England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		1st February 2001

Thursday, 1st February 2001

1. MR JUSTICE SULLIVAN:

INTRODUCTION

2. This an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of an Inspector contained in a decision letter, dated the September 2000 (the "Decision Letter"), dismissing the Claimant's appeal against the non-determination by the Second Defendant ("the Council") of its application for planning permission to change the use of four former agricultural buildings from agricultural to B2 and B8 use.
3. The appeal site lies to the west of the M62 motorway, which in this vicinity runs approximately north-south from junction 25 in the south to junction 26 in the north. To the west of the site is the A643. Highmoor Lane, from which access to the appeal site is gained, runs to the north of the site in approximately a westerly to easterly direction from the A643 up to the motorway where it is stopped up. Immediately to the east of the site, and between it and the M62, is Hartshead Moor Motorway Services Area.
4. The appeal site is largely surrounded by a golf course, the clubhouse being located alongside Highmoor Lane to the north of the four agricultural buildings. To the south, across the golf course and other open land, is the settlement of Clifton, which lies on the edge of the urban area around Brighouse. On the ordnance survey a number of rights of way are shown crossing the open land to the south and the southwest of the site and between it and Clifton. The site lies within the Green Belt.
5. It is important to note at the outset that a challenge under section 288 to the validity of an Inspector's decision on an appeal under section 78 may be made only upon the grounds that the Inspector's decision: (1) is not within the powers of the Act; or (2) that any of the relevant requirements have not been complied with in relation to the decision.
6. An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.
7. In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.
8. Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task. It might be thought that the basic principles set out above are so well known that they do not need restating. But the Claimant's challenge in the present case, although couched in terms of Wednesbury unreasonableness, is, in truth, a frontal assault upon the Inspector's conclusions on the planning merits of this Green Belt case.
9. The assault commences with the witness statement of Mr Newton, the Claimant's managing director. The witness statement seeks to re-argue the planning merits, producing a great deal of additional material and argument that was not placed before the Inspector. For example, there are a large number of photographs of the site and surroundings marked-up to identify various features; there are additional plans and a series of photomontages contained in a report dated 17th October 2000. Such argument and evidence is wholly inappropriate in an application under section 288: see the notes contained in paragraph 288.21 of the Encyclopedia and Glover v Secretary of State for the Environment (1980) JPL 110.
10. There will seldom be a need for anything beyond purely formal evidence to produce the decision letter and the material before the Inspector relevant to the grounds of challenge in section 288 applications. In exceptional cases, as described in paragraph 288.21 of the Encyclopedia, it may be necessary to produce additional evidence, for example to show that "some matter of real importance has been wholly omitted from the Inspector's report." But such cases will be rare, and even in those cases applicants should firmly resist the temptation for their evidence to stray into a discussion of the planning merits. The court is sometimes prepared to stretch a point and look at, for example, an ordnance survey plan if the parties agree that it helpfully and, in an entirely non-controversial manner, illustrates an aspect of the grounds of challenge. But additional, contentious, illustrative material, of the kind produced by the Claimant in the present case, should not be produced in support of applications under section 288. To admit such material in evidence would merely open the door to challenges upon the planning merits.
11. On behalf of the Claimant, Mr Craig invited me to look at the maps, photographs, and photomontages because otherwise I would be unable to appreciate what the Inspector would or should have seen on her site inspection. This only goes to illustrate the difficulties inherent in the applicant's challenge. Maps and photographs may be helpful but they are no substitute for a site inspection. As those who attend planning inquiries know only too well, photomontages are often very far from being uncontroversial when produced in evidence and photographs not infrequently contradict the proposition that the camera cannot lie, particularly when questions of landscape impact are in dispute.
12. The use of the ordnance survey plan to get one's bearings in relation to the location of the application site and surrounding features does not present the same problems, and to that limited extent (but only to that extent) I am prepared to look at the ordnance survey plan.
13. Mr Craig drew my attention to the decision of Mr George Barlett QC, sitting as a deputy judge of the High Court, in South Oxfordshire District Council v Secretary of State for the Environment, Transport and the Regions [2000] V2 All ER 667. The Encyclopedia in paragraph 288.16 summaries the effect of his decision in this way:

"...there was no general rule that a party to a planning appeal was to be prevented from raising, in a challenge to that decision, an argument that had not been advanced in representations made on the appeal. If the inspector had omitted a material consideration, the decision could be unlawful, notwithstanding that the matter had not been raised in representations."

