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
		26 November 2004

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision by one of the first defendant's inspectors dismissing the claimant's appeal against the second defendant's refusal of an application for planning permission for the siting of a 30-foot x 10-foot caravan for residential use (temporary until house is built) at Sutton Springs Trout Farm, Bullington Lane, Sutton Scotney, Winchester in Hampshire ("the farm").
2. The second defendant refused planning permission on the ground that the proposed development would be visually intrusive and out of keeping with the Area of Special Landscape Quality in which it would be sited.
3. The claimant's appeal was dealt with by written representations. The Inspector visited the site on 16th April and his decision letter is dated 9th June 2004. The claimant has been attempting to obtain planning permission for a dwelling at the farm for some years. In November 2001 he applied for planning permission for the erection of a fishery worker's dwelling at the farm. That application was refused and he appealed. His appeal was dismissed by another inspector ("the First Inspector") in a decision letter dated 9th June 2003. The First Inspector concluded that there was a functional and financial need for a dwelling on the farm, but the proposed site for the dwelling within the farm was not acceptable. In paragraph 16 of his decision letter he said:

"I now turn to the visual impact of the proposed dwelling. The northern part of the Trout Farm, within which the proposed dwelling would be sited, is essentially a small field standing on an island. I consider this field to be an integral part of the undeveloped countryside to the north of Sutton Scotney and as such an important element in the attractive setting of this part of the River Dever. I consider, therefore, that the erection of any sort of dwelling here, together with the associated domestic paraphernalia, would seriously erode the rural character of the area and be detrimental to the River Dever Area of Special Landscape Quality. Although the existing trees and shrubs, supplemented by additional planting, would afford some screening I believe that the new dwelling would be evident from the surrounding area, including from Bullington Lane. Although I am aware that this Area of Special Landscape Quality is not a national designation it does not change my view that the proposal would cause visual harm."

4. The dwelling was proposed to be sited at the southern end of the northern part of the farm.
5. In paragraph 17 of his decision letter the First Inspector said that despite the visual harm that would be caused, he would be "obliged to find in favour of the proposal if I considered there is no alternative site that is less damaging". The First Inspector considered that such a site did exist at the southern end of the trout farm. In paragraph 18 he concluded "that, although there is a functional and financial need for a dwelling at Sutton Springs Trout Farm, the proposed siting would be detrimental to the character and appearance of the local area". He concluded that that detriment constituted compelling grounds for dismissing the appeal.
6. Returning to the decision letter dated 9th June 2004, the Inspector said that the main issue was "the effect of the proposed development on the character and appearance of an Area of Special Landscape Quality". In paragraph 9 of the decision letter the Inspector said this:

"In my view, the rectangular shape of a 30ft long caravan would spoil the scenic quality of this setting, especially as the caravan proposed would be finished in cream and light green. I note the appellant has said the caravan is only needed if there were a permanent dwelling under way and would be limited to a twelve-month duration. I also note the link the appellant has made to a permanent dwelling and that any harm caused by the caravan would be for a limited time. However, at the time of this appeal there is no permission for a permanent dwelling and the prospects of it being granted are uncertain. I can therefore give this consideration limited weight."

7. The Inspector then went on in paragraph 10 to refer to the First Inspector's decision and to the First Inspector's conclusion that a permanent dwelling on the fish farm site passed the functional and financial tests of PPG7 for a new dwelling in the countryside. He continued:

"I have seen the earlier Inspector's comments on the siting of a permanent dwelling and the appellant's detailed analysis of alternative sites. I have taken account of the study of alternative locations as part of the reasoning for the site now proposed for the caravan. However, I can only make a decision on the proposal before me.

"11. I conclude that the proposed development would cause unacceptable harm to the character and appearance of an Area of Special Landscape Quality contrary to the aims of the relevant policies in the development plan."

