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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Scott v Secretary Of State For Environment & Anor [1996] EWHC Admin 264 (22 November 1996)
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Cite as: [1996] EWHC Admin 264
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SCOTT v. SECRETARY OF STATE FOR ENVIRONMENT and EPPING FOREST DISTRICT COUNCIL [1996] EWHC Admin 264 (22nd November, 1996)
1. THE DEPUTY JUDGE: In 1970 planning permission was granted to construct an agricultural workers dwelling at Tyndall Nursery, Sedge Green, Nazeing. It was granted subject to a condition as follows:
"The occupation of the dwelling shall be limited to a person employed or last employed locally in agriculture as defined in Section 221(1) of the Town and Country Planning Act 1962, or in forestry, or a dependant of such a person residing with him (but including a widow or widower of such a person)."2. The applicants acquired the land in 1974 and began construction of what is now called Rolyn Lodge in 1977. They have lived there ever since. They have made numerous attempts over the years to get rid of this condition. The last attempt was refused planning permission in June 1995. They appealed to the Secretary of State. An inquiry was held in February 1996 and the inspector dismissed the appeal.
3. At the inquiry a planning consultant, Miss Tina Curtis, presented a detailed and careful proof of evidence. She concluded upon the question of whether there was need for agricultural dwellings in the area that 41 permissions had been granted in the three relevant parishes of Nazeing, Roydon and Waltham Abbey in the years 1985 to 1995. This evidence was not challenged at the inquiry. She said that on the basis of this evidence there was no acknowledged overriding need whatever for an agricultural dwelling in the locality.
"From my inspection of the site and its surroundings, and the written representations, I believe the determining issue in this case is whether there is sufficient justification for discharging the condition having regard to the presumption against inappropriate development in this area of Green Belt ...14. However, I do not find your evidence on this matter shows a lack of need to retain agriculturally conditioned dwellings in the area for the following reasons. [I shall not read the remainder of the paragraph, although it is germane.]15. The Council has sought to show, through an assessment of the number of agricultural dwellings for which planning permission was applied for since 1974 in the 3 'relevant' Parishes, that there is a continuing demand for such accommodation in the locality. You have carried out a detailed assessment of those cases in the Council's schedules which fall within the 10 year period from 1985, and say that while they may be indicative of a demand they do not demonstrate a need sufficient to require the occupancy condition to be retained on your clients' property.16. The schedules of past applications provided by the Council are not entirely accurate as they contain details of some applications which are not for agricultural workers. However, they do show that within the past 3 years in the 'relevant' Parishes 41 applications for agricultural workers dwellings were granted permission. This figure demonstrates a clear need for agricultural dwellings in recent years and, with the caveat in paragraph 18 below, offers a reasonable guide as to the likelihood of a continuing need in the area. I believe this to be the case notwithstanding that the permissions may have satisfied present needs for agricultural dwellings on these holdings. There is no indication that in previous years the granting of permission for agriculture dwellings has resulted in a 'ceiling' being reached with a cessation of any further need in the area ...17. Of the 49 applications in the Council's schedule where permission was refused for agricultural workers dwellings some cases may well be be indicative of the fact that although a demand existed there was no need. However, some of those refusals, and you do not say how many, were where a holding had been divorced from a dwelling, and the Council's code of practice for dwellings for agricultural or horticultural workers says it has a presumption against such proposals. In these cases therefore the existence of the previous dwelling could have resulted in the applications being refused permission even though a need existed. Without further evidence on this point I am not satisfied that it is correct to say that none of these 49 cases demonstrate a need for an agricultural dwelling.""... no evidence has been put before me to suggest the area has latterly been in decline or that a substantial decline is anticipated."6. In the paragraphs which follow the inspector discussed the attempts to market the property and the relevant prices that were under consideration in that regard.
