England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		12th July 2000

1. MR JUSTICE MAURICE KAY: This is an application for judicial review in which the applicants seek to challenge a decision of Maidstone Borough Council as local planning authority. The decision in question is a grant of outline planning permission for the construction of an agricultural worker's dwelling, associated farm office, garage and external works on land at Hurst Farm, Otterden. The date of the decision was 20th January 1999.
2. The application for outline planning permission was made on behalf of RE Baker and Sons, a family farming partnership, in which, as I understand it, the current principals are John Baker, who bears primary responsibility for a dairy herd, and his brother who is mainly concerned with the arable side of the business.
3. At the moment, John Baker and his immediate family live in a semi-detached cottage on the land. The purpose of the application for outline planning permission was to obtain permission to build a larger dwelling which would be more suitable for his family needs, whilst maintaining his presence on the land in close proximity to the dairy herd.
4. The matter has something of a history which goes back some time before the planning application to which I have referred. On 24 March 1994, the Bakers, if I may so call them, applied to the council for planning permission for the erection of an agricultural dwelling and associated farm office, garage and external works on land adjacent to West Wing, Bunce Court. On 22nd July 1994, the local planning authority refused planning permission. The Bakers appealed, but on 2nd February 1995 an inspector appointed by the Secretary of State dismissed their appeal. It is necessary for me to refer to the terms of that dismissal. In the decision letter, the inspector, addressing himself to the Bakers' planning consultant, said:

"It was not disputed by you that in the absence of justification of agricultural grounds the proposed development would be contrary to the restrictive policies of the Structure Plan and Local Plan."

5. It is apparent that before the inspector there was certain documentation which included a report from ADAS which had assessed the needs of the farm on behalf of the Bakers. The report had made the point that John Baker and his family found their current accommodation to be cramped. The inspector went on:

"Having inspected 1 Hurst Farm Cottages on my site visit, I have considerable sympathy with Mr Baker and his family in their desire for more spacious accommodation. The proposed dwelling would be a convenient, commodious and well designed house; its location close to Bunce Court, where there are already several dwellings and several others have been permitted, and where there is a considerable amount of mature trees, would be a good choice in the area of outstanding natural beauty for a dwelling which was justified. There is no doubt that the farm enterprise itself is a genuine, well-established and sustainable farm business, as reported by ADAS, and would fulfill the functional and financial tests of PPG7, Annex E.

"However, at present the needs of the enterprise are already satisfied because Mr John Baker lives almost as close as it is possible for him to be to the dairy unit; indeed, the new dwelling, though likely to be sufficiently close to the dairy unit, would in fact be less convenient, especially when there is heavy snow. It seems to me that the ADAS report has, without explanation, translated the very real and understandable desire of Mr John Baker's family for better accommodation into an agricultural justification for the new farmhouse. In the light of the advice of PPG7, Annex E, paragraph E8 (last sentence), it seems to me that the proposed new dwelling is not justified on agricultural grounds, a conclusion which accords with the advice given to the council by Kent County Council Land and Property. The proposal is, therefore, in conflict with policy RS6 of the Structure Plan and policy C24 of the Local Plan, and should not be permitted."

6. There, the matter rested until the Bakers again applied for outline planning permission on 18th August 1998. Their application was considered by the council's Development Control Committee on 26th November 1998. The Committee had before it a report from its officers recommending refusal. However, the Development Control Committee was minded to grant outline planning permission on a basis of proven agricultural need. Because this would have resulted in a departure from the development plan, the procedures required the matter then to be advertised as such a departure and to be referred up to the council's Planning and Transportation Committee, a senior committee.
7. On 20th January 1999, the Planning and Transportation Committee considered the application. The same officer's report that had been before the Development Control Committee was before the Planning and Transportation Committee, recommending refusal of the application. However, the Planning and Transportation Committee resolved to grant outline planning permission. On 19th February 1999, the applicants lodged the present application. Initially, Mr Justice Latham refused permission to apply for judicial review on 9th July 1999, but on 26th January 2000, the Court of Appeal, Civil Division, granted permission.
8. It is now necessary for me to refer to the statutory and policy framework within which this case has to be considered. By section 70 of the Town and Country Planning Act 1990, subsection (1):

"Where an application is made to a local planning authority for planning permission:

"(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or

"(b) they may refuse planning permission.

