England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBCOF 95/1649/D

(HIS HONOUR JUDGE RICH QC sitting as a High Court Judge )

Royal Courts of Justice

Strand

London WC2

Tuesday 22 October 1996

B e f o r e:

THE MASTER OF THE ROLLS

(LORD WOOLF)

LORD JUSTICE ALDOUS

LORD JUSTICE BROOKE

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PAUL BRIGHTWELL

Applicant/Appellant

-v-

SECRETARY OF STATE FOR THE ENVIRONMENT

First Respondent

-v-

BROADLAND DISTRICT COUNCIL

Second Respondent

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR D OUSELEY QC and MR D PUGH (Instructed by Emmett & Tacon, Norwich NR1 1NB) appeared on behalf of the Appellant.

MR T MOULD (Instructed by The Treasury Solicitors, London, SW1H 9JS) appeared on behalf of the Respondents.

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

JUDGMENT

THE MASTER OF THE ROLLS: Mr Paul Brightwell appeals against a decision of His Honour Judge Rich, sitting as a Deputy High Court Judge, when he dismissed the application of Mr Brightwell, made under section 288 of the Town and Planning Act 1990, to quash a decision of the Secretary of State. That decision was taken by an Inspector on written submissions on an appeal by Mr Brightwell against the refusal of the Local Planning Authority to allow a caravan to be cited at The Piggeries, The Turn, Hevingham, Norfolk. The Piggeries is situated at the edge of a small settlement just to the west of the main village of Hevingham.

There are two separate parts to this appeal. The first part refers to the decision of the judge only to grant leave to Mr Brightwell to amend his application if he gave an undertaking to pay into court the costs of any adjournment, which was a necessary consequence of the application. The second was as to the merits of the decision of the judge.

So far as the first part is concerned, Mr Brightwell is legally aided. The intention of the judge in requiring the undertaking was that the lawyers should be responsible for ensuring, if the undertaking was given, that it would be complied with. The appellant disputes that the requirement of the undertaking was something which could properly be demanded by the judge as a condition of leave to amend the application.

I have some sympathy with the approach of the judge. The application to amend was made at a very late stage, after the commencement of the hearing. The judge was concerned that the consequence of giving leave to amend would necessarily involve an adjournment. He came to that view because the second respondent, the Local Planning Authority (Broadland District Council) had taken no part in the proceedings. However, the application before the judge was being opposed by the Secretary of State, the first respondent. This is the usual situation when a decision of this nature is being challenged. The Secretary of State takes upon himself the responsibility of defending the decision which was taken on his behalf.

The first matter, therefore, which has to be considered in assessing the appropriateness of the course taken by judge is whether an adjournment would have been necessary if the application to amend had been granted. The judge took the view that the Local Planning Authority would have to be notified of the proposed amendment and, because they were not a party to the proceedings, an adjournment would be necessary. However, I take a different view from that of the judge on this matter, although I am very conscious of his very considerable experience in this area.

If the Local Planning Authority had decided to leave the matter to be dealt with by the Secretary of State, they could not possibly have had any objection to not being notified as to the proposed amendment. It was a desirable amendment, but one which raised no different issue which would affect the Local Planning Authority over and above the case already being made.

This case involved an allegation that the decision letter of the Inspector disclosed that no proper consideration had been given by him to one or more of the material issues which were before him. The new allegation of a failure to give adequate reasons was a natural accompaniment to the allegation of the failure to give proper consideration to the issues. I cannot conceive that the second respondent would seek to intervene because of a leave to amend being granted. That is, therefore, sufficient to dispose of the first ground of appeal. There was no need for an adjournment; if there was no need for an adjournment there would be no additional costs incurred as a result of an adjournment, and the requirement of the undertaking was unnecessary and inappropriate.

Having come to that conclusion, it is unnecessary to deal in detail with the suggestion that, in any event, such a requirement of an undertaking would be improper. However, I confess that I have real reservations as to its propriety. The Secretary of State did not seek to suggest before this court that it was a proper requirement, and it interferes with the position of a legally aided litigant under the Legal Aid Act. It also by-passes the requirements that have to be considered by a court before it imposes a wasted costs order which, as the appellant contended, was, in effect, the result of requiring such an undertaking having regard to Mr Brightwell's needs.

