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
		17th June 2004

1. JUDGE RICH: This is an unfortunate case. By its own admission, the East Devon County Council made a mistake in granting planning permission on 19th December 2001 for the development of the Sail Loft Camperdown Terrace Exmouth which was described as "change of use to Antiques Centre and Works to Adjacent Yard". The proposed works were shown on four approved plans, which described the adjacent yard as "proposed boat store", as "the erection of two steel framed boat storage racks" with a height which has been scaled at 6.8 metres. These are so related to a listed building and adjoining residential buildings as to be regarded by two inspectors who have considered the proposals to be unacceptable. This is a view which it appears the Council now accepts, and I have been told that the Ombudsman, who investigated a complaint as to the circumstances of the grant of permission, has recommended that the permission should be made the subject of a Revocation Order.
2. The appellants did not erect the storage racks in accordance with the permission. They erected two racks differently positioned within the Yard with a height of 8.3 metres, within which they proposed to store boats on each of the three levels with a fourth tier stored on the top. The Council served an enforcement notice on 14th May 2002. The appellants appealed on grounds (a) and (f) of section 174(2) of the Act, that permission should be granted or that the requirement for the removal of the whole racking system should be modified. The Inspector appointed to determine that appeal, following written representations, recorded in his Decision Letter dated 20th November 2002 that the appellant did not defend the structures as built but contended that a modified scheme, which reduced the height of the structure to 6.8 metres, would be acceptable when compared with those for which planning permission had been granted. The Inspector made some criticism of the positioning of the racks as erected when compared with their permitted position, but primarily he regarded the modified version as unacceptable because the revised drawings showed boats stored on the stop of the structures, whereas he took the view that the planning permission did not permit storage on the top of the structures thereby permitted. He, nonetheless, expressed "some sympathy with the approach of utilising those parts of the present structure that are acceptable as compared with the planning permission." He accepted in paragraph 22 of his decision that "there may well be an 'under-enforcement' solution by modifying the present structure", but he refused the appeal under ground (f) because the modifications as proposed were, in his view, inadequate as they stood.
3. The inadequacy arose, at least primarily, from his view that the permitted structures could not be used to store a fourth tier of boats on the top of the structure, so that what was described as "the fall-back position" would involve storage to a significantly lower height than that proposed in the modified scheme. The appellants appealed to the High Court under section 289 of the Town and Country Planning Act 1990, on the ground that in so construing the permission of 19th December 2001 the Inspector had made an error of law. Sullivan J held that there was nothing in the permission which could be construed as prohibiting the storage of boats on top of the permitted structure. Accordingly, by order dated 3rd June 2003, the decision of the first Inspector was remitted for the further consideration of the First Secretary, with the opinion of the court as to the true construction of the planning permission.
4. The First Secretary appointed a second Inspector to determine the appeal by way of a hearing. The advocate who appeared for the appellant at such hearing expressed surprise when it appeared that the Inspector was, as he put it, intending to probe the "fall-back" position. He had come to the hearing expecting merely to address how far the structures as erected needed to be modified in order that their impact should be no greater than that of the structures as permitted, if they had been erected. Modifications were proposed which, by accepting a further reduction of height below 6.8 metres, where the structures had been erected closer to the listed building or adjoining houses than had been permitted, sought to avoid the need, in order to meet the first Inspector's secondary criticism of the modified scheme, to reposition the structures to their originally permitted positions.
5. The second Inspector in a Decision Letter dated 16th December 2003, dismissed the remitted appeal on the ground, which was accepted by the appellants, that the structures had been erected without planning permission and that, as erected, they should not be permitted. The appellants' case, however, was still that a modified scheme should be permitted, either by allowing the appeal under paragraph (a) of section 174(2) of the Act and granting a conditional planning permission under section 177(1)(a), or by allowing the appeal under paragraph (f), in each case in respect only of those parts of the structures as erected which were deemed acceptable as compared to the "fall-back" position. The Inspector, whilst holding in paragraph 49 of his decision that the fall-back position was a material consideration, decided for reasons which the appellant criticises, that the prospect of the fall-back actually occurring was "more theoretical than real" and to accord it little weight. He accordingly dismissed the appeal, notwithstanding those submissions. Thus, the appellants have been deprived of the expected fruits of their victory on their first appeal to this court.
6. They now appeal again under section 289 of the Act, with the permission of Leveson J, against the decision of the second Inspector, on five grounds with which I will deal sequentially. Although I feel compelled to reject these grounds, I hope that, in my explanation of the circumstances of this appeal, I have said sufficient to show that I well understand the sense of grievance which the appellants clearly feel as to the result of the proceedings which they have so far pursued.

Issue Estoppel

7. The first ground on which the appellant relies is that an issue estoppel arose to prevent the second Inspector finding other than that there was, as Mr Fookes on behalf of the appellants put it in his skeleton argument:

"a realistic fall-back permission to be taken into account in the determination of the appeal against the enforcement notice."

