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 Sitting at Birmingham Civil Justice Centre 33 Bull Street Birmingham B4 6DW
		23rd January 2004

Friday, 23rd January 2003.
1. MR JUSTICE FORBES: In these proceedings, the claimant challenges the decision of the first defendant ("the First Secretary of State") by his duly appointed Inspector on 7th July 2003, whereby the Inspector dismissed the claimant's planning appeal against the decision of the second defendant ("the Council") whereby it refused planning permission on 9th August 2002. This challenge is brought under section 288(1)(b) of the Town and Country Planning Act 1990 ("the 1990 Act") which so far as material provides that the decision in question can be challenged on the following grounds:

"(1) that the action is not within the powers of this Act; or

"(2) that any of the relevant requirements have not been complied with in relation to that action ... "

2. As Mr Coppel on behalf of the First Secretary of State has said, other than those grounds, the validity of any decision on an appeal under section 78 of the 1990 Act may not be challenged in any legal proceedings (see sections 284(1)(f)and 284(3)(b) of the 1990 Act). Mr Coppel submitted, correctly in my view, that the permissible grounds of challenge in a case such as the present are, broadly speaking, analogous to the permissible grounds of challenge to an administrative decision by way of judicial review, ie that the decision in question is one that no reasonable decision maker in his position would have made, or that the methodology by which the decision was reached by the decision maker is in some material respect flawed.
3. The factual background to these proceedings is as follows. The appeal site relates to a single detached dwelling house on the north side of Church Lane on the outskirts of Corley, Warwickshire. Hereafter I will refer to that as "the dwelling house". The dwelling house has a garden, outbuildings and its own access to Church Lane. It is part of a site known as Corley Nursery, which comprises a number of nursery buildings and polytunnels together with other more permanent buildings which are used for other commercial purposes. I will refer hereafter to the overall site as "the site".
4. Development of the site is of comparatively recent origin. In November 1987, the Council granted planning permission for the construction of buildings on the site for the mixing of potting compost together with its sale. The planning permission was taken up. Subsequently, the Council granted a further planning permission to develop the site as a nursery, and that planning consent was also taken up and put into operation.
5. On 12th March 1990, outline planning permission was granted for the erection of the dwelling house on the site. The planning permission at that stage included the following condition:

"(5) The dwelling hereby approved shall only be occupied by a person or persons wholly employed in the operation and management of Corley nursery."

6. A detailed planning permission for the erection of the dwelling house was granted on 3rd August 1992. In the detailed permission, the wording of the occupancy condition was slightly modified in the following manner:

"(10) The dwelling hereby approved shall not be occupied otherwise than by a person or persons wholly employed in the operation and management of Corley Nursery, and by the dependants of such person or persons."

7. In the detailed planning consent, the reason given for the imposition of that particular condition was:

"To restrict the occupation of the dwelling to those engaged in the running of the nursery."

8. In due course, the permission was taken up and the dwelling house was built. Thereafter the claimant took up residence in the dwelling house.
9. On 15th December 1997, the Council granted two further planning permissions in relation to the site. First, planning consent was granted to change the use of the site to:

" ... mixed use as a nursery, manufacture and sale of compost, sale of aquatic products and repair/sale of classic cars."

10. The second planning consent varied the existing occupancy condition to read as follows:

"The occupation of the dwelling at Corley Nursery, identified on the approved plan, shall be limited in the first instance to Mr P Donovan and his immediate family, and thereafter to person or persons employed in the operation and management of approval under planning permission 1246/97, and by the dependants of such person or persons."

11. That is the occupancy condition in question. The "Mr P Donovan" referred to in that condition is, of course, the claimant in these proceedings.
12. The reason given for the occupancy condition was as follows:

"Planning permission is granted solely in recognition of the particular circumstances of the beneficiary."