14. It is important that the South Oxfordshire decision is not regarded as a licence to introduce new material, that is to say material that was not before the Inspector, in section 288 applications. That this was not the deputy judge's intention is plain from the manner in which he dealt with the two additional grounds of challenge that were in contention in that case. The background was that the planning authority, whose refusal of planning permission had been overturned on appeal by an Inspector, sought permission to introduce two arguments before the learned deputy judge: firstly, relating to intermittent use; and secondly, relating to the adequacy of a condition.
15. The defendants objected upon the basis that the former argument would require new evidence and the latter could have been dealt with by way of suggested modifications if it had been raised before the Inspector. The judge accepted the validity of those objections and refused to permit the amendments containing the new grounds to be argued.
16. Whilst I accept that there is no general rule preventing a party from raising new material in a section 288 application, it will only be in very rare cases that it would be appropriate for the court to exercise its discretion to allow such material to be argued. It would not usually be appropriate if the new argument would require some further findings of fact and/or planning judgment (matters which are for the Inspector not the Court).

BACKGROUND

17. Before turning to the decision letter and the Claimant's criticisms of it, I should mention three matters of background. First, there had been an earlier proposal to use these agricultural buildings for industrial purposes which went to appeal in 1992. In his 1992 decision letter the Inspector said, inter alia:

"To the north, west and south of the site there is open agricultural land, which generally slopes down from north to south and is predominantly used for grazing. The M62 passes nearby to the east, and a motorway service area abuts the appeal site on this side."

18. The Inspector concluded that the principal issue in the case was:

"...whether the proposal would be prejudicial to the objectives of Green Belt designation, taking into account any special circumstances involved in the proposal."

19. He continued:

"Because of the generally open nature of much of the surrounding countryside, the existing buildings on the appeal site (together with some of the outside storage) are relatively prominent in the landscape. To some extent, longer distance views of the site from the west are constrained by land contours: to the east, the landscaping associated with the motorway service area also limits views of the appeal site. However from other directions, particularly the north and south-east, the large buildings on the site are clearly visible across agricultural land, often from long distances. As a result, and because of their size and modern appearance, they stand out in what is otherwise a relatively unspoilt tract of open countryside."

20. In paragraph 8 of the 1992 decision, the Inspector concluded that the proposals at that time would have involved a significant amount of alteration of the buildings and also that there would be what he described as a range of ancillary activities associated with the industrial use: hardstandings, loading and unloading areas, car parking and the like.
21. In paragraph 9 of his decision he said:

"In my view, therefore, the appeal proposal would result in a far more intensive use of the site as a whole than at present, despite the non-traditional type of agricultural business currently undertaken here. I believe that use of the appeal site for industry would result in significant changes to both the appearance of the site and the amount of activity generated by it, and that these changes would be readily apparent in the wider landscape."

22. The second matter is that since 1992 there have been changes on the ground, a golf course has been constructed, a motel has been constructed and subsequently extended on the motorway service area site. The Claimant also argued that the new application had changed since the area of the site upon which ancillary activities (such as parking) could take place had been more tightly constrained.
23. The third matter is that the Council was persuaded by the Claimant's arguments and accepted its officers' recommendation that the application should not be opposed. The Council sent the Inspector a copy of the officers' report under cover of a letter explaining its position in respect of the non-determination.
24. In view of some of the Claimant's criticisms of the decision letter, it is relevant to note the following matters which emerge from the officers' report. First of all, under "Relevant Planning History" the officers told the Council that there were a number of applications, one concerned a proposed grain store and another concerned a renewal of permission for four poultry units, one of which lies partly within the appeal site. The latter application, in respect of the poultry units, had not yet been determined. The former application, the grain store, awaited the signing of a legal agreement.
25. The report noted that two letters of objection had been received and objectors were arguing, amongst other things, that the proposal would encroach into the Green Belt and that a more intensive use would be detrimental to visual amenity and would detract from the rural character of the area. So far as the officers' assessment was concerned, they looked, firstly, at the Green Belt issue. They referred to the relevant policies in the Unitary Development Plan and to PPG2, which deals with the Green Belt. They discussed the main reasons for dismissing the 1992 appeal, and continued:

"In order to address these concerns, [that is to say the concerns raised in the 1992 appeal] the proposal now has a much reduced curtilage with parking and hardstanding areas confined to a yard which would be screened to a large extent by the existing buildings and fencing. In addition, some screen mounds have been formed in front of the main buildings so as to reduce the prominence of the buildings and screen the service road. It is also fair to say that the extensive tree planting that has been carried out in connection with the adjacent golf course has matured significantly since the appeal decision which has again helped to the make the buildings less prominent in the landscape generally.

