England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(His Honour Judge Rich QC)

		Royal Courts of Justice Strand London, WC2 Thursday, 20th November 2002

1. LORD JUSTICE AULD: This is a renewed application by Mr James Robinson for permission to appeal an order of His Honour Judge Rich QC sitting as a judge of the Administrative Court. He challenges the judge's dismissal of his appeal under section 288 of the Town and Country Planning Act 1990 from a decision of the Secretary of State refusing planning permission for change of use of land at Marton Hall, Bridlington, for use as a touring caravan site. In so deciding, the Secretary of State had acted upon and confirmed a planning inspector's recommendation for refusal after the conduct of a public inquiry.
2. The appeal site, as the plans and photographs show, were some 90 metres or so from a substantial former country house and a listed building, Marton Hall. At one time, no doubt, that building had stood in its own formal parkland setting. However, like many such substantial country homes it had changed in its use over the years. The land surrounding it had in part been sold off. And such formal parkland setting as there may have been, by the time of the appeal before the inspector was barely discernible. Mr Robinson's main complaint is that the judge denied him a fair hearing by not allowing him to develop orally his comprehensive written skeleton arguments. Mr Robinson, who appeared for himself before the judge, felt that the judge was hurrying him. He was not well and was having difficulty in marshalling his thoughts.
3. The judge's judgment demonstrates that he had thoroughly read the papers before sitting to hear Mr Robinson's appeal. Those papers had included an incomplete skeleton argument. Mr Robinson provided the judge with the remainder in the form of an additional skeleton argument at the start of the hearing. Again, it is plain from the judge's judgment that he read and digested that additional part of the skeleton argument at an early stage of the hearing.
4. Whilst I have some sympathy for Mr Robinson's concern as a litigant in person, coping with the speed at which courts work, the whole purpose of a skeleton argument is to save the need for extended oral argument, certainly oral argument which largely repeats and sometimes unnecessarily elaborates on its contents. The judge clearly took the view that Mr Robinson in his oral submissions was adding little of value to his skeleton arguments which, between them, presented a coherent, comprehensive and detailed account of his complaints about the Secretary of State's decision. I can see no basis for Mr Robinson's complaint on that ground.
5. In a sense, I am reassured in so concluding by the concise and competent way in which Mr Robinson presented his oral submissions to the court today, based on the skeleton argument. That skeleton argument succinctly but sufficiently echoes the contents of his skeleton arguments before the judge and his arguments before me today appear, from my reading of the judge's judgment, to be essentially the same. So, both orally and in skeleton form, it seems to me that I have what the judge had.
6. Looking at the substance of Mr Robinson's complaints before the judge and before this court, it seems to me that the judge rightly identified the essence of them, namely a number of alleged inaccuracies of the planning inspector in his report, causing the Secretary of State to decide against planning permission on a wrong factual basis. These, submits Mr Robinson, were of such an effect as to unseat the Secretary of State's decision and to require it to be quashed.
7. Mr Robinson singled out the main four to me, as he had before the judge.
8. The first was an undoubted error in the inspector's description of the appeal site as being part of a significant area of open rural landscape of historical importance to the west of Bridlington, when in fact it is to the east of Bridlington.
9. The second was of the inspector's description of the appeal site as only a few metres away from part of Marton Hall. In fact, although it was 25 metres from the hall's function room, that building was separate from the hall and was not listed. The hall itself was, as I have said, some 90 or so metres away.
10. The first of those two errors, the site being to the east and not the west of Bridlington, was undoubtedly a slip of the pen. Although Mr Robinson would not on that account alone have sought to quash the Secretary of State's decision, I think he relies upon it as an indication of a certain laxity permeating the report.
11. As to the second, the description of the appeal site as being only a few metres away from Marton Hall, the judge felt that that description was somewhat loose, but he was of the view that it did not amount to an error and that, in any event, the position would have been plain to the Secretary of State from the various plans accompanying the inspector's report. That must be so.
12. The third suggested error upon which Mr Robinson strongly relied was the inspector's recording from his site visit that parts of the appeal site were visible from the nearby road, Flamborough Road, running east/west to the north of the site. Mr Robinson sought to put evidence before the judge that the inspector was wrong about that, but the judge refused to admit it at such a late stage, no notice of it having been given to the Secretary of State so that the latter could properly test it in the appeal before the judge. In my view, that was a matter for the judge to decide within his discretion. Procedurally, I can see no arguable basis for faulting it on this application.
13. Moreover, the judge added, in refusing to admit the evidence, at paragraph 10 of his judgment:

"In order to allege that that conclusion of the inspector was erroneous it would be necessary to show that no part of the site was visible at any point along the Flamborough Road. Even if I had admitted the evidence it could not have led to that conclusion. An assertion of precisely the same kind as the alleged error was made in the evidence of the planning authority at the inquiry. The inspector apparently accepted that evidence and in a witness statement prepared for the court has told the court that on his inspection after the inquiry he had confirmed the view that he had formed by walking a path along the side of the road after the conclusion of the inquiry. I am not satisfied, on the materials available to the court, that that short summary of the visibility of the site from the Flamborough Road was inaccurate and that therefore the inspector's report would have led the Secretary of State into making a decision on the basis of mistaken and therefore immaterial considerations."

That is a finding of fact by the judge on the material before him, and also by way of a reasoned response to the proposition that Mr Robinson sought to make in seeking to adduce the new evidence. It is not a finding that in my view can be re-opened by way of appeal to the Court of Appeal.

14. The fourth suggested error on which Mr Robinson relied was of the description by the inspector of the site being an integral part of parkland around Marton Hall and that, for that reason, its development as a caravan site would have impinged upon the landscape quality of the area. There is no doubt that this listed building, an attractive one, is no longer, if it ever was, in a formal parkland setting. Nevertheless, it is in a setting with some landscape quality with rural surrounds. One can get the feel of what the inspector had in mind by looking at the photographs that were before the judge and are before this court. The judge took some trouble with this complaint of Mr Robinson, regarding it probably as his "best shot". He said, in paragraph 14 of his judgment, that the description given by the inspector, in particular the part which referred to parkland, was not inconsistent with land being parkland, that is, used as pasture for sheep grazing. He added:

"I cannot think, nor would a fair reading of the inspector's report lead me to believe, that the word 'parkland' was being used in what I think is its strictest sense, namely, an area set aside for the keeping of deer for the purposes of hunting."

He added in paragraph 15:

"One can have landscaped parkland of greater or less quality."

In my view, that was a mixed finding of fact and an exercise of judgment and construction by the judge which was open to him.

15. Those were the main complaints canvassed before the judge and which have been repeated before me today. The judge's final conclusion was that, to the extent that there had been errors of fact in the inspector's report, cumulatively they were not of such materiality as to require the Secretary of State's decision to be quashed. The nature of the appeal site, its location, its surroundings and the planning status of those surroundings were plain, not only from the inspector's report, read as a whole, but from the plans and photographs which went with it.
16. Mr Robinson, standing back from the individual arguments, submits that, nevertheless, the inspector's report gives a totally wrong impression, for the reasons he advanced, of the nature of the appeal site and its sensitivity, so that the ordinary man in the street, if presented with such a report, would come to a wrong conclusion.
17. Planning decisions of this sort, whether made by planning inspectors or by the Secretary of State exercising his planning judgment, or by a judge considering the matter by way of appeal under section 288, are essentially judgmental matters. It seems to me that the judge properly weighed the concerns of Mr Robinson - although Mr Robinson may not have felt so at the time - and was entitled to take the view that such errors as Mr Robinson had identified were not, looked at overall, such as to give a wrong impression to the Secretary of State when making the critical planning decision, exercising his planning judgment, that he had to make on this application. For those reasons, I consider that the proposed appeal has no real prospect of success and I refuse the application.
Order: Application refused.