8. The site for the proposed caravan was towards the southern end of the northern part of the farm, just slightly to the north of the site for the proposed dwelling which had been rejected by the First Inspector in 2003. The claimant did not agree with the First Inspector's conclusion and had submitted a lengthy analysis of alternative sites for a dwelling within the farm in support of an application for planning permission for a fishery worker's dwelling on what was essentially the site rejected by the First Inspector in 2003. The application for planning permission for the dwelling had been submitted in January 2004, refused on 3rd April, and an appeal had been lodged on 25th April 2004.
9. The Inspector's decision was challenged by Mr Grant on behalf of the claimant on two principal grounds. Firstly, it was submitted that the Inspector had failed to have regard to a proposed means of mitigating the visual impact of the caravan that had been put forward by the claimant in his written representations. In its written statement submitted to the Inspector the second defendant described the site, summarised the planning history and the consultation responses, and then set out the Planning Policy Framework, referring to national policies and to local plan policies. Among the national policies mentioned in the second defendant's written statement was PPG1 about which the second defendant said this:

"PPG1 also advises that the Local Planning Authority should reject poor designs, particularly where their decisions are supported by clear plan policies or supplementary guidance."

10. The second defendant's statement went on to deal with its case, commented upon the grounds of appeal, set out a number of conclusions, and then in a separate section dealt with suggested conditions.
11. The claimant submitted a lengthy written reply extending to 15 closely typed pages. In response to the second defendant's reference to PPG1 the claimant said this:

"PPG1 and 'poor designs'. The design is that of a standard mobile home. There is little variation in the designs (unless perhaps the LPA would like the mobile home to be constructed with feather edge board cladding, painted ebony, which, if required, can be provided in the form of a free standing temporary exterior construction)."

12. No further reference to this observation is to be found anywhere in the claimant's reply document. In particular, when dealing with the second defendant's suggestions as to conditions, the claimant did not put forward any condition dealing with screening.
13. I am far from convinced that the claimant's observations in respect of PPG1 were any more than his attempt to gently mock the second defendant for being unduly precious about matters of design. Read literally, the suggestion could not have been intended to be taken seriously. Modern caravans are not constructed with feather edge board cladding.
14. Mr Grant submitted that the Inspector should have understood the claimant's observations as being a suggestion that a feather edge board fence could have been erected around the caravan. It will be remembered that planning permission was sought for the siting of a caravan. The second defendant asked for further details in a letter dated 19th August 2003. That letter requested information about the external appearance -- colour, type of mobile home to be used, et cetera. The response from the claimant to this request for further particulars was:

"The proposed caravan would be conventional ie rectangular with a flat roof. Dimensions: 9m x 3m x 3m. Colour: Cream and light green."

15. A number of other particulars were provided and the letter concluded by saying:

"Please NB the siting of the proposed caravan does not necessitate any construction work."

16. The grounds of appeal against the refusal of planning permission were very lengthy indeed. Nowhere in those ground was it suggested that a condition requiring the erection of a feather edged board fence -- which would necessitate construction work -- might be imposed upon any grant of planning permission.
17. In these circumstances I have no hesitation in accepting Mr Moffett's submission on behalf of the first defendant that the claimant's "offer", if indeed it was an offer at all, was at most a peripheral matter amid the mass of detailed points which were being raised by the claimant in his representations to the Inspector and it was certainly not one of the principal issues with which the Inspector was required to grapple in his reasons.
18. Secondly, it was submitted that the Inspector erred in paragraph 9 of the decision letter in proceeding upon the premise that the caravan was needed only during the construction of a permanent building:

"I note the appellant has said the caravan is only needed if there were a permanent dwelling under way and would be limited to a twelve-month duration." [Emphasis added.]

19. It was submitted that this was a misunderstanding because there was an immediate need for the caravan which would continue to exist until such time as planning permission had been obtained for a permanent dwelling and the construction of that dwelling had been completed. Mr Grant referred to certain passages in the claimant's written representations in which he described his family circumstances. In those references, among a mass of other detailed points, the claimant was taking issue with part of the second defendant's site description which had said that there was already a "mobile home" on the site. The thrust of the points being made by the claimant was that the so-called "mobile home" was in fact a small touring caravan. There can be no doubt that both in the terms of the application for planning permission and in the correspondence with the second defendant giving further particulars the claimant was saying that the caravan was needed for a temporary period which he estimated to be a year. The application form sought permission for "siting of 30-foot x 10 caravan for residential use (temporary until house is built)". The second defendant's letter of 19th August says this in part:

"I note that the application is for the siting of a 30ft x 10ft caravan for temporary residential use whilst the fishery worker's dwelling is under construction. I would be grateful if you could provide me with some more detailed information about the proposal to assist me in determining this application, otherwise the proposal will be refused on the grounds of inadequate information. Namely: ... Preferred time limit of any consent, should it be granted."