Having dealt with the first part of the appeal, I turn to the second ground which concerns the merits. Mr Ouseley, QC, who appeared on behalf of Mr Brightwell on the appeal, but did not appear in the court below, divided his case into three sections. He submitted that the Inspector, in coming to his conclusion, had not properly dealt with the functional consideration which arose out of the application, nor had the Inspector dealt with the financial or viability considerations. Finally, he submitted that the Inspector had failed to deal with the possibility of allowing the appeal and granting planning permission for a limited period of time.

Mr Ouseley included as part of his contentions, on the assumption that Mr Brightwell's appeal with regard to the leave to amend point would succeed, an alternative allegation that if the Inspector had properly considered the matter then he had not explained it by giving adequate reasons.

The matter was dealt with before the Inspector on written submissions. The applicant relied on letters written by his legal advisers and a report by an expert. The Local Planning Authority put in a written submission. It was an essential part of the application that the judge, and the Inspector on the appeal to him, would weigh the evidence which was relied upon by the applicant and the Local Planning Authority against the numerous planning policies which applied to an application of this sort.

An application for planning permission in a rural area for the siting of a caravan is clearly a matter which can give rise to planning considerations of an important nature. There were local and national policies which had to be taken into account. The written submissions of the Local Planning Authority set out the local policies to which I should refer. The first of these was the general policy statement H6 which was applicable. This provided:

"Outside towns and villages planning permission for new residential development will not be given unless it is justified for agriculture, forestry, organised recreation or tourist facilities....and the need for the development could not be met within an existing settlement and there are no overriding environmental objections."

The District Council had adopted a policy H11 of the previously approved structure plan which was also relevant. That deals with the fact that we are not concerned with the normal residential development but a caravan. It is relevant because it states:

"Applications for mobile homes, including residential caravans, will be determined as if they were for permanent housing."

The third policy to which I must refer is H8 of the Rural Parish Policies which provides:

"Outside the villages, planning permission for new residential development will not normally be given. However, permission may be given for dwellings connected with agriculture, forestry, organised recreation or tourist facilities....if it can be demonstrated that the need for the proposed development could not be met within an existing settlement. In the case of dwellings for agricultural workers, planning permissions will normally be granted where there is a proven agricultural need and when such dwellings are sited in close proximity to existing agricultural buildings."

The national policy which is applicable is PPG7 annexe E which is headed, Agricultural and Forestry dwellings. E1 states:

"One of the few circumstances in which isolated residential development in the countryside may be justified is when accommodation is required to enable farm or forestry workers to live at or in the immediate vicinity of their place of work. Normally it will be as convenient for such workers to live in nearby town or villages as it will be for them to live where they work. This may have domestic and social advantages as well as avoiding potentially intrusive development in the countryside.

E2: There will be some cases, however, in which the demands of the farming or forestry work concerned may make it essential for one or more of the people engaged in this work to live at or very close to the site of their work. Whether this is essential in any particular case will depend on the needs of the farm or forestry enterprise concerned and not on the personal preferences or circumstances of any of the individuals concerned."

E3 refers to the need for strict controls and then goes on to say:

"It is, therefore, essential that all applications for planning permission for new agricultural or forestry dwellings are scrutinised thoroughly with the aim of detecting attempts to abuse the concession that the planning system makes for such dwellings.

E4. In particular, it will be important to establish that stated intentions to engage in farming or forestry are genuine, are reasonably likely to materialise and are capable of being sustained for a reasonable period of time. It will also be important to establish that the needs of the intended enterprise require one or more of the people engaged in it to live nearby. In assessing applications for new agricultural or forestry dwellings local planning authorities may therefore find it useful to apply functional and financial tests."

E5 sets out the functional test which includes:

"Such a requirement might arise, for example if workers are needed to be on hand day and night:

- in case animals or agricultural processes require essential care at short notice;

- to deal quickly with emergencies that could otherwise cause serious loss of crops or products, for example by frost damage or the failure of automatic systems.

E6. The protection of livestock from theft or injury by intruders may contribute on animal welfare grounds to the need for an agricultural dwelling, although it will not by itself be sufficient to justify one.