8. Mr Fookes relied on a decision of Sullivan J in R v Caradon District Council ex p. Knott [2000] 80 P&CR 154, in which at page 164 he applied the test propounded by Sir Graham Eyre QC, sitting as a Deputy High Court Judge, as to the circumstances in which such estoppel might arise. I accept that it is a convenient summary of the law. Sir Graham Eyre QC said in Watts v The Secretary of State for the Environment [1991] JPL 718 at page 726:

"In order that an earlier decision upon the evidence or admission by a party could operate as an 'issue estoppel' in relation to a subsequent issue in subsequent proceedings, certain conditions should be fulfilled.

(1) Where the issue involves a mixture of fact and law the whole matter must be fairly and squarely before the tribunal.

(2) The tribunal must fully address that matter.

(3) The tribunal must make an unequivocal decision on that matter.

(4) The fact that the first three conditions are fulfilled should be clear on the face of the decision."

Sullivan J, in the Knott case, held that a decision of mine, sitting in the High Court in which, as he put it, I had "almost as an aside during the course of . . . judgment" held that a particular planning permission had been implemented did give rise to an issue estoppel where that had been assumed by all parties, but as he said at page 174:

"The validity of the planning permission does not go to a peripheral issue in that litigation. If the planning permission was not still valid there could have been no valid application before the High Court. Thus the matter was fairly and squarely before the court, in so far as the parties thought it necessary to place it before the court. Since the point was common ground, it was not necessary to deal with the matter in any detail. The judge addressed the issue as fully as was necessary in the circumstances. He reached a clear conclusion that the planning permission was still alive and could be implemented by the applicants. In my judgment the Council as a party to that litigation is bound by that decision."

9. It is true that following the decision of the first Inspector, the parties to the appellants' appeal which was heard by Sullivan J in the present proceedings must have thought that the true construction of the permission of 19th December 2001 was, at least, highly material to the determination of the enforcement notice appeal. It cannot, however, be said that the High Court was determining the factual question of the likelihood of the implementation of that planning permission, or the planning judgment of the degree of materiality of its existence as a fall-back position. There is, in my judgment, no basis upon which Sullivan J can be treated as having decided a question which was not before him and was not essential to his decision as to whether or not the first Inspector had made an error of law in construing the planning permission.
10. Mr Warren, on behalf of the Secretary of State, raises the question whether in the light of the decision of the House of Lords R v East Sussex County Council ex p. Reprotech (Pebsham) Limited [2002] A11ER 58, there is any room for the concept of res judicata in public law issues. In light of my understanding of the effect of the judgment of Sullivan J in this case, the question does not arise. I do not think, however, that the Reprotech case casts any doubt upon the decision of the House in Thrasyvoulou v Secretary of State for the Environment [1999] PLCR 72 in which it was held that the doctrine did apply to enforcement notice proceedings. I think that Sullivan J was right in his decision in R (on the application of) Wandsworth LBC v The Secretary of State for Transport Local Government and the Regions and 02 UK Ltd [2004] 1 P&CR32 at page 516 to distinguish between res judicata properly so called, in which case, as he said, "there is no need for an estoppel" and estoppels akin to res judicata for which "there is no longer any scope." There was discussion before this court as to whether Mr Fookes' real complaint was not that the Council should, at the time when the appeal was considered by the first Inspector upon written representations, have raised the question of whether there was a real likelihood of the fall-back permission being implemented. That would raise an estoppel akin to res judicata in accordance with the well-known dictum of Wigram VC in Henderson v Henderson [1848] 3 Hare 114. If that had been the way that Mr Fookes had put his case then I would not accept that the second Inspector, who was under a statutory duty to decide the case in accordance with section 54 of the Act, having regard to material circumstances, was bound by that doctrine to exclude consideration of that question.
11. In my judgment the second Inspector was right in paragraph 60 of his decision letter when he said:

"I also disagree with Mr Horwood's [the advocate for the appellant at the hearing] submission that the matters which were open to me to take into account were narrowly constrained by the High Court Judgment. The remittance of the previous decision for re-determination means that the case must be decided anew and a hearing gave more opportunity for evidence to be probed than was feasible with the written procedure."

The written representations leading to the first decision letter are not a separate proceeding in which any decision leading to res judicata or an estoppel akin thereto can, in my judgment, arise. They are the first stage of the proceedings on the enforcement notice appeal which the second Inspector had then to determine after remission by the High Court in accordance both with the opinion of the High Court and with his duty under section 54 of the Act. For that reason, I would follow the decision of Kennedy J in Newbury District council v The Secretary of State for the Environment [1988] JPL 185 when he said obiter at page 188 that upon a decision on an enforcement notice appeal being remitted to the Secretary of State for re-hearing, the decision-maker was in a position to review the whole matter, and I would add, save in so far as it is agreed to be unnecessary, was in fact under a duty to do so.

