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
		14th May 2003

1. MR JUSTICE HARRISON: This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of the first defendant made through his inspector on 20th November 2002 when he dismissed the claimant's appeal against the failure of the second defendant, Thurrock Borough Council, to decide within the prescribed period an application made by the claimant under section 73 of the 1990 Act to vary the time limits for submission of reserved matters in relation to a development for which outline planning permission had been granted in 1995 subject to conditions, some of which were varied on appeal in 1997.
2. Section 73(1) provides that the section applies to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. Subsection (2) provides:

"On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and -

(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted ... they shall grant planning permission accordingly, and

(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application."

Subsection (4) provides:

"This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun."

3. It follows that, although the effect of section 73 is to enable a condition of a planning permission to be varied or discharged, it results in the grant of a new planning permission with the relevant condition being varied or discharged.
4. The development for which outline planning permission had been granted in 1995 consisted of an 18-hole golf course, a 9-hole par 3 golf course, and an 80-bedroomed hotel with conference and leisure facilities at St Clere's Farm, Stanford Road, Stanford-Le-Hope in Essex. The site is in the Green Belt. The farmyard contains a number of farm buildings, including a Barn which is a Grade II listed building. Immediately adjoining the farmyard, although not included in the site for which permission was granted, is St Clere's Hall, which is a Grade II* listed building. The Hall and the Barn were assessed by English Heritage to have group value.
5. The planning history relating to the site starts with an outline planning permission granted in 1990, which was not implemented. A further outline application was made in June 1991, following which there were negotiations with the Council over a number of years which culminated in the grant of outline permission on 12th June 1995. The claimant attaches considerable importance to some aspects of those negotiations in connection with some of the grounds of challenge.
6. The 1995 outline planning permission was granted subject to a section 106 agreement of the same date. Paragraph 7 of that agreement dealt with St Clere's Hall and the Barn. The owner and developer covenanted to submit within six months of the agreement a schedule of works for the approval of the Council to arrest further decline in the condition of the Hall and of the Barn and to effect restoration of the Hall. The works to arrest decline in the condition of the Hall and of the Barn had to be completed within nine months of the agreement. The works for the restoration of the Hall had to be started before the commencement of the construction of the hotel and finished within six months of the opening of the hotel, and, in any event, by 31st December 1998 whether or not construction of the hotel had commenced. The agreement also provided in paragraph 10 that the golf and leisure facilities should be available for use before the hotel was opened, and the construction of the hotel should not start before the restoration works to the Hall had been commenced. Those requirements were conditional on the grant of the 1995 planning permission, but there was no requirement in the agreement for the hotel to be built.
7. Condition 1(c) of the 1995 outline planning permission required approval of details of the siting, design and external appearance of the buildings to be obtained within three years of the date of the permission, whilst condition 4 required submission of an application for approval of reserved matters for the buildings to be made within three years of the date of the permission. As a matter of practicality, those two conditions were not entirely compatible with each other.
8. Subsequently, there was an appeal against non-determination of the application made under section 73 of the 1990 Act to vary a number of conditions of the 1995 outline planning permission, including condition 1 of that permission. On 11th July 1997 the appeal was allowed so that condition 1(c) of the 1995 permission then became condition 1(e) of the 1997 permission under which approval of the details of the buildings had to be obtained within three years of the date of that permission. Condition 4 of the 1995 permission was repeated in the 1997 permission, save that it now referred to the period of three years from the date of the 1997 permission for submission of reserved matters. Any application for approval of reserved matters relating to the buildings therefore had to be made before 11th July 2000.
9. Subsequently, applications for approval of reserved matters for a number of elements of the proposed development were submitted and approved, and those elements have either been completed or are in the course of completion.
10. An application for approval of reserved matters relating to the hotel was not made until 8th May 2000, that is to say, about a couple of months before the expiry of the time limit for doing so on 11th July 2000. The submitted scheme included a proposal for the conversion of the Barn for use as a restaurant as part of the hotel scheme. That application was eventually refused on 10th May 2001. A subsequent appeal against that refusal was dismissed on 4th July 2002.