E7. In determining whether a functional requirement exists it will be reasonable to consider not only the requirements of an enterprise as it exists at present, but also its likely future requirements, provided there is clear evidence of a firm intention and ability to develop the farming or forestry business concerned."

Annex E clears the distinction between the functional requirements and the financial or viability requirement.

Turning to the written submissions which were before the Inspector, the starting point is a letter of 26 October l994 written on behalf of the applicant. That letter includes a background information as to Mr Brightwell's activities. Among other things it states:

"Until six months ago, Mr Brightwell lived at 31 Haslip Close with his family [in Norwich]. At that time he had only approximately 30 sows and was constantly running back and forth from his home and site to look after them. he would have to be on site at all times of the day especially when they were farrowing, and quite simply, Mr Brightwell had little time to spend with his family. We understand that he had a very small touring caravan, which he would stay in when he had to be on site at night.

Mr Brightwell wished to increase the number of sows to the current number of 45 plus 3 boars so that he could run the piggery as a full time occupation. To look after that number of sows, he would have to be constantly on site, at all times of the day and therefore, the only way he could do that would be to live in site with his family. There was no other way that he could do the job properly. If one accepts that, then there is certainly no other property where Mr Brightwell could live, as certainly he cannot afford another property, and we believe there are no properties available, either to buy or to rent nearby."

The letter continues by dealing with the environmental considerations. It was followed by a letter which indicates that the approximate number of animals on site are between 45 and 50. The matter is then taken further by a later letter which indicates that the number of sows on the site had been increased to 60.

The contents of the letter were supported by the report of the expert, Mr Smith, who made an agricultural appraisal of what was involved. Among the matters to which Mr Smith drew attention, was the history; that Mr Brightwell's business had started off with a casual involvement in pig keeping. It stated that he intended at that time to expand to 60 sows and makes various comments about the informality of the business's approach, but it does refer to the fact that during Mr Smith's visits to the site building work was taking place, blockwork walls were being erected and a pole barn was nearing completion, the intention being to use that for straw storage. There is also reference to security and the fact that there had been one incident about 18 months previously when there had been intruders and damage caused.

Mr Smith makes an assessment of the financial viability of the project. He deals with the matter by looking at general statistics which are available, and then makes allowances for the particular manner in which the applicant was carrying on his business, the most important aspect of which was the fact that he could obtain pig food on very attractive terms which meant that his feed costs were much less than the average. On the basis of that examination, he came to the conclusion that a herd of 45 sows would yield a margin of £12,749 per annum whereas a herd of 60 sows would yield just under £17,000. Mr Smith expressed the opinion that, given the number of sows already at the piggeries, which was 45, there should be someone close at hand at all times in the interests of pig welfare, security and general efficiency. That report is followed by a letter of the 3 March 1995 where he says:

"In my opinion this would be technically possible but I believe it would be very foolhardy, particularly in a commercial situation.....for Mr Brightwell to run the existing pig unit from a Norwich address."

He then explains why that is so.

The Local Planning Authority in its written submissions dealt with the situation when the herd was 50. Having referred to the relevant policies, the Local Planning Authority stated in paragraph 4.3:

"The issue in this case is whether there is sufficient justification for the retention of a caravan for residential purposes on the appeal site, which otherwise would clearly be contrary to established planning policies and which would constitute an undesirable isolated development in the locality, which would be detrimental to the visual appearance of the rural area."

It then goes on to say:

"From the information submitted with the application it would appear that there are under 50 animals on the site at any one time. It is the opinion of the Local Planning Authority that this number of stock does not require a person to live on the site in order to provide good husbandry for the animals."

That is expanded at paragraph 4.6 where it said:

"The Local Planning Authority takes the view that the number of animals on the site does not require the attention of a person permanently residing on the site. Whilst it is acknowledged that the good husbandry of the animals does require someone to visit the site on a regular basis, this could be done quite adequately from a property in the nearby vicinity."

The Local Planning Authority then state that they are aware of the history and that property in which the appellant lives is:

"....in the centre of Norwich some 9 kilometres from the site and obviously indicates that a business has been operated on a similar scale to that of the present day without the requirement of the Appellant to live any closer than 9 kilometres from the appeal site."