13. On 15th June 2002, the claimant made an application to the Council for the removal of the occupancy condition. On 9th August 2002, the Council refused that application. In refusing permission, the Council provided the following reasons:

"1. The site is in the Green Belt, and outside of any defined development boundary. As such there is a presumption against the grant of permission for new inappropriate development such as a new house. The house was approved, as there was considered to be very special circumstances to override this presumption in this case. The condition was imposed in recognition of these exceptional circumstances. It is not considered that any planning, agricultural, or operational case has been put forward of any weight to justify removal of this condition. The applicant's personal financial concerns are not planning considerations and thus carry no weight given the policy background to this case. The proposal is thus contrary to ENV1 and HSG9 of the North Warwickshire Local Plan 1995."

14. Unfortunately, the refusal of permission in question emerged in what were very unsatisfactory and unfortunate circumstances. The planning refusal had been immediately preceded by a document sent to the claimant, also dated 9th August 2002, in which the following appears:

"Your planning application was submitted on 02 July 2002. It has now been considered by the Council. I can inform you that

"Planning Permission is GRANTED subject to the following conditions:

"1. The site is in the Green Belt, and outside of any defined development boundary. As such there is a presumption against the grant of permission for new inappropriate development such as a new house. The house was approved, as there was considered to be very special circumstances to override this presumption in this case. The condition was imposed in recognition of these exceptional circumstances. It is not considered that any planning, agricultural, or operational case has been put forward of any weight to justify removal of this condition. The applicants personal financial concerns are not planning considerations and thus carry no weight given the policy background to this case. The proposal is thus contrary to ENV1 and HSG9 of the North Warwickshire Local Plan 1995."

15. It will be immediately observed that, although this document purported to be the grant of planning permission, it was expressed to be subject to a condition which was identical in its terms to the reasons for refusal which accompanied the subsequent document containing the refusal of planning permission, to which I have earlier referred. Not surprisingly, when the claimant received this document, as he did on 10th August 2002, he was puzzled by the apparent grant of permission which had a condition attached to it which appeared to suggest entirely the opposite. He contacted the planning authority. The result was that it was said that a very unfortunate mistake had been made. The document first sent had the word "granted" inserted when it should have been "refused". Hence the planning refusal which was then sent to the claimant contained the same wording, by way of a reason for refusal, as had earlier appeared in the condition attached to an apparent grant of planning permission in the first document.
16. This was plainly a very unsatisfactory state of affairs. The claimant is very suspicious about the circumstances in which this has occurred. He is of the view that there was some form of contract or an estoppel between himself and the council by which he was granted the planning permission he sought, evidenced by not only the document that he received on 10th August but also in the light of conversations that he had had with the planning department.
17. Be that as it may, for the purposes of these proceedings, it is important to refer to what happened thereafter. On 21st October 2002, the claimant appealed against the refusal of planning consent dated 9th August 2002, which the Council had substituted for the earlier allegedly mistaken document which apparently granted planning consent. The claimant appealed, as he was entitled to, to the Secretary of State's Planning Inspectorate pursuant to section 78 of the 1990 Act. In the section of his appeal document entitled "Grounds of Appeal", the claimant stated his position as follows:

"I applied to NW Borough Council to have the occupancy condition lifted on the house my family and I have lived in. I asked Mr Brown [of the Council's planning department] about the application. He said it would have to be a good business or planning reason to be successful. I have had health problems and business problems caused by the foot and mouth outbreak in 1991 [sic 2001?] and when Severn Trent [the water authority] closed all the local roads in 1999 to fit sewers. Both of these culminated to help cause severe problems for me.

