England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice The Strand
		14th February 2002

1. MR JUSTICE COLLINS: This is an application under Section 288 of the Town & Country Planning Act 1990 to quash the decision of an inspector whereby he upheld the refusal of planning permission to the applicants to erect a dwelling on land in Allendale in an area of outstanding natural beauty. The inspector treated the application as one for a new dwelling and decided against the applicants on the basis that the policies in the relevant plan precluded the erection of new dwellings in the particular area concerned.
2. There is a considerable history to the site in question which I should set out briefly. In September 1990 planning permission was granted to enable the then owner to erect a dwelling house on the site. There had been a house on the site which was by then in a derelict state. In 1992 Mr Milburn purchased the property and, following discussions with the council, eventually advice was received in the summer 1995 that the original walls would be unable to bear the weight of the stone roof slates which had been part of the original permission. Accordingly, in August 1995 an application was made to substitute lighter blue roof tiles. Pending the consent no further work was able to be carried out. The original permission was subject to the usual condition that the work be commenced within five years. There was some delay in granting consent for the use of the lighter tiles because the council managed to lose the relevant file.
3. Unfortunately, during that period in December 1995 the end wall of the building was blown down in a storm. The council, when granting consent to the natural blue slates, indicated that further rebuilding would contravene the council's policy on abandoned buildings and would require a new permission.
4. Accordingly, no further work at that stage was carried out. Some three years passed. In March 1999 the council wrote a letter to Mr Milburn asking about the future plans for the property. In summer 1999 the property was transferred to the present applicants M H Services Ltd, a company in which Mr Milburn has, if not a controlling, at least an interest. The company decided it wanted to go ahead with the construction of the dwelling for which planning permission had been granted as long ago as September 1990.
5. Having regard to what had been said in 1996, namely that further rebuilding would require a new planning permission, on 20th March 2000 the application for planning permission was lodged. That, on its face, described the proposed development as "the erection of domestic dwelling".
6. Annexed to it was a document described as "additional factors for consideration" which set out the history of the site, largely in the terms I have already indicated. It made the point that, whereas the local plan did not provide for new dwellings, if the concept of a dwelling on the site was considered correct in 1990 that should hold good now when consideration was given to the fact that the building was only frustrated by an unfortunate set of circumstances outside the applicant's control. The council considered the application.
7. Before making the application the applicant had written to the council asking, effectively, for the officer's views as to the likelihood of success were an application to be made. The reply was -

"that the demolition of some or most of the western gable end to reconstruct the building, further to the 1990 planning permission, would require the submission of a new planning application."

8. It would have -

"to be treated as the construction of a new dwelling in open countryside, which would be in conflict with local plan policies. It is unlikely that [the planning officer] could support an application for the construction of a new dwelling."

9. It went on:

"If you wish to pursue the submission of an application, I may suggest you provide additional justification. It may be considered that the location of the building adjacent to a terrace of properties is less unacceptable than building on an isolated site. Furthermore, you may wish to provide evidence on the importance of tidying up the site and the benefit to the appearance of the Area of Outstanding Natural Beauty."

10. There is an internal memorandum in the council, part of the documentation which was before the inspector, indicating the inquiries and examination that had been made prior to writing the letter to which I have just referred. The relevant officer stated that he considered there were three policy options. First, on policy BE13 it was said:

"The first issue is whether the building is considered to be an abandoned former dwelling. It would appear from previous correspondence that this is the view the council has taken. I am not convinced that this property could necessarily be regarded as abandoned given the owner's intention to refurbish it. However, if the property is regarded as abandoned ..... rebuilding would not conform to BE13."

11. There was reference to policy BE15. It was said:

"Once again, the current state of repair of this building coupled with the time period which has elapsed since the deterioration of the building leads me to the view that the rebuilding of this property would not conform to BE15."

12. There was a reference to policy H11:

"While this property may be regarded as being within a group of existing houses, I am still of the opinion that the dilapidated state of the building would not conform to criterion (a) and thus Policy H11."

