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
		27 May 2004

1. MR JUSTICE EVANS-LOMBE: This is a claim under section 288 of the 1990 Act brought by the Chiltern District Council against the Secretary of State and Try Homes Limited as defendants. The claim is to quash under that section the decision by the Secretary of State, through her Inspector, dated 10th September 2003, allowing the second defendant's appeal from the claimant's refusal of planning permission for development of a car showroom and garage site fronting on the Berkhampstead Road in Chesham.
2. The Inspector's hearing took place on 20th August 2003 and she handed down her decision by a decision letter of 10th September. The site is described accurately in the Inspector's decision letter at paragraph 7 as follows:

"The appeal site has frontages onto Berkhampstead Road, Cameron Road and Alexander Street. Berkhampstead Road is the main road between Chesham and Berkhampstead. The appeal site is defined as an area for Business, Industrial and Storage or Distribution in the local plan and is currently occupied in the front part by a car showroom and at the rear by a car repair workshop. There is some commercial and business use in the vicinity of the appeal site but the area is largely residential."

3. The show room and car repair garage is operated by a firm, W E Finch & Sons, that is described in the decision letter at paragraph 9 where the Inspector says:

"The current owner of the appeal site has had difficulty with his business and he has tried to sell the whole of the site for business purposes but without success. He has received offers for the front part of the site only."

That is the show room.

"From evidence submitted on behalf of the Appellant Company it appears that there would be very little demand for a business or industrial use for a site of this size and nature in this location. The Council did not submit any evidence which refuted the evidence of the Appellant Company."

4. W E Finch & Sons currently employ on the site 11 employees. The proposed development is described by the Inspector at paragraph 8 and paragraph 10 of the decision letter as follows:

"8. The proposal would maintain this division--"

namely the present division between the showroom and the garage.

"8. The proposal would maintain this division in the appeal site by utilising the front for an office building and associated car parking and the rear for housing with a block of 11 flats fronting Alexander Street and 5 two storey terraced houses facing Cameron Road. Car parking for the flats and houses would be at the rear of the buildings and accessed from Cameron Road."

5. And then at paragraph 10:

"10. The proposal includes a 2 storey office building split into 2 units. I was told by the Appellant Company that small units such as those proposed are those most preferred in today's market and although it might take some time for them to be let, the evidence was that they would be. I was also told that such offices would be likely to employ as many as 22 people, which would be considerably more than those currently employed in the declining car repair/car showroom business. This evidence was not refuted by the Council. I considered that, although the site for the business use would be smaller than at present, the proposal would maintain an employment base with the possibility of local jobs that could minimise out-commuting."

6. At paragraph 3 of the decision letter the Inspector sets out the main issues before her in the following words:

"In this appeal I consider that there are 2 main issues. The first is the consequences of the proposal for the supply of business land. The second is the implications of the proposed office use for parking, highway safety and the free flow of traffic."

7. It is common ground that the second issue does not now arise and that we should concentrate on the first.
8. Between paragraphs 4 and 6, inclusive, of the decision letter the Inspector outlined the relevant planning policies which governed her decision in the following words:

"4. The Development Plan for the area includes the Buckinghamshire County Structure Plan 1999-2011 which was adopted in 1996 and the Chiltern District Local Plan which was originally adopted in 1997: Alterations to the local plan were adopted in 2001. Policy E5 of the structure plan outlines the strategic employment policy for the southern part of the county which includes Chiltern District. This strategic policy provides, among other things, that no new site for employment generating development will be permitted and the re-use of employment sites for non-employment land will not be permitted. Policy TR1A of the structure plan seeks, among other things, to restrain future levels of traffic growth and encourage alternative means of travel which have less impact than the private car. Policy E3 of the local plan says, among other things, that development for uses other than business and storage or distribution will not be permitted within defined areas. Policy TR11 of the local plan requires vehicle parking provision to be made in accordance with the standards set out in policy TR16.

5. Reference was made to policies in the Replacement Buckinghamshire County Council Structure Plan 2001-2016 (the emerging structure plan). However, this emerging structure plan is at a very early stage in the process having been placed on deposit in July 2003 and, in accordance with paragraph 48 of Planning Policy Guidance Note 1 'General Policy and Principles' (PPG1), I give limited weight to these policies.

6. I was also referred to PPG1 'General Policy and Principles', PPG3 'Housing' and the recently issued Consultation Paper on a proposed change to PPG3 'Supporting the delivery of new housing', PPG4 'Industrial and Commercial Development and Small Firms', PPG13 'Transport' and Regional Planning Guidance for the South East (RPG9). References in national and regional guidance were to, among other things, sustainable development, mixed use development, a mix in the type of dwellings to cater for, as an example, the increase in single person households, a range of employment sites being available for development and the need to reduce the need to travel, especially by car."