There are also concerns about the impact of additional activity that would be generated but it is borne in mind that the access roads leading to the site are good, there is the motorway service area adjacent which itself generates activities over a 24 hour period and the golf course which again attracts a reasonable level of activity.

Taking all the above into account therefore, although there is some concern over the scale of the proposed development, it is not considered that material harm to the openness, character, function or visual amenity of this part of the Green Belt could be substantiated and, therefore, the proposal would not be considered to conflict with Green Belt policy."

26. The report then dealt with highways and accessibility, noting that the relevant policies in the UDP expected large employment-creating developments to be readily served by public transport and to be conveniently located in respect of the strategic road network. The report continued:

"Whilst the road links to the site are considered to be reasonably good, there is concern about the limitations of public transport links to the site. Clearly, advice in PPG13 seeks to reduce reliance on car-borne travel although the most recent draft PPG13 also recognises that local authorities should also encourage sympathetic re-use of existing buildings for employment uses in rural areas."

27. The report then dealt with the infrequency of the bus service along the adjacent highways and concluded in this way:

"Given that the buildings are existing and there are policies which positively support their re-use, particularly from employment uses, that there are other commercial activities in the vicinity and that the former agricultural uses would also have generated a certain level of employment (albeit much less than proposed), it is considered that the concerns over accessibility in themselves are not sufficient to have justified refusal of the proposal..."

28. Under "Visual Amenity" the report considered that further landscaping and screen fencing ought to be carried out to provide good screening, however this could be achieved through the imposition of conditions. In conclusion the report said this:

"It is concluded that although there are reservations concerning the scale of the development and accessibility issues, these would not be so substantial as to have justified a refusal of the application were it to have been determined..."

29. In short, the officers were not saying that there were no concerns on Green Belt and accessibility issues. There were concerns. But in the officers' judgement those concerns were not sufficient to warrant a refusal of planning permission.
30. THE DECISION LETTER AND THE GROUNDS OF CHALLENGE
31. In paragraph 1 of the decision letter, the Inspector noted that the Council was not opposed to the appeal being allowed. She identified the main issues in paragraph 2:

"Having read the representations and visited the appeal site and surroundings, [on an accompanied site visit on 30th August 2000] I consider the main issue in this case to be whether or not the appeal proposal constitutes appropriate development in the Green Belt and, if not, whether there are any very special circumstances sufficient to outweigh the consequent harm together with any other harm which may be identified."

32. There is no suggestion that the Inspector failed to correctly identify the main issues.
33. In paragraph 3 she then set out the relevant policies in the Calderdale Unitary Development Plan ("the UDP"). Policy N105 included as appropriate development within the Green Belt the reuse of buildings with a cross-reference to policy N13. She continued:

"Policy N13 states that the Council will support the re-use and adaptation of buildings in Green Belt ... provided that they meet the following criteria... These include: (i) the form, bulk and general design of the buildings are in keeping with their surroundings or can be improved in their appearance to remove any adverse impact on the landscape; and (iii) the conversion does not have a materially greater impact than the present use on the openness of the Green Belt, and the purposes of including land in it or on the character of the countryside in general.

UDP Employment Policy E3 states that outside the Primary Employment Areas shown on the Proposals Map, where local job opportunities and accessibility to the Primary Employment Areas can be difficult, the Council will support proposals for appropriate new industrial or commercial development."

34. She then turned in paragraph 4 to central government guidance on the reuse of buildings in the Green Belt and said that guidance was given in PPG2 at paragraphs 3.7 to 3.9 and at Annex D:

"Paragraph 3.8 states that the re-use of buildings inside a Green Belt is not inappropriate development subject to exceptions which include that a proposal does not have a materially greater impact than the present use on the openness of the Green Belt and the purposes of including land in it; and that the form, bulk and general design of the buildings are in keeping with their surroundings."

35. Again, there is no suggestion that the Inspector failed to identify the relevant policies both at national level and in the UDP.
36. In paragraph 5 the Inspector gives the dimensions of the four former agricultural buildings.

"The buildings are former cattle sheds measuring 1140msq, 1200msq, 1320msq, and 1500msq in floor area."

