Rank v. East Cambridgeshire District Council

Transcript date:

Tuesday, October 8, 2002

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

George Bartlett QC

Case No: CO/32582002

Neutral Citation Number: EWHC 2081 Admin

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

48/49 Chancery Lane

London,

WC2A 1JR

Tuesday 8 October 2002

Before:

MR GEORGE BARTLETT QC (sitting as a Deputy High Court Judge)

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Between:

THE QUEEN

on the application of EDMUND RANK

Claimant

- and -

EAST CAMBRIDGESHIRE DISTRICT COUNCIL

and another

Defendant

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(Transcript of the Handed Down Judgment of

Smith Bernal Reporting Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

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Mr Gregory Jones (instructed by Richard Buxton, Cambridge), for the claimant

Mrs Harriet Townsend (instructed by East Cambridgeshire District Council Legal and Democratic Services) for the defendant

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Judgment

As Approved by the Court

Crown Copyright ©

MR GEORGE BARTLETT QC:

Introduction

1. The claimant in this case applies for judicial review challenging the grant by the defendant council of planning permission on land at 44 Lode Road, Bottisham, ("the site") for the demolition of the (then) existing bungalow and the erection of two houses and garages. The claimant lives at number 46, immediately to the north of the site. The planning permission was issued on 14 June 2002. Permission to apply for judicial review was refused on the papers by Sir Richard Tucker on 19 July 2002, but was granted by Richards J on 8 August 2002 following oral argument. The bungalow that stood on the site has now been demolished, and construction has not only started but has proceeded so rapidly that the two houses are already erected and are in the course of being completed.

2. The claimant challenges the grant of planning permission on five grounds. Two of these were set out in the claim form. I granted permission at the hearing for the other three grounds to be added. The principal ground relied on is that the council left out of account material considerations - a refusal of planning permission on the site in 1988 and an inspector's appeal decision of 1989. In addition the claimant contends that the decision failed to address Convention Rights of himself and other objectors by carrying out a balancing exercise and examining whether the interference with those rights was justified or proportionate. The other three grounds relate to specific matters - that the council failed to address the overlooking problem that would result; that they failed to address objections relating to traffic problems associated with Bottisham Village College; and that representations sent to the council by Mr Rank should have been put before the committee but were not.

The site and its surroundings

3. In addition to the scale drawing submitted with the application and plans showing the surrounding area I have before me aerial photographs of the site and its surroundings, one taken, I was told, a few years ago and two taken recently, showing the houses erected and in the course of being clad. The site has a frontage of about 15m to Lode Road and a frontage of about 38m to Jenyns Close. The bungalow that has recently been demolished was a 2-bedroom bungalow, the first in a line of 10 similar ones lying between Jenyns Close and the edge of the village to the north. They date from the 1950s, are brick built and are set back from the footpath of Lode Road by about 10m. With one exception, where infilling has taken place, they have gardens of about the same size as that of number 44 or larger. A cul-de-sac called Pound Close penetrates the line of bungalows to the north of number 48. On this there are 7 pairs of semi-detached and two detached 2-storey brick houses, with long gardens which on the south side, run across the full width of the gardens of numbers 44, 46 and 48 Lode Road. A bungalow, with access from Pound Close, has been built at the rear of one of the Lode Road bungalows, as infill between that bungalow and the first Pound Close house. To the south of Jenyns Close there is frontage development along Lode Road, with plot sizes for the most part similar to those of the bungalows to the north. Behind these frontage houses the loop of Jenyns Close serves an estate of between 40 and 50 houses, all with gardens substantially shorter than those of the houses in Pound Close. On the west side of Lode Road is Bottisham Village College, with an access immediately opposite Jenyns Close.