11. In his decision letter of that date, the inspector on that appeal stated that the farmyard was the only feasible location for an 80-bedroomed hotel. He reported acceptance at the inquiry that the Barn was capable of being restored. He acknowledged that, in granting outline permission for an 80-bedroomed hotel in 1995, the Council would have accepted that it could be developed whilst preserving the listed buildings and their settings. He nevertheless concluded that the particular scheme before him would cause significant harm to the setting of the Hall and the Barn and he therefore dismissed the appeal.
12. Between the refusal by the Council of the application for approval of reserved matters relating to the hotel on 8th May 2000, but before the dismissal of the appeal against that refusal on 4th July 2002, an application was made on 6th July 2001 under section 73 of the 1990 Act to vary condition 1(e) and condition 4 of the 1997 permission so as to extend the time for a further three years beyond 11th July 2000 within which an application could be made for approval of reserved matters relating to the hotel. There was an appeal against the failure of the Council to determine that application within the prescribed period although the Council subsequently resolved that it would have refused the application. Following a public inquiry, the appeal was dismissed on 20th November 2002. That is the decision which the claimant seeks to challenge in these proceedings.
13. Before coming to the decision letter itself, I have mentioned the potential incompatibility between condition 1(e) of the 1997 planning permission, which refers to the approval of reserved matters relating to the buildings having to be obtained within three years of that permission, and condition 4 of that permission, which refers to the application for approval of those matters having to be made within that period. At the public inquiry resulting in the decision of 20th November 2002, it was agreed that condition 1(e) should be treated as referring to the submission of details, rather than the approval of details, in the same way as condition 4 so that both conditions were consistent with each other, and that was the way in which the inspector dealt with the matter in his decision letter.
14. Turning to the decision letter, the inspector recorded that there was no dispute about the fact that the proposed hotel would be inappropriate development in the Green Belt. He identified the two main issues in the appeal in paragraph 7 of the decision letter as being firstly, whether there were any very special circumstances that would outweigh the normal presumption against such inappropriate development in the Green Belt and justify a variation of the conditions in question and, secondly, the effect that varying the conditions would have on the listed buildings and their setting.
15. The inspector resolved the second issue in favour of the claimant. He said that the issue of the acceptability of the impact of the hotel on the setting of the Hall and the Barn was resolved when outline permission was granted in 1995. His attention had not been drawn to any changes in circumstances that would justify any different conclusion, and he did not consider that the proposals would conflict with any relevant planning policies. He did not regard the fact that the claimant had yet to produce an acceptable design for the hotel as an indication that no satisfactory design solution could be achieved. His conclusion on the second issue was that extending the time limit for starting development by varying the conditions in question would not have an adverse impact on the listed buildings or on their setting.
16. On the first issue, however, namely whether there were any very special circumstances to outweigh the normal presumption against inappropriate development in the Green Belt, the inspector held against the claimant. In paragraph 12 of the decision letter, the inspector recorded the submissions of the parties relating to the status of the section 73 application. The Council had argued that, because the time for submission of reserved matters had elapsed, the claimant was effectively seeking a new permission for the hotel development. The claimant, on the other hand, had argued that the principle of development had been established and that the proposal should be treated as a straightforward application to renew the existing permission. The claimant had drawn attention to paragraph 60 of Circular 11/95, which says, amongst other things, that such applications should only be refused where there has been some material change in planning circumstances since the original permission was granted. The inspector, whilst remarking that it was for the courts to decide on matters of law, stated that it seemed to him that the main issues in the appeal would be the same, no matter which of the two approaches were adopted.
17. In paragraph 14 of the decision letter, the inspector stated that one change that had occurred since 1995 was the publication of the English Heritage Policy Statement on Enabling Development and Practical Guide to Assessment ("the English Heritage Policy Statement"). Whilst accepting that it was a non-statutory document which does not carry the same weight as national planning guidance or development planning policy, the inspector nevertheless stated that he regarded it as an authoritative document which provided a rational and sensible approach to the assessment of proposals for enabling development. He considered that it was an important material consideration in the appeal.