37. She then describes their disposition upon the site and certain other features of the site.
38. Against that background, Mr Craig conveniently grouped his arguments by reference to the succeeding paragraphs in the decision letter. I will deal with them in the order of his submissions.
39. First of all paragraphs 6 and 7. They are as follows:

"6. The complex of massive buildings occupies an elevated position on rising ground above the village of Clifton. The combined lengths of Units 3 and 4 are starkly visible on approach from the south-west along the A643. Trees and bushes have been planted beyond the perimeter of the site in connection with the golf course which now surrounds it. However, on the all-important south-western boundary their potential as an ultimately effective screen is limited by a sharp fall in land level towards an ornamental lake. Planting on the lower levels would take many years to reach an effective height. The site itself contains no landscape planting, and insufficient space to accommodate an effective landscape belt.

7. Purely by virtue of their purpose as agricultural buildings the appeal units could be considered appropriate in the open Green Belt landscape whilst they were in use for agriculture. However, their elongated form, massive bulk and stark design are not in themselves in keeping with their rural surroundings. I am not confident that imposing conditions to secure an improvement in the external appearance of the building, as Footnote 1 to paragraph 3.8(d) of PPG2 suggests, would be adequate to overcome the harmful impact of their mass in the landscape. In the circumstances I consider that the appeal proposal would constitute inappropriate development in terms of PPG2 and UDP Policy N13(i).

It is said that in these paragraphs the Inspector misinterpreted or misapplied PPG2 because she was required to assess the buildings in their surroundings. Although the Inspector describes the surroundings as rural, it is submitted that she wholly failed to take into account or even mention the immediate proximity of the M62 motorway and the Hartshead Moor Motorway Service Area, those being features which the Council had considered important matters in assessing the application.

It is further argued that it must have been an important factor to consider what would be the effect of leaving the buildings empty and the Inspector did not address that issue anywhere in her decision letter. It is then said that the Inspector relied on findings of fact which were Wednesbury unreasonable. The finding that the buildings are not in themselves in keeping with their rural surroundings was unreasonable having regard to the fact that those surroundings included the immediately adjacent motorway and the motorway service area as well as the golf club buildings.

It is said that the Inspector's lack of confidence that screening would be effective was Wednesbury unreasonable in the light of a number of factors. Those factors include the extent to which screening had already been effective to screen parts of the motorway service area; screening that had been effective on the golf course and the proposition that further screening could be achieved by means of a landscaping condition, which the Council had been content to accept. It is said that in the absence of any explanation it was unreasonable to conclude that screening by planting would be frustrated by the fall in the land level to the southwest of the buildings.

It is further submitted that given all of the immediately surrounding land was in the ownership of the applicant and had been the subject of extensive landscaping and planting as part of the golf course, the Inspector should not have relied on the absence of space for landscaping within the application site itself.

Mr Craig accepted that nobody visiting the site and the surrounding area could fail to have noticed the presence of the M62 and the motorway service area and the golf course. He did not suggest that the Inspector had failed to notice these features, but he did submit that in assessing the surroundings the Inspector failed to take them into account. Alternatively, they were such important features that she should have specifically referred to them in her decision letter.

To deal with that last point first. The decision letter is addressed not to the world at large but to the parties to the appeal, who will be well aware of all the arguments and of the surrounding circumstances: see Seddon v the Secretary of State for the Environment [1978] JPL 835 (noted in paragraph 288.17 of the Encyclopedia of Planning Law).

The existence of the M62 and the motorway service area was perfectly obvious to all of those involved in the appeal. Those features had been referred to both by the local planning authority and by the Claimant in its written representations. There was no need for the decision letter to spell out the obvious. The Inspector went on an accompanied site inspection. There was ample opportunity for the parties to draw her attention to the M62, if indeed it was necessary to do so.

I can see no basis for the submission that the Inspector must have ignored the existence of the MSA and the motorway in reaching the conclusion that the buildings were not "in keeping with their rural surroundings". Motorways frequently pass through rural areas. Motorway service areas, since they are there to serve motorways, often have to be located in rural areas as well. Whether the surroundings of this appeal site, including the motorway and the MSA, could fairly be described as rural was a matter for the Inspector to judge.

It is difficult to see how her view can be described as Wednesbury unreasonable when her colleague in 1992, having referred to the motorway and the MSA specifically in his decision, and also referred to the existence of the planning permission for the golf course, felt able to refer to the generally open nature of much of the surrounding countryside and to the buildings standing out in what was otherwise a relatively unspoilt tract of open countryside.

Turning to the question of screening. I have already mentioned the planning authority's view. It was not that there was no need for further screening, it was that further landscaping and screening was required but the planning authority was satisfied that effective screening could be achieved. The Inspector disagreed. She was entitled to do so. She had to form her own planning judgment as to the adequacy of the existing and any proposed screening.