The permitted development

4. The development that has been permitted consists of two 3-bedroom houses on two floors, with steep-pitched roofs and dormer windows in the roof slopes. The first house is set end-on to Lode Road, about 5m in front of the line of bungalows. The second house is set end-on to Jenyns Close. Between them and connecting them are the two garages, so that the development consists of integrated buildings of a total length of 27m, situated between ½m and 3m from the boundary of the claimant's property to the north. The windows of a bedroom and two bathrooms in one house and of a bedroom in the other house overlook the claimant's property. There is a condition, condition 6, requiring that each of these windows should be "fixed and glazed using obscure glass." The reason for the condition is stated to be, "To safeguard the amenities of adjoining properties." Access to both houses is from Jenyns Close, and there is an area of hardstanding 23m long taking up almost all the space between the road and the buildings. What is left of the site provides small garden areas to the west and east.

The 1988 and 1989 decisions

5. In 1988 an application had been made for outline planning permission for a bungalow on the rear part of the site. The plan showed that an existing garage on that part of the site was to be demolished and that two parking spaces were to be provided in the reduced curtilage of the existing bungalow. The council refused permission on the grounds that the density of the development was out of keeping with the character of existing residential development in the vicinity; that it would spoil the character of the area; that it would represent overdevelopment; and that the loss of amenity to the existing property would be too great.

6. The applicant appealed against this refusal. His appeal was determined on written representations by a planning inspector appointed by the Secretary of State for the Environment. In his decision, which was issued on 5 September 1989, the inspector said that he considered that the main issue was whether the proposal would result in a cramped development out of keeping with its surroundings. He gave the dimensions of the site (which differ, but only slightly, from those that I have given) and the part which was to contain the new bungalow, and he noted the size of the existing bungalow, which was 85m 2 . Addressing himself to the main issue, he noted that the area proposed for the new bungalow was less than half the existing site, and he went on:

"...

If a bungalow of around 85m2 plus something like 15m2 for an integral garage, was placed on the site the distances between the walls of the bungalow and the site boundaries would be very small. I estimate from your drawing that, whichever way the bungalow would be orientated, a maximum of around 5.5m and a minimum of around 2m would be shared between the side boundaries of the proposed plot. The respective distances between the proposed bungalow and the front and rear boundaries could be greater but a large area fronting Jenyns Close would be required for off-street parking. Also, a large area of the garden of No.44 would also need to be hardstanding as the proposed development requires the demolition of the garage. The properties in the area are typified by having large gardens with those east of the appeal site having gardens considerably longer than even the existing garden of No.44 Lode Road. The proposed development would have a site and garden area only a fraction of the size of those surrounding it. The proposed development would be unsatisfactorily close to its boundaries, and the garden area, in my opinion, would be almost non-existent. In conjunction with No.44 Lode Road, there would be a disproportionally large area of hardstanding given over to car parking in relation to garden area. In these circumstances I consider the proposed development would be cramped and out of keeping with its surroundings in such a rural settlement."

He accordingly dismissed the appeal.

The first ground of challenge

7. The officer's report to the planning committee recommended that permission should be granted. It set out the applicant's case and summarised the replies to consultations. The parish council had objected, and so did the occupiers of 46 and 48 Lode Road and 81 and 83 Jenyns Close. Relevant planning policies were identified. The key issues for consideration were stated to be:

"

The principle of residential development.

The density, design and layout of the scheme.

The impact of the development on the residential amenity of neighbouring properties.

The suitablility of access/parking arrangements."

8. The principle of development depended on the classification of Bottisham as a settlement in the local plan (the East Cambridgeshire Local Plan 2000). The report wrongly said that it was an Infill Only Settlement. In fact it is a Group Settlement, to which Policy 8 rather than Policy 7 applies. In the event nothing turns on this basic error.

9. The report dealt with the second and third of these issues as follows:

"

In this instance, two, one and a half storey dwellings are proposed for the site. This equates to 40 dwellings per hectare, which would be in line with PPG3, which encourages the efficient use of land, particularly brownfield sites, aiming to secure densities of between 30-50 dwellings per hectare. It is also the case that a similar built form of development is already evident elsewhere along Lode Road at the corners of Pound Close and Arber Close.