9. Of those policies of particular relevance for the purposes of these proceedings is policy E3 of the local plan. That provides:

"Areas for business and storage or distribution development are defined on the Proposals Map.

Within these areas development for business, or storage or distribution purposes will be acceptable, provided that other policies in this Local Plan are complied with.

Development for uses other than business, or storage or distribution will not be permitted within the defined areas, except as set out below.

Exceptions may be made in the case of existing general industrial uses where it can be demonstrated that the general industrial development proposed would not cause significant deterioration in the amenities of the occupiers of properties in the vicinity of the site and Policies TR2, TR3 and TR11 in this Local Plan can be complied with."

10. Policy E4 in the same district local plan provides:

"1. On other sites in existing use, or last used, for business, general industrial, or storage or distribution purposes and where the use is authorised or otherwise lawful, the Council will permit business development provided that other policies in this Local Plan are complied with.

Clause 1 also applies..."

11. The ground for refusal of the application for planning permission by the planning authority appears from a schedule of reasons for the refusal including, in the last sentence, the following:

"The proposal would result in the loss of an identified site for Business and Storage and Distribution development which could not be replaced within the District and as such would be contrary to Policies E5 of The Adopted Buckinghamshire County Structure Plan 1991-2011 and E3 of the Adopted Chiltern District Local Plan 1997 (including the adopted Alterations May 2001)."

12. It is accepted that the appeal site is a site within the purview of policy E3. It is also accepted, both by the parties to the application before me and was accepted by the Inspector, that the proposed development constitutes a breach of policies E3 and E4. It follows, therefore, that, ostensibly at least, the authority were right to reject the application for planning permission for the proposed development so that those local planning policies could be complied with. However, section 54A of the Town and Country Planning Act 1990 provides:

"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

13. In allowing the appeal from the rejection by the authority of the claimant's application the Inspector found there were sufficient material considerations to allow her to permit the proposed development to depart from the local plans E3 and E4. The question in these proceedings is whether that conclusion can stand.
14. The material part of the decision letter appears at paragraphs 11 and 12, which read as follows:

"11. The current general industrial use has been in operation for some time and there have been no complaints from local residents about, for example, noise and disturbance. I do, however, accept that another, less environmentally friendly use could take place on the site but whether it would or not is a matter for speculation rather than considered opinion. I also note the poor condition of the current buildings on the site and the evidence from the current owner's accountants that no investment has been made in the property for 10 years. In my view, however, this would not be justification to grant permission as it could encourage landowners desirous of a beneficial consent not to look after their property in a diligent fashion.

12. There is no evidence that if I were to refuse this application that the current business will continue, indeed because of financial difficulties it is likely to close. There is also no evidence that if the current owner vacated the site that the site would be used in future for a similar purpose but it is suggested that it would most likely remain vacant. The proposal would provide a mixed use development with a business use on the most prominent part of the site. I acknowledge the Council's concern that if part of the site is lost to business use that business use would not be replaceable anywhere in the District because of its setting close to an Area of Outstanding Natural Beauty and Green Belt. However, I take into account more recent guidance (PPG3 and the draft consultation paper) than that of the Development Plan which encourages the re-use of poorly sited employment land for mixed use development of the type proposed here. Some business land would be lost to provide much needed small units of accommodation as identified in the Housing Needs Survey. I accept that the increase in housing in the area may increase the number of people travelling but this would not necessarily be by car as the train station is less than 1km away and, on balance, I consider that the need for small units of housing would outweigh the harm caused by any possible increase in travel and the loss of some business land. Some business land would be retained which would also provide employment and maintain the mixed use nature of the area. I therefore conclude that although the proposal does not fully accord with Development Plan policies that there are sufficient material considerations that outweigh those policies and that the proposal would not harm the supply of business land."

15. The challenge to that decision is advanced by Mr Warren on behalf of the claimant council under three heads. The first is that the decision letter, and in particular paragraph 12 and the sentence beginning "However, I take into account more recent guidance..." illustrates a misuse or misunderstanding by the Inspector of policy PPG3 and/or its revision thereby establishing that she was proceeding under error of law. Secondly, a reasons challenge on the contention that there was no basis shown in the reasons given for the finding that the appeal site was poorly sited employment land as appearing in that same sentence and I was referred under this head to the speech of Lord Bridge in Save Britain's Heritage v No.1 Poultry Ltd [1991] 1 WLR 167. And, thirdly, that there were no findings or evidence to support a finding that the proposal would not harm the supply of business land at the end of paragraph 12 and that, accordingly, such a finding was perverse.
16. I will deal with the first challenge. The material passages in the decision letter under which this challenge arises are paragraph 6, which I have already read out, and paragraph 12, the sentence to which I have drawn attention. The challenge is based on the contents of the existing paragraph 42 of PPG3 and of the proposed new paragraph 42A, to be included in PPG3, but which at the moment is the subject of consultation. The existing paragraph 42 reads as follows:

