England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DVISION
ADMINISTRATIVE COURT
(MRS JUSTICE LANG)

		Royal Courts of Justice Strand London WC2A 2LL
		19 March 2013

1. Lord Justice Lewison:

1. The issue raised on this appeal is whether a Planning Inspector gave adequate reasons for his decision to dismiss an appeal against a refusal of planning permission. Lang J held that he had not and quashed the decision. With the permission of Pill LJ the Secretary of State appeals.
2. Proudfoot Properties Limited applied for planning permission to construct six houses with triple garages at Briar House Farm, Dewlands Hills, Crowborough, East Sussex ("the appeal site"). The appeal site had previously been used for intensive pig rearing. It lies within the High Weald Area of Outstanding Natural Beauty. Wealden District Council refused planning permission on 28 May 2010.
3. In summary, the reasons for refusal were: (1) the development was unsustainable and inappropriate in an Area of Outstanding Natural Beauty; (2) the development would be an undesirable and unwarranted alteration on an exposed site; (3) the proposed site had inadequate access by public transport, pedestrians and cyclists; and (4) the approach road was unsuitable to serve the development.
4. Proudfoot Properties Limited appealed against the refusal. Mr Tim Wood was appointed as the Inspector to determine the appeal. He received written submissions, which in the case of Proudfoot Properties Limited were very extensive, and conducted a site visit. He also held an informal hearing lasting about half a day.
5. In his decision letter dated 1 June 2011, the Inspector said that there were five main issues in the appeal. They were:

(1) Whether the proposal accords with national and local policies for the control of residential development in rural areas.

(2) The effects of the proposal on the High Weald Area of Outstanding Natural Beauty.

(3) The accessibility of the site by means other than the private car, and to shops and services.

(4) The effects of the proposal on highway safety.

(5) Consideration of any 'fallback' position which may be available to the appellant."

6. It is not in dispute that these were the main planning issues, although Mr Proudfoot, who controls Proudfoot Properties Limited, also put forward personal circumstances and human rights considerations which I will come to in due course.
7. The Inspector decided each of those issues adversely to Proudfoot Properties Limited. He gave detailed reasons for his conclusions on each of those planning issues and no complaint is made about that. Having decided the main issues adversely to Proudfoot Properties Limited, the Inspector then went on to consider what he headed "Other matters". It is that part of his decision that is challenged.
8. The Inspector's duty to give reasons is summarised by Lord Brown in South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 at paragraph 3636. Lord Brown said:

" 36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

9. In his summary of principle, by requiring reasons to enable disappointed developers to assess their prospects of obtaining some alternative permission, or unsuccessful opponents to understand how the policy or approach underlying the grant of permission might impact upon future applications, Lord Brown has incorporated by reference what Lord Bridge had said in Save Britain's Heritage v No 1 Poultry Limited [1991] 1 WLR 153 at 167.
10. The use of the appeal site for intensive pig rearing had ceased in 1999 or 2000 following complaints from neighbours and the service by the Council of an abatement notice under section 80 of the Environmental Protection Act 1990, alleging pollution and nuisance caused by the discharge of slurry from the pig rearing operation. Mr Proudfoot alleged that the use was discontinued as the result of a deal between him and the Council, brokered on the Council's behalf by Mr Nigel Taylor, the Assistant Manager of Public Protection and Environment, in accordance with which Mr Proudfoot would cease the pig rearing operation and a change of use of the land would be secured to compensate him for the resulting economic losses. Mr Proudfoot says that he ceased his use in accordance with his undertaking to the Council to do so, but no change of use was agreed.
11. Based on that alleged deal, which the Council denied, Mr Proudfoot alleged that the Council's sustained position of the preceding ten years of refusing to grant planning permission for any alternative use infringed Article 1 of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms (A1P1) because it prevented the peaceful enjoyment of his possessions, namely the farm, in that the Council removed his right to run his business without recompense or substitution.
12. He also alleged that, in permitting development on other sites within the High Weald Area of Outstanding Natural Beauty but not at Briar House farm, the Council had discriminated against him in breach of Article 14 of the Convention.
13. The extensive written submissions that Mr Proudfoot made in support of his appeal referred to human rights considerations in approximately one page out of 140-odd pages of written submission, but he complains repeatedly that the Council had in effect broken its word.
14. Under the heading "Very special circumstances", which formed five or six pages of his written submissions, Mr Proudfoot drew attention to no less than 63 special circumstances which he said should overcome the general policy against the grant of planning permission in an Area of Outstanding Natural Beauty of which the Council's actions in seeking to close the pig unit was one out of those 63 considerations. However, he did come back to that question in an addendum to his written representations in which he said to the Inspector:

"The main point here is whether the Council should be made to keep its word or whether it is acceptable for any Council to lie through its teeth and cheat. There have been many Court cases to establish that this behaviour is unacceptable and that the public is entitled to rely on the spoken word of a Council official, but in this case it is backed up with a letter from the Council's environmental department."

15. The Inspector considered this aspect of the appeal in paragraphs 27 and 28 of his decision letter. He said:

"'27. Submissions were made by the appellant relating to Articles 1 and 14 of the European Convention on Human Rights, although it was not expanded upon at the Hearing. However, this consideration must be balanced against the wider public interest. For the reasons given above, I have found that the proposal would be harmful to the character of the area, sustainability and highway safety and I am satisfied that these legitimate aims can only be safeguarded by the refusal of permission. On balance, I consider that the dismissal of the appeal would not have a disproportionate effect on the appellant. ... With specific regard to Article 14 of the European Convention on Human Rights, as I found no disproportionate effect in relation to Article 1, there is no breach of Article 14.