The scheme is a well considered design, which is nicely detailed and handles the corner plot in a satisfactory way. It is considered that the design contributes to the visual interest and richness of the local area (a mixture of dwelling types and styles) and achieves an acceptable balance of built from and open space, incorporating garden, garaging and parking/turning space without being crammed into the plot. Whilst the proposed houses will be further forward onto Lode Road than the original bungalow, it is not considered that this would have a significant impact on the general street scene, as there is a random pattern of building, especially further south along Lode Road. Equally the dwelling would not come right up to the public footpath i.e. the garden area effectively acts as a buffer between street and dwelling. The row of existing bungalows, although inoffensive in themselves, have no obvious architectural merit, being standard spec-built bungalows typical of the immediate post-war years, which do not make a significant contribution to the general street scene. Therefore it is considered that the loss of the bungalow would not necessarily diminish the character and appearance of the area.

The proposed development has been sited such that it will have minimal impact on the residential amenity of neighbouring properties. The bungalow to the north-east of the site (no.46) has no windows in the flank elevation that would face the development site and there is some 6 metres separating the two properties. The other house in the pair faces onto an electricity sub-station and also has mature trees on its boundary. It should also be noted that windows in house no.2, which face the rear garden of no.46, have been amended. Therefore in light of these comments, it is considered that there will be no significant impact on residential amenity in terms of overlooking or overshadowing."

10. Before the meeting the committee members had viewed the site in company with the officers. Although the report identified under "Planning history" ; the refusal and the appeal decision, it said nothing about them. In a witness statement filed for this application the officer who attended the committee, but who had not written the report, said that they were irrelevant. In what must be taken to be an expression of his own views, rather than those that informed the report, Nigel McCurdy says that the appeal was not relevant "given the decision was 13 years ago and the significant policy shifts in the interim;" that "the issues identified by the Inspector in that case were all properly assessed in relation to the 2002 application during determination;" and that that the committee had a wealth of information and "simply did not need the comments of an inspector 13 years before on a different proposal to reach an informed view of the merits of this one."

11. For the claimant Mr Gregory Jones submits that the refusal and the appeal decisions were material considerations that the council should have taken into account. They were material because the site was the same and the issues dealt with on the earlier application - overdevelopment and whether the development was out of keeping with the surroundings - were issues that arose on the recent application. Materiality was a matter of law. What makes a previous appeal decision on the same site material, he says, is the need for consistency between decisions, and he relies on what was said in this respect in North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P & CR 137. There, an appeal had been dismissed in 1982 on the ground that the appeal site lay outside the physical limits of the village of Notton. In 1991 an inspector allowed an appeal for a similar development on part of the 1982 site, having concluded that the site formed part of the village. He had been referred to the earlier decision but had not dealt with it in his own reasons. At 145 Mann LJ said:

"...

Where an inspector's reasons do not indicate whether he has had regard to a material consideration which was placed before him then there must usually be (in Lord Bridge's words) 'substantial doubt whether the decision taken was within the powers of the Act.' Accordingly the interests of an applicant will in that circumstance have been substantially prejudiced by the deficiency of reasons, for he is left in doubt as to empowerment and his ability to challenge on that ground.

In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.

To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."

12. Mr Jones also refers to Barnet London Borough Council v Secretary of State for the Environment [1992] JPL 540 where at 544 Mr Malcolm Spence QC, sitting as a Deputy Judge, was reported as saying:

"

In his judgment, whenever there had been a recent previous Inspector's decision, it would be a most material consideration, unless maybe it related to completely different development, and so material that it necessarily required explanation by the later Inspector if he disagreed with it. If the previous decision related to, say, business development and the current one related to, say, residential development, then it might be perfectly satisfactory to make no reference to the previous decision. However, if both or all the applications related to residential development and if as here and as so often the object was to achieve a satisfactory form of development, if indeed there was to be any development permitted it seemed to be impossible to reach a proper conclusion unless one considered the criticisms in the previous decision and whether the proposals overcome those criticisms."