18. In paragraphs 15 to 18 of the decision letter, the inspector stated as follows:

"15. There is no dispute that, when granting permission, the Council regarded the need for enabling development to secure the restoration and repair of the two Listed Buildings as constituting very special circumstances needed to overcome the normal presumption against inappropriate development in the Green Belt. These works were to be secured by means of a Section 106 Agreement. It emerged during the Inquiry that the requirements of the Agreement relating to St Clere's Hall had been fulfilled and that those relating to the Barn had also been substantially completed. That being the case, it seems to me that there is no need for further enabling development and that there are therefore no longer any very special circumstances that might outweigh the harm that the hotel development would cause to the Green Belt by reason of its inappropriateness.

"16. I have taken account of the Appellant's argument that development of the golf course and hotel needs to be seen as a whole and that the latter is needed to finance works to the listed buildings that have already been carried out. However, both parties agreed at the Inquiry that the Section 106 Agreement was not tied to the building of the hotel and could be enforced regardless of whether or not that part of the development proceeded. Consequently I do not accept that the repairs to the listed buildings formed part of a package that included the hotel and that the Appellant therefore had a legitimate expectation that the Council would renew the outline permission.

"17. Furthermore, there was no information before the Inquiry (in terms of bills or receipts) to show what the completed works to the Listed Buildings had actually cost. The Appellant had carried out much of the work himself, without the use of contractors, and the evidence produced at the Inquiry consisted of a surveyor's estimate of what the work would have cost were it to be carried out today. I consider that, in the absence of details of the actual costs incurred, the Appellant has failed to establish that the amount of enabling development, including the hotel, was the minimum necessary to secure the future of the heritage asset.

"18. For the reason given above, I consider that the need for enabling development, which the Council regarded as very special circumstances when it granted outline permission in 1995, no longer exists. I consider that there has, therefore, been a material change in planning circumstances since that approval was granted. As a consequence my conclusion on this issue is that, as there are no longer any very special circumstances that would outweigh the presumption against inappropriate development in the Green Belt, variation of the conditions is not justified."

19. Finally, in paragraph 34 of the decision letter, the inspector stated that his overall conclusion was that, although the appeal proposals would not have an acceptable impact on the setting of the listed buildings, there were no very special circumstances that would outweigh the normal presumption against inappropriate development in the Green Belt. He therefore dismissed the appeal and refused planning permission for the variation of condition 1(e) and condition 4 of the 1997 planning permission.
20. Mr Horton QC, who appeared on behalf of the claimant, raised a great many grounds of challenge. Although there were seven grounds of challenge raised in the claim form, together with an additional ground raised as an amendment without objection during the hearing, several of the grounds subdivided into various different aspects, mostly of matters which, it was said, the inspector had failed to take into account, with the result that there were in total about 20 different matters raised in the grounds. I do not propose to deal with all of them in detail. I propose to deal first of all with the matter which causes me most concern, and then to touch upon some of the other matters that were raised.
21. The matter that causes me most concern relates to the restoration of the Barn. It is important to bear in mind that there were two different stages of works relating to the Barn. Firstly, works to arrest the decline in the condition of the Barn. Those works were the subject of the section 106 agreement. Secondly, works to restore the Barn. Those works were not the subject of the section 106 agreement. Although there was no legal provision by which the restoration of the Barn was to be secured, it is clear from the history of the negotiations leading up to the 1995 planning permission, and from the scheme submitted for approval of reserved matters which was refused approval on appeal on 4th July 2002, that the intention of the parties was that the restoration works to the Barn would be carried out as part of the development of the hotel. Indeed, it is clear from paragraph 24 of the July 2002 appeal decision letter that the claimant had submitted in connection with that scheme a unilateral undertaking under section 106 of the 1990 Act to ensure that the Barn would be restored before the hotel was brought into use. In the event, that particular scheme was refused approval because it would cause significant harm to the setting of the Hall and the Barn, and because insufficient details had been submitted to enable the inspector to assess the effect of the proposals on the Barn in order to judge whether the special interests of the building would be preserved.
22. My concern arises from the fact that it seems to me, on a careful reading of the inspector's decision letter challenged in these proceedings, that he has not taken the restoration of the Barn into account at all. It is necessary to consider paragraphs 15 to 18 of the decision letter in sequence.
23. The first sentence of paragraph 15 refers to the need for enabling development to secure "the restoration and repair of the two Listed Buildings" as constituting very special circumstances in Green Belt terms. The reference to the restoration and repair of the two listed buildings could, on the face of it, be said to include the restoration of the Barn, although it could also be said to refer to the restoration of the Hall and the works to arrest decline in the condition of both listed buildings.