12. I have been given a copy of a letter dated 28th July 2003 which was written to the parties, following the decision of Sullivan J, by the Inspectorate. It gave notice of the intention to arrange a re-hearing to redetermine the appeal. It also gave notice of the particular points the parties would be invited to address at the hearing. Those points did indicate a need to identify what, if any, additional provision beyond that shown on the approved plans, would be needed in order to store a fourth tier of boats on the permitted structures. It did not otherwise give notice of the intention to probe the likelihood of the appellants' implementing the fall-back position. I have no doubt that such guidance on issues to be addressed may often be helpful to the parties. No appeal to this court has been based on its having misled the appellants so as to make the hearing procedurally unfair. It would seem to me, however, that if a letter of this sort is to be sent to the parties, it would be a sensible precaution for the Inspectorate to make clear what the Inspector himself explained at the outset of the hearing, namely that such letter was not intended to exclude any other matters.

Immaterial considerations and the fall-back position.

13. Mr Fookes' second ground of appeal was if, for the reasons I have given I hold to be the case, the Inspector was entitled to make his own determination of whether or not there was a realistic fall-back position, the second Inspector erred in law in taking into account immaterial and/or erroneous consideration in his assessment of the likelihood of a fall-back position in fact occurring.
14. The Inspector explained his position at paragraphs 31 to 35 of his Decision Letter which I will read:

"(31) In some circumstances, the existence of a fall-back position which would be as harmful as a development under consideration may justify permitting the latter. I judge that the fall-back position in this case should have little weight. I set out below four main factors behind that judgment. I also set out some explanatory and supplementary points.

(32) First, the very facts that the appellant company has not implemented the 2001 permission and that all the alternatives they have proposed throughout the recent history of this disputed site would involve racking configurations significantly different from the 2001 scheme (narrower racks, more manoeuvring space) suggest that the scheme permitted in 2001 would not suit the company's requirements.

(33) Secondly, I get the clear impression from the available evidence that it would be impractical to use the structures permitted by the 2001 permission for boat storage, because they would lack the necessary timber 'bearers' and because manoeuvring space would be inadequate. I explain these points below (paragraphs 36-40 deal with the bearers, paragraphs 41-42 deal with the manoeuvring space).

(34) Thirdly, the Council are evidently seriously considering revoking the 2001 permission. Although no decision has yet been made, there appears to be local pressure for such a step and the fact that it is being considered by the Council means that the continued survival of the permission is by no means definite.

(35) Fourthly, it seems to me that the appellant company would be at risk of breaching planning controls if they were to construct the racking permitted in 2001 and use it in such a way that (because of the need for access and boat movement) the use would involve adjacent private land, owned by the appellants but outside the appeal site. I explain why below, in paragraphs 44-46."

It is on the basis of those points that he concluded at paragraph 49:

"Even allowing for the possibility that I am wrong on some of the above matters relating to the fall-back position, taken individually or together they cast considerable doubt on the prospect of the fall-back actually occurring; and I judge that this prospect is more theoretical than real. Therefore, although the existence of a fall-back position is a material consideration, I afford it little weight."

Mr Fookes makes the point in regard to the inference to be drawn from the appellants' preferences for the scheme as implemented or as was proposed to be modified, that it is the nature of the fall-back position that it is not the preferred position. But I think the Inspector is saying more than that in paragraph 32 of his Decision Letter. He identifies the narrower racks giving more manoeuvring space as indicating the unsuitability of the permitted scheme for the intended purpose, and it is these points which he then develops in his second reason for doubting the likelihood of the fall-back being adopted. These are two ways of pointing to the same conclusion, that the appellants have treated the permitted scheme as unsuitable and that objectively it does appear to be so.

15. In regard to the points which he makes as to the need for bearers in order to support the boats on the racks, I think it probable that if such provision could not have been made without the need for further planning permission, it would have been difficult for the local planning authority to refuse such planning permission to make what they had already permitted workable, unless the difference in amenity terms was clearly material. The Inspector, however, expressed the view that bearers, which appeared to him to be necessary "add considerably to the visual impact of the development". I cannot say that he was not entitled to come to that conclusion and also to the conclusion that the need for such bearers does not properly contribute to his doubt as to the prospect of the fall-back actually occurring.
16. Mr Fookes says that the Inspector should not have taken into account any doubts as to the manoeuvrability in the lesser space that would be available between the racks as permitted and as erected, without asking the appellants about it. Clearly he did ask something. At paragraph 41 of his Decision Letter he records:

"When I asked Mr Carter [a director of the appellants giving evidence] about the requirement for manoeuvring space on the site he said that 'we wouldn't want to operate with less than we have now'. After a brief conversation with Mr Horwood, Mr Carter modified his evidence by saying that the manoeuvring space now available was 'the optimum', and that 'we could operate with less'."