Mr Craig referred to the fifth proposition in the summary of the Seddon case contained in the Encyclopedia of Planning Law:

"If the Secretary of State differs from his Inspector on a finding of fact and takes into account any new evidence or matter of fact not canvassed at the inquiry he must, if this involves disagreeing with the Inspector's recommendations, notify the parties and give them a least an opportunity of making further representations."

40. Rule 12 of the Inquiry Procedure Rules."
41. Mr Craig accepted that there was no breach of the rules here, but he submitted, by way of analogy that if the Inspector wished to disagree with the Council's assessment fairness required that the Claimant be given an opportunity to meet the point. That, in my judgment, is to confuse findings of fact with questions of planning judgment. On matters of planning judgment, having heard the views of the parties, the Inspector was perfectly entitled to disagree with their judgments and to reach her own view. She was not obliged to give the parties a further opportunity to comment upon the matter.
42. Mr Craig submits that if the Inspector disagreed with the planning authority she should have explained why. In my judgment she did. In the passage that I have read out she explained that the potential for effective screening from the southwest was limited by the sharp fall in the land. She was entitled to be concerned, in particular about the views from the southwest, because of the relationship of the site to the village of Clifton and the footpath network.
43. The fact that she was entitled to reach the view set out in paragraph 6 of the decision letter is confirmed by the fact that in that paragraph she was echoing the earlier Inspector's concerns about the visual prominence of the buildings. Those views were reached of course before the golf course had been laid out. But the Inspector in paragraph 6 is plainly aware that the golf course has been laid out, she indeed refers to the fact that trees and bushes had been planted in connection with the golf course which now surrounds the site.
44. It is said that the Inspector should have given more details, for example why she thought that trees would not grow to the required height; or why landscaping outside the application site would not sufficiently screen buildings of this size. The Inspector was obliged to give the reasons for her decision, she was not obliged to give detailed reasons for those reasons. Moreover, she had to deal with the adequacy or otherwise of the landscaping on the basis of the material before her. There were no detailed proposals for landscaping outside the site, much less any detailed evidence about the growth rates of particular species of tree. The Council had suggested the imposition of a condition. The Claimant had made only a passing reference to "further landscaping will enhance the area". The practical difficulties of introducing effective landscaping within a golf course on falling ground, to screen large buildings standing in an elevated position must have been obvious to all concerned. In the absence of any indication as to how that problem might be resolved, the Inspector was fully entitled to conclude as she did.
45. As to what would happen if the appeal was dismissed - would the buildings be left empty and in a deteriorating condition? - there was simply no information before the Inspector. I have read through the applicant's written representations. Contrary to the submissions advanced by Mr Craig, largely upon the basis of Mr Newton's planning arguments in his witness statement, the written representations before the Inspector did not suggest that the buildings would be retained and left to fall into a derelict condition if the appeal was dismissed. The Claimant and the local planning authority said nothing to the Inspector about the future of the buildings if the appeal was to be dismissed. Common sense might cause one to question whether the Claimant would permit large derelict buildings to remain in the midst of its golf course not far from the clubhouse. Whether that would be a realistic prospect would have been a matter for the Inspector to consider if the Claimant had raised it as an argument in the appeal. I add reference to this point because the Claimant made it clear in its representations to the Inspector that it would not propose any development which "would jeopardise the considerable investment" in the golf club of which it was, understandably, proud.
46. PARAGRAPH 8
47. Paragraph 8 of the decision letter is as follows:

"The Appellant manufacturing company is itself the intended user. The evidence is that commercial vehicle movements would be in the order of 2 or so per day. However, for a B2/B8 use on so large a site this strikes me as an unusually low figure. It may genuinely apply to the Appellant company at the present time. However, if permission were granted it would be hard to control future intensification of commercial vehicle movement above that level, whether the site continued in occupation by the Appellant or by some other user. The site has the capacity and the potential to generate large numbers of commercial lorry movements. The comings and goings of farm traffic and of other commercial vehicles associated with the livestock enterprise, where appropriate to the Green Belt. The vehicle movements associated with a manufacturing and distribution use, on the scale represented by the site, could be significantly different in number and in kind. The purposes of Green Belt include, according to PPG2 paragraph 1.5, to assist in safeguarding the countryside from encroachment. The potential scale and volume of traffic movement to and from and within the appeal site would in my view constitute encroachment upon the countryside. On that account I consider that the appeal proposal would represent inappropriate development in the Green Belt in terms of PPG2 paragraph 3.8(b) and UDP Policy N13 (iii)."