13. For the council Mrs Harriet Townsend submits that the question of whether the previous decision was material depends on whether the decision under challenge was inconsistent with it. There was no inconsistency between the two decisions because the proposals were different. The question of overdevelopment had to be considered afresh in relation to the particular application to be determined. On the passage of time and changes in policy, she accepts that, if application had been made in 2002 for the same development as had been the subject of the 1989 decision, that decision would have been a material consideration, and would have been material notwithstanding that policy had changed since it was given. She accepts also that it was the issues rather than the outcome that was material. But the essential point, she says, is that unless a decision to permit the later application would be inconsistent with the earlier refusal there would be no requirement to take the earlier decision into account. She suggests, indeed, that members would have been misled if they had been influenced by the earlier decision since Mr McCurdy's planning judgment was that there was no inconsistency.

14. The question I have to consider is whether the 1988 refusal and the 1989 appeal decision were material considerations that, under section 70(2) of the Town and Country Planning Act 1990, the council should have taken into account. The test of materiality in relation to that positive requirement is, in my judgment, to be derived from the second of the principles stated by Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P & CR 343 at 352:

"

The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb 'might' I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account."

15. That case concerned materiality in relation to a compulsory purchase order, but Mrs Townsend did not suggest that the principle had no application here. Indeed she relied on it. In my judgment, in the context of what I have to decide here, a consideration is material for the purposes of the section 70(2) duty if, firstly, it is not irrelevant to the determination to be made (in the sense of having no connection with the subject-matter of the decision) and, secondly, if it might make a difference in the way in which the authority deals with the application. I will consider these two ingredients in turn.

16. North Wiltshire is authority for the proposition that a previous appeal decision is capable of being a relevant consideration in the determination of a later planning application. What makes such a decision potentially relevant is that, as a matter of public policy, it is desirable that there should be consistency in the appellate process. The same consideration applies, in my view, to the decisions of a local planning authority. A previous decision is potentially relevant not because there is a duty to decide similar cases in the same way. Clearly there is not. The authority must decide each application on the considerations that are material to that application. The potential relevance arises because consistency is desirable and inconsistency may occur if the authority fails to have regard to a previous decision.

17. The North Wiltshire case and the Barnet LBC case both concerned challenges to appeal decisions. Here I am concerned with the decision of a local planning authority. In my judgment a previous appeal decision has a particular potential relevance to a determination by a local planning authority by reason of the fact that it is a decision of the Secretary of State or by an inspector with delegated powers. It is the decision of a superior authority, made in the reasoned decision letter of an expert inspector (or in the reasoned decision letter of the Secretary of State on the basis of a reasoned report by an inspector), in the light of representations from the appellant on the one hand and the local planning authority on the other. The planning judgment that it contains has a potential relevance in itself that derives not simply from the desirability of consistency but from the status of the decision-maker, the expertise of the inspector and the process that has enabled the judgment to be formed.

18. I turn then to consider the second question - whether the refusal and appeal decision might have made a difference to the council's determination of the application. The essential consideration here, in my view, is the extent to which issues that arose on the 2002 application were the same as those dealt with in the 1988 refusal and the 1989 appeal decision. I have noted earlier the four "key issues" identified in the planning officer's report. The second issue was "The density, design and layout of the scheme." The third issue was "The impact of the development on the residential amenity of adjoining properties." The report also identified relevant planning policies. Among those identified were Policy SP12/10 in the Cambridgeshire Structure Plan 1995 and Policies 58, 59 and 62 of the East Cambridgeshire District Local Plan 2000. These provide:

"

SP12/10. All new developments will be expected to incorporate high standards of layout and design and to relate well to their surroundings."