I think in such circumstances the Inspector was entitled to speculate as to what would be involved in overcoming the problems, rather than seeking answers which he did not feel able to rely upon. Therefore he went on in paragraph 42 to say:

"I attach more weight to what Mr Carter first said than to his modified evidence. Even on the basis of the latter, it is apparent that the layout of the racking system permitted in 2001 would cause difficulties in operating the site. Indeed, that is evident from the fact that the currently operated fork lift vehicle has a total length (as measured at my inspection) of about 10.8 metres. Many or most boats would project beyond the forks, thereby increasing the total length of the forklift when loaded. Yet the minimum distance between the racks as shown on the 2001 application plans is only marginally more than the length of the currently operated fork lift transporter when empty. Smaller models of transporter are of course available but I have to ask myself whether the developer or site operator would be likely to go to the trouble and cost of acquiring expensive new equipment in order to implement the 2001 permission."

I think the Inspector was entitled to treat these potential difficulties as contributing to his doubt as to the prospect of a fall-back actually occurring.

17. Mr Fookes makes the point that the threat of revocation would make the implementation of the planning permission more, not less, likely. I am doubtful this is necessarily so because surely the Council, if they revoke the planning permission, would seek to make the order before expenditure was incurred in carrying out permitted work. But in any case, I think Mr Fookes misses the point which I think the Inspector was making and was entitled to make. It is merely that there may be no fall-back because the planning permission is revoked. It may be that revocation would attract compensation, but it would mean that the acceptance of the unattractive development which it permits is not the alternative to the permitting of some other equally unattractive development. It is the choice between two unattractive developments which is the basis of the materiality of the fall-back position, as the Inspector identified in paragraph 30 and the first sentence of paragraph 31 which is his introduction to this aspect of the decision. I will read those:

"All in all, I consider that the development permitted by the 2001 permission would, potentially, be about as bad as that enforced against. The permitted structure would be unsightly, visually intrusive and harmful in all the other ways discussed above.

(31) In some circumstances, the existence of a fall-back position which would be as harmful as a development under consideration may justify permitting the latter."

He was entitled, in my judgment, to consider the possible prospect of revocation as a reason less readily to treat the planning permission as a justification for some other development.

18. I am persuaded by Mr Fookes' submission that the risk of other breaches of planning control to which the Inspector refers is, at best, speculative; but then I do not think the Inspector is doing more in paragraphs 44 to 46 than raising further possibilities to put into the scale in determining the likelihood of the 2001 permission being implemented. He is aware that he is raising speculative problems. I myself can see no serious risk that use of the site would involve the carrying out of any development on the private access to the site, and I accept that the Inspector fails to make clear what, if anything, he had in mind in this regard. I think, however, that he was entitled to have regard to a breach of planning control and the possibility that planning permission would be needed to provide a stop for the fork lift truck which was essential to the operation of the boat store. I cannot therefore say that he made an error of law in that he had no evidence upon which to conclude, as he did, that doubt was cast on the future of the launch point at the marina.
19. Thus it was, in my judgment, a matter for the Inspector as decision-maker whether he concluded as he did in the first sentence of the paragraph 49 which I have already read. There are no grounds upon which this court can impugn that judgment.
20. In paragraphs 47 and 48 of his Decision Letter the Inspector raises an issue as to the approval of the pavement in accordance with a condition on the planning permission. I agree that that would go to the timing of the implementation of planning permission. The Inspector does not rely upon the need for such approval for anything more. It is not one of his four points leading to his conclusion as to the likelihood of implementation. The appellants sought, by evidence to this court, to contradict what it is said they had argued at the hearing, namely that approval had not been given. I would have received evidence that the Inspector had misrecorded their evidence. That, however, is not what the appellants now wish to say. Rather, they seek to correct the evidence which they in fact gave. That is not, in my judgment, admissible in this court, except possibly in the most exceptional circumstances.

Failure to take into account fall-back in considering the modified scheme

21. The Inspector, having decided to give little weight to the fall-back in considering the acceptability of what had been built, turned to the modified racking scheme at paragraph 54 of his Decision Letter onwards. He made some observations as to the two different ways in which a modified scheme might be permitted, by allowing the appeal under paragraph (a) or by reducing the requirements of the enforcement notice under paragraph (f) of section 174(2). He made observations also as to the possibility of imposing conditions. I will return to those matters. Mr Fookes, however, complains that what he fails to do is to compare the scheme as proposed to be modified with that which had been permitted.
22. Mr Fookes must be right that the comparison of the scheme as erected will not stand as a comparison with that as it is now proposed to be modified. At paragraph 30 the Inspector describes the 2001 permission as "potentially . . . about as bad as that enforced against". Since the permitted scheme would clearly be, at any rate, 1.5 metres lower that it may not be better must, in the context, be because there would be a possibility of imposing some ameliorating conditions on the granting of permission for the unauthorised structures. Such an understanding is consistent with the Inspector's conclusion at paragraph 56 when he compares the structures as erected with the proposed modifications and says:

"The height reduction would help to lessen the visual impact of the racks but the effect on the appearance of the area and on residential amenity would still be unacceptably harmful".