48. It is submitted that the Inspector's conclusion that the development would be inappropriate because of the potential scale and volume of future traffic movements is Wednesbury unreasonable. It is said that the Inspector failed to assess the matter by reference to existing traffic movements; rejected the planning authority's conclusions as to the likely traffic consequences without any cogent explanation; did not measure future movements by reference to existing levels of traffic along the A643 into and out of the golf club, into and out of the motorway service area, and along the road that would service the site and along the motorway itself. It is said that the Inspector's conclusions were entirely speculative and wholly unsupported by evidence. It is said that she erred in concluding that the non-agricultural traffic movement, even if no greater in scale, volume, or type than any traffic movement occasioned by agricultural use, would constitute encroachment into the Green Belt. I propose to deal with these complaints fairly shortly against the background which I have set out above.
49. Firstly, the Inspector was not bound to accept the planning authority's view. Secondly, she was perfectly entitled to conclude that if four substantial buildings were to be used for industrial purposes rather than agricultural purposes, there was at least the potential for more traffic to be generated and that, notwithstanding the presence of traffic generated by the MSA and the motorway, there would be an encroachment upon the countryside. The significance of that encroachment was a matter for her to assess. It is perfectly true that the Inspector did not refer to any detailed traffic figures, that was for the simple reason that no detailed traffic figures were provided for her, either of the traffic to the previous agricultural use or of traffic on the A643, of traffic into and out of the MSA, or along the motorway. Mr Newton sought to provide such information in his witness statement. The information was not before the Inspector and it is not, therefore, properly admissible in this court.
50. The Inspector had to assess the issue as best she could upon the information available, which included the fact that a 100 persons were proposed to be employed upon the site. In the light of the material available the conclusions in paragraph 8, far from being unreasonable are eminently reasonable, not least because they echo the concerns of her predecessor in the 1992 appeal. It will be recorded that that Inspector was concerned that "the appeal proposal would result in a far more intensive use of the site as a whole than at present." It will also be remembered that the Council had "some concerns" as to the impact of additional activity. The Council were not suggesting that there would be no additional activity. They recognised that there would be some additional activity but did not feel it was such as to warrant a refusal. The Inspector disagreed, as she was perfectly entitled to do upon what was preeminently a question of planning judgment.
51. PARAGRAPH 9
52. Paragraph 9 is as follows:

"Some space for lorry parking is available on the hardstanding beside Unit 4. However, much of this is at a high level, from which lorries could well be visible from a distance, from the A643 or from public tracks and footpaths on the lower ground to the south. Lorries are not usually coloured with the purpose of blending into the landscape: on the contrary, they are designed to stand out. Because of the drop in land levels, neither the actual nor the potential screening available would in my view be adequate to conceal lorries on the perimeter road and on the hardstanding. On that account I consider that the proposal would conflict with the openness of the Green Belt, and would constitute inappropriate development in the terms of PPG2 [and UDP policy]."

53. It is said that these conclusions are Wednesbury unreasonable because they assume, without any evidence, that numbers of brightly coloured lorries, visible from the A643 to the southwest, will be parked on the site throughout a substantial part of the day, in positions which are incapable of being screened. It is said that these conclusions of the Inspector ignore the fact that from the same vantage point one can see the lorries on the motorway and one can see the traffic going to and from the golf course and the MSA.
54. Again, the criticism is made that the Inspector has rejected the Council's conclusion without giving any reason for so doing. Similar observations apply in respect of these complaints as they do in respect of the complaints that are dealt with above. The Inspector was entitled to disagree with the planning authority's view. Her conclusions in paragraph 9 are, in my judgment, unimpeachable. The challenge amounts to no more than the proposition that because of the proximity of the M62 and the motorway service area she should have accorded less weight to this particular factor, that is to say the visibility of the lorries which would inevitably be parked upon the site. Questions of weight were for her having inspected the site. Again, it will be noted that her concerns in this respect echo those of her predecessor in 1992.
55. PARAGRAPH 10
56. Paragraph 10 is as follows:

"The proposal would bring with it a 100 jobs. However, it is not clear whether some or all of these would be relocated from existing premises. I have no evidence that access to employment is especially difficult in this part of the District. Without such evidence, I consider that UDP Policy E3 adds little weight in favour of the proposal. Government planning policy guidance on the location of employment at PPG13 emphasises at paragraph 2.1 the need to promote strategies to reduce the need to travel. I take this to include the movement of commercial traffic as well as journeys to work. At paragraph 3.5 it states that local authorities should avoid major developments in locations not well served by public transport or otherwise readily accessible to a significant local residential work force. The jobs would be provided in a location well beyond major centres of population. The A643 is a bus route: but I have no evidence that the employee base is likely to be served by that route at appropriate working times. The Appellant offers a minibus service, but has submitted no S106 undertaking to provide such a service. On balance, I consider the evidence inadequate to demonstrate that the appeal proposal would comply with the provisions of PPG13."