7. In paragraph 24 he considered the means of agricultural workers and pointed out that the house could well be suitable for a farm proprietor or someone retired from agriculture:
"It does demonstrate though the need for the dwelling to be widely marketed.25. I conclude that there is a need in the locality for agricultural dwellings and that having regard to the presumption against inappropriate development in the Green Belt, there is insufficient justification for discharging the condition. The proposal is thus contrary to those Policies of the development plan to which I have been referred which seek to prevent inappropriate development in the Green Belt and to allow the removal of the agricltural occupancy restrictions only where longer term needs no longer warrant it."8. Miss Robinson, who appears on behalf of the Secretary of State and who has argued her case strenuously, says that the reference to three years instead of 10 years in paragraph 16 is a mistake. I note that this mistake is compounded by the fact that the evidence of the council was that during the three years only two permissions had been granted, one of which was merely for a caravan and that neither of these was in Nazeing.
9. Mr Litton, who appears on behalf of the applicants, submits that this error cannot be said to be trivial or of small importance given that the central issue before him was the question of need. He further submits that:
"The misunderstanding clearly affected the Inspector's conclusions as to the need for agricultural dwellings in the area and there is a real doubt that he would have come to the conclusion that he did if he had been aware of the true number of permissions granted in the last 3 years. Put another way, there is a real possibility that if he had realised that only 2 permissions had been granted in the last 3 years or that the 41 permissions he referred to had been granted over a 10 year period the Inspector would have come to a different conclusion on the question of need.""(1) The error of fact in the present case was not 'material' in the sense described in [the authorities to which I shall refer later] ... and therefore there are no grounds for quashing the decision;(2) If the mistake of fact was material then it is accepted that it falls within the third category identified in R v. LRB ex parte ILEA [to which I shall come later] and is an error of law;(3) In this event the Court should exercise its discretion not to quash the decision which would have been the same in any event.""There is no doubt that on a proper reading of the decision letter as a whole and the evidence before the Inspector, the reference in [the decision letter, paragraph] 16 to 41 applications for agricultural workers' dwellings having been granted permission in the last 3 years is a clerical or linguistic error. The Inspector meant 10 years but wrongly referred to 3, this being the number of relevant parishes."12. I do not accept that it was a clerical or linguistic error, despite, in particular, the reference to 10 years in paragraph 15, the immediately preceding paragraph. It may have been but I doubt it. It seems to me to be more likely that the inspector, when he was considering this important part of the report, got himself into a muddle over the number of years to which the 41 planning applications related.
13. This appears in the central part of the decision letter and it leads directly into the next important sentence. I refer to the words:
"This figure demonstrates a clear need for agricultural dwellings in recent years ..."14. In my view it makes a significant contribution, if not the most significant contribution, to the conclusion in paragraph 25. I re-read:
"I conclude that there is a need in the locality for agricultural dwellings ..."15. On the basis that there there were only two permissions in the last three years as opposed to 39 in the previous seven years, then it would seem that the need was very much less than it had been. In these circumstances then, in the light of the law which I shall discuss below and subject to the question of the exercise of the court's discretion, the decision should be quashed.
16. I accept Miss Robinson's submissions as to the law which are broadly in line with those of Mr Litton. I shall read Miss Robinson's skeleton which I gratefully adopt:
"The first question is whether the mistake of fact is 'material' i.e. whether it is an error of substance affecting the mind of the decision-maker or a mere clerical error or obvious linguistic inaccuracy, see Elmbridge BC v. SSE [1980] 39 P & CR 543 and Mason v SSE [1984] JPL 332. If a mistake of fact is not material in this sense then there is no error of law.Secondly, if the error is material in this sense then it only vitiates the decision if it falls within one of the three categories identified in R v. London Residuary Body, ex parte Inner London Education Authority [only reported in] The Times, 24th July 1987 ie where the fact is a condition precedent to an exercise of discretion, where the fact was the only evidential basis for a decision or where the fact was as to a matter which expressly or impliedly had to be taken into account."17. I shall refer first, because it is the first in time, to Hope v. Secretary of State for the Environment [1979] JPL 104, cited by Mr Litton. I shall read a passage from the judgment of Sir Douglas Frank sitting as a deputy judge of this court:
"He thought that the approach to this matter which he should adopt was that of Megaw J. as he then was, in the unreported case of Rae v. Minister of Housing and Local Goverment . There he had said: 'It is submitted by the applicant and conceded on behalf of the Minister and respondent that if there is a mistake of fact in the report and that mistake of fact is one which have reasonably might affected the Minister's decision, then the order must be quashed'."18. Next I shall refer to East Hampshire District Council v. Secretary of State and C. H. Josephi [1979] JPL 533, which went to the Court of Appeal:
"The local authority applied to the High Court for the decision to be quashed on the grounds that the inspector had not adequately dealt with the local planning authority's argument that, although an anticipated increase of 12,000 persons in the area was expected, this increase was in fact anticipated by existing allocation of land for development.""On [certain] evidence being given, it went far to show that the proposed development was unnecessary. But unfortunately the inspector had omitted this argument altogether and had assumed that extra land was needed for this anticipated increase in population [whereas the fact is that it was not].""If the Minister had been misled by the inspector's report owing to a mistake in it, it seemed to him [that is Lord Denning] only right that the decision should be quashed."In Elmbridge Borough Council v. Secretary of State for the Environment supra, to which I have already given the reference, the inspector wrote in the decision letter that the proposed house was 400 feet distant from the existing house whereas in fact it was 170 feet. But he, the inspector, had been to inspect the site and knew full well what the actuality was on the ground even if he expressed it incorrectly in feet. Mr Justice Bristow said at page 547:"So, in my judgment, what happened here did not vitiate the decision of the inspector as a matter of law and an obvious silly mistake can be added to glaring inaccuracies or obvious clerical error as an illustration of the sort of innocuous defect in the expression of reasons for a decision that does not amount to an error of law because it does no harm and produces no doubt as to whether the decision has been reached according to law or not."In Mason v. Secretary of State Environment supra there was a similar mistake. The inspector wrote that the distance between the applicant's house and the appeal premises was 250 feet whereas it was in fact 100 to 125 feet. Again the inspector had visited the site and knew the actuality. Mr David Widdicombe Q.C. sitting as a deputy judge of this court said that in his judgment:"... there could be no doubt that a mistake of fact might vitiate a decision. The principle appeared to have been recognised by Bristow J. in Elmbridge .... A persuasive judgment on the point in another common law jurisdiction, which had come to his notice since the hearing, was that of Cooke J. in the case of Daganayasi v Minister of Immigration [1980] 2 N. Z. L. R. 130 in the New Zealand Court of Appeal. But to vitiate a decision the mistake of fact had to be material, that was, there must be grounds for thinking that the decision might have been different if the mistake had not been made. In his (Widdicombe's) judgment, the mistake in this case clearly was not material, just as it was not material in the Elmbridge case. The Inspector heard Mr Gill's evidence, viewed the site and its surroundings and had a detailed plan of the area before him. In his (Widdicombe's) opinion, the inspector could not in fact have been under any mistake as to how far away Mr Gill's house was from the appeal site."21. Lastly, I refer to the London Residuary Body case supra where a strong divisional court had to deal with a rather different type of case on its facts. I shall go straight to the body of the judgment of Lord Justice Watkins, giving the judgment of the court:
"There is no English authority which bears directly upon the question of whether a decision maker's mistake of fact is a ground of challenge separate from that of failing to have regard to a relevant consideration. The only authority from a common law jurisdiction to which we were referred was the judgment of Mr Justice Cooke in the New Zealand Court of Appeal in Daganayasi v. Minister of Immigration ... The learned judge said ...: 'if ... the Minister is led into a mistake and a failure to take into account the true facts, it is not right that the appellant should suffer. On this view the decision is valid on the ground of mistake as well as on the ground of procedural unfairness'.""We cannot believe that by the phrase 'upon an incorrect basis of fact' Lord Wilberforce [that is in the case of Secretary of State for Education v. Tameside Borough Council [1977] AC 1014] intended to introduce a new and independent head of challenge to executive decisions. Of course, a mistake as to fact can vitiate a decision as where the fact is a condition precedent to an exercise of jurisdiction, or where the fact was the only evidential basis for a decision or where the fact was as to a matter which expressly or impliedly had to be taken into account."24. Mr Litton also referred me to the judgment of Lord Justice Scarman in the Court of Appeal in Secretary of State Education v. Tameside Metropolitan Borough Council supra. The case went to the House of Lords and was decided in both the Court of Appeal and the House of Lords on grounds of unreasonableness. I accept Miss Robinson's submissions that I can hardly be assisted by that case in the present case. Given, as I have found, that the mistake in the present case was not a clerical or other trivial error but that it goes to the heart of the crucial conclusion in paragraph 25, it was, in my judgment, a mistake of substance and was material. It was quite unlike the mistakes in Elmbridge and Mason where the inspectors knew the reality. Here, for all I know, the inspector really was by mistake thinking that there were 41 permissions in three years.
