QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF RICHARD GOSBEE, LINDA GOSBEE||(CLAIMANTS)|
|THE FIRST SECRETARY OF STATE|
|SEDGEMOOR DISTRICT COUNCIL||(DEFENDANTS)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR J MAURICI (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
"5. The planning history associated with the appeal property is a complex one and it includes two previous appeal decisions. Planning permission for the bungalow was granted in April 1959 and I understand that the building was erected some time during the early 1960s. The appellants, Mr and Mrs Gosbee, purchased the dwelling in 1917 together with an adjoining orchard to the north-east and over the next 20 years submitted a number of planning applications to the council for the development of their land. The appellant's main concern was that the existing bungalow was too small for their needs and they wished to erect a new dwelling on the adjoining orchard land.
"6. This proposal was strongly resisted by the authority and indeed between the years 1989 to 1992 three separate applications for the demolition of the existing bungalow and its replacement with a new dwelling on the orchard land was refused planning permission. At that time the council pointed out that there were no local planning policies that referred to replacement dwellings in the countryside.
"7. However in September 1992 the policy background changed with the approval of the Somerset Structure Plan. Policy H5 of this document referred specifically to replacement dwellings in rural areas and indicated that such proposals would be permitted provided that the new dwelling was on the same site as its pre-placement and that there was no overall increase in the number of dwelling units. It was against that background that the council considered a fourth planning application made by Mr and Mrs Gosbee which again proposed the replacement of their bungalow with a new dwelling on the adjoining orchard land, which at the time still remained in their ownership. The appellants claimed that it was not practical or feasible to build a new dwelling on the same site as the existing bungalow because of its restricted curtilage and that they wished to live further away from the unpleasant odour of the nearby riding stables and the farmer's slurry cart.
"8. After careful consideration the council accepted the appellants' arguments and granted the planning permission for this development in April 1993 but imposed the condition the subject of this appeal that requires the demolition of the existing bungalow within one month of the date of occupation of the new dwelling.
The Decision of the Inspector
"2. The approved Somerset and Exmoor Nation Park Structure Plan, together with the adopted Bridgewater Area Local Plan and emerging Sedgemoor District Local Plan all cover this area. All three plans generally seek to protect the countryside for its own sake and resist the erection of new dwellings outside of certain defined settlements (policies STR 3 and STR 6). The hamlet of Shearston is not identified in the adopted local plan as a settlement where further growth may be permitted and therefore for the purposes of the Development Plan it is subject to the above countryside policies. I note however that the emerging District Local Plan allows for replacement dwellings in the countryside but this requires amongst other things that the number of dwelling units on site should not increase (policy H41).
"In my opinion this was a sound approach and it is fully in line with local planning policies. Indeed paragraph 2.09 of the adopted local plan states amongst other things that 'small groups of dwellings and farmsteads occur throughout the plan area and in most cases these small hamlets have no services and have changed little over the years. To permit further development in such locations would be to permit radical and irreversible change to their character and consequently the council will enforce the provisions of policies H5 and C4 which seek to restrict most forms of development outside the defined limits of settlements'."
"I fully endorse these comments and indeed without conditions of the type imposed in this case the planning system could be abused leading to proliferation of new dwellings in the open countryside and resulting in serious harm to the rural character of this area. I therefore conclude that the imposition of this condition was entirely appropriate and reasonable in the circumstances."
"12. I accept that the existing bungalow has been here for many years. However the whole approach of the planning permission granted in 1993 was that the replacement dwelling was to be constructed on a one for one basis. If condition 2 were to be relaxed there would in effect be an additional dwelling built with the somewhat remote location that consolidates the existing sporadic development and seriously harms the character and experience of this attractive rural area. I also share the council's concerns about the sustainability of this development. Shearston has no facilities whatsoever and to reach the shopping, education, social and employment opportunities, local residents are highly dependant on the private motor car. Any further dwellings in this hamlet would therefore represent a most unsustainable form of development that would seriously conflict with the government's aims as set out in PPG3 and 13.