"Because I got 2 months behind with the business mortgage, Allied Irish called in the loan and went to court to seek possession. Because of case law involving commercial mortgages which stated that a commercial mortgage is redeemable 'from the moment the ink is dry on the paper' Allied Irish have taken possession of the land. I am hoping in the future to being able to get the nursery back, but I have to face a possible future of a house with no land. That is the reason I need to have the condition removed. If it is removed I will be able to get a mortgage on the house in order to buy back the land. I have wife and three daughters. It is really important to me ... "

18. It appears that both the claimant and the Council were content for the appeal to be determined by written representations. However, the Inspectorate considered that it was more appropriate that the appeal should be dealt with by way of an oral hearing, which is apparently the conventional approach when dealing with the removal of occupancy condition appeals. The public hearing of the appeal took place on 24th June 2003. In summary, the Council, in resisting the claimant's appeal, contended that the claimant's appeal was contrary to policy and that no good grounds existed for the removal of the occupancy condition. By his decision letter dated 7th July 2003, the Secretary of State's Inspector rejected the claimant's appeal, and it is from that decision of the Inspector that the claimant now makes application to this court under section 288 of the Town and Country Planning Act 1990.
19. I emphasise that that is the decision in respect of which these proceedings are brought. These proceedings are not concerned with the rights and wrongs of whether there has been some maladministration by the local authority in apparently granting planning consent followed immediately by a planning refusal, or whether the first apparent planning consent in some way constitutes a contract or an estoppel. I emphasise that point because it appears that it was never suggested to the Inspector at the appeal that there was some form of contract or estoppel as between the claimant and the council arising out of the first document dated 9th August 2002. Rather, it appears from paragraph 7 of the decision letter that the matter was dealt with on the basis that a very unfortunate mistake had been made by the Council which they apologised for at the hearing of the appeal and in respect of which the Inspector was informed the claimant had a claim for compensation.
20. I now turn to consider the various heads of challenge which appear to be put forward by the claimant in these proceedings. I say "appear to be put forward" because there is no formal enumeration of any grounds of appeal in the claim form. However, the claimant, who has acted throughout in person, has tried very hard to identify various appropriate heads of challenge to the decision of the Inspector to which he takes objection. He has done that by setting out detailed written statements of his own, in particular one dated 17th November 2003.
21. From those documents, Mr Coppel has identified four main heads of challenge to which I will turn in just a moment. I am bound to say that Mr Coppel's written skeleton argument has been a document of very considerable assistance, not only to me but also to Mr Donovan in his endeavours to conduct these difficult proceedings before me in person. He did so in a very courteous and helpful manner and I pay tribute to that in this judgment, particularly having regard to the fact that Mr Donovan is not in the best of health.
22. The grounds of challenge which Mr Coppel has identified, and which seem to me to be correctly identified, are as follows:

"(1) In making the decision, no account was taken of the effect upon the Claimant of the failure to remove the occupancy condition, including his inability to obtain a mortgage and the resultant inability of the Claimant (and his family) to secure a livelihood.

"(2) The decision involved a breach of the Claimant's EHCR rights under articles 3, 5, 6, 14 and Article 1 of Protocol 1.

"(3) That with modern irrigation control, it is no longer necessary to have someone on site 24 hours a day.

"(4) Since starting on the Site in 1987, the surrounding properties have changed, with a farm being replaced by a school for children with behavioural problems."

23. To those grounds, Mr Donovan added a further point, based on the apparent grant of planning permission on 9th August 2002, in which he argued that that particular document constituted some form of contract or estoppel, which meant that, as between himself and the Council, it was not open to the Council to say that he had not been granted planning permission.
24. I will deal with the latter point first. As I have already indicated, the matter was not argued on that basis before the Inspector. What is clear from the decision letter is that the matter was dealt with as an unfortunate mistake for which the Council apologised and in respect of which the claimant was making a claim for compensation. The Inspector plainly had the matter in mind and he dealt with it in paragraph 7 of his decision letter on the basis he had been asked to deal with the matter. It is plain that he was also right in concluding, as he did, that it was:

" ... unfortunate and was rectified but it added to the appellant's difficulties although it does not affect my decision on the appeal."

