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Edward Ware New Homes Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 1131 (19th December, 2001)

		Neutral Citation Number: [2001] EWHC Admin 1131
		CO/3041/2001

IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand
London
WC2A 2LL

19th December 2001

B e f o r e :

(Sitting as a Deputy Judge of the High Court)
____________________

EDWARD WARE NEW HOMES LIMITED

- v -

SECRETARY OF STATE FOR THE ENVIRONMENT,

TRANSPORT AND THE REGIONS

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Mr Charles George QC and Mr James Pereira
(instructed by TLT) for the Claimant
Mr Paul Brown
(instructed by Treasury Solicitor) for the Defendant
____________________

INTRODUCTION

Gatcombe Farm Industrial Estate, West Hay Road, Wrington (“the site”) is a problem site. It is a brownfield site, 1.74 hectares, in the Bristol and Bath Green Belt.

The site used to be a mushroom farm. More recently, some of the nine buildings on the site have been used for industrial purposes (B1, B2 and B8 uses). There are about 6000 square metres of buildings. The industrial uses are concentrated over areas at the north and south end of the buildings totalling about 3,500 square metres, consisting of about 30 units.

The Claimant, Edward Ware New Homes Limited (“Ware”), seeks a development consisting of the demolition of the existing buildings at the site, and the erection of 10 two-storey dwellings, with integrated office space and associated works, on the lower part of the site. On 21 September 1999 Ware applied to the North Somerset District Council (“the Council”) for permission.

On 22 November 2000 the Council refused the application. They did so on a number of main grounds: the effect of the proposal on employment opportunities in the area; the compatibility of the proposal with the locational principles of sustainable development; and that the development would constitute inappropriate development in the Green Belt.

Ware appealed, under Section 78 of the Town and Country Planning Act 1990 (“the 1990 Act”). The appeal was the subject of an Inquiry by an Inspector appointed by the Secretary of State.

The Inquiry sat for 3 days, on 5-7 June 2001. The Inspector also carried out a site visit. There was a Statement of Common Ground, in accordance with Regulation 15 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000, Statutory Instrument 2000 No 1625 (“the 2000 Rules”).

On 21 June 2001 the Inspector dismissed the appeal. What is before me is a challenge to that decision, brought under Section 288 of the 1990 Act. The relief sought is quashing of the Inspector’s decision, and remitting the matter to the Secretary of State.

At the Inquiry both principal parties advanced cases that, were the appeal to be refused, the site would support industrial uses. Ware’s position was that the occupiers would be lower order users (such as car breaking) who would occupy the units on short lets at cheap rents. The units would be refurbished as and when required by users. The Council’s position was that they wished to see the site refurbished to a relatively high standard as part of a planning permission and employment uses come forward in that context. The alternative “fall-back” positions of each principal party were relevant to the issue of “very special circumstances” to justify the development in the Green Belt, and the relative compatibility of the alternative outcomes with the locational principles of sustainable development, in terms of traffic generation.

THE DECISION LETTER

The Inspector identified the main issues in paragraph 5 of his Decision Letter. He set out the Planning Policy in paragraphs 6-9, including that, in accordance with PPG 2, construction of buildings should be allowed in the Green Belt only in “very special circumstances”.

He describes the site in paragraphs 10-13, including the substantial and unattractive buildings on it, their very poor state of repair and the very limited extent to which they were occupied or in use at the time of his site visit. In paragraphs 14-17 he dealt with the planning history, including (1) a planning permission in 1992, extended in 1996, which had not, however, proved viable, for a new B1 industrial estate, confined to 3,000 square metres, and on the basis that existing use rights would be surrendered on implementation; and (2) an outline application in 1997 for residential development (20 houses on the higher and lower ground), which was refused by the Council, the refusal being upheld by an Inspector on 30 December 1998.

Then, in paragraphs 18-21 the Inspector expressed himself as follows:-

“18. In the event of the appeal being unsuccessful, in my view the most compelling evidence in relation to the possible future use of the site derives from my visit. Taking no account of the wrecked cars to which I have referred, and notwithstanding the apparently reasonable structural condition of most of the walls of the buildings, I saw on my visit that many of the units or potential units are in a very poor condition. Part of the roof has collapsed on at least one of the buildings, most of the doors and windows are either missing or broken, services to not appear to be readily available, and many of the units appear far from secure or even weather-proof. The buildings on the site have a semi-derelict appearance and character, and I consider their re-use even by the low-order activities referred to by the appellant is an unlikely prospect, even if planning permission for such uses would not be necessary. Evidence submitted on behalf of the appellant suggests that should an application for planning permission prove to be necessary, this would also act as a significant disincentive to the occupation of the space.