Finally, in its conclusions, the Planning Authority indicates that the development proposed is unacceptable and adds:

"If, after consideration of these representations, the Inspector is inclined to allow the appeal, Local Planning Authority (in accordance with the requirements of Circular 16/86) requests that the Conditions outlined on the attached appendix should be imposed."

and those conditions are for a limited time period for the condition to be applied.

On the basis of those written submissions, the Inspector gave a decision on 2 May 1995 when the herd was 60 in number, the relevant paragraphs of which, numbers 6 and 7, stated:

"Until early in 1994 your client managed the site from Norwich. He then moved onto the site and increased the number of pigs to about 45. From the evidence, the management of this enterprise appears to be so informal as to cast doubt on the functioning and viability of what is, according to your client's expert, a DIY/low cost enterprise. You indicate a generalised concern that someone should be close at hand at all times in the interest of pig welfare, security and general efficiency as well as emergencies. However, your client has managed about 30 pigs on site from his home in Norwich, and I have seen no evidence to suggest that it is necessary to live on site to manage what is still a relatively small enterprise.

Annex E of Planning Policy guidance 7 requires a robust justification to establish whether a dwelling of any sort is essential in the countryside for the proper functioning of an agricultural enterprise. I consider that there is no clear evidence to show that the enterprise is likely to be sustained for a reasonable period of time. As the provision of a dwelling in the countryside is not subject to personal preference, but to the needs of the enterprise, I conclude the caravan would not be necessary for agricultural purposes. Neither would the proposal satisfy the aims of current and emerging countryside policies. It would consolidate the buildings presently on the site and would help to extend the ribbon of development along The Turn. Thus, even though you say the site is well screened, the caravan constitutes an unwarranted intrusion in the countryside. therefore, I consider that the proposal would harm the open countryside which should be protected for its own sake. Furthermore, if the appeal were allowed, it would be difficult for the Council to resist further similar applications."

In his judgment. the judge examined the arguments advanced on Mr Brightwell's behalf with care. In rejecting those arguments, he adopted what could be described as a generous approach to the interpretation of the Inspector's letter. Because the application to amend had not been granted, he was not required to consider the quality of the reasoning, which is a matter which arises for consideration on this appeal.

Under the relevant legislation, the Inspector is under a statutory obligation to give reasons for his decision. Those reasons must be intelligible and deal at least with the primary issues which are before him. The general approach which I would adopt is indicated in a speech of Lord Lloyd in the case of Bolton Metropolitan Borough Council v The Secretary of State (1990) 61 P & CR 343 at 352. This is a case which is now generally referred to on appeals of this nature and on applications before the single judge. I must confess some surprise that the case only appears in specialist reports.

While the standard now has been laid down in a number of cases, including that to which I have just referred, I would emphasise that the approach to the reasoning of an Inspector on a decision of this nature must be pragmatic. One must take into account the extent and the nature of the issues which are before the Inspector. One should not be too astute to find defects in his reasoning.

It is clear that the Inspector clearly had in mind the distinction between the financial or viability consideration that he had to take into account as well as the functional aspect. Paragraph 6 deals with the financial or viability aspect and, clearly, the Inspector formed an adverse impression of its future viability, notwithstanding that there was material before him which he does not mention indicating that Mr Brightwell was investing in the piggery and seeking to put it on a sound basis. So far as the financial consideration is concerned, I would not criticise the Inspector for coming to his conclusion that there was some doubt as to the viability.

Turning to the other aspect, the criticisms of Mr Ouseley focused on the phrase: "I have seen no evidence to suggest that it is necessary to live on site to manage what is still a relatively small enterprise." If one reads that phrase as referring strictly to the requirement to actually live on site, then I can understand how the Inspector came to make that comment.

The case which had to be answered by the Inspector, and indeed by Mr Brightwell's lawyer, was one which was capable of being met by an ability to live in the close vicinity; for example, in the nearby village or the two nearby settlements. But, as I understand the case which was being put forward, it was clearly making the point that the herd could not be looked after properly from Norwich.