20. The claimant answered this question as follows:

"I estimate 1 year."

21. It will be noted that the claimant did not seek to correct the second defendant's statement that the caravan was required "whilst the fishery worker's dwelling is under construction".
22. The tenor of the claimant's lengthy representations to the Inspector was that there would be no adverse visual impact, but if there was such impact, it would be for only a temporary period of about 12 months. The Inspector was required to deal with the arguments as they were presented to him. The Inspector's approach in paragraph 9 of his decision letter is a fair reflection of the way the claimant was arguing his case in his representations. The point is an artificial one in any event. It is accepted that whatever the need was, it had remained constant since the first decision letter in 2003 and there was no suggestion that it would diminish during the period when a dwelling was under construction.
23. It is plain that the Inspector was not persuaded that the need (whatever it was) justified a grant of planning permission for stationing a caravan on this site within the farm for a relatively short period, 12 months. If he had realised that it was proposed to site the caravan for a longer period the Inspector would have been less, not more, likely to have granted planning permission. He gave limited weight to the claimant's argument that any harmful visual impact would be for only a 12-month period because of the uncertainties as to whether or not planning permission would be granted for the proposed permanent dwelling. Since the claimant was pursuing an application for permission for a dwelling on a site that had already been rejected by the First Inspector, this Inspector was entitled to give limited weight to the argument then being advanced by the claimant that any harm would be for a limited period, only 12 months. In these circumstances it is not difficult to predict what the Inspector's likely reaction would have been to the argument that is now being advanced on the claimant's behalf by Mr Grant. If the caravan was likely to be needed for a longer period than 12 months, then that would have served to reinforce the case for refusal.
24. Thirdly, it was alleged in the grounds of claim that the Inspector had failed to consider the claimant's argument that, despite the First Inspector's conclusion, there was in fact only one option for a site for a dwelling or a temporary caravan within the farm. This ground was not pursued by Mr Grant in his submissions as a separate issue because he fairly acknowledged that the Inspector had referred to this aspect of the claimant's case in terms in paragraph 10 of the decision letter. The Inspector there referred to the appellant's "detailed analysis of alternative sites". He said that he had "taken account of the study of alternative locations as part of the reasoning for the site now proposed for the caravan", but he then said that he had to deal with the proposal before him. No doubt the claimant's study of alternative locations will be considered in detail in the appeal against the refusal of permission for a permanent dwelling. It had been submitted in support of the application for a permanent dwelling and merely cross-referred to in the context of the present application. The claimant's appeal against the refusal of permission for a permanent dwelling is due to be heard early next year.
25. On the material before him, the Inspector was entitled to say that he had to consider the merits of the site that was being put forward, and he was entitled to conclude that that site was unacceptable on visual impact grounds. For these reasons, this application must be refused.
26. Yes, thank you.
27. MR GRANT: My Lord, just one point, a very slight erratum.
28. MR JUSTICE SULLIVAN: Of course.
29. MR GRANT: The reference to the paragraph dealing with the consideration of the options report was paragraph 10, rather than paragraph 12, which your Lordship has referred to.
30. MR JUSTICE SULLIVAN: I am quite happy to correct that. Thank you very much indeed. Yes.
31. MR MOFFETT: My Lord, I am very grateful for that. That being your Lordship's decision, I would ask for the Secretary of State's costs.
32. MR JUSTICE SULLIVAN: Is there --
33. MR MOFFETT: There is a schedule, my Lord. Depending on the view your Lordship takes on the principle, I think the costs are agreed.
34. MR JUSTICE SULLIVAN: Can there be any objection to the principle?
35. MR GRANT: No.
36. MR JUSTICE SULLIVAN: Then my view on that is fairly predictable.
37. MR MOFFETT: I am grateful, your Lordship. It is £4,576.
38. MR JUSTICE SULLIVAN: Thank you. Right, then the order of the court is the application is dismissed; the claimant is to pay the first defendant's costs; those costs are to be summarily assessed in the agreed sum of £4,576. Anything else? Thank you very much.