerations were not “material”? Whether or not a consideration is material depends upon whether it is relevant and this is a point of law. (See the Sainsbury’s Supermarket case paragraphs 65 and 66). The weight to be given to any material consideration is not a matter for the Court.

30. In my judgment it is clear from the Supplementary Report that the recommendation was that the concerns about the construction of the foundations were not material in relation to this particular application, since they would be addressed through the Building Regulations and the Party Wall Act. Albeit sparing with words, what in effect was being said was that: (i) The concerns were capable of being a material planning consideration. (ii) They were not such in relation to the particular application for the reasons given.

31. I have already set out the summary of the legal position in relation to the existence and operations of other controls (see paragraph 21 above). As was said in the Hopkins case (paragraph 11) “The impact of air emissions from a proposed development is capable of being material planning consideration, but in considering that issue the Planning Authority is entitled to take into account the pollution control regime.” In the present case the Supplementary Report advised that, because of the other controls, the concerns about the construction foundations should not actually be regarded as material. This necessarily implied that they were capable of being so.

32. The Building Regulations 2010 Schedule 1 paragraph A1(1)(b) and A2 provide: “ Loading A1(1) The building shall be constructed so that the combined dead, imposed and wind loads are sustained and transmitted by it to the ground – (a) safely; and (b) without causing such deflection or deformation of any part of the building, or such movement of the ground, as will impair the stability of any part of another building. …. Ground Movement A2. the building shall be constructed so that ground movement caused by – (a) … (b) land-slip or subsidence … will not impair the stability of any part of the building.”

33. The Claimant makes the point that, although Building Regulations do consider whether the loads imposed by the new building will impair the stability of another building, ground movement caused by land slip or subsidence is assessed only insofar as it would impair the stability of the new building.

34. This may be so in theory. In the circumstances of the particular case there is a witness statement from Kevin Renshaw dated 12 March 2013. Again this is after the event but it explains the practical reality of Building Regulation control in a case such as the present. He is a Senior Building Control Officer in the employ of the Defendant. He says that, in circumstances where there is a concern about subsidence, sectional foundations would usually be the technique that is employed. Foundations are constructed in sections so that there is no scope for sudden collapse of the development as constructed. He also says that sectional foundations “will certainly safeguard the position of both the existing house and neighbouring house.” (Paragraphs 9 and 12). The Party Wall Act 1996

35. It is common ground that this Act creates a framework within which one person may carry out works to construct new party walls which interfere with another’s property (section 1) and enables excavation in the vicinity of another’s property. It provides safeguards for adjoining owners and a mechanism for dispute resolution under section 10. This dispute resolution involves the appointment of one or more surveyors. Under sub-section 10(12) the surveyor’s award may determine: (a) the right to execute any work; (b) the time and manner of executing any work; (c) any other matter arising out of or incidental to the dispute including the costs of making the award…

36. Mr Renshaw says (paragraph 23) that the surveyors “agree a safe method of working which would not prejudice the integrity of either part property and I would suspect that in this case they would agree on sectioning the foundations as the necessary precaution to be undertaken” Summary on Controls

37. In the above circumstances, in my judgment there was no error of law in the Supplementary Report stating that the concerns about the construction of foundations were not material to the outcome of this application since they would be addressed through the Building Regulations and the Party Wall Act.

38. It is interesting to note that there is nothing in the Claimant’s September 2012 Structural Inspection Report which runs counter to any of this. In the Executive Summary are the following paragraphs: “5. It would be expected that competent designers and builders would understand the potential risks to Mr Hayden’s property and would take appropriate measures to mitigate against them. However if a less experienced designer or builder were appointed and did not appreciate their significance, it is possible that the proposed works could compromise the integrity of 65 Stanton Road.

6. The proposed works are also covered by the Party Wall Act 1996 which requires the owner of 67 Stanton Road to serve a notice of the proposed work on Mr Hayden and to demonstrate what measures will be taken to strengthen or safeguard the foundations of Mr Hayden’s house.

7. The most important consideration is to ensure that excavation work below the 45 degree cut line is done in short lengths and quickly concreted so that there is no significant loss of support of the foundations of Mr Hayden’s property. This will require careful control and sequencing. It should be possible to do most of the below ground work inside the boundary of No 67 without access onto Mr Hayden’s land but some reinstatement of the edge of Mr Hayden’s path is likely to be required. The work above ground will probably require erection of scaffolding on Mr Hayden’s property. ” (It was not disputed that the reinstatement of the path is capable of being properly addressed under the Party Wall Act.) The Air Raid Shelter

39. The Claimant says that the planning application should have been deferred to enable the significance of the air raid shelter to be assessed. I disagree for the following reasons which are taken from the Grounds of Resistance: (i) The Defendant noted that no evidence or information was submitted to support the claim that this was an important heritage asset and at that time the Claimant’s advisors had not inspected the structure, having themselves only had it brought to their attention on 11 November 2011. (ii) No evidence, either of fact or archaeological expertise, has been lodged in support of this claim to demonstrate that the air raid shelter is a heritage asset of significance. (iii) The air raid shelter was not identified in the application, in any designation records, in any historic environment records, through the outcome of the usual consultation with interested parties, nor any other records as a heritage asset. (iv) The Claimant’s opinion on its heritage value was not supported by any evidence whether photographic, descriptive, in plan form, from historic maps or from any other source.

40. In PPS5 a heritage asset is defined as “a building, monument …positively identified as having a degree of significance meriting consideration in planning decisions.” There was and is nothing, save for the Claimant’s assertion, to support such a degree of significance. In those circumstances, in my judgment neither PPS5 or Local Plan Policy EV7 was engaged.

41. Therefore, the Supplementary Report was justified in stating that the air raid shelter “is not considered to constitute a material consideration of sufficient weight to delay the decision or change the recommendation.”

42. The Supplementary Report did go on to say “and as is the case with all development, 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.” As to this: (i) this must be seen in context. Earlier in the report the matters to which I have referred above had been set out. These dealt with the concerns about the construction of foundations. Therefore, even if PPS5 and EV7 had potentially been engaged, the air raid shelter would not have been affected by the planning proposal by reason of any instability. (ii) The comment that it would be a matter for the two parties concerned must mean therefore that if, notwithstanding the above, any damage was caused to the air raid shelter then, because there is no evidence that it was a heritage asset, this would be a matter between the Claimant and the Interested Party. There is nothing wrong with that statement. It is a logical consequence across the development as a whole. If any damage was caused, despite the Building Regulations and the Party Wall Act then that is a matter for the parties. cf my note in parentheses at the end of paragraph 38 above. Summary

43. For the above reasons the claim must fail. Discretion 44.1 Assuming I am wrong in my above decision, the question would then arise as to whether the stability issue might have altered the Council’s consideration of the application. In Smith v North Eastern Derbyshire Primary Care Trust [2006] EWCA Civ. 1291 , May LJ said:- “10. ….Probability is not enough. The Defendants would have to show that the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the propriety of the decision making process into the forbidden territory of evaluating the substantial merits of the decision.” 44.2 The Claimant submits that the decision might be different because:- (a) the Structural Inspection report shows that some reinstatement of Mr Hayden’s path is likely to be required (b) the Council may, if they have to have regard to subsidence issues as a material planning consideration, refuse permission or grant it subject to further planning conditions. 44.3 I disagree with the Claimant’s submission. I consider it inevitable that the Council would come to the same conclusion given the relevance of the Building Regulations, the Party Wall Act and the contents of the Structural Inspection report. The stark reality is that these works, if properly done (which can and will be safeguarded) will result in no damage apart from the probable reinstatement of the edge of Mr Hayden’s path.