13. It continues:

"Given the above, I am of the opinion that the development would need to be regarded as a new dwelling in the countryside and as such, the proposal would conflict with Policy H17."

14. He stated that the policy situation had changed since the 1990 permission.
15. I should refer to BE13 and, more particularly, BE15 in order that the observations to which I have just referred can be understood. Policy BE13 relates to the re-occupation of abandoned former dwellings within the open countryside. There are a number of conditions attached to it. Suffice it to say, quite independently of the question of abandonment, it seems improbable - and has not been seriously suggested - that this particular application would comply with policy BE13. It is of interest to note that the planning officer in his observations doubts that the property could properly be regarded as abandoned. In that regard, in my view, having regard to the history, that is undoubtedly correct. BE15 is a different matter. BE15 has nothing to do with abandonment. It reads:

"The reconstruction of buildings within the open countryside will be permitted provided all the following criteria are met:

a) the new building is not materially larger than the one replaces;"

there is no issue but that that was met,

"b) the design and materials conform with the criteria set out in policy GD2;"

the inspector so decided in the course of his examination,

"c) if it is to be rebuild for residential use, then evidence is provided that residential was the lawful use of the building immediately prior to its destruction;"

subject to the word "destruction", that is not in issue;

"d) the building was of a type where rebuilding is not specifically excluded by other policies in this Local Plan."

16. I am not aware of any such specific exclusion. If there were I would have expected it to be referred to in the memorandum to which I have already referred.
17. In those circumstances it seems, to say at least, improbable that d) would not have been met.
18. When the officers came to report to the committee which, in due course, refused permission, they dealt with the policies in paragraph 5.2. They referred to the general policies which did not allow the construction of new dwellings in the countryside and, in particular, those which protected the North Pennines Area of Outstanding Natural Beauty in which the appeal site stood. The last sentence of paragraph 5.2 reads:

"While policy BE15 allows rebuilding, the proposal does not meet the relevant criteria, because the one time residential use had been abandoned."

19. That is simply wrong.
20. Mr Mould does not seek to argue to the contrary. The basis upon which the local planning authority rejected the application of BE15 was clearly misconceived. The conclusion reached is set out in paragraph 6.1 which reads:

"The particular situation with regard to the collapse of the building might be regarded as a material consideration justifying the grant of permission. However, unlike the recent case at Altonside, Haydon Bridge, there is a considerable period of time when the building was left open to the elements, and the applicant has already benefited from a claim for compensation. There does not appear to be sufficient justification to depart from Development Plan policy. Accordingly the application is recommended for refusal."

21. Quite what was the materiality of the lapse of time and of the applicant having benefited from compensation, I do not know.
22. When it came to its statement of case before the inspector the council stated in paragraph 2.1.4 much as they had stated in paragraph 5.2, to which I have already referred. The last sentence reads:

"Also, Policy BE15 allows replacement dwellings, but not where the re-use has been abandoned, as is the case here."

23. That was clearly erroneous as was apparent from the history I have recited and which, essentially, was also recited by the inspector.
24. The appeal was dealt with by way of written representations. Unfortunately, the representations made in the grounds of appeal by the applicants did not perhaps fully identify the issues which have been raised before me. It set out the background history. Again that was common ground. It then dealt with the first reason for refusal which was against the building of new dwellings in the countryside. What was said was this so far as material:

"It is correct to say that there was previously permission to renovate this property and it is only as a result of the delays encountered when the permission for the new roof tiles was sought that the property was not completed. The appellants submit that if it was deemed appropriate to have a dwelling on the site in the recent past, that should still be the case. Permission is only sought for one dwelling and thus any perceived `spread' of development would be limited and in keeping with the immediate environs. Furthermore, it is contended that the very positive impact on the surrounding area of outstanding natural beauty that the re-building of this dwelling would have, particularly in view of its fairly prominent position, is sufficient to justify a departure from the Local Plan. The proposed development does not have an adverse effect on the character or appearance of the countryside and it is submitted that a property on the site would enhance the locality."