It would follow that the Inspector must have concluded that the modified scheme would, at least if it included provision to overcome the different positions, be at any rate no worse in its impact than the permitted scheme, and if ameliorating conditions were applied it could be at least somewhat less harmful, even if, as he says at paragraph 56, the proposed changes "would not make the development satisfactory".

23. This analysis is, in my judgment, the proper context for the consideration of Mr Fookes' submission that the Inspector has failed to make the comparison between the modified scheme and the permitted scheme, which is essential to a proper judgment on the appeal which must favour the modified scheme. What the Inspector does say is in the last sentence of paragraph 56 which I will now read:

"The comments I have made earlier about possible conditions covering matters such as painting, lighting, preventing open storage other than on the racks, and controlling the numbers of boats and boat movements apply again here, as do my comments about the fall-back position."

24. The comments on conditions which he makes are found first at paragraph 29 where he says:

"It is also necessary to allow for the possibility that conditions should be imposed on a fresh permission [at this stage he imagined a fresh condition for the structures as erected]. The appellants made clear that any significant reduction in the number of boats which could be stored would make it uneconomic to operate the site. Even ignoring that and even if, for example, the storage of boats on top of the unauthorised racks were to be prevented by condition, the basic problem of the visual impact of the racks would remain. Conditions covering other matters, such as painting the unauthorised structures, preventing lighting and open storage other than on the racks, or controlling the times and daily number of boat movements, would have some benefit but would not make the unauthorised development acceptable either in its own right or compared with what was permitted in 2001."

But even such scope for improvements is to be understood in the light of his findings at paragraph 52 in the following terms:

" . . . conditions aimed at achieving minor adjustments to the structures or imposing other possible controls would have some mitigating effects but in my judgment would not overcome the objections. If very restrictive conditions were to be imposed the site could not be operated, so such conditions would be unreasonable and therefore invalid. The times of operation, for example, would have to allow for boat movement for quite long hours at weekends; and the sort of restriction on the number of boat movements considered acceptable by the appellants (up to 100 movements daily between the appeal site and the marina) would still have a considerable potential impact in terms of amenity and highway safety -- even assuming that the enforcement problems likely to be associated with controls over boat movements could be solved."

Thus, in so far as a careful reading of the Decision Letter indicates a conclusion that the modified scheme would, if appropriately conditioned, be less bad than the permitted scheme, any improvement is regarded by the Inspector as merely some mitigation but insufficient to overcome the objections.

25. On that basis, does the reference back to his previous comments on the fall-back position (i) show that he has made the necessary comparison between the modified scheme and permitted scheme, and (ii) give sufficient reason for his conclusion that he should not permit the modified scheme? I remind myself, firstly, that the Decision Letter is addressed to an informed audience, and secondly, that although a list of changes to the unauthorised structures was provided in the course of the hearing, and reproduced at paragraph 55 of the Decision Letter, no proposed conditions, revised drawings, or suggested amendment of the enforcement notice had been produced by or on behalf of the appellants. The previous comment on the fall-back position to which reference is made is paragraph 49, which I therefore think it necessary to read again:

"Even allowing for the possibility that I am wrong on some of the above matters relating to the fall-back position, taken individually or together they cast considerable doubt on the prospect of the fall-back actually occurring; and I judge that this prospect is more theoretical than real. Therefore, although the existence of a fall-back position is a material consideration, I accord it little weight."

26. I do not think that there is room for doubt that in referring back to this in the context of the modified scheme, the Inspector is undertaking the necessary comparison. That comparison cannot be as detailed as that made with the unauthorised structures because of some uncertainty as to the full extent of the proposed modifications, he is nonetheless noting his having made it. What the Inspector said as a result of that comparison was that he accords what must be assumed to be the advantage of the modified scheme little weight because he does not judge the prospect of the worse alternative, the permitted scheme, as being more than theoretical.
27. The Inspector has been most careful and detailed in his reasons as to why he so evaluates the prospect. He has slipped from that high standard in explaining how he has balanced the prospect of the permitted development against the benefit of substituting for that prospect an alternative somewhat less unsatisfactory scheme. The thinking, however, is obvious enough. Children were enjoined by Hilaire Belloc to keep a tight hold of nurse for fear of meeting something worse. If, as the Inspector concluded, the prospect of the something worse, the permitted scheme, was sufficiently remote, it becomes sensible to slip the proffered hand of nurse, in the shape of the modified scheme, if itself is unpleasant enough. I have therefore concluded that the somewhat summary reference to this essential comparison is not so far inadequate as to justify the court's interference.