"Some local planning authorities have allocations of land for employment and other uses which cannot realistically be taken up in the quantities envisaged over the lifetime of the development plan. Equally, since planning policies may have changed since some of this land was designated for particular land uses, it is possible that the designation is no longer compatible with policy set out in current PPGs. The Government regards this as a wasted resource, especially where such sites include previously-developed land. Local planning authorities should therefore review all their non-housing allocations when reviewing their development plan and consider whether some of this land might better be used for housing or mixed use developments."

17. The new paragraph 42A will read, if approved:

"Applicants for planning permission for development that includes housing should be able to expect expeditious and sympathetic handling of planning proposals which concern land allocated for industrial or commercial use in development plans but which is no longer needed for such use, or redundant industrial or commercial buildings. This is particularly the case where local planning authorities have yet to complete the review referred to in paragraph 42 above. Local planning authorities should consider such planning applications favourably unless:

* the proposal fails to reflect the policies in this PPG, particularly those relating to a site's suitability for development and the presumption that previously-developed sites (or buildings for re-use or conversion) should be developed before greenfield sites;

* the housing development would undermine the planning for housing strategy set out in RPG or the development plan where this is up-to-date, in particular if it would lead to over-provision of new housing where this will exacerbate, or lead to, low demand;

* it can be demonstrated, preferably through an up-to-date review of employment land, that there is a realistic prospect of the allocation being taken up for its stated use in the plan period or that its development for housing would undermine regional and local strategies for economic development and regeneration."

18. It is submitted by Mr Warren that the Inspector has misunderstood paragraph 42 and paragraph 42A because she appears to have applied those paragraphs, notwithstanding that the facts of the present case, and in particular of the appeal site itself, do not comply with the provisions of those paragraphs in the sense that the appeal site is not a vacant site or previously developed land allocated for employment use, but rather is a site currently in use for employment and, accordingly, paragraph 42 and paragraph 42A cannot apply to it.
19. He submits that it is plain that this was a governing aspect of the Inspector's decision and much reliance was placed on her view of PPG3 in arriving at her conclusion to allow the appeal and, accordingly, it is demonstrated, so he submits, that her decision should be quashed for error of law as a result.
20. It was submitted by Mr Maurici, for the Secretary of State, that this submission overlooks other provisions of PPG3 which were relevant to the decision, in particular PPG3 paragraph 2 which reads:

"Local planning authorities should:

* ...

* provide sufficient housing land but give priority to re-using previously-developed land within urban areas, bringing empty homes back into use and converting existing buildings, in preference to the development of greenfield sites;"

21. Paragraph 21 which materially reads:

"21. The Government is committed to promoting more sustainable patterns of development..."

22. There were then a series of bullet points, the relevant ones being:

"* making more efficient use of land by maximising the re-use of previously-developed land and the conversion and re-use of existing buildings;

...

* reviewing existing allocations of housing land in plans, and planning permissions when they come up for renewal."

23. Paragraph 22:

"22. The Government is committed to maximising the re-use of previously-developed land and empty properties and the conversion of non-residential buildings for housing, in order both to promote regeneration and minimise the amount of greenfield land being taken for development."

24. And paragraph 35:

"35. Windfall sites are those which have not been specifically identified as available in the local plan process. They comprise previously-developed sites that have unexpectedly become available. These could include, for example, large sites such as might result from a factory closure or very small changes to the built environment, such as a residential conversion or a new flat over a shop."

And, finally, there is paragraph 42, which I have already read.

25. Mr Maurici accepts that the words 'poorly sited employment land' do not appear anywhere in PPG3. However, he submits that the underlying theme of PPG3 and the various paragraphs in it which I have read are the expression of a planning preference of a need nationally that industrial sites should be considered for residential development where their use as industrial sites was either no longer needed or looked unlikely to become needed in the foreseeable future.
26. My attention was drawn to a passage in the judgment of the Court of Appeal, in particular the judgment of Hoffmann LJ (as he then was) in South Somerset District Council v Secretary of State for the Environment [1995] PLR 83 where he says this about a decision letter:

"The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector's reasoning. A reference to a policy does not necessarily mean that it played a significant part in the reasoning: it may have been mentioned only because it was urged on the inspector by one of the representatives of the parties and he wanted to make it clear that he had not overlooked it. Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy or proposed alteration to policy."