24. The next sentence, however, by referring to the fact that "These works" were to be secured by means of a section 106 agreement, makes it clear that the works referred to in the first sentence were the section 106 works, which do not include restoration of the Barn.
25. The next sentence states that the section 106 requirements relating to the Hall had been completed and that those relating to the Barn had been substantially completed. That means that the works to arrest the decline of the Barn had been substantially completed. The inspector therefore concluded that there was no need for further enabling development because the section 106 works had been completed or substantially completed, and that there no longer therefore existed any very special circumstances that might outweigh the harm that the hotel development would cause to the Green Belt by reason of its inappropriateness. It is clear that that conclusion did not take into account the restoration of the Barn.
26. Paragraph 16 of the decision letter is similarly confined to the section 106 works. The first sentence refers to the works to the listed buildings that have already been carried out, which is plainly a reference to the section 106 works. The second sentence expressly refers to the section 106 agreement, and the last sentence, by use of the word "Consequently", makes it plain that in concluding that "the repairs to the listed buildings" did not form part of a package that included the hotel, the inspector was referring to the repair works in the section 106 agreement. Again, there is no reference to the restoration of the Barn.
27. Coming to paragraph 17 of the decision letter, the first sentence of that paragraph expressly refers to the cost of the completed works to the listed buildings. That, again, is plainly a reference to the section 106 works. The second sentence is also expressly dealing with the works which the claimant himself had carried out, that is to say the section 106 works. In the last sentence the inspector refers to the absence of details of the actual costs of those works, and therefore concludes that the claimant had failed to establish that the amount of enabling development was the minimum necessary to secure the future of the heritage asset.
28. It is quite clear, in my view, that paragraph 17 is also referring to the section 106 works. The conclusion expressed in paragraph 18 by stating "For the reasons given above" is therefore a conclusion reached having regard only to the section 106 works, without having regard to the restoration of the Barn.
29. It was suggested by Mr Litton on behalf of the first defendant that the restoration of the Barn was implicit in paragraph 17 of the decision letter by reference to the words "to secure the future of the heritage asset", which, it was said, would include the Hall and the Barn. Mr Edwards, who appeared on behalf of the Council, submitted that it was so obvious that the restoration of the Barn would result from the hotel development that there was no need for the inspector to refer to it expressly. He said that it was the claimant's case at the inquiry that the hotel development was part of a package to enable both the section 106 works and the restoration of the Barn. He therefore contended that, seen in that light, the last sentence of paragraph 17 of the decision letter should be taken as including reference to the restoration of the Barn because it had been part of the package put forward by the claimant. In other words, the inspector was saying that he did not have the necessary information relating to the cost of the section 106 works that had been carried out or the prospective works to restore the Barn to decide whether the enabling development was the minimum necessary to secure the future of the heritage asset.
30. Attractively as that submission was made, I simply cannot accept that it is borne out by what the inspector said when paragraphs 15 to 18 of the decision letter are read together. Whilst I would accept that "the heritage asset" referred to in paragraph 17 of the decision letter would include the Hall and the Barn, the inspector is referring to it in the context of the section 106 works, that is to say the restoration of the Hall and the works to arrest the decline in the condition of the Barn. Either the inspector mistakenly thought that the restoration of the Barn was included in the section 106 agreement, which I very much doubt, or he failed to take the restoration of the Barn into account at all. In my view, the latter is the case. He simply did not mention it at all.
31. It was plainly a material planning consideration because it was capable of constituting one of the very special circumstances justifying development in the Green Belt. In fact, the evidence before the inspector included a preliminary cost assessment of over half a million pounds by the claimant's quantity surveyors for the restoration of the Barn. The Council would not have required the works to arrest the decline in the condition of the Barn unless they thought that it was worth restoring. The photographs of the Barn, with most of the works to arrest its decline having been carried out, show the significant extent of the works that would be required to restore it.