25. Accordingly, the mistaken fact falls within the third proposition in the London Residuary Body case. The fact was as to a matter which expressly or impliedly had to be taken into account.
26. Finally, I shall consider whether or not I should exercise the discretion of the court so as to quash the decision. In this regard Miss Robinson makes various submissions with respect to the paragraphs in the decision letter beginning at paragraph 12. She urges on me that, even if this mistake had not been made, the same conclusion would have been reached. She refers to the fact that in the paragraphs 12 to 13, the inspector rejected Miss Curtis's evidence as to the lack of need to retain agricultural dwellings in the area in the light of the admitted decline in the number of agricultural workers. At paragraph 15, which I have read, the inspector concluded, if I may repeat the last two lines, that:
"while (the schedules) may be indicative of a demand they do not demonstrate a need sufficient to require the occupancy condition to be retained on your client's property."27. Then she emphasised the point that the inspector made in paragraph 16, in the sentence where I left off reading, about a ceiling. I confess that I find the concept of a ceiling in this class of case wholly unrealistic. If an applicant had to prove that there was a ceiling in the sense that there was now absolutely no need whatever for any one more agricultural dwelling in the area, then I can hardly see that any case in this category would ever succeed. It seems to me that what Miss Curtis was rightly doing was seeking to prove that there was virtually no need, even though she actually worded her contention rather more strongly than that.
"Without further evidence on this point I am not satisfied that it is correct to say that none of the 49 cases demonstrate a need for an agricultural dwelling [that is the 49 applications which resulted in refusal]."29. The point was well made by Miss Curtis nevertheless that at any rate some, if not a large number, of those 49 refusals would have been in part upon the hypothesis that there was no need.
"[The last paragraph] of the Deposit Local Plan says that competitive pressures on the Lee Valley Growers are likely to intensify during the 1990's, but no evidence has been put before me to suggest the area has latterly been in decline or that a substantial decline is anticipated."31. She has then emphasised to me the inadequate attempts which had been made to market the property on the basis of the agricultural condition.
32. I take all of those matters into account. But the fact is that when the inspector came to the concluding paragraph, which I have already read, he put it as his first point that there was a need in the locality for agricultural dwellings. It was in essence his only point because the next is the foundation of the case that there is a presumption against inappropriate development in the Green Belt. He held, accordingly, that there was insufficient jurisdiction for discharging the condition. So he was manifestly refusing to discharge the condition primarily upon the ground that there was a need in the locality for agricultural dwellings.
33. It is at least possible that, if he had not approached this case in paragraph 16 in what I venture to suggest is a muddled fashion, he would have come to the opposite conclusion on the point concerning whether or not there was a need and hence, because of the succinct way in which he has put paragraph 25, come to an opposite conclusion on the case as a whole. 41 permissions in 10 years, rather than 41 in 3 years might well produce the opposite conclusion on this point as to need, particularly bearing in mind that there was one and only one dwelling during the last three years and there was none in Nazeing.
34. Looking at this case as a whole, I consider that it would be much safer and much fairer to the applicants if it is sent back to the Secretary of State or his inspector to have another look at that paragraph 16 and decide the case fairly on the basis that the evidence was that it was 41 permissions in 10 years and not three.
applicant's costs.make a number of points perhaps for the benefit of the shorthandwriter. Your Lordship misquoted some of my skeleton argument. I have a spare copy.THE DEPUTY JUDGE: Did I?away.the 1978, it was actually 1979.because I did not have the date in front of me at the time. Is that all? The other one where I was guessing I seem to have got right.put it on the photocopy.MR LITTON: It is right.
© 1996 Crown Copyright