25. There was also a drainage issue and a design issue but those were, in the end, decided in favour of the applicants.
26. Three points were taken in this application. First, it was said that the inspector had failed to take into account the existing planning permission. Secondly, he had failed to take into account policy BE15; and, thirdly, he had mentioned in the course of his determination that the building in question might be assumed to have properly been an agricultural building and not a cottage.
27. I can deal with that third ground shortly. It is said that was, in fact, inaccurate (which may be the case) but that, in any event, the fact the inspector referred to it must mean that it played some part in reaching his conclusions. The contrary view is it was simply an observation which could not and did not have any material effect on the determination. It is clearly a make-weight point at the very best. It cannot be regarded as more than a passing observation. As I said to Mr Fookes in the course of his submissions, if he did not succeed on one or other or both of the first two points he would not succeed on the third. I can leave it out of account.
28. The second point - the failure to have regard to BE15 - is the one on which Mr Fookes has placed most emphasis. It is obviously an important and essential point. The inspector, in his report, does not refer to BE15 at all. His reasoning is set out in paragraphs 5, 6 and 7. Paragraph 5 deals with his observations and gives details of what is now standing. There are photographs in the papers which show that there are walls up to something between 1½ and 2½ metres. There is no roof and there is a degree of rubble around. There are some windows which are in the walls to the height to which they rise. It is an obviously derelict building. It is of sufficient height to be observable as such. At paragraph 6 the inspector said:

"6. On the first main issue, I consider that too little remains of the original structure for the present proposal to be considered a renovation. While what there is of the front and rear walls could probably remain, the north gable would have to be built from scratch and a substantial part of the south gable would have to be rebuilt. There is no evidence of any first floor or roof structure and nothing to indicate whether the original building was single-storey, 1½ storey or two-storey. From its location and the seeming absence of land with it, one might nowadays assume that what had existed was probably an agricultural building, not a cottage. I shall therefore consider the proposal as being for a new dwelling, which one would anyway infer from the wording of the planning application.

7. The site is obviously not within any village. It is closely related to the six cottages of Fell View, which stand on the west side of the B6295 road, but Structure Plan Policy S1 is clear that that is not adequate justification for a new dwelling. The proposal is designed in a broadly traditional way, with stone walls and a slate roof, but it could not avoid being seen as a new dwelling, especially with the access, parking and garden area shown on [the relevant] drawing. Given the sporadic pattern of development in the vicinity, the harm to the landscape quality of the Area of Outstanding Natural Beauty from a single new house would be limited.

However, as PPG7 says at para. 3.21, `The fact that a single house on a particular site would be unobtrusive is not by itself a good argument; it could be repeated too often'. No other justification is given for a house on this site, save for arguments relating to the previous permission for renovation. I therefore conclude that the proposal runs contrary to Structure Plan Policies S1 and L1 and Local Plan Policies NE1, NE15 and H9."

29. Mr Mould accepts inevitably, and correctly, that in the circumstances where the "abandonment" point was a bad one, policy BE15 was capable of pointing in favour of the application that had been made. But he correctly says that its application was not referred to by the appellant, certainly not directly, and no contention was put before the inspector, by or on behalf of the appellant, that the council's reason for rejecting the application of policy BE15 was incorrect. Therefore Mr Mould submits the inspector was not bound to deal with that issue directly. There was no reason to believe that he had ignored it; after all, it was in the documentation. There was therefore no reason to believe that it had not been taken into account by him and it did not point inevitably in the direction of the grant of permission.
30. Mr Mould referred me to the well known case of Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 71 P&CR 309 (known as Bolton No. 2) in the House of Lords). Lord Lloyd, who gave the only reasoned speech in the case, dealt with the correct approach to decision letters in planning appeals. The point that has come out of the various cases, notably Save British Heritage v No.1 Poultry Ltd [1991] 1 WLR 153, is that the decision letter must state the reasons in sufficient detail to enable the reader to know what conclusion has been reached on the principal, important, controversial issues. He does not have to refer to every material consideration, however insignificant, or deal with every argument however peripheral. That would, quite obviously, impose a wholly unjustifiable burden. It is clearly the duty of the Secretary of State, and so the inspector, to have regard to the relevant plan and to any other material consideration. That obligation is imposed by Section 70 (2) of the Act of 1990. What flows from that, as again Mr Mould accepts, is that the process is an inquisitorial one. The inspector has to consider for himself whether permission should be granted or not. He will be influenced by, and will have regard to, primarily the material and arguments put before him by the parties. But if, in any given case, a matter which is capable of being determinative and so is of obvious importance is not specifically raised by the parties the inspector nonetheless ought not only to have regard to it but to show that he has had regard to it and deal with it.
31. In Bolton Lord Lloyd concluded his observations on the issue of the correct approach in decision letters with these words:

"Since there is no obligation to refer to every material consideration, but only to main issues in dispute, the scope for drawing any inference will necessarily be limited to the main issues, and then only, as Lord Keith pointed out, when `all other known facts and circumstances appear to point overwhelmingly' to a different decision."

32. The correct application of Lord Lloyd's principles has been considered in a number of cases but in particular in MJT Securities v Secretary of State for the Environment [1998] JPL 138, CA. Mr Mould has particularly drawn attention to a passage in the judgment of Lord Justice Evans - again the only reasoned judgment - in which he said at page 144:

"What should be noted, however, is that the Inspector is not obliged to decide all the issues which are raised before him. It may not be necessary for him to decide all the issues in order to decide whether planning permission should be granted. An obvious example is provided in the present case: if he had decided the question of need against the applicants, the issue as to planning merits would no longer be relevant to his decision. No-one suggests that the statutory duty to give reasons extends to issues which in the event are not relevant in this sense to the result of the appeal. The duty established by the House of Lords in Bolton No 2, in my judgment, is to set out the major steps in the Inspector's reasoning which have led to his overall decision on the appeal, and this makes it necessary for him to state his conclusions on the principal issues which were raised for decision by him ("controversial") and which in the result it was necessary for him to decide. Moreover, he need not refer to "every material consideration, however insignificant', but only to the `main issues' (per Lord Lloyd [in Bolton No. 2] at 314, 315)."

33. When Lord Justice Evans talked about the principal issues raised for decision by him, he did not, in my view, intend to limit himself to the issues actually raised by the parties in their submissions or documents they placed before the inspector. The major issues will depend upon the circumstances of the individual case. While cases in which an issue not explicitly raised by the parties should be regarded as a principal issue with which an inspector should deal are likely to be rare, they can exist.
34. In my judgment it cannot be argued but that policy BE15 was a major issue or, to use the words of Lord Justice Evans, was a principal issue raised for decision. It was raised because it was plain from the documentation produced before the inspector that the council had rejected BE15 because they took the view that the dwelling house use had been abandoned. Once that was seen to be wrong, and the inspector ought to have appreciated that it was wrong from the history he gave and which was not in dispute, then policy BE15 did apply. As I have already indicated, from reading it, it seems to point inexorably to a conclusion that the grant of planning permission would be in accord with that policy, subject only to whether there was any specific policy within BE15 (d). That being so, it was manifestly a principal issue which he ought to have decided. The fact he does not refer to it at all in his decision letter, nor does he refer to any matters which would be material to the consideration whether it did apply, and if so whether planning permission should be granted, in my judgment, shows that he could not have regarded it as material in the circumstances; he certainly did not deal with it. It cannot be inferred that he thought about it and rejected its application.
35. Accordingly, on that ground alone this decision, in my judgment, cannot stand.
36. It does not stop there. The inspector referred to the history and the fact of the planning permission which had been granted in 1990. What he does not do is to refer specifically to the consequences of a refusal of permission. He states in paragraph 1 of the decision letter that it was not for him to comment on whether it would be possible to continue with the implementation of the 1990 permission. Certainly, the council's view was that it could not be implemented. The fact that the appellant had decided to seek a new permission suggested that he took the same view. Accordingly, if this permission were refused the existing derelict or semi-derelict building would be left on the site. There was evidence of a considerable degree of opposition to that happening and suggestions that it was unsightly and dangerous.
37. It is furthermore to be noted that in the grounds of appeal which I have already read the appellant stated:

"Furthermore it is contended that the very positive impact on the surrounding area of outstanding natural beauty that the rebuilding of this dwelling would have if, in view of its very prominent position, is sufficient to justify departure from the local plan."