"

Policy 58. All development must respect the diversity and distinctiveness of local communities and be capable of being integrated into the landscape of framework of a settlement without causing appreciable harm to the character or setting of its surroundings. Particular care should be taken over issues of design, layout, massing of buildings, materials and the effect that development will have on the street scene. Proposals on the edge of a town or village must pay particular attention to the local landscape character and its impact upon on the wider countryside setting."

"Policy 59. Applications that do not respect their local context or the scale, height, massing, proportion and materials which typify the character of the locality, and which would cause appreciable harm to the street scene or the wider setting of a settlement will be refused."

"

Policy 62. This Council will seek to encourage development that is of a density and layout appropriate to its surroundings. Developers should avoid 'town cramming' where high densities or poor layout results in a cramped development out of keeping with its surroundings and with little regard to the amenity of future occupants."

19. In the 1989 appeal decision the inspector identified as the main issue whether the proposal would result in a cramped development out of keeping with its surroundings. That is the same issue as one of the issues, almost certainly the principal issue, confronting the council on the 2002 application. The site is the same as that to which the inspector's conclusions were directed. The development is different. The proposal in 1989 was for retention of the existing bungalow and the erection of a new one behind it. The proposal in 2002 was for the demolition of the bungalow and the erection of two houses. The inspector made his judgment on the assumption that the new bungalow would be the same size as that existing, 85m2, plus another 15m2 for an integral garage (a total of 185m2 ). I asked counsel how the 2002 proposal compared with this. Mrs Townsend told me on instructions that no comparison had been made as the 1989 decision was considered irrelevant, but that I ought to proceed on the assumption that the 2002 proposal was likely to have a smaller floorspace. In fact the submitted scale drawing, which I take to be the one approved, shows the floor area of the three buildings - houses and garage block - to be almost precisely the same area as in the earlier decision, 185 m2 , but to be significantly greater than this when regard is had to the fact that the roof is taken over the intervening spaces so as to create an integrated block.

20. The inspector's conclusion, which I quote again, was that:

"

The properties in the area are typified by having large gardens with those east of the appeal site having gardens considerably longer than even the existing garden of no.44 Lode Road. The proposed development would have a site and garden area only a fraction of the size of those surrounding it. The proposed development would be unsatisfactorily close to its boundaries and the garden area, in my opinion, would be almost non-existent. In conjunction with No.44 Lode Road, there would be a disproportionally large area of hardstanding given over to car parking in relation to garden area. In these circumstances I consider the proposed development would be cramped and out of keeping with its surroundings in such a rural settlement."

21. In my judgment, this conclusion was of such obvious relevance to the determination that the council had to make on the 2002 application that their failure to have regard to it was an error of law that vitiates their decision. The same goes for the council's own refusal in 1988 - it should have been taken into account - although the force of the inspector's conclusion, given that it was a reasoned statement by the appellate authority is clearly greater. It seems to me that the determination of the application for this larger, 2-storey development, could well have been different had the members had before them the 1988 refusal and the 1989 appeal decision. Of course, they would have had to have regard also to any changes in the surroundings since 1989, although these appear to have been minimal, and to any changes in policy - both the need to make the best use of housing land (PPG3 para 57 and 58) and the need to preserve and improve the quality and attractiveness of residential areas (PPG3 paras 54 to 56 and the development plan policies I have quoted). But those changes in policy have not rendered the decision on the earlier application irrelevant. They continue to be material, and I would expect that the council, properly advised, would wish to attach significant weight to the inspector's conclusions. The first ground of challenge accordingly succeeds.