25. In my view, given the way in which the matter had been presented to him, the Inspector was right in the further conclusion that he expressed in paragraph 7, that the difficulties arising out of that mistake on the part of the Council were not a matter for his determination in the appeal that he had to consider. I am satisfied that he was plainly right about that and, as it seems to me, there is no substance in the point at all. I say that in the context of these proceedings. Nothing that I have said by way of its significance in these proceedings should be taken as expressing a view on my part as to the underlying merits of all the various concerns that the claimant may have about this unhappy episode or as to any remedies of whatever nature may be available to him in respect of that matter outside the ambit of these proceedings.
26. Mr Coppel submitted that none of the other grounds bears analysis. He submitted that the Inspector's decision was a perfectly reasonable one and that his methodology in reaching that decision was unimpeachable. Mr Coppel drew attention to section 54A of the 1990 Act which provides as follows:

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

27. He also referred me to section 70(2) of the 1990 Act which provides:

"In dealing with such an application, the [local planning] authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

28. Mr Coppel submitted, correctly in my view, that the Inspector had correctly noted that the site is situated within the Green Belt so that any development proposal would be affected by policies applicable to a Green Belt, including national policies PPG2 and local policies ENV1 and HSG9. The latter policy includes the following:

" ... Applications for the discharge of an agricultural occupancy condition will be considered having regard to the above factors and the potential for the dwelling to remain in agricultural use in relation to other agricultural land in the area. Applications will need to be supported by an assessment which fully addresses these considerations."

29. The explanation provided in the supporting text for that policy is as follows:

"A strong case will need to be presented to demonstrate that the agricultural dwelling concerned is not likely to be needed to service the agricultural industry in that area for the foreseeable future. It will also be necessary to demonstrate that the property has been offered for sale for a reasonable period of time at a reduced price which reflects the existence of the condition. Normally this should be for a minimum period of not less than three months before the application is made."

30. As Mr Coppel observed, this requirement was plainly a relevant matter that the Inspector was entitled to take into account. At paragraph 3 of his decision letter, the Inspector specifically referred to policy HSG9 and accurately summarised its effect. The Inspector then proceeded to conclude in paragraph 6 of his decision letter:

"The appellant clearly has financial difficulties as well as health problems. As is the case with the Council I am sympathetic to these but unfortunately they do not constitute reasons for removing an occupancy condition. He did not submit any planning justification for removal of the link. There was evidence that an attempt to sell the house had been made and this substantiated the claim that its value is depressed by the occupancy condition. The Council pointed out that there has been no analysis to establish that there is no need for the house in connection with the business. Neither is there any evidence relating to the long-term viability of the business. In any event, at the hearing the appellant emphasised that he and his family wish to remain in the house and regard it as eventually supporting their retirement. In the absence of any acceptable justification for severing the link I am unable to remove the disputed condition."

31. I agree with Mr Coppel's submission that the Inspector was perfectly entitled to reach this particular conclusion based upon the material that had been submitted to him. That conclusion was fatal to the claimant's appeal. The claimant had not submitted material to show that the site had been placed on the market at a discount for a period of three months, nor had he submitted material to show that the business had no long-term viability. In short, as Mr Coppel submitted, the claimant had failed to put before the Inspector adequate material on the matters that were, in policy terms, critical to the removal of the occupancy condition. In my view, for the reasons put forward so persuasively by Mr Coppel, the Inspector's decision is unimpeachable, the process by means of which he reached his decision is unimpeachable, he has given clear and valid reasons for reaching the conclusions that he did and the conclusions that he reached were entirely justified, in fact inescapable, on the evidence that he heard. Accordingly, I see no justifiable basis for challenging the decision-making of the Inspector as set out in his decision letter on the evidence and material that had been presented to him.
32. It remains therefore to deal only with the various human rights challenges that have been raised by the claimant in these proceedings. I turn first to deal with Article 3 of the Convention. This provides that:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