Proper test for fall-back

28. Mr Fookes developed, in a number of different ways, his further challenge to paragraph 49 of the Decision Letter that it is not clear in the explanation that the prospect is more theoretical than real, whether the Inspector was indeed finding that the fall-back had such likelihood as even to amount to a material consideration. His argument, as I followed it, was this:

(1) In PF Ahern (London) Limited v The Secretary of State for the Environment [1998] JPL 351, Mr Lockhart-Mummery QC sitting as a judge of the High Court said at page 357:

"The requirement to have regard to the consideration imports a requirement on the decision-maker to have before it sufficient material so that the consideration can be assessed. In the context of fall-back cases this all reduces to the need to ask and answer the question: is the proposed development in its implications for impact on the environment, or other relevant planning factors, likely to have implications worse than, or broadly similar to, any use to which the site would or might be put if the proposed development were refused? By 'might' I do not mean a mere theoretical possibility which could hardly feature in the balance (see, especially, the Brentwood case). For a fall-back suggestion to be relevant there must be a finding of an actually intended use as opposed to a mere legal or theoretical entitlement. Beyond these general statements, which are ones of simple common sense, I suggest that the Court should be wary of laying down detailed hoops for the decision-maker in his, or her, broad powers and duties under section 70(2), especially bearing in mind that there will doubtless be many other factors relevant to the eventual decision."

With that as a starting point Mr Fookes' argument continues:

(2) If the inspector was finding that the prospect of the fall-back's occurring was "a mere theoretical entitlement", it was not a material consideration at all.

(3) Since the inspector had concluded that it was a material consideration, he should have given it full weight.

29. I have tried to do this submission justice, but if I have succeeded in understanding it correctly, it is clearly wrong. The weight to be given to the material consideration is always a matter for the decision-maker and not the court, and I could not interfere with the Inspector's decision on that ground.
30. Mr Fookes, however, puts it as a "reasons" challenge. He does not know, he says, what "more theoretical than real" means in the context of Mr Lockhart-Mummery's "not a mere theoretical possibility". I am surprised to learn that those words should have been relied upon as erecting a single test so that either, on the balance of probability, it is to be assumed that what might happen will happen or that it will not, and no allowance can be made for likelihood. I cannot think that that is what Mr Lockhart-Mummery intended, but in case anyone should so misconstrue his words, I entirely agree with the gloss put on them by Mr George Bartlett QC in South Buckinghamshire District Council v The Secretary of State for the Environment [1999] PLCR 72 when he said at page 79F:

"In my judgment where, as in the present case, the decision-maker is deciding whether planning permission for the development applied for should be granted in order to avoid the greater harm that would result from the resumption of some particular lawful use of the application site, it is inescapably necessary that he should consider the likelihood of such resumption taking place. This is so, it seems to me, for two reasons. First, unless the resumption of the use is a realistic possibility, it would be Wednesbury unreasonable to treat the harm that would result from such resumption as a reason for granting permission for the new development. Secondly, the degree of probability of the use being resumed will, or at least may, be a material consideration, to be weighed by the decision-maker along with the harm that the use would cause and the other pros and cons of the new development proposed. If the harm that would arise from the resumed use would be very serious, it may well be that a lower degree of probability of its resumption would be sufficient to justify the grant of permission than in the case of less serious harm. The assessment of the probability and the weight to be attached to it in the overall planning judgment, however, are matters for the decision-maker."

Mr Bartlett, at page 78D of his judgment, cited the sentence from Mr Lockhart-Mummery's judgment as being relied upon by counsel, namely:

"For a fall-back suggestion to be relevant there must be a finding of an actually intended use as opposed to a mere theoretical entitlement."

He went on in his judgment at page 80C to say:

"The approach I have just identified [the one I just read] appears to me to accord with the principles set out in London Residuary Body and with Donaldson LJ's judgment in Snowden. I believe that it accords also with the analysis of Mr Nigel MacLeod QC, sitting as a Deputy Judge in New Forest District council v Secretary of State for the Environment [1995] 71 P&CR, with which I respectfully agree, and with the views expressed by Mr Lockhart-Mummery QC in the Brentwood and Ahern cases, with the exception of the sentence I have quoted above in Ahern, which suggested that there must be a finding of an actually intended use. I reject the suggestion that there is any higher threshold than that implied by the test of Wednesbury unreasonableness which, as a matter of law, the fall-back use must cross in terms of probability."

31. I wholly agree with that judgment of Mr Bartlett. In my judgment, the Inspector was entitled both to conclude that the prospect of the fall-back was more theoretical than real, but nonetheless should not be totally ignored as immaterial, and to give it the little weight that the degree of probability made appropriate in his judgment, and the judgment was for him. This court would not interfere.

Error of statutory interpretation

32. The Inspector, at the outset of the hearing, noted that the appellants were not seeking to defend the unauthorised structures. He therefore asked whether the appeal was being pursued under paragraph (a). He expressed the following view at paragraph 10 of his decision letter:

"The appellants' approach with regard to ground (a) is based on a misunderstanding of planning law. The appeal on ground (a) and the related application (deemed to have been made under section 177(5) of the 1990 Act) seek permission for the retention of the development enforced against, not for some other form of development. The sort of changes at issue here, which involve, for example, cutting off the upper parts of the steel structures to reduce their height, and/or reducing the length of the rack next to Shelly Reach, would result in different structures to those which exist and are the subject of the enforcement notice. Indeed, given the appellants' concession that the existing structures are unacceptable, the basis of the appellants' case must logically be that the conditions would achieve substantially or materially different structures."