"(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

9. Section 54A deals with the status of development plans. It provides:

"Where, in making any determination under the Planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

10. The development plan consists of the structure plan, local plan, relevant resolutions, and so on. By Article 17 of the General Development Procedure Order 1995, where development is not in accordance with the development plan, a local authority may grant permission subject to certain procedural requirements, one of which is the prior advertisement publicly for 21 days of such an eventuality.
11. The construction of houses in rural areas is, and for long has been, a controversial matter and receives treatment presently in a Planning Policy and Guidance note, PPG7. I quote from parts of Annex I, headed "Agricultural and Forestry Dwellings":

"I2. There will be some cases ... 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 involved ...

"I3 ... 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.

"I4. 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."

12. There follow a number of paragraphs under the heading "Permanent Agricultural Dwellings". I refer to some of them:

"I5. New permanent dwellings should only be allowed to support existing agricultural activities on well-established agricultural units, providing:

"(a) there is a clearly established existing functional need.

"(b) the need relates to a full-time worker or one who is primarily employed in agriculture and does not relate to a part-time requirement.

"(c) the unit and the agricultural activity concerned have been established for at least three years, have been profitable for at least one of them, are currently financially sound and have a clear prospect of remaining so.

"(d) the functional need could not be fulfilled by another dwelling on the unit or any other existing accommodation in the area which is suitable and available for occupation by the workers concerned.

"(e) other normal planning requirements, for example on siting and access, are satisfied.

"I6. A functional test is necessary to establish whether it is essential for the proper functioning of the enterprise for one or more workers to be readily available at most times ...

"I10. New permanent accommodation cannot be justified on agricultural grounds unless the farming enterprise is economically viable. A financial test is necessary for this purpose, and to provide evidence of the size of dwelling which the unit can sustain.

"I11. Agricultural dwellings should be of a size commensurate with the established functional requirements. Dwellings which are unusually large in relation to the agricultural needs of the unit, or unusually expensive to construct in relation to the income it can sustain in the long term should not normally be permitted. It is the requirements of the enterprise rather than the owner or occupier which are relevant to determining the size of the dwelling that is appropriate to a particular holding."

13. So far as current development plan documents are concerned, the Kent Structure Plan, adopted in 1996, provides:

"All development permitted ... in the open countryside should be appropriate in location, scale [and] density to its surroundings."

14. And:

"... the release of further fresh land for development (defined as land outside the existing confines of built-up areas ...) for housing will not normally be permitted."

15. The Maidstone Borough Local Plan, adopted in 1993, provides in paragraph C24:

"(1) Planning permission for agricultural dwellings will not normally be granted unless:

"(a) The agricultural unit for which the dwelling is needed is of itself commercially viable without financial support from any other enterprise situated elsewhere;

"(b) An intended occupant of the proposed dwelling is an agricultural worker, with security of tenure, working on the agricultural unit concerned;

"(c) it is essential to the proper functioning of the agricultural unit that the intended occupant lives on the unit, rather than in an existing dwelling elsewhere;

"(d) There is no appropriate alternative accommodation or land with planning permission situated in close proximity to the unit or buildings suitable for conversion;

"(2) Wherever possible, the Borough Council will require that a new agricultural dwelling is sited in association with existing groups of farm buildings; ..."