While the Inspector was entitled to draw attention to the fact that Mr Brightwell had managed 30 pigs on site from his home in Norwich with difficulty, it seems to me that there was no justification for him not considering the point which was being made about the need for someone close at hand. He expresses no conclusion on that point. He had it in mind because just above the phrase which I have cited he actually he uses the words "close at hand " but he does not deal with it. What was being said on Mr Brightwell's behalf is that he could not obtain any alternative to the site where he carried on his agricultural activities. There was nothing within his means or, as far as was known, available close by and, therefore, he had no alternative but to live on site or to live some distance away, for example in Norwich.

In addition, it is not clear from the Inspector's letter as to whether he was aware, or whether he had failed to appreciate, the fact that there were now 60 pigs on site. He refers to 45 pigs, but nowhere appears to have in mind that there has been another substantial increase, proportionately, to 60 pigs. To contrast the position which relates to 30 pigs to that which now existed on site, might be unfair to the case which Mr Brightwell was putting forward.

It is contended on behalf of the Secretary of State that that is not a fair criticism of the Inspector because of the use of the word "still" before "relatively small enterprise". By using that word it is suggested that the Inspector is indicating that he has in mind a herd of 60 pigs rather than a smaller herd, as had previously been referred to. I do not know whether that is a right deduction or not; certainly the letter is not clear in that regard.

Looking at the reasoning as a whole, bearing in mind in particular the approach the Inspector adopted in relation to the functional consideration, I am bound to say that the letter does not meet the required standard of reasoning. Either the Inspector has failed to take into consideration the question of the possibility of the site being served from close at hand, or he has not adequately set out his conclusions in that regard.

In considering a matter of this sort, the decision letter has to be looked at as a whole. It is for that reason, and that reason alone, that I refer to the third consideration on which Mr Ouseley relied, namely, the failure of the Inspector to say anything about the possibility of granting permission but with a limited time condition.

So far as that is concerned, I fully accept, as has been made clear in the case of Top Deck Holdings Ltd v Secretary of State [1991] JPL 961 that there is no obligation on an Inspector, in the absence of any reference to an appropriate condition, to search for a condition which might be used to assist an applicant who is appealing against the decision of a Planning Authority.

However, in this case, one of the matters which clearly influenced the Inspector was the viability of the whole operation. As I have indicated, there were signs that the operation was improving in its viability and that Mr Brightwell was in fact making a success of it. On the other hand, it was only viable on the basis that he devoted a very considerable amount of time personally to the operation and if, for example, he became ill the position could be transformed.

A time condition was obviously a possibility and was relevant, as is recognised by the specific reference by the Local Planning Authority. Again, I would say that the appellant is not being unreasonable in making a criticism of the Inspector for not making any mention of that possibility. That is a further factor that I would put into the balance. One does not know whether the Inspector has considered it but not mentioned it, or whether it is a case of his failing to consider it. In either event, he could be criticised to a minor degree in that regard. Whilst that is not a consideration with which I would have interfered with the decision of the judge, I think it is a matter to be taken into account on the general approach.

Looking at the matter as a whole, which I have indicated to be the appropriate approach, the decision I have come to is that the decision should be quashed. I do not think there is any problem with Mr Brightwell establishing prejudice in so far as that is required before a decision of this nature is quashed. Clearly, he is entitled to know for the future management of his affairs the basis of the decision and, in view of what I have indicated, it can be concluded here that there is either a form of defect, failure of proper consideration, or there is a failure of proper reasoning.

Accordingly, I would allow the appeal and remit the matter to the Secretary of State so that it can be reconsidered by an Inspector.

LORD JUSTICE ALDOUS: I agree with the order that has been proposed and only wish to add a few words on the merits. I have come to the conclusion that the Inspector's decision on both the material issues did not provide adequate reasons.

My Lord has set out the evidence and submissions that were before the Inspector in detail. I therefore can turn directly to the decision letter of the 2 May 1995.

In paragraph 3 of that letter, the Inspector said:

"From all the evidence, I consider that the main issue to be determined here is the effect of the proposal on the open countryside near Hevingham."

I believe that the Inspector mis-stated the issue which was properly stated by the Local Authority in paragraph 4.3 of their submissions as:

"The issue in this case is whether there is sufficient justification for the retention of a caravan for residential purposes on the appeal site, which otherwise would clearly be contrary to established planning policies and which would constitute an undesirable isolated development in the locality, which would be detrimental to the visual appearance of the rural area."