57. It is submitted that these findings of the Inspector are in error because she has treated PPG13 as imposing some kind of mandatory threshold entitling her to reject the application and has failed to take into account the recent revisions to the PPG13 dealing with employment opportunities in rural areas, and failed to take into account the provisions of the UDP and, more importantly, the observations of the planning authority in relation to employment opportunities.
58. It is further said that these conclusions are Wednesbury unreasonable because the Inspector asserts that the development is well beyond the major centres of population, without setting out any foundation for that conclusion. It is said she ignores the proximity and impact of the M62 and unfairly and unreasonably rejects the offer to provide a minibus service because it is not contained in any formal section 106 agreement.
59. At this stage of her decision, the Inspector has concluded that the proposed development would be inappropriate development in the Green Belt and she is, therefore, considering whether there are very special circumstances which would justify the granting of permission. The most obvious potential special circumstance is the issue of employment. She therefore considered the extent to which the provision of employment at this particular location would or would not comply with the guidance in PP13. For the reasons she gave, she concluded on balance that it would not. In my judgment that conclusion was open to her upon the material before her. I do not understand the relevance of the references to the proximity of the M62 and the motorway service area in the Claimant's submissions, since the whole thrust of PPG13 is to reduce reliance upon the private car, as explained in the Council's report.
60. As to the Inspector's proposition that the development is well beyond the major centres of population. It will be recalled that her predecessor in 1992 felt able to describe the site as being in an isolated position. The Council had reservations on the issue of accessibility but it considered that its concerns over accessibility "in themselves are not sufficient to have justified refusal".
61. The short answer to the Claimant's submissions on this point is that the Inspector shared the concerns of the Council and, as a result, concluded that the provision of employment at this location was not in accord with PPG13. There is nothing unreasonable about that conclusion. Again, the Inspector was obliged to proceed upon the basis of the information that was laid before her. There was no information for example as to where the 100 employees lived, save that the Claimant's written representations had said that they "lived in nearby towns and villages". There was no evidence about how the employees currently travelled to work; no information as to how they would travel to the application site.
62. The Council in its letter to the Inspector had said this:

"In addition, the Council's concerns over accessibility issues could have been reduced by the provision of a 'travel plan' under which arrangements could have been made by the appellant to make transport provisions for the employees working at the site such as to reduce reliance on car travel to access the site. Again however, the appeal was lodged prior to this matter being fully discussed with the appellant, and, as this would be a matter where a Section 106 Agreement would also have been necessary, the appeal will need to be determined without consideration of this in the absence of a unilateral undertaking."

63. Notwithstanding that clear indication, the Claimant did not provide any travel plan and did not enter into any section 106 undertaking. There was merely the most generalised reference in its written representations that "the Claimant is willing to provide suitable transport for workers to and from the site." Upon the basis of that evidence, it is hardly surprising that the Inspector came to the conclusion that she did.
64. The Inspector therefore concluded in paragraph 11 that there were no very special circumstances sufficient to outweigh the conflict with Green Belt policy. She went on to say this in paragraph 12:

"PPG2 paragraph 3.9 states that evidence that the building is not redundant in its present use is not by itself sufficient grounds for refusing permission for a proposed new use. The evidence is that the buildings are indeed redundant for the raising of cattle. However, I am concerned that the land immediately outside the site and on the land edged blue as being in the ownership or control of the Appellant, is currently the subject of a planning application to erect 4 large poultry houses not entirely dissimilar to the appeal buildings in their shape and size. I have no evidence that the appeal buildings are unsuitable for poultry purposes. If approval of the appeal scheme were to result in the need to erect 4 more large buildings, that seems to me to be a further argument against the appeal proposal, for it would clearly result in a further decline in the openness of the Green Belt in this prominent location."