16. In addition, there exists the Maidstone Borough Draft Deposit Local Plan, dated May 1997, which contains provisions similar to those in paragraph C24 of the Maidstone Borough Local Plan of 1993.
17. The challenge which the applicants seek to make to the grant of outline planning permission in the present case falls under two headings. First, it is said that the local planning authority failed to act in accordance with section 54A of the Town and Country Planning Act 1990, by granting outline planning permission in circumstances that did not accord with the development plan and in the absence of material considerations indicating otherwise. Secondly, it is said that the local planning authority acted unreasonably or irrationally in the Wednesbury sense in determining to grant outline planning permission on 20th January 1999.
18. On behalf of the applicants, Mr Edwards made a number of submissions. He observed that the local planning authority realised at all times that they were contemplating a departure from the development plan, that is apparent from the fact that they advertised in accordance with the requirements of the 1995 order and from the fact that the Development Control Committee referred the matter up to the Planning and Transportation Committee.
19. If the decision was not in accordance with the development plan, Mr Edwards submitted that there were no material considerations justifying such a departure; in particular, he submitted that the personal circumstances of John Baker and his family were not such material considerations. He submitted that in the round, and submitted it in the alternative form, the personal circumstances of Mr Baker were not material considerations in a case in which they had not been treated as such by the local planning authority or by the inspector in 1994 and 1995. He submitted that the authority and the inspector properly construed PPG7 in 1994 and 1995.
20. He further submitted that the advice that was given by the council's officers to the committees, in connection with the current application, was in fact correct advice being consistent with what had been decided by the local planning authority in 1994 and confirmed by the inspector in 1995. He referred to parts of the report from the council's officers that were before the relevant committees in relation to the current decision, in particular a summary paragraph in the following terms:

"Overall, it is considered that circumstances have not changed since the appeal for a similar proposal was dismissed. It is considered that existing accommodation covers the functional need of the farm and that the application relates essentially to the personal need of the farming family, rather than the functional need of the enterprise in question. The proposal is contrary to the relevant policy provisions of the development plan and the advice given in PPG7."

21. Mr Edwards seeks to underline these submissions by referring to the form in which the local planning authority granted permission on the present occasion. That is to be seen in a minute, a paragraph of which reads:

"The committee in deciding to grant planning permission was satisfied that there was a proven agricultural need for the dwelling which could not be met at Hurst Farm."

22. The point which Mr Edwards seeks to make about that is that it does not advance any reasons explaining why the conclusion reached was different from those reached in 1994 by the local planning authority, and, in 1995, by the inspector. He submitted that the local planning authority realised that it needed to give reasons for departing from its previous decision, but that the reasons given tend to show that there were no good reasons for such a departure. He is not seeking judicial review on the basis of deficiency of reasons, he is pointing to the reasons as expressed as being inconsistent with a reasonable and rational decision to grant outline planning permission.
23. All this, he submitted, points to a breach of section 54A, or alternatively shows that the decision under challenge is Wednesbury unreasonable. In that regard, he submitted that the decision is vitiated by a failure to take account of the development plan, by failure to have proper regard to PPG7, by the absence of any up-to-date empirical evidence, establishing a proven agricultural need for a new dwelling, and by a failure to take into account the views of Kent County Council and the local planning authority's own officers recommending refusal. It is also said that there was an inappropriate taking into account of the personal circumstances of Mr Baker and his family; moreover, no reasonable local planning authority could have reached the decision to grant outline planning permission.
24. On behalf of the local planning authority, Mr Harrison made a number of submissions. His headline was that the local planning authority had been faced with the need to make a difficult decision one way or the other, but that they made that decision in a manner which discloses no error of law. He observed correctly that it is open to a local planning authority to make planning decisions which depart from the development plan provided that they are lawful. It is open to a local planning authority to reach decisions which differ from previous decisions, either of themselves or of an inspector appointed by the Secretary of State, provided that they are aware of the previous decisions and take them properly into account.
25. He also submitted, and I shall return to this, that personal circumstances can appropriately be taken into account in planning decisions. He emphasised that planning decisions are essentially matters for local planning authorities and not for the courts, and in that regard he referred me to the well-known words of Lord Justice Hoffmann in South Somerset District Council v Secretary of State for the Environment, reported at [1993] 1 PLR 80, 87:

"In my judgment, therefore, an analysis of the decision letter does not show that the inspector overlooked a relevant policy or misunderstood one in any material respect. His decision was entirely based on what he perceived to be the planning merits. The deputy judge, who has immense experience of Town and Country Planning, may have found the decision surprising. He may well have been right. The appellants may have struck it lucky. But the judge was not entitled to substitute his own views on planning matters for the inspector's and it seems to me that, in reality, that is what he did. I, therefore, think that he was wrong to quash his decision and I would allow the appeal."

26. In support of his submission that personal circumstances are a relevant consideration, Mr Harrison referred to two authorities. In Westminster City Council v Great Portland Street Estates [1985] 1 AC 661, Lord Scarman stated at page 670:

"Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhumane pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases. If a planning authority is to give effect to them, a specific case has to be made and the planning authority must give reasons for accepting it."

27. Mr Edwards was at pains to point to the parts of that passage dealing with the exceptional nature of considerations of personal circumstances.
28. In Fowler v Secretary of State for the Environment [1992] 3 PLR 140, Mr Lionel Read QC, sitting as a deputy judge of the Queen's Bench division, said at pages 143 to 144:

"It is not in doubt that personal circumstances may be a material consideration in the administration of planning control and, hence, in the determination of an application for planning permission, whether by the local planning authority, or by the Secretary of State, or by one of his inspectors. If there were any doubt about it, it was so held by the House of Lords in Westminster City Council v Great Portland Estates. The inspector was therefore wholly correct in accepting the Fowlers' case of personal hardship as a material consideration to which he should and did have regard.

"But there could equally be no doubt, and [counsel] did not seek to argue otherwise, that the weight to be given to a particular consideration ... is a matter for the decision-maker. His decision on weight is not to be reviewed unless he acts perversely or otherwise falls into error of law."

29. So far as PPG7 is concerned, Mr Harrison pointed to the fact that in the criteria for allowing new permanent agricultural dwellings, set out in paragraph I5, paragraph I5 (d) states:

"The functional need could not be fulfilled by another dwelling on the unit or any other existing accommodation in the area which is suitable and available for occupation by the workers concerned."

30. That, says Mr Harrison, is something which facilitates consideration of the particular individuals involved. Moreover, the passage in I11 to which Mr Edwards had referred:

"It is the requirements of the enterprise rather than the owner or occupier which are relevant"

31. is expressly referable to the size of agricultural dwellings rather than to the question of whether there should be a dwelling or not.
32. Mr Harrison further submitted that in the present case the procedures adopted by the local planning authority were unimpeachable. The present applicants had been properly notified and consulted about the application. The Development Control Committee had appreciated the exceptional nature of their conclusions and had acted properly in accordance with their own standing orders and with the General Development Procedure Order 1995, Articles 8 and 17. At all times the applicants had been given and had taken the opportunity to submit written material in support of their objections. They had also taken the opportunity to speak to and lobby individual members of the appropriate committees and the leaders of the relevant political groupings on the council, prior to the crucial meeting on 20th January 1999. Indeed, they had had a meeting with the chairman of that committee.
33. They had been forewarned of the arguments likely to be put forward in favour of the grant of outline permission and had been given a full opportunity to respond. They had availed themselves of that opportunity. They had made oral and written representations to the committee on 20th January 1999. The petition had been received. The Planning and Transportation Committee had had before it all the relevant material, including the officer's report, and full references to the development plan policies and PPG7. All matters had been drawn to the attention of the committee. All these matters, together with the personal circumstances of Mr Baker and his family, featured in the debate that took place in the committee. The decision to grant outline planning permission was taken in open committee after a vigorous public debate. The decision was one for which 14 people voted in favour and 2 against.
34. Finally, Mr Harrison submitted that there is nothing in Mr Edwards' point about the reason minuted for the decision. It was a proper reason and no inferences were to be drawn which might assist the current applicants in their challenge.
35. Having regard to all those submissions, most expertly made on both sides, I now turn to the conclusions which I have reached in relation to the challenges.
36. In my judgment, there was no breach of section 54A in this case. The local planning authority is not prohibited from making a decision which does not accord with a development plan. It may do so if:

"material considerations indicate otherwise."