32. I appreciate that there was no legal requirement for the Barn to be restored but, as I have said, it was the intention of the parties that the restoration works to the Barn would be carried out as part of the hotel development. If the hotel development could not be carried out under the 1995 permission as a result of a refusal to extend the time limit for submission of reserved matters, it would leave the Barn unrestored, without the hotel to enable its restoration. That must be relevant to whether or not the time limit should be extended. In my view, the failure of the inspector to take into account the restoration of the Barn was a failure to take into account a material planning consideration which should have been taken into account. Accordingly, that ground of challenge, which was raised in Ground 2(d) and put more broadly than that during the hearing, is made out.
33. I therefore have to decide whether I should quash the decision on account of the failure to take into account that important material consideration.
34. I am very conscious that the main reason why the inspector dismissed the appeal was the claimant's failure to supply the necessary information to enable him to determine whether the enabling development was the minimum necessary to secure the future of the Hall and the Barn in accordance with the six criteria and other guidance, including a detailed financial appraisal, in the 2001 English Heritage Policy Statement. That policy statement is in itself a material change in circumstance. It could, therefore, be said that it does not matter whether or not he took into account the restoration of the Barn because his decision would have been the same. On the other hand, as I have said, the restoration of the Barn did have a cost figure ascribed to it. Whether or not it would have satisfied the inspector, I do not know. Furthermore, the inspector's important conclusions in paragraphs 15 and 16 are, for the reasons that I have mentioned, based solely on the section 106 works without taking into account the restoration of the Barn. If he had taken into account the restoration of the Barn, his conclusion that there was no need for further enabling development and therefore no longer any very special circumstances capable of justifying the inappropriateness of the hotel development in the Green Belt might well have been different. I have reached the conclusion that the failure to take into consideration the restoration of the Barn constituted an omission of sufficient importance such that it would be wrong for me to exercise my discretion not to quash the decision.
35. In those circumstances, it is not necessary to deal with the numerous other grounds raised by the claimant in any detail. I deal with them relatively shortly.
36. Ground 1 suggested that the approach of the inspector in the last sentence in paragraph 12 of the decision letter was erroneous. I see nothing wrong with that approach and, in any event, the inspector approached the matter on the basis of whether there was a material change in circumstances, which is agreed as being the correct approach.
37. Ground 1(a) alleges that the inspector failed to take into account that there had been partial implementation of the planning permission. The inspector was plainly aware that there had been partial implementation. Indeed, he referred in paragraph 3 of the decision letter to the fact that all the other reserved matters had either been completed or were in the process of being implemented. Furthermore, he would have seen it for himself on his site inspection. I do not therefore accept that ground of challenge as expressed in the claim form. The partial implementation of the permission is, however, a material change in circumstances since the permission was granted which could be said to favour the claimant. In those circumstances I can understand the claimant feeling aggrieved that it was not given express recognition by the inspector. In those circumstances, bearing in mind that this matter will now be reconsidered by the first defendant, he will want to consider giving it express recognition in the planning balance in his re-determination.
38. Grounds 1(b) and (c) are based on the allegation that the need for the extension of time only became apparent due to the sensitivity of the location being recognised. I do not accept that the sensitivity of the location only became apparent after the 1995 and 1997 permissions. It is quite clear from the planning history that the sensitivity of the site was an issue from the outset.
39. Ground 2(a) alleges that there was a failure to take into account the Council's "A13/A1013 Land Uses Study" as a very special circumstance capable of justifying hotel development in the Green Belt. That was a study produced by the Council in 1987 as supplementary planning guidance to deal with some problem sites. It stated in relation to this site that it might be appropriate to consider a relaxation of Green Belt policy to assist in restoring the listed buildings by allowing alternative uses which could include a hotel. Mr Horton submitted that the problem had now become worse because the agricultural buildings had become redundant.
40. It is, however, clear from the inspector's witness statement that he did not consider the study to be a principal controversial issue raised before him. Having regard to the agreed evidence as to the minimal extent to which the study was relied on by the claimant at the inquiry, and having regard to the unchallenged reasons given at the inquiry by the Council's planning witness as to why little weight should now be attached to the study, I consider that the inspector was fully entitled to conclude that it was not a principal controversial issue raised before him.