In spite, however, of that view he did go on to say at paragraph 12:

"Be that as it may, I shall now consider whether planning permission should be granted for the development enforced against. I shall go on to consider whether permission should be granted for racking structures modified in the ways suggested by the appellants. I shall consider the latter option both on the assumption (contrary to my interpretation of planning law as explained above) that conditions could validly be imposed requiring the racks to be significantly altered, and alternatively on the basis that such alterations could be achieved by varying the requirements of the notice ('under-enforcement') in response to the ground (f) appeal."

He indeed did so in relation to the modified system, saying at paragraph 54:

"I shall now consider whether such alterations could render the development satisfactory, on the (in my view, incorrect) assumption that the alterations could be validly achieved by imposing conditions on a planning permission. I shall also consider whether, as an alternative, the harm caused by the development could be satisfactorily mitigated by varying the requirements of the enforcement notice so as to 'under-enforce' -- this is the basis of the appeal of ground (f)."

He added at paragraph 57:

"As far as ground (f) is concerned, there would be the additional problem that if the changes were achieved by varying the enforcement notice, it would not be possible to impose conditions controlling the storage operation. (This is because of the provisions of section 173(11) of the 1990 Act relating to notices which 'under-enforce' -- once the requirements have been met, unconditional planning permission is granted for the retained part of the development which could have been enforced against."

33. These paragraphs raise the following questions:

(1) Whether planning permission granted as a result of an appeal under paragraph (a) can permit what the Inspector calls a substantially and materially different structure if that different structure is in fact a part only of the unauthorised structure.

(2) Whether if by an appeal under paragraph (f) the enforcement notice no longer requires some part of an unauthorised structure to be removed, there is power to impose conditions on the retention of such part for which permission would follow under section 173(11) of the Act once the enforcement notice had been duly complied with.

34. Since the Inspector has given a decision in case he is wrong in respect of the first question, on the assumption that he could both grant permission and impose conditions, there is no more favourable result that the appellant could achieve if the Inspector is wrong on either or both those questions. It follows, in a sense, that this ground of appeal raised by the appellants is purely academic. Since, however, these questions may, in other cases, be important, and since they have been raised in this case, I thought that I should invite submissions in regard to them. Neither counsel had, I think I can say without unfairness, fully researched the question before the hearing before me. I am, however, indebted to both counsel for further submissions made in writing.

[Paragraphs 35 and 36 missing in the original]

Scope of permission granted on appeal under s.174(2)(a)

35. Section 174(2)(a) of the Act provides for an appeal against an enforcement notice on the ground that planning permission ought to be granted "in respect of any breach of planning control which may be constituted by the matters stated in the notice". Section 177(1), however, permits the Secretary of State on the determination of such an appeal to:

"(a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control, whether in relation to the whole or any part of those matters."

There is agreement between counsel and the Inspector and I have no doubt that in exercising that power there is a power to impose conditions because by section 177(3) "the permission granted under subsection (1) is any permission that may be granted on an application under Part III". Section 70(1)(a) of the Act which is contained in Part III provides that such permission may be either unconditional or subject to conditions.

36. In my judgment, the Inspector's test of whether the smaller development to be permitted is substantially or materially different from that which is the subject matter of the enforcement notice, in order to determine the power to grant permission on an appeal under paragraph (a) is wrong. The question under section 177(1) is whether it is "the whole or any part" of the matters stated as constituting a breach. I think reference to paragraph 8 of the Decision Letter may indicate the source of the Inspector's error for he says:

" . . . it appeared to me from my reading of the submitted documents that the appellants were not asking for planning permission for the existing racking, but for materially different structures."

Reference to paragraph 55 of his Decision Letter, however, shows that although there was a proposal to refix the lower intermediate transverse steel joists, the other modifications proposed consisted of reducing the unauthorised structure. The proposal was thus, and I have been so assured, for permission for part of the boat racking system, the subject matter of the breach of planning control alleged in the enforcement notice and nothing else.

37. Both counsel suggest that there may be a limitation to this power to grant permission on an appeal under paragraph (a), namely in respect of permitting any part of the unauthorised development, namely that it would not entitle the Secretary of State to cut down what was permitted so that it was, in substance, not the development applied for; they make reference to the well-known decision of Forbes J in Bernard Wheatcroft Ltd v Secretary of State for the Environment [1982] 43 P&CR 233. For myself, I see no reason why the principle in that case should have any relevance to the exercise of the specific power to grant planning permission for a part only of the unauthorised development. The likelihood is indeed that its exercise will often be most appropriate when it does result in a development which is in substance different from the subject matter of the enforcement notice, and therefore any deemed application for planning permission arising out of an appeal under paragraph (a).
38. Rather different considerations of course apply in respect of any conditions that might be imposed. I would agree with the Inspector's view at paragraph 52 of his Decision Letter that they cannot be so stringent as to be unreasonable and therefore invalid.
39. What I therefore found to be an error of law on the Inspector's part does not, as I have already pointed out, affect his decision because he has indicated that his decision would have been the same if he had assumed power to deal with the matter under paragraph (a) and to grant permission for the structures as proposed to be modified subject to conditions.