The mis-statement of the main issue by the Inspector does not appear to have misled him as he went on to consider the essential issues which were relevant having regard to the local and national planning policies.

In paragraph 6 of the letter the Inspector turned to the relevant considerations. He concluded that the applicant's appeal should be dismissed because he decided that it was not necessary for the applicant to live on site and he concluded in paragraph 7 that there was no clear evidence that his pig breeding enterprise was viable.

His reasons for his first conclusion were contained in the last sentence to paragraph 6: first, he concluded as fact that the applicant had managed about 30 pigs on site from his home in Norwich and, secondly, he had seen no evidence to suggest that it was necessary to live on site to manage what was a relatively small enterprise.

It is true that the applicant had managed a pig breeding enterprise of about 30 sows while living in Norwich, but it does not follow from that that it would have been practical to do so after his herd had been increased to 60 sows. That was made clear by Mr Smith, a consultant to the pig industry, in the conclusion of his report. He said that somebody should be close at hand at all times in the interest of pig welfare, security and general efficiency. He elaborated on that in the letter of 3 March when he said that it was technically possible, but it would be very foolhardy, particularly in a commercial situation, to manage the enterprise from Norwich.

Therefore, the applicant's case before the Inspector was that he needed to live in the vicinity and, as stated in his solicitor's letter, there was no accommodation within the existing settlement. That was challenged by the Local Authority. There was no evidence to suggest that the applicant needed to live on site rather than in the vicinity. Thus, potentially there were two issues before the Inspector: namely, did the increase of the herd from 30 to 60 sows require the applicant to move nearer to the farm than Norwich and, if so, was there accommodation available close by?

The Inspector rejected the applicant's case, but failed to state how he had arrived at his decision. He may have concluded that the 60 sow herd could be looked after by a person residing in Norwich. If so, he rejected the evidence of Mr Smith. I suspect that he accepted Mr Smith's evidence on this part of the case and therefore concluded that a herd of 60 sows could be looked after by a person living within the existing settlement and also that there was suitable accommodation to be found within the neighbouring villages. If so, I believe that he was under a duty to say so. My Lord has referred to Bolton and it appears to me that one of the material issues in this case was whether there was suitable accommodation in the surrounding area, there being no evidence he needed to live on site. In my view the Inspector's decision cannot be allowed to stand as he does not make it clear why he concluded that the applicant need not live on site.

The Inspector also held that there was no clear evidence to show that the enterprise was likely to be sustained for a reasonable period of time. Mr Smith's report showed that, upon the facts as then known, the income which Mr Smith would receive would show a margin exceeding the wages of an agricultural worker. No doubt that was with a "fair wind" behind him. However, the statement by the Inspector must be read in the light of that evidence. To arrive at his decision, the Inspector had to have doubts as to part of the report, or doubts as to the viability in the future. However, he failed to give any reason why he concluded that there was no clear evidence. In my view, he should have stated the reason why he had concluded that the evidence was not clear. That was necessary to enable the reader to know what was the issue that the Inspector had in mind when he came to his conclusion.

For those reasons, and the reasons given by my Lord, I agree with the order proposed.

LORD JUSTICE BROOKE: I also agree with the order proposed. We have been told by both parties in this court that at the hearing before the judge counsel for the Secretary of State raised no objection to the late amendment for which leave was sought by the applicant; nor did he ask for an adjournment to give him or his client the opportunity to respond to the new point for which leave was granted. He was quite ready to deal with it there and then.

I agree with my Lord, The Master of the Rolls, that in the particular circumstances of this case there was absolutely no need for the judge to make a conditional grant of leave to amend on the terms my Lord has described. Practitioners would, however, be unwise to treat the decision of this court today as giving any sort of green light for any late amendment of this kind. Late applications to amend will fall to be treated by the judge at the hearing on its own merits, or lack of them, in accordance with well established principles. In this particular case, I agree with my Lord that the judge was clearly wrong in the manner in which he exercised his discretion on the application.

So far as the substantive merits of the appeal are concerned, I have nothing to add to the judgments given by My Lords with which I agree.

Order: Appeal allowed. Respondent to pay costs of appeal and in the court below.