District fails in legal challenge to permission for development it considered would result in unacceptable standard of living for future occupants

Tim Smith, sitting as a deputy High Court judge, concluded none of the four grounds pursued by the council could succeed.

The case was brought against the Secretary of State for Housing, Communities and Local Government and developer D Clark under section 288 of the Town and Country Planning Act 1990

Mr Clark applied in November 2021 for planning permission to redevelop a property into three one-bedroom flats.

Officers recommended refusal because one flat would fall short of the required internal space standards, and its location and size, meant there would be insufficient external amenity space.

Bedrooms in the other two flats did not provide sufficient outlook, and so the development “would therefore result in an unacceptable standard of living for future occupants, failing to provide a good level of internal and external amenity, contrary to Policies HB3 and HB1 of the Places and Policies Local Plan 2020”, the officer’s report said.

The council refused the application but Mr Clark appealed, and the inspector summarised the main issue as being "whether the development would result in unacceptable living conditions for future occupiers”.

In the decision letter, the inspector said: “Dealing with outdoor amenity space first, Policy HB3 states that balconies should be provided for new flats provided they do not reduce the privacy of neighbouring dwellings.

“Based on my own observations, it is difficult to see how the scheme could incorporate balconies that would not overlook neighbouring properties. Indeed, the council has not suggested otherwise.

“Consequently, I find the non-provision of balconies in this instance would be justified and would not conflict with Policy HB3. “

The council also referred to the requirement for 10m deep gardens, but the inspector said this related to houses rather than flats.

Although the flats would lack outdoor amenity space large enough to enable residents to sit out, the building was within a short walk of two recreation areas, and “taking these considerations in the round, I do not consider the lack of balconies would cause unacceptable harm to the living conditions of future occupiers”, the inspector said.

Ground 1 of the council’s appeal was that the inspector failed to determine the issue of the poor outlook from the windows.

On Ground 2, Folkestone & Hythe said the inspector misunderstood or misinterpreted Local Plan policy HB3.

It did not pursue grounds originally numbered 3 and 4 but argued on grounds 5 and 6 that the inspector unlawfully failed to impose conditions related to biodiversity, and landscaping.

Mr Smith said guidance to judges said decision letters “need to be subjected to a common sense reading rather than to overly forensic analysis” and that conclusions “should not be laboriously dissected in an effort to find fault”.

He said the inspector’s conclusions on the issue of amenity were brief, but read fairly and as a whole covered the matter and “I cannot therefore accept the council's submission that the inspector did not reach a conclusion about the acceptability of the outlook from the flats”.

He added that there were “no objective standards in policy dictating how the acceptability of outlook should be judged" and it was therefore difficult to see what more the inspector could have said as a reason for his conclusions.

Mr Smith dismissed Ground 2 noting the policy requirement for balconies was not absolute but allowed for variation where these would reduce the privacy of neighbouring dwellings and the inspector had been entitled to conclude these would be overlooked.

Grounds 5 and 6 related to alleged failures to impose biodiversity and landscaping conditions.

The inspector had said: “The preliminary ecological appraisal, which is already captured by Condition 2, contains various ecological recommendation and enhancements. I do not therefore consider a separate condition is necessary to secure a net-gain for biodiversity.”

Mr Smith said there was no evidence before the inspector that landscaping could die or become damaged or diseased or that “without such an additional limb to the condition there was a material risk that the site was thereby be at risk of having inadequate landscaping”.

He explained: “It is true that a condition which included this subsidiary requirement would have been an improvement on one without it, in that it would have protected against a possible future failure of the landscaping which the council could insist be planted.

“But nobody suggested that there was a clear and present danger of that occurring in this case such that the additional wording was necessary. Just because a condition could have been improved upon by the inclusion of additional words does not mean that the condition is unlawful without those additional words.”

Mark Smulian