Power to impose conditions on allowing an appeal under s.174(2)(f)

40. The ground of appeal under paragraph (f) does not merely duplicate the ground of appeal under paragraph (a). It does however, in its present form, overlap with it, in that it permits the allegation that the steps required exceed not only what is necessary in order to remedy any breach of planning control, but also what may be necessary in order to remedy any injury caused by such breach. As originally enacted, paragraphs (a) and (f) provided two distinct grounds of appeal. Paragraph (a) was concerned with permitting that which was unauthorised; paragraph (f) was concerned only with taking out of the enforcement notice that which was not a breach of planning control. The additional reference, however, to what is necessary to prevent an injury to amenity, provides, in effect, an area of overlap between the two grounds. The planning authority, before serving the enforcement notice is under a duty not merely to consider whether there has been a breach but also whether it is expedient to enforce against it: see section 172(1)(b). It is under the second head of paragraph (f) that an appeal is made against their failure properly to do so.

Where a local planning authority, in consequence of such consideration, conclude that they should in the notice which they do serve, "under-enforce", section 173(11) provides for the regularisation of that which has not been the subject of the enforcement notice. Once those requirements which the notice does make have been complied with, "planning permission shall be treated as having been granted by virtue of s.73A". The planning authority may accordingly be able to tailor the steps that are required to be taken to the proposed under-enforcement.

41. Upon an appeal under ground (f), s.176(2A) requires the Secretary of State to "give any directions necessary to give effect to his determination on the appeal". If he determines that "the steps required exceed what is necessary ... to remedy any injury to amenity which has been caused by the breach", he must direct that the steps required by the enforcement notice be amended accordingly. Such determination would not however entitle him to add to the steps required.
42. Section 173(11) provides:

"Where --

(a) an enforcement notice in respect of any breach of planning control could have required any building or works to be removed or any activity to cease, but does not do so, and

(b) all the requirements of the notice have been complied with,

then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of the construction of the building or works or, as the case may be, the carrying out of the activities."

Mr Fookes submits that the provision that "planning permission shall be treated as having been granted by virtue of section 73A" means that the appellant is to be treated as having made an application under that section, so that the power to impose conditions upon the permitting of such an assumed application under that section is imported. That, in my judgment, is neither what the section says, nor is it the purpose of the reference in s.173(11) to that section. Section 73A provides in subsection (3) that planning permission for such development may be granted so as to have effect from:

"(a) the date on which the development was carried out; or

(b) If it was carried out in accordance with planning permission granted for a limited period, the end of that period."

The reference to section 73A appears to me to be an intention to import that provision into the regularisation of the development which is not enforced against, and which is to be treated as if planning permission had been granted. The section does not however grant planning permission, nor deem an application to have been made.

43. By contrast section 177(3), from the reasons explained in paragraph 36 of this judgment, does make provision for the imposition of conditions on "the grant of permission", "on the determination of an appeal under section 174". For a grant of permission however, there has, in my judgment, to have been a successful appeal under s.174(2)(a) "that planning permission ought to be granted" or appropriate determination of the application which s.177(5) provides is deemed to have been made where an appeal is brought under s.174, provided that any fee required has been duly paid as provided by s.177(5A). Section 173(11) does not provide for an appeal under s.174(2)(f) to be treated as an application for permission, only for the enforcement notice to be treated as having granted permission in respect of the matters where it makes no requirement.
44. It is therefore, in my judgment, immaterial to the proper construction of s.173(11) that the effect of an enforcement notice which under-enforces is the same in terms of the resultant permission, as if an application had been made in accordance with s.73A and had been granted. The power to impose conditions under s.73A arises from the making of the application. No such application is involved in the making of an appeal under s.174(2)(f) unless there is an effective deemed application under s.177(5).
45. I am gratified to find that the conclusion at which I have arrived coincides with that which I assumed in Wyatt Bros (Oxford) Ltd v Secretary of State for the Environment [2001] PLCR 161, and at which Mr Nigel MacLeod QC arrived in Sparkes v Secretary of State for the Environment [2000] PLCR 279, apparently after argument, although he does not, in that case, fully state his reasoning.
46. For the reasons which I have now attempted to give, I think that the Inspector was right on this point. For the reasons which I have given otherwise, this appeal, however, must be dismissed.

Order: Appeal dismissed. Applicant to pay Defendant's costs