Costs Decision
Hearing held on 15 April 2009
Site visit made on 15 April 2009
by Christina Downes
Bsc DipTP MRTPI
an Inspector appointed by the Secretary of State
for Communities and Local Government
The Planning Inspectorate
4/11 Eagle Wing
Temple Quay House
2 The Square
Temple Quay
Bristol BS1 6PN
Decision date:
8 May 2009
Costs application in relation to Appeal Ref: APP/Y3615/A/08/2091643
Betteridge House, 2 St Omer Ridge, Guildford, Surrey GU1 2DD
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The application is made under the Town and Country Planning Act 1990, sections 78,
322 and Schedule 6, and the Local Government Act 1972, section 250(5).
The application is made by Mr A Brickell for a full award of costs against Guildford
Borough Council.
The hearing was in connection with an appeal against the refusal of planning permission
for a single storey rear extension and rear dormer window.
Summary of Decision: The application is allowed in the terms set out
below in the Formal Decision and Costs Order.
The Submissions for Mr Brickell
1. Paragraphs 7 and 12 of Annex 3 to Circular 8/93 advises that a local planning
authority should support its reasons for refusal with relevant policies in the
development plan and take account of any other consideration material to the
application. Paragraph 8 indicates that reasons for refusal should be complete
and substantiated through evidence.
2. The Council accepted in its delegated Report that a single storey extension of 4
metres depth in staggered form would be “permitted development”. This
would be larger in footprint and volume than the appeal proposal and was a
most material “fallback” position. The failure to consider this important
material consideration in the determination of the proposal was unreasonable.
On the issue of the likelihood of constructing such an extension it was clear
that the Applicant wanted to build a rear extension. There was no reason why
he would not use his permitted development rights if the extension applied for
was refused. Indeed this was exactly what he was doing at present.
3. The relevant Local Plan Policy H8 and the supporting supplementary planning
guidance were permissive towards extensions like the appeal proposal subject
to no unacceptable effect. The reason for refusal alleged that the proposal was
excessive and did not respect the scale or character of the property. In view of
the size of the house and its plot the proposal could not reasonably be
considered “out of scale”.
4. The Council had failed to have due regard to the “fallback” position or justify
the alleged conflict with the development plan in a reasonable manner in
accordance with Paragraphs 7, 8 and 12 of Annex 3 to Circular 8/93. A full
award of costs was therefore justified.
Costs Decision APP/Y3615/A/08/2091643
The Response by Guildford Borough Council
5. The Council did not act unreasonably. The decision had been agreed by the
Head of Planning Services under delegated authority following consideration of
the Planning Officer’s Report. All material planning considerations had been
carefully considered, including the new Town and Country Planning (General
Permitted Development) (Amendment) (No 2) (England) Order (GPDO) and
representations from neighbouring residents, Borough Plan policies and the
supplementary planning guidance on residential extensions.
6. The explanation for the reason for refusal was fully detailed in the Report. The
“fallback” position under “permitted development” had been considered in
some depth but was difficult to assess with any certainty due to the very recent
publication of the GPDO, which only came into force in October 2008. At the
time of the decision it was concluded that an extension built under “permitted
development” in the same place as the proposal would have to be smaller and
thus less obtrusive to meet the provisions of Class A.1 (e) in Part 1 of the
Schedule to the GPDO. Although it was also believed at the time that under
these provisions a staggered addition could also be built to the rear of the
protruding wing it was considered unlikely that this would happen. No
indication had been given as to how the two extensions could be connected and
therefore there seemed to be no reason why the Applicant should wish to build
such a construction. More recently, the Council has reached the view that an
addition off the protruding wing would not be “permitted development” by
virtue to A.1 (h) relating to side walls.
7. The reason for refusal was complete, precise, specific and relevant. The
policies in the Borough Plan had been considered during the decision making
process. In the circumstances the Council had not behaved unreasonably and
an award of costs was not justified.
Conclusions
8. I have considered this application for costs in the light of Circular 8/93 and all
the relevant circumstances. This advises that, irrespective of the outcome of
the appeal, costs may only be awarded against a party who has behaved
unreasonably and thereby caused another party to incur or waste expense
unnecessarily.
9. Whether or not the extension would be detrimental to the scale and character
of the existing dwelling is a matter of judgement. Although the size of the plot
was not specifically mentioned in the assessment of impact, the Planning
Officer’s Report comments on the relatively large dwellings with good sized
plots that make up this particular street scene. Furthermore, this would have
been readily appreciated at the site visit. Policy H8 includes a provision that
extensions should not have an “adverse effect on the scale and character of the
dwelling” and the SPG seeks to ensure that extensions “complement the size,
shape and character” of the existing property. Although I have reached a
different conclusion, the Council is entitled to its own view and I am satisfied
that adequate justification was provided in its written submissions.
10. I appreciate that at the time the Council made its decision the new GPDO had
been in force for less than a month. The Applicant and the Council have
different opinions on the interpretation of the relevant sections of this
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Costs Decision APP/Y3615/A/08/2091643
document. Whoever is correct is not of importance to this costs application.
The relevant point is that the Council clearly stated in its delegated Report that
a 4 metre staggered extension could be built within the scope of “permitted
development” off the rear walls of the property. Taking account of the
protruding wing this would clearly have allowed a larger single storey extension
to be built under “permitted development” than what had been applied for.
However, there is no indication that the Council took this “fallback” scenario
into account in the assessment of the impact arising from the appeal proposal.
This was clearly an important material consideration and no evidence I heard at
the Hearing satisfied me that the Council had made an analysis of the
comparative harm that would ensue prior to arriving at their decision to refuse
planning permission. The refusal was therefore unreasonable.
11. At the Hearing the Council contended that its present view was that an
extension off the protruding element would not be “permitted development”
because it extended beyond a wall forming a side elevation. Whatever the
merits of this argument it was not the view held by the Council at the time it
determined the planning application and I therefore discount it as a reasonable
explanation. I also discount the Council’s contention that it did not consider
that the extension off the protruding element was likely to be built because it
would not join up with the main extension. There is no evidence to show that
the Council considered the “reasonable prospect” test either in its delegated
Report or in its appeal statement. Even if it did so consider, I am not satisfied
from what I heard that there would have been any reasonable basis for
reaching such a conclusion. This is rather borne out by the fact that just such
a staggered extension is in the process of construction.
12. In the circumstances, I consider that the Council did behave unreasonably and
that this resulted in the Applicant having to incur the unnecessary expense of
an appeal. In this case a full award of costs is justified.
Formal Decision and Costs Order
13. In exercise of my powers under section 250(5) of the Local Government Act
1972 and Schedule 6 of the Town and Country Planning Act 1990 as amended,
and all other powers enabling me in that behalf, I HEREBY ORDER that
Guildford Borough Council shall pay to Mr A Brickell, the costs of the appeal
proceedings, such costs to be assessed in the Supreme Court Costs Office if not
agreed. The proceedings concerned an appeal under section 78 of the Town
and Country Planning Act 1990 as amended against the refusal of planning
permission for a single storey rear extension and rear dormer window on land
at Betteridge House, St Omer Ridge, Guildford, Surrey.
14. The applicant is now invited to submit to Guildford Borough Council, to whom a
copy of this decision has been sent, details of those costs with a view to
reaching agreement as to the amount. In the event that the parties cannot
agree on the amount, a copy of the guidance note on how to apply for a
detailed assessment by the Supreme Court Costs Office is enclosed.
Christina Downes
INSPECTOR
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