65. It is said that the Inspector's reliance upon the outstanding planning application was unfair because she had not made mention of her concerns in time to permit the applicant to respond to those concerns. The applicant was willing to abandon the application and had indicated as much to the planning authority as long ago as July 1998. Reference is made to a letter, not from the Claimant, but from the local planning authority to the Claimant dated 27th July 1998.
66. It will be noted that by this stage the Inspector had concluded that there is conflict with Green Belt policy and no very special circumstances sufficient to justify making an exception. Thus, paragraph 12 is very much by way of an addendum and I accept the submission on Mr Litton, on behalf of the Secretary of State, that even if there was an error in paragraph 12 it would not justify the quashing of the decision letter.
67. But, in my judgment, there is no error. The plain fact is that the letter from the local planning authority dated 27th July 1998 was not placed before the Inspector. That letter does suggest that the Claimant might be prepared in certain circumstances not to pursue the application for the four large poultry houses. What was placed before the Inspector in this respect was the information set out in the planning authority's report. That listed the application and noted that the application for renewal of permission for the four poultry units was not yet determined.
68. The Council's letter to the Inspector did not suggest that the report was inaccurate in that respect, or that there was any proposal to withdraw that application. It did mention its concerns in respect of another application for an additional agricultural building, that was a grain store. It thought that those concerns could be overcome subject to the completion of a section 106 agreement, that was in part because the site of that building formed part of the parking area for the appeal proposal.
69. On the basis of the material before her, the Inspector was fully entitled to reach the conclusion that there was yet to be determined an application for renewal of permission for four poultry units. It will be recalled that the Council's report was sent to the Claimant. It would have been open to the Claimant to explain in its written representations to the Inspector that this application should be disregarded because it was no longer being pursued. It failed to do so. I would add that paragraph 12 demonstrates that the Inspector was bearing in mind possible future uses for these buildings, she was not ignoring that issue altogether.
70. Lastly paragraph 13, where the Inspector dealt with conditions. She said this:

"Those disadvantages which weigh most heavily against the proposal derive from its scale and are not in my view capable of amelioration via the imposition of planning conditions. Government Circular 11/95 on the use of conditions in planning permissions, advises that a permission personal to a company is inappropriate because it shares can be transferred to other persons without affecting the legal personality of the company. Such a condition would in any case be powerless to prevent future changes in company activity which might increase lorry movement to and from the site. Conditions to supplement existing landscaping would be ineffective, given the lack of suitable land for planting on the south-west side of the site."

71. It is submitted that had the Inspector in some way misread Circular 11/95, and was under the misapprehension that land available for planting had to be contained within the site. That would be unreasonable because Circular 11/95 specifically points to the possibility of imposing planning conditions which regulate the use of adjoining land in an appellant's ownership or control.
72. I can see no basis for the submission that the Inspector misunderstood the effect of Circular 11/95. She was entirely correct to conclude that a permission personal to the company would not be appropriate. That of course was relevant because it had been argued that the company would be the occupier and that commercial vehicle movements would be in the order of only two or so per day.
73. So far as landscaping is concerned, the Inspector, in the light of her conclusions as to visibility from the southwest, was entitled to say that conditions to supplement existing landscaping would be ineffective given the lack of suitable land for planting on the southwest side of the site. In the earlier part of her decision, and the decision letter must of course be read as a whole, she explained why that land would not be suitable, that is because it is on falling ground, it might be added for good measure that it also forms part of a golf course.

CONCLUSIONS

74. Reading between the lines in this case, it is tolerably clear that the Claimant was lulled into a false sense of security in the light of the planning authority's decision not to oppose the appeal. The Claimant's written representations were very generalised in nature. The Claimant had no basis for such complacency. Planning permission had been refused for not too dissimilar proposals on Green Belt grounds in 1992. It was for the Claimant to persuade the Inspector that the proposal was appropriate in terms of Green Belt policy and, if not, that there were very special circumstances to justify making an exception.
75. The representations singularly failed to do so, it is as simple as that. For these reasons this application must be dismissed.
76. MR LITTON: My Lord, I do ask for an order that the Claimant pay the First Defendant's costs as a matter of principle. I do not think that is resisted.
77. MR JUSTICE SULLIVAN: Right, and summarily assessed in this sum?
78. MR LITTON: Yes, my Lord, summarily assessed. My Lord, I am not sure that the figure you have is quite the accurate one, in the sense that, because it has not taken quite as long as we anticipated, my solicitor's attendance has been reduced. Can I pass up, my Lord, what is an agreed figure between the parties, or read out to you the agreed figure?
79. MR JUSTICE SULLIVAN: Yes.
80. MR LITTON: It is £3,504.53.
81. MR JUSTICE SULLIVAN: It is nice to know we have saved some public cost anyway. Agreed, Mr Craig?
82. MR CRAIG: It is agreed, my Lord.
83. MR JUSTICE SULLIVAN: Then the order is that the application is dismissed. The Claimant to pay the First Defendant's costs, those costs to be summarily assessed in the agreed sum of £3,504.53. Thank you both very much.