28. The appellant has also set out his particular personal circumstances which he states should be taken into account in reaching a conclusion on this matter. I have carefully read the statements made by the appellant and the Council and I note that there is a level of basic disagreement relating to the direct cause of cessation of the pig rearing use and other matters. Having taken these matters into account, I consider that the circumstances of the appellant are insufficient to outweigh the harm that would arise from the proposed development."

16. The principal complaint that Proudfoot Properties makes is that Inspector did not determine the factual dispute about why the use of the appeal site for pig rearing ceased and whether there was the deal that Mr Proudfoot alleged. Thus he did not decide whether he accepted or rejected Mr Proudfoot's case that the use ceased as a result of a deal between him and the Council.
17. It was essentially this submission that the judge accepted. She said in paragraph 39 and following:

"39. I consider that the Claimant's 'personal circumstances' and human rights grounds were important issues in the appeal. The parties, and in particular the Claimant, were entitled to know what the Inspector's reasons were for rejecting both grounds which, at least in principle, could have affected the outcome. The Inspector did give his reasons, in paragraphs 27 and 28, and so the only issue is whether they were adequate.

40. I accept the Claimant's submission that it was necessary for the Inspector to inform the parties whether or not he accepted the Claimant's submission that he had closed the pig rearing unit on the understanding that the Council had agreed to give permission for alternative development on the appeal site. The Inspector did not do so, merely referring to the evidence and the dispute between the parties. This issue was central to the Claimant's case on 'personal circumstances' and human rights. If correct, it would be bound to affect the weight which the Inspector afforded to this aspect of the Claimant's case, particularly when considering proportionality under his human rights claim. Although the evidence in support of any such agreement by the Council was tenuous, and any such agreement might well have been unlawful, I would be usurping the role of the Inspector if I absolved him of the obligation to reach a conclusion on this issue, purely on the basis that I could readily substitute my own conclusion on the evidence for his.

41. The Inspector could permissibly have assumed the facts in favour of the Claimant when considering the weight to be given to these issues, without deciding them. Regrettably, I have not been able to make the assumption that this is what the Inspector meant, even on the most generous interpretation of paragraph 28. He simply did not say this in paragraph 28. The uncertainty as to the factual basis upon which he was making his decision in paragraph 28 raises doubts as to the factual basis for his consideration of proportionality in paragraph 27, as the factual issues are the same.

42. The Inspector on the previous appeal had properly reached a conclusion on the factual issue. Unfortunately, it was demonstrably inaccurate, as both parties now agreed, and could no longer be safely relied upon by the Council. It prejudiced the Claimant's subsequent applications for planning permission. This was an added reason why the Inspector on this occasion needed to place on record his own conclusions, based on the evidence which was now before him, but most probably had not been available to the previous Inspector."

18. It is accepted by Mr Pickles, appearing on Proudfoot Property's behalf, that the question of personal circumstances and the question of human rights are in effect the same case and stand or fall together. It is also accepted by Mr Pickles that if the agreement was made as alleged by Mr Proudfoot, it would not have bound the Council.
19. With all respect to the judge, it seems to me to be perfectly clear what the Inspector decided and why. On the question of discrimination under Article 14, he said that the comparators on which Proudfoot Properties relied were decisions taken under different circumstances and thus led to different outcomes. It was for that reason that he rejected the allegation of unlawful discrimination.
20. On the question of breach of A1P1, the Inspector's decision is, to my mind, equally clear. He decided that the maintenance of the character of the area and the pursuit of sustainability and highway safety were legitimate aims. Having reached that conclusion, he decided that the refusal of planning permission was the only way of safeguarding those claims. This was not then a case in which legitimate aims could be pursued in a number of different ways, in which event the question of proportionality would indeed have loomed much larger. If, as the Inspector concluded, the only way of safeguarding those aims was to refuse planning permission, it necessarily followed that these personal circumstances of Proudfoot Properties Limited, or indeed Mr Proudfoot himself, could not outweigh those aims even if the alleged agreement existed. That is precisely the conclusion that the Inspector reached in paragraph 28 of his decision.
21. A fair reading of those two paragraphs in context leads to my mind to the conclusion that it is implicit that the Inspector decided that even if Mr Proudfoot was right in the factual assertions that he made, those personal circumstances would not and could not outweigh the very substantial harm which he found would be caused by the proposed development.
22. Lang J was clearly sceptical about whether the alleged agreement existed, but felt unable to make a finding of fact. But I find it impossible to see what difference it would have made even if the Inspector had explicitly decided that Mr Taylor had entered into the agreement Mr Proudfoot alleged. As Mr Pickles accepted, it cannot seriously be contended that an Assistant Manager in the Environmental Health Department can bind the Council to grant planning permission, and if it does not bind the Council to grant planning permission, it surely cannot bind the Inspector in any way.
23. The Inspector did take into account personal circumstances, as he says in paragraph 28 of his decision. It is quite clear to my mind why he decided the appeal in the way that he did. I would therefore hold that the Inspector gave adequate reasons for his decision. I would therefore allow the appeal and restore his decision.

Lord Justice McFarlane:

24. I agree.

Lord Justice Richards:

25. I also agree.

Order: Appeal allowed