38. It is surely implicit in that sentence that if the building remains as it is - un-rebuilt - it would not have a positive impact on the surrounding area. It would have a positively negative impact upon the surrounding area. Again, it is unfortunate that the point was not spelt out as clearly as it should have been by the applicant. Nonetheless, as Mr Mould again accepts, the result of not granting permission on the land in question is clearly a material consideration. This usually arises - and on the authorities has arisen - in the case of change of use where it is material to consider what would be the use reverted to if a particular application were refused. Some times it may be that the permitted use is actually worse in planning terms than what is sought. So here it may well be said that the existing condition of the site may be worse than that which would result if the planning permission were granted. That may or may not be right, but the inspector has not dealt with it at all.
39. That is a further defect, in my view, in this decision letter.
40. Accordingly, and for those reasons, I take the view that this decision must be quashed.

MR FOOKES: I would apply for costs.

MR JUSTICE COLLINS: You put in a schedule.

MR FOOKES: Your Lordship probably noticed quite a bit of scurrying around behind me. Can I give you a revised final figure? It should be £13,331.

MR JUSTICE COLLINS: Have you shown this to Mr Mould?

MR FOOKES: That is agreed. We have gone through. I have not got the breakdown.

MR JUSTICE COLLINS: Mr Mould, you are happy with that?

MR MOULD: Yes.

MR JUSTICE COLLINS: I am assuming you cannot resist it.

MR MOULD: No.

MR JUSTICE COLLINS: In those circumstances I shall allow this application with costs in the sum of £13,331.

MR MOULD: May I trouble you with an application for permission? I make it hesitantly in the light of the clear terms in which your Lordship has expressed your view. It relates to the first of the issues I dealt with. The second one I clearly do not want to take time on. It is this: I have made my submissions on the basis of Bolton and MJT. Your Lordship has expressed your views as to those cases which, on one view, provides further practical guidance and refinement as to what falls within the scope of the main issues in dispute in Bolton or the issues as described by Lord Justice Evans in MJT. For obvious reasons those cases are central to the practical administration of the planning system. Your Lordship may feel that in the circumstances, although he felt he reached a clear view on this case, it would be helpful for the Court of Appeal to consider that issue of principle, as it were, and whether any further guidance may be appropriate.

MR JUSTICE COLLINS: I do not regard myself as having gone beyond what the Court of Appeal and the House of Lords have set out. But more importantly, the other point would have been equally determinative, that is to say, the failure to deal with the situation were planning permission not to be granted, and the effect of that. As it seems to me, this is not the appropriate case to take to the Court of Appeal. I was careful, I hope, and I will check it when I look at the transcript because this is an ex tempore judgment, to limit what I said. I indicated clearly that primarily it was the issues raised before the inspector by the parties, but there would be cases, and this was an example -and I suspect rare cases - where what ought to be regarded as a principal issue had not been raised by the parties. In those circumstances I expressed the view that the Bolton principle applies. I do not think it is extending the law at all.

MR MOULD: I have made my point and I do not press it further.

MR JUSTICE COLLINS: No. If you want to take the matter further you have to persuade the Court of Appeal.

MR JUSTICE COLLINS: Mr Mould, what I have written (we have to do a short form document) is: "(1) application made only on the Bolton point, the other would have been determinative, (2) in any event, the decision does not extend Bolton but merely applies it to the situation where it obviously should apply."

MR MOULD: I am grateful.