QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF EXMOUTH MARINA LIMITED||(CLAIMANT)|
|THE FIRST SECRETARY OF STATE||(FIRST DEFENDANT)|
|EAST DEVON DISTRICT COUNCIL||(SECOND DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR MAURICI (instructed by TREASURY SOLICITOR) appeared on behalf of the FIRST DEFENDANT
MR WADSLEY (instructed by EAST DEVON DISTRICT COUNCIL) appeared on behalf of the SECOND DEFENDANT
Crown Copyright ©
"The starting point for any assessment of the acceptability or otherwise of the present boat racking systems must be the planning permission for racking systems granted by the Council on 19 December 2001."
The Inspector then said that he proposed to construe the permission on its face, without reference to extrinsic evidence. For the reasons set out in paragraphs 6 to 10 of the decision letter, the Inspector concluded in paragraph 11 that:
"... although the initial application, and therefore the description of the approved development, seeks storage of up to 4 boats on top of each other, the development is limited by the imposition of Conditions 1 and 2 of the permission that, in effect, permit the boat storage on the 3 main levels only through the amended drawings and do not permit boat storage on the very top of Racks A and B."
In paragraph 13 the Inspector said that:
"In the light of this conclusion [that is to say, his conclusion that the planning permission granted in December 2001 did not permit storage on the top of racks A and B] I find the main issues to be the impact of the boat racking structures as built on the character and appearance of the locality, including the setting of The Sail Loft; and the impact of the boat racking upon the living conditions of neighbouring occupiers in terms of overbearing, overshadowing or privacy intrusion."
Having described The Sail Loft yard and its immediate surroundings, the Inspector said in paragraph 15:
"The bare vertical and horizontal girders and bracing struts are some 8.3m high as compared to the permitted height of 6.8m ... The constructed racks are narrower across than those permitted but include a storage rack with keel supports on the top. Rack B to the north extends between similar points to those permitted east to west but with a slightly altered orientation to bring it parallel with the newly built wall and footpath. Rack A to the south has a similar orientation to the approved plans but extends further to the west across the rear of 20 Shelley Reach."
In paragraph 16, he said:
"The unclad structures are extremely hard on the eye and they form a very ungainly and discordant feature in the street scene, particularly amongst the surrounding housing very close by. This would be emphasised with boats stored, particularly on the top rack. The racks are entirely different in character, and seem much more substantial visually, than the old buildings that were in place before redevelopment of the site and as compared to the permitted structures. I have no hesitation in concluding that the boat racking systems, as constructed, are very harmful to the character and appearance of the locality and to the setting of The Sail Loft. They are unacceptable for that reason alone."
"Exmouth Marina does not defend the structures as built but contends that a modified version of the present structures would be acceptable when compared to those for which planning permission has been granted. The key features of the modifications are to reduce the height of both racking systems to 6.8m; reposition the 2 middle horizontal girders to below 3m; and remove the upper 2 girders from the first bay adjoining The Sail Loft or extend Rack B to The Sail Loft at full height and remove bays from the western end of Rack A to compensate. It shows proposals in drawings [the numbers of the five drawings are given] but without clear detail of the compensatory arrangements. However, I do not find these proposals acceptable for a number of reasons."
The two reasons are set out in paragraph 18:
"Firstly, the revised drawings show boats stored on the top of the structures. As I have said above, I do not believe storage at this level to be part of the planning permission already granted and the visual impact would be unacceptable. Secondly, Rack A creates an unjustified impact by being too far to the west and I do not have a drawing that would enable me to define a satisfactory design of Racks A and B with adequate clarity. Therefore, although I have some sympathy with the approach of utilising those parts of the present structure that are acceptable as compared with the planning permission, I am not able to put such an arrangement into effect."
The Inspector then considered the living conditions of neighbours, and said that:
"The racks are so high, so substantial and so close to the houses and their habitable rooms that they are bound to cause distress through overbearing."