41. Ground 2(b), Ground 4 and Ground 5 all in different ways raise the same point as advanced by Mr Horton: namely, that the inspector failed to take into account as a material consideration that there was a "compact" or agreement or package which went wider than the section 106 agreement and included the restoration of the Barn as part of the hotel development, and which the claimant could expect the Council to honour, having regard to the monies that the claimant had expended in the expectation of being allowed to develop the hotel. I have some sympathy with the generality of this ground of challenge, but, as a matter of law, I do not accept it. The only legally binding agreement was the section 106 agreement. Mr Horton expressly disclaimed any argument that the claimant had a substantive legitimate expectation in law. Mr Litton was right in saying that, at best, there was an aspiration by the parties that, if the hotel development came forward, there would be an opportunity to restore the Barn. That, however, is a material consideration and it is, in effect, another aspect of the same consideration which I have already found that the inspector failed to take into account, namely the restoration of the Barn.
42. Ground 2(c) alleges that the inspector failed to consider as a very special circumstance in Green Belt terms whether an 80-bedroomed hotel would be materially more harmful to the function and openness of the Green Belt than a smaller hotel. I do not consider that there is any substance in that ground. The inspector was only considering an application for an 80-bedroomed hotel, which was inappropriate development and therefore by definition harmful to the Green Belt.
43. Ground 3 alleges that the inspector failed to take into account that there had been no material change since the 1995 and 1997 permissions in the assessment of the extent to which the hotel would be inappropriate development in the Green Belt. Mr Horton submitted that the inspector had thereby indulged in revisionism in planning judgment that was not permissible on a section 73 application. There is, in my view, no merit in that ground. There was no change in the inappropriateness of the hotel in the Green Belt, but there was a change in circumstances whereby, according to the inspector, there was no need for enabling development because the section 106 works had already been carried out. There were no longer, in his view, any very special circumstances capable of justifying the inappropriate development. It is not a question of whether there was any change to the extent to which the hotel would be inappropriate development. It is a question of whether there was a change in the very special circumstances capable of justifying what was always inappropriate development.
44. I have already dealt with Grounds 4 and 5. Ground 6 alleged various ways in which it was said that the inspector had wrongly dealt with the English Heritage Policy Statement. It was even suggested that the Policy was unlawful in taking into account non-conservation planning considerations when dealing with enabling development. I can find nothing unlawful in the Policy Statement.
45. Ground 6(a) alleges that the inspector only relied on one of the seven criteria in the Policy Statement, namely the requirement that the amount of enabling development is the minimum necessary to secure the future of the heritage asset. There is nothing wrong at all in the inspector only relying on that criterion. The Policy states that there is a general presumption against enabling development which does not meet all of the criteria.
46. Under Ground 6(c) it is alleged that the inspector misunderstood the concept of enabling development by referring in paragraph 17 of the decision letter to enabling development "including the hotel". It was suggested that the inspector must therefore have meant that the golf courses were also enabling development, which they were not. As was pointed out by Mr Litton and Mr Edwards, the permitted development also included conference and leisure facilities. The inspector could, therefore, have had them in mind as included in the enabling development. Whatever the true explanation is, I certainly would not conclude from what the inspector said in paragraph 17 that he did not understand what enabling development meant.
47. In Ground 6(d) it is alleged that the inspector failed to take into account that the concern of English Heritage in relation to enabling development included a question whether the development would be harmful to the historic asset or its setting. I can find nothing in the decision letter to suggest that that was so. It is clear from paragraphs 21 and 22 of the decision letter that he considered whether there would be any adverse impact on the listed buildings or their settings, and in paragraph 23 he balanced that conclusion against the fact that there were, in his view, no very special circumstances to outweigh the normal presumption against inappropriate development in the Green Belt.
48. Ground 6(e) alleges that the inspector failed to take into account that the Council accepted that any enabling development should comprise hotel development, that a hotel of any size would be inappropriate development, and that his own finding was that the proposed hotel would not have any adverse impact on the listed buildings or their settings. In my view, there is no merit in that ground. The inspector was well aware of all those matters, and there is nothing to suggest that he did not take them into account.
49. Mr Horton amended the claim form without objection to include a ground 6A, which alleged that the inspector failed to have regard to his duty under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have special regard to the desirability of preserving a listed building or its setting. Mr Horton submitted that, if the inspector had considered it, he would have been bound to conclude that the hotel, in replacing the agricultural buildings, would enhance the setting and group value of the two listed buildings and that the Barn would be enhanced by its reconstruction. My attention was drawn to the fact that the inspector on the approved matters appeal in July 2002 had expressly considered his duty under section 66.