"13. Reference has been made to the barn on the site and the appellants point out that when the 1993 planning permission was granted this building had permission for conversion into a separate dwelling and thus there was a potential for up to three dwellings on this site. However, they have offered to either demolish the barn or enter into an agreement to restrict its future development in order to overcome any concerns with overdevelopment.
"14. I have carefully considered these arguments but I would observe at the outset that the planning permission for the conversion of the barn has now lapsed and consequently there is no planning commitment for any further dwellings on this site. Indeed the conversion of this building to a dwelling would require planning permission and the council has indicated that because of a change in both national and local planning policies such a proposal would now be strongly resisted. Moreover, it seems to me that the questions about the overdevelopment of this site are not directly relevant to the issues before me. It is the principle of allowing any further housing development in this small hamlet that needs to be considered and I have already concluded that such proposals would seriously undermine both national and local planning policies."
"Finally I note the references to the human rights legislation and I am of course aware that there is a valued enforcement notice that requires the demolition of Longacre. Thus dismissal of this appeal would result in an interference with the appellant's private and family life and indeed it is likely to result in the loss of their home. However it seems to me that Mr and Mrs Gosbee are to some extent the authors of their own misfortune. When they sold the orchard land (which included the plot for the replacement dwelling) they must have realised they were placing their existing bungalow in jeopardy. In fact clause 12 of the contract of sale signed by the appellants required Mr and Mrs Gosbee to comply with condition No 2 of the 1993 permission. In default, the clause allowed the buyers to enter the land, comply with the condition and recover the costs of doing so from the sellers. All this information is clearly recorded in paragraph 7 of the December 1997 appeal decision letter.
"16. Moreover, interference with the appellants' rights must be balanced against the general interest, which includes the preservation of the environment in the interests of the community. The planning objections to allowing the bungalow to remain on this site are serious ones and in my opinion the general interest can only be safeguarded by retaining this condition. I therefore consider that the refusal of planning permission in this case is not disproportionate, nor does it result in a violation of the appellants' rights under Article 8."
The Grounds of Challenge
Ground 1: failure to take into account the planning history or reach a proper conclusion in the light of that history.
"It may even be justifiable to require by condition that an existing building be demolished -- perhaps where to have both would result in the site being over-intensively developed."
"The demolition and replacement of an existing dwelling in the countryside which has been occupied in recent years and not become abandoned will not be permitted unless the proposal:
A) is similar in form and massing compared to the original building and impact on its surroundings;
B) does not increase the number of dwelling units on site; and
C) is of a design which is sympathetic in scale, materials and architectural details to the established building tradition of the locality."
Ground two: condition 2 is not now reasonable.
"In my view, paragraph 28 of the Annex to Circular 11/35 is correct in considering enforceability, not on the basis of what is theoretically possible under section 172(2) of the Act, but on the basis of whether the person served with the Enforcement Notice can reasonably be expected to have to comply with it. In the example given in paragraph 28, it is inconceivable that the landowner who had derived no benefit from the development, and might well have vigorously opposed it, would be required to comply with an Enforcement Notice. Requiring him to do so would amount to the expropriation of his land without compensation. A condition which is not reasonably enforceable is not a reasonable condition for the purpose of the Newbury test: see Newbury District Council v Secretary of State for the Environment  AC 578."
Ground three: other relevant matters allegedly not considered.
"I accept Mr Hobson's proposition that where a precedent is relied on mere fear or generalised concern is not enough. There must be evidence in one form or another for a reliance on precedent. In some cases the facts may speak for themselves, for instance in the common case of the rear extension of one of a row or terrace of dwellings it may be obvious that other owners in the row are likely to want extensions if one is permitted. Another clear example is sporadic development in the countryside."