In paragraph 20, he said:
"I have considered the proposals to modify the present unclad racks as described above but with a similar conclusion. Because of the 4th level storage they would not remove the objections in respect of height. Because of the extension of Rack A to the west, they would not remove the objection in relation to the nearest dwellings to that rack. The merit of altering the racks by adding in one place to reduce in other [sic] so as to reduce the worst effects cannot be implemented because I do not have a clear plan to enable me to do so. Thus there are no proposals before me that would be acceptable."
"Because of the planning permission granted these factors only bear upon my decision to the extent that the present structures intensify the use of the site. I have no clear evidence on this but, in principle, the larger structure, particularly with a 4th storage level, has more capacity than the permitted racks and would therefore be more likely to increase adverse effects."
The Inspector dealt with the appeal on ground (f) quite shortly, in paragraph 22 of the decision letter, saying:
"The company contends that the alterations to the present structure that it proposes would remedy the breach of planning control. But, for the reasons explained under the planning merits, these alterations are not adequate as they stand. There may well be an 'under-enforcement' solution by modifying the present structure but I do not have one that is sufficiently clear, or sufficiently radical, to be acceptable. Neither is it for me to propose a solution. Nevertheless, I hope my reasoning provides helpful guidance. The appeal thus fails on ground (f)."
"The existing garage and industrial buildings will be removed from the site and the site screened with a 2400 high rendered wall. The boats will be stored within a metal racking system allowing 4 boats to be stored on top of each other and thereby maximising the use of space."
The Inspector deals with this information in paragraphs 6 to 10 of his decision letter. Paragraph 6 refers to the decision notice "granting permission to carry out the development described in the application and the plans attached thereto subject to ... conditions", and sets out the terms of condition 2, which, as I have said, required the development to be carried out in accordance with amended plans that had been received by the Local Planning Authority on 29th November 2001. The Inspector then refers to the terms of the application form, and to paragraph 6 of the accompanying statement which is referred to in the application form:
"The boats will be stored within a metal racking system allowing 4 boats to be stored on top of each other and thereby maximising the use of space."
The Inspector's comment upon this sentence is:
"The written application therefore contemplated boats stacked within a metal racking system. It was envisaged that the racks would accommodate 4 boats one on top of another as part of the change of use, alteration and extension."
The Inspector's conclusion that condition 2 imposed a limitation preventing boat storage on top of the racks is, in effect, based entirely upon the use of the word "within" in the description of the proposed storage arrangements. No doubt for sound reasons on the planning merits, bearing in mind the adverse impact of boat storage on the top of the racks, it seeks to explain away the reference in the statement accompanying the application to four boats being stored "on top of each other". Reading the statement accompanying the planning application as a whole it does not suggest that the fourth tier of boats will not be stored on top of the structures. There is a clear indication that four rather than three boats will be stored on top of each other. The Inspector continues in paragraphs 9 and 10 of the decision letter:
"These plans, and specifically 4342/03 A (Racking Detail) and 4342/04 (Elevation), show boats stored on 3 levels within the overall framework of the racking system. The racking detail ... shows 3 tiers of boats, all of similar size and type and which are all within the racking system. It also has the description of the racking system of 'steel framing to support boats'. The term 'framing' suggests the sense of the boats being surrounded or enclosed within the drawn frame. The elevation drawing ... is consistent with the racking detail showing the same storage disposition visible within the frame above the wall. Furthermore, the elevation drawing ... indicates storage within the racking by a written label on the 3rd tier rack. No drawing gives any indication of the very top of the racking systems being employed for boat storage by illustration, through fittings, or by labels or by other notes on the drawings.
"I find the common sense interpretation of the approved drawings to be storage on a maximum of 3, and not 4, levels within the racking framework. In the absence of more detail the drawings suggest to me that the top of the structure is either a roof over the boats or comprises simply a strengthening tie bar. There is nothing to suggest otherwise. If the top of the racks was to have been an essential part of the design for boat storage I would have expected to see some detail of how the top level boats were to be secured and contained within the racking system. It seems to me that 4, or more, boats could be stored on top of each other within the approved framework if they are of appropriate size and internal securing fittings or rests are provided. It depends on the type of boat stored and the planning permission does not seem to exercise specific control over detailed storage within the racks. Provision of 4 levels of storage (within the racking systems) does not seem to me to be a conclusively determinate term of the 'change of use, alteration and extension'. To summarise nothing in the drawings suggests a top (4th) level of storage; Rack B is designed to be lower in part than the remainder; it is not necessary to have 4 storage levels to store 4 boats of appropriate size and type above each other within the systems; in the permission boats on the very top (4th) level would not be within the racking system; and Conditions 1 and 2 of the permission apply a limitation to the development described in the application."