Human Rights

22. The second ground of challenge that Mr Jones advances on the claimant's behalf is that the decision was unlawful in that it failed to address at all the Convention Rights of the claimant under Article 8 or Article 1 of the First Protocol to the European Convention on Human Rights. Both articles, he says, had been engaged through the claimant and other objectors raising concerns such as noise and amenity. The impact of activities upon the environment of neighbours was described by the European Court of Human Rights as a " particularly sensitive field" where particular scrutiny was required and a decision maker was thereby required to ensure that the decision was appropriate (Hatton v UK [2001] ECHR 36022/97 at para 97)

23. The council was in these circumstances required, Mr Jones says, to carry out a structured and articulated examination of whether the interference with the claimant's Convention Rights was justified and proportionate. He bases this submission on South Bucks District Council v Porter [2002] 1 All ER 425, and in particular on para 42 of the judgment of Simon Brown LJ, to which I will refer.

24. In addition, says Mr Jones, the council erred - on the assumption that it followed the advice to this effect in the officer's report - in treating the impact on neighbours' property prices as a consideration that was not material. R (Friends Provident Life and Pension Ltd) v Secretary of State for Transport, Local Government and the Region [2002] JPL 958 established, he said, that the impact of a rival commercial developer's business upon another's business engaged Article 1 of the First Protocol. The same would apply to the impact on the value of a neighbour's property.

25. I can deal with this latter point quite shortly. The Friends Provident case is no authority for the proposition that Article 1 of the First Protocol is engaged if a proposed development would have an adverse effect on the value of neighbouring property. That case concerned Article 6 and the procedures for determination of a planning application. But whether, and, if so, in what circumstances, Article 1 of the First Protocol may be engaged in relation to neighbouring property values is not a matter that I need to determine in this case because the value of his own property was not among the matters raised by the claimant in his objection to the application. It was a matter raised by the occupiers of numbers 81 and 83 Jenyns Close in relation to the value of those houses, but the claimant has no right under section 7 of the Human Rights Act 1998 to rely on an alleged interference with the convention rights of others.

26. As for the "concerns such as noise and amenity", as Mr Jones puts it, the complaint is not that these matters were not considered but that they were not addressed in a structured way and by reference to the claimant's Article 8 rights. It does not seem to me that South Bucks DC v Porter supports the contention that Mr Jones advances. That case concerned four appeals where injunctions had been granted under section 187B of the Town and Country Planning Act 1990 requiring the appellants, all of whom were gypsies, to remove their mobile houses from land that they occupied in breach of planning control. In the passage relied on by Mr Jones, Simon Brown LJ, having reviewed the competing interests that a court had to consider before granting an injunction in such a case, said:

"

I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interest, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge."

27. That, it seems to me, is, in its context, far removed from the proposition that Mr Jones advances. I do not think that planning decisions on applications for development affecting the amenities of neighbouring homes are at risk of challenge simply because the officer's report to the determining committee fails to refer to Article 8 in relation to objections that have been received and to structure the way in which the objections are considered so as expressly to identify the need for balance and proportionality. However, Mrs Townsend submits, and I accept her submission, that the officer's report here was in effect concluding that there was no interference with the claimant's Article 8 rights because there were no significant adverse effects on his home; and thus there was no need for a balancing exercise to be carried out for the purpose of that article.

28. The view of the officer was that no significant detriment would be suffered by adjoining properties as the result of the development. At para 9.5 the report said: "The proposed development has been sited such that it will have minimal impact on the residential amenity of adjoining occupiers." Later in the paragraph it was said: "Therefore in the light of these comments it is considered that there will be no significant impact on residential amenity in terms of overlooking or overshadowing." Whether anyone looking at the development now that it has been substantially carried out would share this view is possibly open to doubt. The members will have the opportunity to come to a conclusion about this when the application is reconsidered. But, given that the officer's view that the impact on neighbouring homes would be minimal was in effect a conclusion that there was no interference with the occupiers' Article 8 rights, the requirement for a balancing exercise did not arise. The same goes for the matters of traffic and noise during construction. On traffic para 9.6 of the officer's report concluded: "Whilst there may be some increase in traffic circulation, it is not considered that this would be a significant amount and would not be sufficient grounds to warrant a refusal." It is implicit in the report that concerns over noise during construction would be effectively met by the condition (condition 7) limiting noise levels and the hours of work. The reason for the condition is stated to be: "To ensure that the reasonable residential amenities of adjoining properties are adequately protected from noise pollution." In the light of these conclusions, any need to refer to Article 8 and to perform the balancing exercise that it contemplates did not arise. The claimant's second ground of challenge accordingly fails.