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
"2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
The Role of the Court
"54. The planning inquiry process ensures that arguments as to whether there really is a pressing social need and whether a refusal would be proportionate can all be addressed in detail in an appropriate forum. The fact that some policies are expressed in a restrictive manner, for example policies relating to development in the green belt, so that the appellant is in effect required to put forward an exceptional case in order to obtain planning permission, does not mean that Article 8 is infringed. Green belt boundaries are defined in development plans. The elaborate procedures for adopting development plans, including opportunities to make objections and representations, are sufficient to ensure that full account is taken of conflicting social needs when policies are being framed. Development is severely restricted in green belts because it has been concluded that there is, in general (subject to exceptional circumstances in any particular case), a 'pressing social need' for such controls in those particular areas as defined through the development plan process.
"55. Thus, there is no conflict between Article 8 and the inspector's conventional green belt approach to this case. The question is not whether the word 'proportionality' was mentioned in the decision letter, but whether the inspector in fact carried out a balancing exercise between 'the general laws intended to safeguard assets common to the whole society, such as the environment' and paying 'due respect to the interests safeguarded to the individual by Article 8' (see paragraphs 92 and 96 of Chapman).
"56. It is clear from the passages in the decision letter which I have set out above that this inspector carried out that exercise with some care. I have no hesitation in rejecting the submission that this court should satisfy itself that the right balance has been struck by the inspector. That would be to embark on a merits review. In paragraph 92 of its judgment in Chapman, the European Court of Human Rights said this:
'The judgment in any particular case by the national authorities that there are legitimate planning objections to a particular use of a site is one which the court is not well equipped to challenge. It cannot visit each site to assess the impact of a particular proposal on a particular area in terms of impact on beauty, traffic conditions, sewerage and water facilities, educational facilities, medical facilities, employment opportunities and so on. Because planning inspectors visit the site, hear the arguments on all sides and allow examination of witnesses, they are better situated than the court to weigh the arguments'."
"57. Although the court was there concerned with its own power to review decisions in the planning field made by national authorities, much the same arguments apply to the High Court's ability to review inspectors' decisions. The court does not visit the site; it is not familiar with many of the policy considerations that will be relevant; it does not hear evidence. There may be greater scope for 'a proportionality approach' in other contexts, such as prisoners' rights. When dealing with the alleged violation of Article 6 of the Convention, the European Court of Human Rights in Chapman considered the limitations on the right of appeal to the High Court in a planning case:
'122. The applicant argued that the court's case law did not support any general proposition that the right of appeal to the High Court on points of law rendered planning procedures in compliance with art 6. The case of Bryan v UK  ECHR 19178/91 at paras 44-47 was, she submitted, decided on its particular facts. In particular, she argued that the High Court could not review any questions of fact. Nor could it examine complaints that a planning inspector gave too little weight to the needs of the gipsy family in pursuing their lifestyle on their land as long as he did not expressly disregard it as irrelevant factor. She also submitted that a review which failed to take account of the proportionality of a measure must be inadequate for the purpose of art 6 (referring, mutatis mutandis, to the court's findings on art 13 in Smith v UK  ECHR 33985/96, (2000) 19 EHRR 493, at paras 135-138).
123. The government, agreeing with the majority of the Commission, considered that in light of Bryan v UK  ECHR 19178/91 the scope of review provided by the Hight Court concerning planning decisions satisfied the requirements of art 6, notwithstanding that the court would not revisit the facts of the case.
124. The court recalls that in the case of Bryan v UK  ECHR 19178/91 at paras 34-47 it held that in the specialised area of town planning law full review of the facts may not be required by art 6 of the convention. It finds in this case that the scope of review of the High Court, which was available to the applicant after a public procedure before an inspector, was sufficient in this case to comply with art 6(1). It enabled a decision to be challenged on the basis that it was perverse, irrational, had no basis on the evidence or had been made with reference to irrelevant factors or without regard to relevant factors. This may be regarded as affording adequate judicial control of the administrative decisions in issue.
125. There has therefore been no violation of art 6(1) in this case'."
The Proportionality Test
" . . . that in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights . . .
"20. At the second stage it is assumed that the means employed to achieve a legitimate aim are necessary in the sense that they are the least intrusive Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?"
The Submissions in this Case