Having seen the site, the Inspector was plainly very concerned about the impact of the racking as constructed, and particularly concerned about the impact upon the listed building and upon the surrounding houses of storing boats on the top of the racking.
"It is the Appellant's case that the entire matter can and should best and appropriately be dealt with through the Ground F Appeal by amendment of the Enforcement Notice so as to allow the retention and consequently the use of the erected racking at reduced height all as referred to in the correspondence."
In the council's representations, there had been somewhat generalised references to the effect of the proposals on the houses to the south in Shelley Reach. Accordingly, in paragraph 65 of its representations, the appellant said:
"If the Inspector thought it appropriate, and better reflected the best approach to visual amenity and residents' amenity, (in the light of the Council's Written Representation and their initial response to the latest new alternative racking scheme), the Appellants would not object to a further refinement so that the amended Enforcement Notice allows one or more 3rd of 4th tier boats adjacent to The Sail Loft in substitution for one or more third or fourth tier boats behind 18-20 Shelley Reach. This is a matter of balancing of amenity considerations and, so far as the Appellants are concerned, provided the overall number of boat spaces is no fewer than their 17th May 2002 proposal the Appellants would be satisfied either way."
A number of plans and elevational drawings were available which showed inter alia the extent to which the southern rack projected westwards beyond the permitted limits of rack A.
"On behalf of the Secretary of State it is submitted that this imposes an impossible burden in [sic] the Inspector. Mr Taylor had not specified at any time which 465 square metres he would wish to retain if his appeal failed in substance; nor had he indicated that he would wish to make further submissions in this eventuality. The appeal had, at Mr Taylor's choice, not been conducted by way of public inquiry but instead was conducted by way of written representations. The purpose of this was to provide a quick and relatively cheap appeal procedure. It was not incumbent on the Inspector to conduct her own inquiries as to which area might be the most suitable for agriculture. To have done so, while giving the planning authority the right to comment, would have lengthened and complicated the process. It was arguably open to the Inspector to take this course but it was well within her discretion not to do so. The judge should have asked himself whether the Inspector acted outwith her discretion in not taking this course but he failed to pose the question in this form. The proper course for an appellant who appeals on ground (f) was to specify, without prejudice to his main contentions, his fall-back position and to indicate what variation to the notice he submits should be made.
"In our judgment the broad approach of the Secretary of State is justified. Appellants should contemplate the possibility that their primary contentions may fail and that those of their opponents may succeed. The very reliance on ground (f) shows that this is the position. If there is a fallback position on which they wish to rely then they should make this clear to the Secretary of State in their submissions. It is not reasonable to come to court, as has happened here, and ask for the case to be remitted to the Inspector so that she may ask for further submissions -- which could and should have been made in the first place if the landowner wished to advance them. It might well be that the Inspector had the jurisdiction to explore the possibilities further with the parties. But the appellant was professionally advised. The advisers had chosen not to make any submissions in detail under ground (f). Certainly in those circumstances any failure by the Inspector to advert in her decision letter the possibility of asking for further submissions does not amount to an error of law."
"I believe this costs application to be based upon a mistaken view of the planning merits of the racking systems on this site and upon the construction of the planning permission. As my decision on the appeal against the Notice shows I fully support the Council in its enforcement action. I believe the Council's reasons for issuing the Notice were reasonable, adequate and appropriate. Although there has been some discussion with the Council about storage on a fourth tier of the racking systems I do not read the planning permission as granting storage at that level. The company has taken a very robust approach on the assumption that 4th level storage is permitted that I do not believe is justified."