Overlooking

29. Mr Jones advances, as one of his three additional points, the contention that members were misled by the report on the matter of overlooking, so that they failed to take account of this material consideration. I think, however, that the report made sufficiently clear the officer's view - that the problem of overlooking was removed by the requirement that the upstairs windows in the northern facades of the house should be fixed and glazed with obscure glass. Whether that view should be relied on was a matter, it seem to me, that the members were able to consider in the light of the material then available to them. It did not dictate the views that they might form. It may be that the condition, under which even bedroom windows had to be fixed and of obscure glass, would suggest that the design and layout of this development was not wholly sympathetic to the existing development of houses with quite extensive gardens. This again, however, was a matter that the members were able to consider; and they will be able to reconsider it in the light both of the development as it stands and of the views of the inspector in his decision letter on the earlier proposal.

Traffic in Jenyns Close

30. The second additional contention advanced by Mr Jones is that the council failed to take into account a particular concern voiced in the letters of objection relating to traffic problems associated with the use of Jenyns Close as a collection point for children attending Bottisham Village College. Mr Jones says also that representations made in support of the scheme by Councillor Fitch were subject to the caveat, not mentioned in the report, that this support was conditional upon the county council being satisfied that there would be no difficulties with the entrance into the Village College car park.

31. This ground of challenge is not, in my view, made out. The members were told that there were objections that said that there would be traffic problems. They were told that the officer's view was that there would be no significant increase in traffic. They were able on their site visit to see the relationship between the Village College and the application site, if they were not already familiar with it. I do not think that it is right to conclude in the light of this that they left out of account the particular concern on traffic voiced in the objections.

The claimant's further representation

32. The claimant wrote objecting to the proposal on 17 April 2002. He sent an e-mail on 10 June 2002 making further comments. Mr Jones says that these further representations were not put before the committee either fully or in summary form. He says that the claimant was entitled to have his representations put before the committee. A note by the officer said that the e-mail was not put before the committee because he did not consider the matters raised were relevant. The action by the officer was, says Mr Jones, unlawful because it was not for him, but for the members, to decide what was relevant and because the letter did in fact raise a relevant matter, the consistency of decision making by the planning authority.

33. I cannot accept these submissions. The claimant had no right to have his representations put before the committee; and whatever the duties of the planning officer may have been it is not these that are the subject of this judicial review. The only possible basis of challenge would have to be on the ground that the representations identified material considerations and that these were left out of account by the council. Apart from a reference to construction noise (which was a matter that the council did consider, making it the subject of condition 7) the matters raised by the claimant concerned past planning problems associated with his workshop premises on the three sites elsewhere in Bottisham that the business had occupied successively since 1954. These matters had no direct relevance to the application before the council. I think indeed that they were wholly irrelevant. But even if they were not irrelevant it is in my view inconceivable that they could have caused the council to determine the application differently. They therefore fail the test of materiality that I have earlier identified.

Conclusion

34. This challenge succeeds on the first ground - that the council acted unlawfully in leaving out of account the earlier refusal and appeal decision. The grant of planning permission must accordingly be quashed.

Order: Application granted; planning permission quashed; Defendant to pay Claimant sum of £11,500 in full and final settlement of all costs incurred by Claimant up to and including today; sum to be paid within 21 days of date of order, failing which Claimant has liberty to apply.

(Order does not form part of the approved judgment)