27. I accept Mr Maurici's submissions, and I do so bearing in mind the guidance in the case of Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 and in particular page 28.
28. The sentence in paragraph 12 of the decision letter to which I have referred does not persuade me that the Inspector misunderstood the effect of the national policy set out in PPG3 when read as a whole, and in particular the paragraphs to which Mr Maurici referred me which were not confined to paragraph 42, which I would accept has no direct application to the facts of this case. Nor, therefore, am I persuaded that she proceeded under an error of law in consequence. The matter was plainly one for the exercise of the expertise of the Inspector, her knowledge of planning policy, and her judgment of how the planning policies to which she was referred, and which she sets out between paragraphs 4 and 6 of the decision letter, should be applied. I do not regard her conclusion as to how those policies should be applied as in any way perverse. It follows that this ground of objection to her decision fails.
29. I turn to consider ground (2). In doing so I draw attention to paragraph 9 of the decision letter which I have read out, paragraph 7 and paragraph 11, in addition to paragraph 12. Those paragraphs set out the Inspector's conclusions on the evidence to which I was taken by Mr Maurici of the following facts. Firstly, that the business, being conducted on the site by W E Finch & Sons is likely to close, regardless of whether planning permission was granted or not. Secondly, that the site in question was set in a residential area and although its present business had not been complained about by those living near it, or rather there was no evidence of any such complaints, nonetheless, it could not be ruled out that a business seeking to acquire the site for its own purposes might well turn out to be less agreeable to those living close to it and, accordingly, that the market for the site might be a very limited one. Thirdly, the limited facilities, and this is really the same point, which the site offered for business use.
30. All of these stem from the fact that this is an isolated industrial situation existing in the middle of a primarily residential area. I hark back to the extract from the judgment of Hoffmann LJ, which I have just read out, and I bear in mind that the Inspector was here speaking to professionals familiar with the issues in the case and with the facts that surround it. For these reasons I reject the reasons attack on the Inspector's findings, a reasons attack being that it does not clearly set out why a certain conclusion was arrived at. It seems to me that the Inspector drew attention to evidence which amply supported her finding that this was in fact poorly sited employment land. For these reasons I reject ground (2) and move to ground (3) which I can deal with shortly.
31. There was ample evidence before the Inspector to show that, if a large percentage of this land was turned over to residential use as a result of the Inspector's conclusion this would not cause any significant reduction in the stock of employment land available to the authority, which it was one of the authority's primary planning policies to preserve in employment use. And the reason why this is so is the very evidence to which I have just referred under challenge number (2). That evidence, I should point out, was uncontradicted by the claimant. If the fact that a high percentage of the appeal site was going to be withdrawn from employment use is in fact to be treated as a breach of the Council's policy then it was balanced, as paragraph 12 of the Inspector's decision letter makes plain, by the national need for an extension of housing, in particular in small units to cater for families of limited size. The decision by the Inspector to prefer the latter policy cannot be described as perverse.
32. It seems to me that those considerations were sufficient material considerations to meet the requirements of section 54A and, accordingly, this challenge to the Inspector's decision must be rejected.
33. For these reasons, in my judgment, this application must be dismissed.
34. MR MAURICI: My Lord, in addition to an order dismissing the claim, I seek an order for summary assessment of the Secretary of State's costs. My Lord, there is a slightly revised schedule I could hand up to you. My Lord, I believe the sum is agreed.
35. MR WARREN: My Lord, in effect I do not resist the principle of costs in relation to the first defendant and in effect it is agreed.
36. MR JUSTICE EVANS-LOMBE: Yes. Very well.
37. MR MAURICI: You can see the revised total is £6,906.88.
38. MR JUSTICE EVANS-LOMBE: Yes, I will assess the costs in that amount.
39. MR NEWBERRY QC: I do not pursue costs, my Lord.
40. MR WARREN: One further matter, if I may.
41. MR JUSTICE EVANS-LOMBE: Yes.
42. MR WARREN: This not being a second appeal, it falls upon me to apply to your Lordship for permission to appeal to the Court of Appeal which I now do very briefly. There are two short points, my Lord, to put before you. The first is: if, as your Lordship has held, paragraph 42 of PPG3 and 42A of the draft do not apply to this factual situation, the Court of Appeal should give some consideration in my submission to why the Inspector has referred to it in the paragraph to the draft 42A in her decision letter at paragraph 12 and, secondly, there is an important point of more general practice which effects not only my client but many house builders practising in the country which is: what in PPG3 supports the redevelopment of protected employment sites which are 'poorly sited'? Those two points, my Lord, not only, in my submission, present an arguable case for the challenge to go forward, but are also of a more general importance as well.
43. MR JUSTICE EVANS-LOMBE: No, Mr Warren, I decline permission to appeal. Anything else?
44. MR MAURICI: No, my Lord.
45. MR NEWBERRY QC: I would thank your Lordship for sitting early.