33. The claimant feels that the stress and worry to which he has been exposed in various ways throughout these proceedings and the events that preceded these proceedings amount to torture. Whilst one can understand why he says that, there is no doubt in my mind that these very considerable worries do not amount to torture, inhuman or degrading treatment or punishment in the terms of Article 3. I agree with Mr Coppel that Article 3 is simply not engaged in the circumstances of this case.
34. Article 5 of the Convention provides for the right of liberty and security. The Article deals with the circumstances in which a person may properly be deprived of his liberty and it sets out an individual's rights when that individual is detained. It goes without saying that there is no question in this case of any form of deprivation of liberty. Article 5 is not engaged in the circumstances of this case.
35. Article 6 provides for a right to a fair trial. It is now well established that the combination of the appeal procedure under the 1990 Act together with the supervisory role of the High Court amount to an independent determination of an individual's civil rights and obligations under that Act: see R (Alconbury Development Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, [2001] UKHL 23.
36. Article 14 proscribes discrimination on grounds such as sex, colour, religion, language and so forth in the enjoyment of the rights and freedoms set out in the Convention. Although the claimant suggests that he has been discriminated against in respect of his difficulties in getting a suitable mortgage, because of the effect on the property of the occupancy condition, that is not discrimination of the sort that would engage Article 14. Again, in my view, that Article is simply not engaged.
37. Article 1 of Protocol 1 protects the peaceful enjoyment of possessions and proscribes the deprivation of those possessions. Although planning controls are undoubtedly capable of being characterised as a control of use for the purposes of Article 1 of Protocol 1, it is settled law that legislative measures will constitute a control rather than a deprivation within the meaning of Article 1 Protocol 1 (see Pine Valley Developments Ltd v Ireland (1991) 14 EHRR 319 at paragraph 56) and, in any event, where property rights are concerned, states do have a considerable margin of appreciation in determining the existence of a problem of general public concern sufficient to validate the measure of control in question. This is an approach which has been consistently applied in relation to planning measures: see, for example, Chassangnou v France (1999) 29 EHRR 615 and Lundquist v Sweden (1986) 9 EHRR 351 at 532. In my view, there is no arguable basis for saying that in the circumstances of this case, there has been any infringement or breach of Article 1 of Protocol 1.
38. Accordingly there is no substance in any of the human rights challenges to the decision-making process of the Inspector in this case. Accordingly, for all these reasons, this application must be and is hereby dismissed.
39. MR COPPEL: I am grateful, my Lord. I would ask for the Secretary of State's costs. I would ask for those to be summarily assessed in the sum of £5,020.
40. MR JUSTICE FORBES: I have seen the schedule. Mr Donovan, have you seen the First Secretary of State's schedule of costs? Let us take it in stages. First of all, there is an application now by the First Secretary of State that you should pay his costs of these proceedings. What do you have to say about that as a matter of principle?
41. MR DONOVAN: Well, I wrote out a list of what my costs ...
42. MR JUSTICE FORBES: Yes, but at the moment you have lost this appeal, I have dismissed your claim.
43. MR DONOVAN: I do appreciate that, but ...
44. MR JUSTICE FORBES: In the ordinary way, in these circumstances, it is the winning party that is usually entitled to his or her costs against the losing party. You have to say first of all whether there is anything you want to say about why I should not make the normal order that you should pay the costs.
45. MR DONOVAN: I cannot afford it, but that is probably not a suitable reason for him. I am not allowed to say anything now concerning what went before? Because it was just a couple of things.
46. MR JUSTICE FORBES: If there is something you want to say, if you think that I have made a mistake which you want me to correct, please let me know.
47. MR DONOVAN: One thing: the problem with the Allied Irish Bank. They got a charge against the nursery and not the house. They came and possessed the nursery, not the house.
48. MR JUSTICE FORBES: Thank you. I will bear that in mind.
49. MR DONOVAN: If I had let it go, I would probably have been better off.
50. MR JUSTICE FORBES: I will correct that error and make it clear that the mortgage was against the nursery and not the house itself.