37. The issue in the present case is whether the personal circumstances of Mr Baker and his family were material considerations. The factual reality of the case is that it is he who is the cowman. The alternative of employing someone else in that capacity, someone who could live suitably in the semi-detached cottage, with Mr Baker and his family moving elsewhere, was not seen as an economically viable option. If Mr Baker is, and will foreseeably remain, the cowman, it is he and his family who reasonably need to be accommodated on the land. To that extent, the needs of the enterprise accord with his personal needs.
38. I am satisfied that it was consistent with the authorities, in particular Great Portland Street v Fowler, for the local planning authority to treat his personal circumstances as material considerations, and that they were not inhibited from doing so by their 1994 decision, or the decision of the inspector, the development plan, the representations of the county council, the report of the local planning authority's officers, the lack of fresh expert evidence, or anything else. PPG7 did not forbid it. Indeed, paragraph I5 is, in my judgment, consistent with individual circumstances being taken into account.
39. So far as the Wednesbury challenge is concerned, I am satisfied that the local planning authority did not take into account anything which they were duty bound not to take into account. As I have said, personal circumstances were available for their consideration. The weight to be attached to them, in the absence of perversity, was a matter for them and I find no perversity in that regard or at all. Nor is there any reason to suppose that they failed to take into account anything that they were duty bound to consider. It is abundantly clear that everything material was placed before them. They well understood that they were in unusual circumstances and they took steps to ensure that they had the fullest information and that all interested parties had every opportunity to state their cases. There was a free and open debate. The resultant decision was one that was not vitiated by irrelevant consideration or by relevant omissions. It was not a decision which no reasonable local planning authority could have reached in the circumstances of this case.
40. Accordingly, having found that neither ground of challenge is made out in this case, the application for judicial review fails.
41. MR HARRISON: My Lord, I apply for the respondent's costs to be paid by the applicant. My Lord, given the history of this case and even the Court of Appeal hearings, I do not ask for a settlement of costs today. This is an appropriate case where the costs be (inaudible).
42. MR JUSTICE MAURICE KAY: Well, I do not see that the history should have deterred anyone, whoever won, from asking for summary assessment. It should have been quite possible to work out what the costs have been and for any costs upon costs to be avoided.
43. MR HARRISON: My Lord, that puts me in some difficulty.
44. MR JUSTICE MAURICE KAY: However, neither side have submitted a schedule.
45. MR HARRISON: My Lord, that is right.
46. MR JUSTICE MAURICE KAY: Yes.
47. MR EDWARDS: My Lord, I cannot oppose the principle of the suggestion and I would concur with my learned friend that the matter will be perhaps better dealt with by taxation people, though I do not know whether the party has in fact submitted a schedule.
48. MR JUSTICE MAURICE KAY: Yes, well my view is that it would have been better dealt with today but I do not have the power to do that in an absence of a schedule. If it was only today's hearing I might, but since we are talking about the costs from the moment the application was lodged, that is a little difficult for me to assess without schedules and so we will have to leave it at that. I will simply make an order for costs to be assessed if not agreed.
49. MR EDWARDS: My Lord, I would raise one other matter and that is permission to appeal to the Court of Appeal. This case, in my submission, does raise a very important point, the extent to which personal circumstances can be taken into account in agricultural dwelling cases. Your Lordship has given your views on the applicability of personal circumstances. In my submission, it is something on which the Court of Appeal should rule, particularly the relationship between personal circumstances and PPG7, I would ask for leave to appeal to the Court of Appeal.
50. MR HARRISON: In my submission, my Lord, this is a case where there is an application of well-known principles to the particular facts of the case. Your Lordship's findings have been a careful consideration of the factual matters, the matters before the committee, and so forth. In my submission, this is not a case which should be open to points of general importance and there is no reason for appeal to be granted.
51. MR JUSTICE MAURICE KAY: One cannot help noticing that the Court of Appeal, which included at least one person extremely expert in planning matters, thought that the personal circumstances argument was arguable.
52. MR HARRISON: My Lord, I am not sure that is correct if one looks at the judgment. What they thought might be arguable, in the absence of evidence from the respondents at that stage, was the inconsistency point.
53. MR JUSTICE MAURICE KAY: Right. How do we know that?
54. MR HARRISON: I can take you to page 3 of the bundle. I am afraid it is not very clear.
55. MR JUSTICE MAURICE KAY: It does not merely tell me anything, expect that permission was granted, and nobody has a transcript.
56. MR HARRISON: No, my Lord, they have not.
57. MR JUSTICE MAURICE KAY: You were both there, were you?
58. MR HARRISON: We were, my Lord, yes.
59. MR JUSTICE MAURICE KAY: What was the basis on which it was granted?
60. MR HARRISON: That there appeared to be some inconsistency between the 1995 decision and the -- first of all, there was a question about delay in which Mr Justice Latham had ruled, because an earlier application appeared to have been made, there was some question it had not been lodged in time. That was knocked out. Then the arguments were as to inconsistency. Your Lordship can see that that is largely the case because those are the arguments which speak loudest from the Form 86A.
61. MR JUSTICE MAURICE KAY: But the headline
62. "inconsistency" conceals the fact that what was inconsistent was that personal considerations were taken into account latterly but not formally.
63. MR HARRISON: What the Court of Appeal were looking at was whether there was any material between 1995 and 1998 to deal with the change of circumstances, without the respondent's evidence at that stage.
64. MR EDWARDS: My Lord, I do have a copy of -- and I thought it ought to be in my skeleton (inaudible) -- a brief comment of Lord Justice Stuart-Smith, if I may read it to you. He stated:

"We propose to grant leave in this case. So far as the time factor is concerned, we accept the evidence of the solicitor that in fact the papers were lodged in time. So far as the amendments of the application are concerned, we express no view about that. Of course, save that the point is arguable, the fact that it is plain that the authority had reversed, in effect, their own previous conclusions, that is (inaudible) not appear to be precise in the same information."

65. Then is says:

"Order: application granted within the time to lodge appeal."

66. Part and parcel of reversing their decision, as your Lordship has seen, is the fact all those personal circumstances were discounted, I think you referred to it this morning, on the 1994 and 1995 appeal but now taken into account in this matter.
67. MR HARRISON: My Lord, I confirm that was the passage that I had in mind.
68. MR JUSTICE MAURICE KAY: Yes. Well that does not seem to me to give rise to any enormous point of principle. If the point is apparent inconsistency between the later decision and the earlier decision, that is a matter which I think might well have deserved ventilation here, but I am not persuaded that it deserves ventilation elsewhere.
69. So far as personal circumstances are concerned and the extent to which the local planning authority were at liberty to take them into account, I am mindful of the fact, Mr Edwards, that the absolutist position from which you seem to be starting in this case, namely that they simply cannot be taken into account, seemed to be modified in the course of the hearing. You accepted that there are circumstances in which they may be taken into account, you put that in the form of extreme circumstances but that particular epithet seems to me to be unfounded and, having regard to the authorities which we have looked at, in the light of the circumstances of this case, I am not persuaded that it is suitable meat for the Court of Appeal, so if you wish to take it further you will have to ask the Court of Appeal.
70. Thank you both very much.