50. It must be remembered that the inspector in the July 2002 appeal was considering a detailed scheme for the hotel development, whereas the inspector in this case did not have a detailed scheme before him because he was considering whether the time limit should be extended to enable the submission of a detailed scheme. In those circumstances, it is pure speculation whether or not a hotel development would enhance the setting of the listed buildings. All the inspector could realistically do was to conclude, as he did, that a hotel would not adversely affect the setting of the listed buildings. In doing so, it cannot be concluded that he failed to have regard to the desirability of preserving the setting of the listed buildings.
51. The enhancement of the Hall by its restoration had already taken place, as had the works to arrest the decline in the condition of the Barn. Those were all matters taken into account by the inspector and are relevant to the preservation of the buildings. The only matter that he did not take account was the potential for enhancement of the Barn by its restoration in connection with the hotel development. That, however, is simply a reflection of the fact that the inspector did not take into account the restoration of the Barn at all which, as I have said, is the ground upon which this application should be granted.
52. Finally, I should just mention that Ground 7 alleged irrationality in the decision-making process. In my view, this is not a case of irrationality. It is a case of a failure to take into account an important material consideration, namely the restoration of the Barn. It is for that reason that I allow this application and quash the decision.
53. Whilst the claimant can be said to be at fault for failing to apply for, and obtain, detailed approval of the hotel development within the relevant time limits, one cannot ignore the harsh result that he has provided a public benefit by carrying out the 106 works to the listed buildings without now being able to implement the hotel development which had been permitted in order to enable him to carry out those works. That is something that the first defendant will, no doubt, want to take into account when reconsidering this matter. He may also want to give the claimant an opportunity of remedying the deficiency in the lack of financial information identified by the inspector in paragraph 17 of the decision letter, but that is obviously a matter for the first defendant.
54. It follows, therefore, for the reasons that I have given, that this application is allowed, and the decision will be quashed.
55. MS WIGLEY: My Lord, I am grateful to your Lordship, and I make an order for costs against the first defendant. My Lord, I should point out that (inaudible) some costs in relation to the second defendant on a limited basis, and to the extent that those would not be covered by an order against the defendant, I seek an order against the second defendant in addition.
56. MR JUSTICE HARRISON: Thank you very much. Mr Litton, can you resist the application for costs?
57. MR LITTON: I cannot resist an application in principle to pay the claimant's costs, and although I have not been here, I appreciate this matter, because of the length of time, will necessarily have to go for a detailed assessment. My Lord, I would wish to make some submissions as to whether or not on a detailed assessment the claimant should be entitled to all of their costs, or only a portion of those costs, bearing in mind the, in effect, single ground on which the claimant has succeeded. I understand that there were many grounds upon which the claim was brought and, of course, those multiple grounds caused this court to have to spend two and a half days hearing all those grounds, the vast majority of which failed. My Lord, I would suggest that it would be appropriate for your Lordship to indicate that, although the claimant is entitled to costs, it should be reduced to reflect that the claimant has, in fact, succeeded on a single ground, and had the claim been limited to that single ground, plainly it would not have taken the two and a half days that it did.
58. MR JUSTICE HARRISON: Thank you very much. Mr Phillpot?
59. MR PHILLPOT: My Lord, it is not clear to me whether at the moment a partial application for costs could be made against my client. (inaudible) if that is the case, of course, I resist it, although additional expense (inaudible) the matter raised by the second defendant. That is the first point. The second point is this. As my learned friend has pointed out, the claimant has failed to succeed on a whole host of grounds. One of those grounds is Ground 2(a), on which the second defendant put in a witness statement, and it was necessary for the second defendant to put in a witness because of the inadequacy of the (inaudible) put forward by the claimant on that point. That was a cost which was incurred by the second defendant, and which your Lordship has made reference to in the judgment. There is an application for a partial order for costs by the court in its discretion in favour of the second defendant simply on the costs of preparation of that witness statement, and no other costs are sought. My Lord, unless I can be of further assistance in respect of the application against me, if one is made, those are our submissions on costs.