51. MR DONOVAN: I am sure the gentleman considers they are entitled to this, but I still think that I put up a reasonably valid reasons as to why the court should find in my favour. I have obviously lost the plot somewhere along the line. The financial guy who was sorting out the mortgage with me, he went to see the Planning Department and spoke to a planning officer there, and he came back and told me that I am wasting my time trying to do anything there, because I have ruffled so many feathers, I do not stand a cat in hell's chance of them doing anything. That is what I was told after I had visited the Planning Department.
52. MR JUSTICE FORBES: Let us concentrate on the question of costs. Is there anything you want to say about my making the order for costs in favour of the First Secretary of State? I do not think there is, actually.
53. MR DONOVAN: Other than the fact that I find it very, very difficult to be able to pay it, certainly within the near future.
54. MR JUSTICE FORBES: That may be something that you would be able to agree with the Treasury Solicitor as to what sort of amount you can pay over what period of time.
55. MR DONOVAN: It is damage limitation now for me. I want for my family to be able to escape with something. I am saddled with £3,000 and something a month mortgage which I am paying at the moment, but I am not going to be able to pay it forever, and unless I can get this occupancy condition removed ...
56. MR JUSTICE FORBES: Mr Donovan, at the moment, as far as I can tell, there are no matters that you can put forward as to why the ordinary order should not be made that you pay the First Secretary of State's costs of these proceedings. The next stage is whether you object to the application that Mr Coppel has made that I summarily assess those costs here and now and make the order for a fixed sum of money. Now, have you received the First Secretary of State's schedule of costs?
57. MR DONOVAN: I received it, I think it was on Monday or Tuesday of this week.
58. MR JUSTICE FORBES: Have you had a chance to consider it? Have you looked at it?
59. MR DONOVAN: I wish I got paid that.
60. MR JUSTICE FORBES: Well, I can understand you saying that. But --
61. MR DONOVAN: The local authority has a bottomless pocket of money.
62. MR JUSTICE FORBES: This is not the local authority. This is the First Secretary of State. This is the Government, if you like, a government department. You are not being asked to pay any costs to the local authority. If you look through the schedule, you will see that it identifies the amount of hours spent on various things. It is not entirely easy to follow, but if you look: the solicitor who was dealing with this matter is identified, and his fee. His hourly rate is £150.
63. MR DONOVAN: So, what, you get paid £3,000 and something a week? Seven hours travel and waiting, was it the slow train?
64. MR JUSTICE FORBES: Where are you looking at now?
65. MR DONOVAN: The attendance of hearing. It would not be right for me to argue the figures, because I do not know how long they have spent. I know I have spent many sleepless nights.
66. MR JUSTICE FORBES: I have to say, I cannot see any obvious area in which this is an inflated schedule. I have to say, although I do not know whether you will accept it or not, but my experience with dealing in these cases is that the schedules of costs put forward by the Treasury Solicitor on behalf of government departments are always very reasonable, you may find this a difficult word to accept, but modest compared with the private sector, if I can put it that way.
67. MR DONOVAN: I tried to get a solicitor to represent me, but I could not find one that knew anything about planning law, except for one gentleman from a practice in Leicester called Marron, and the only way he would represent me is if I put £6,000 down now on the table before he did anything. That is why --
68. MR JUSTICE FORBES: If what you were being asked to put down on the table was £6,000, that does seem to suggest that the figure put forward by the First Secretary of State is not unreasonable.
69. MR DONOVAN: I am sure that he can justify the figures. It is just the effect it will have.
70. MR JUSTICE FORBES: That is something that you can negotiate with the Treasury Solicitor. Again, I will make the observation that you will normally find that they are cooperative and understanding. Provided what you put forward are proper sensible proposals, in the ordinary way, they are treated sensibly and with a degree of understanding and sympathy.
71. MR DONOVAN: The only way I am going to be able to pay it is if I sell up completely. I cannot see it happening any other way.
72. MR JUSTICE FORBES: Is there anything else you want to say?
73. MR DONOVAN: No, thank you.
74. MR JUSTICE FORBES: Thank you. In that case, the order that I make is that this claim is dismissed. The claimant is to pay the first defendant's costs of these proceedings, which I summarily assess in the sum of £5,020.
75. Thank you both very much.