19. It follows therefore that, notwithstanding the common ground between the principal parties, in my view it is most unlikely that the quantity and quality of traffic generated by the fallback use would be even near that estimated by the appellant’s accessibility technical note. I note in this regard that my predecessor predicted that in the event of the previous appeal being dismissed, he had little doubt that the owners of the site would still wish to achieve the best return possible from their investment. Rather than allowing the site to fall into unprofitable dereliction, he considered the owners would attempt to realise its apparent scope for employment uses.

20. From the evidence I received at the inquiry, and on the basis of my site visit, I believe his prediction has turned out to be incorrect, and that any re-use of the buildings would now require levels of investment of a quantity which would be likely to result in rents which would render the units unattractive to many potential occupiers. Evidence submitted on behalf of the appellant suggests that there would only be a limited demand from companies or others for small, low quality industrial uses, such as car repairs, workshops or storage. In my view however, even this modest prediction is over-optimistic. The buildings and the estate as a whole are not in such a condition that a wholescale refurbishment is difficult to imagine, and I believe a phased or piecemeal approach (which would be more prudent in financial terms) would still be unlikely to attract tenants because of other units which would remain unimproved.

21. Although improvements were carried out to some of the units relatively recently, I saw on my visit that most of these are now empty, open and unused. I acknowledge that in the light of the favourable discussions held with the Council, the probability of planning permission being granted for residential or live/work redevelopment would have reduced the purpose of the active marketing of the space. I am also conscious that reletting the units would have resulted in Local Plan Policy E/2 and JRSP Policy 30 having additional weight. However, on the basis of all I have both heard and seen, I consider the prospect of significant reoccupation of the buildings to be distinctly unlikely. Furthermore, in the event of planning permission being required for such a reoccupation, and notwithstanding the observations of my predecessor, I consider the contents of paragraph 3.8(d) of PPG2; Green Belts (on the re-use of existing buildings) would represent a considerable hurdle. Even if planning permission was to be granted in such circumstances, on the basis of the evidence I heard, any conditions as referred to in the footnote to paragraph 3.8(d) would be expensive to implement and so render the scheme even more potentially unrealistic.”

At paragraphs 22-25 the Inspector addressed the issue of employment opportunities. He found that the job creation potential of the site was extremely limited, and that the scheme would result in no harm in relation to employment opportunities in the area and that, on the contrary, the proposal would result in benefits in employment terms. The first ground of appeal succeeded.

At paragraphs 26- 30 of his Decision Letter the Inspector addressed the issue of sustainability. He concluded on this issue as follows:-

“The appellant’s view that the proposed scheme would be the least sustainable of the possible alternatives is entirely contingent upon the fallback use of the buildings constituting a realistic possibility. Whatever the lawful planning status of the land may be, I have already expressed serious doubts about the possibility of such a re-use, and therefore conclude in respect of this main issue that the appeal proposal would conflict with the locational principles of sustainable development. ...”

The second ground of appeal therefore failed.

At paragraphs 31-38 the Inspector addressed the Green Belt issue. He referred to the four considerations which Ware relied on as constituting “very special circumstances”.

The Inspector concluded on this issue as follows:-

“I conclude that the proposal would result in significant benefits as far as its impact on the amenity of neighbours is concerned. However, in relation to the enhancement of the landscape and its impact on openness, I believe the scheme would bring both benefits and harm. Nor in my view would I be justified in concluding that the development would result in a reduction in the quantity of traffic which may otherwise occur, and there would therefore be no landscape or openness benefit from this source. I consider these conclusions fall well short of the clear advantage required by paragraph 3.2 of PPG 2 in order to outweigh the harm resulting from the inappropriateness of the scheme. I further conclude they do not constitute the very special circumstances necessary to overcome the presumption against inappropriate development in the Green Belt, and I consider the proposal would therefore be in conflict with Structure Plan Policy GB.6 and Local Plan Policy GRB/3.”

The third ground of appeal therefore also failed.