60. MR LITTON: Can I assist the court -- I am conscious of the fact that both my learned friends were not here at the hearing itself, because, as I understand from the claimant's point of view, they are seeking to recover the costs of preparing the second witness statement as against the second defendant. My Lord, you will recall that that witness statement was accepted by the judge --
61. MR JUSTICE HARRISON: Is that Mr Priestley?
62. MR LITTON: Mr Thurlow. Both of us objected to that witness statement because it was very late, and it was accepted by the court on a de bene esse basis. Indeed, my Lord, you will recall that the second witness statement then sought to address this issue on the 1987 study and its status, and, indeed, in the course of that witness statement refers to a discussion (inaudible) with other officers of the planning authority. My Lord, I understand from your judgment that the 1987 study -- your Lordship's view was that it was quite right that that was not a controversial issue because, indeed, the matters addressed in the inspector's witness statement as to the attention that had been given to that 1987 study in the course of the inquiry was such that it simply was not a (inaudible) issue. So, my Lord, it is not for me to fight the second defendant's corner, but I am, perhaps, the only person here who, at least, understands (a) why that second witness statement was put in by Mr Thurlow, and (b) the basis upon which the court treated that second witness statement.
63. MR JUSTICE HARRISON: As I recollect, that statement by Mr Thurlow, I just admitted de bene esse, did I not?
64. MR LITTON: Correct, because we invited your Lordship to do so, so we did not have to add to our fight as to whether or not the court should -- because that (inaudible) made to the court because it was submitted and filed two days before the hearing itself, without explanation as to why it had taken the best part of six weeks to respond to the inspector's witness statement. Indeed, Mr Priestley from the local authority said both had been served many, many weeks before that. As I say, it is that witness statement in respect of which the claimant is now seeking to recover costs against the second defendant.
65. MS WIGLEY: My Lord, I should have to clarify that I (inaudible) the second defendant's costs. It is simply on the basis that some costs were incurred in relation to correspondence to the second defendant, and preparation of the court bundle to enable the second defendant to appear. It is really on that basis that costs are claimed, also, against the second defendant, if they are not covered by an order against the first defendant.
66. MR JUSTICE HARRISON: Thank you very much. The question of costs is obviously within my discretion. This is not a case where, despite my findings, it would be appropriate to apportion costs in relation to grounds that have or have not succeeded. In my view, the correct order is that the first defendant should pay the claimant's costs. There will be no order for costs against the second defendant.
67. MR PHILLPOT: My Lord, there is one further matter. I want to protect my client's position. Obviously, we have had no opportunity to consider your Lordship's judgment, but I must formally ask for leave to appeal, simply on the grounds that the proper interpretation of paragraphs 15 to 18 of the decision are (inaudible). I cannot confirm that at this stage, but I do make an application.
68. MR JUSTICE HARRISON: Thank you very much. Mr Litton?
69. MR LITTON: I have a similar application. I am conscious of the fact that for your Lordship to grant permission to appeal under Part 52 you would have to be satisfied that either there was a real prospect of success, or there was some other compelling reason why the appeal should be heard. My Lord, I do suggest that, on the face of the decision letter, the interpretation that I made on behalf of the Secretary of State, and that of Mr Edwards, is one which, although your Lordship has disagreed with it, nonetheless has a real prospect of success. We ask for permission on that basis.
70. Can I just add this? If your Lordship were to refuse permission, I would ask for an extension of time for renewing any application to the Court of Appeal to 14 days after the transcript of your Lordship's judgment is actually released to ensure that the grounds that we put properly reflect your Lordship's approved judgment.
71. MR JUSTICE HARRISON: Thank you very much. So far as that latter point is concerned, if I were to refuse permission to appeal, Ms Wigley, would there be any objection to an extension of time for appealing to the Court of Appeal to 14 days after receipt of the transcript?
72. MS WIGLEY: My Lord, there would be no objection.
73. MR JUSTICE HARRISON: I am quite satisfied that this would not be an appropriate case to grant permission to appeal. I do not consider that there is a reasonable prospect of success on the interpretation point as to whether or not the restoration of the Barn was taken into account. Therefore, permission to appeal is refused.
74. I allow an extension of time to 14 days after receipt of the transcript of my judgment for the defendants to consider the question of an application for permission to appeal to the Court of Appeal. Does that complete everything? Thank you very much.