The Inspector expressed his overall conclusions as follows, at paragraphs 39-41:-

“39. In his decision letter I acknowledge my predecessor raised the possibility of another scheme. He recognised that he was considering a proposal which was in outline form and which covered the whole site. However, he also recorded that he did not know whether or on what basis, an acceptable scheme could be devised on the lower part of the site. The current appeal proposal is a detailed scheme which is restricted to the land below the 55m contour and which in the first instance was recommended for approval by the Planning Officer. Much of the appellant’s argument in this case is based on a theoretical reduction in the volume of traffic in comparison with a fallback position which I am unable to adopt for the reasons I have given.

40. In relation to the 3 main issues I have identified, although I have concluded the scheme would bring some benefit in terms of employment opportunities to the area, I also conclude the proposal would be incompatible with the locational principles of sustainable development. In respect of the third main issue, I believe the benefits of the scheme would be insufficient to constitute the very special circumstances necessary to overcome the presumption against inappropriate development in the Green Belt. I conclude that, on balance, the harm resulting from the proposal would significantly outweigh the benefit.

41. For the reasons given above and having regard to all other matters raised, I conclude the appeal should be dismissed.”

THE CHALLENGES

There are six grounds of challenge. The first is that relevant matters were not considered. I reject it.

This is essentially a complaint that the evidence was all one way on the question whether significant reoccupation by lower order industrial activities was likely and that the Inspector went the other way. The short answer is that there was evidence, including from Ware’s witnesses, both ways. This ground in reality adds nothing to a perversity challenge. The proposition that the Inspector failed to take matters into account (because he must have “forgotten” them) is wholly unsubstantiated.

The second ground of challenge is that irrelevant matters were taken into account. I reject it. There were no irrelevant matters taken into account.

Again, the real complaint is that the Inspector got it wrong. The ready or otherwise availability of services was a relevant consideration. The collapsed roof of building H, in the middle of the buildings, was relevant.

The third ground of challenge is procedural unfairness, ie breach of Regulation 18(3) of the 2000 Rules and/or the requirements of natural justice. I reject it.

The nub of the complaint is that Ware was denied a “fair crack of the whip”. See the decision of the House of Lords in Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, especially at 1258, 1260 and 1265-1266, and Castleford Homes Limited v Secretary of State for Environment, Transport and the Regions [2001] PLCR 470, especially at 490-491 and 493.

What is alleged is that the Inspector opened up issues and took a line of reasoning which had not been explored at the Inquiry. This was especially urged in relation to (1) recent re-use of the site for low order industrial activities and (2) traffic generation from the fall-back position.

Traffic generation from the fall-back position (much worse than from housing) was the subject of an agreed technical note. This formed part of the formal Statement of Common Ground under the 2000 Rules.

Again, the complaint in my judgment fails on the facts. These aspects were sufficiently explored. There was no procedural unfairness. This is another way of dressing up what is essentially a merits complaint.

The fourth and fifth grounds of challenge can be taken together. They allege that the Inspector reached conclusions not reasonably open to him on the evidence. Ware’s planning consultant says that the Inspector’s conclusion as to the likelihood of the fall-back position coming forward “defies comprehension”, especially given the refurbishment, marketing and grant of licences effected after the previous Inspector’s decision at the end of 1998.

I reject these complaints. In my judgment, it was open to the Inspector, on the totality of the evidence, and taking proper account of his site visit, and his own proper role, to conclude that the prospect of significant reoccupation was unlikely.

The sixth ground of challenge is that the Inspector gave inadequate reasons. I reject this complaint. I find his reasons on a fair reading to be adequate, clear and coherent on the main issues. No more, in my judgment, was required of him.

CONCLUSION

I have rejected all the grounds of challenge. In any event, however, the third ground for refusal was a freestanding reason, sufficient in its own right to lead the Inspector to dismiss the appeal. In relation to that reason, the difference in the traffic generation was only one of the factors taken into account by the Inspector in coming to his conclusion that the undoubted benefits of the development fell “well short” of the “clear advantages required” in order for there to be “very special circumstances” which would justify undoubtedly inappropriate development in the Green Belt.

The burden of proof is upon the Secretary of State to demonstrate that, if the Inspector’s conclusions in relation to traffic generation were flawed, this would not have affected his decision. This issue does not arise on my findings, but, if it had, I would have held that the burden was discharged.

I dismiss the appeal.