Case No: CO/4383/2004
Neutral Citation Number: [2005] EWHC 187 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday, 24 February 2005

Before:

Mr Justice Collins

Between:

	Hammersmatch Properties Limited	Claimant	
	- and -		
	(1)	First Secretary of State 
(2)	Welwyn Hatfield District Council	Defendant	
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Mr Robert Griffiths Q.C. & Mr Stephen Whale (instructed by  Thomas Eggar) for the Claimant
Mr Philip Coppel (instructed by  The Treasury Solicitor) for the  First Defendants

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Judgment

Mr Justice Collins: 

1.	This claim is brought pursuant to s.288 of the Town and Country Planning Act 1990 (the 1990 Act).  The claimant seeks to quash the decision of an inspector dated 5 August 2004 dismissing its appeal under s.78 of the 1990 Act against the failure of the second defendant to decide the claimant’s application for planning permission in the prescribed period.  The result of the inspector’s decision was to refuse planning permission.
2.	The application was for change of use of part of the ground and first floor of a building in Welwyn Garden City from B1 to use as a health and fitness club.  The change was from use for employment to use for leisure.  The building in question is an unattractive industrial two storey building about 75 years old.  About half of its 4816 m2 floorspace was intended to be occupied by the club.  The building is located less than ½ mile from the Primary Retail Core of the town centre and from the bus and rail stations.  It is surrounded by buildings in Class B use, some of which have been redeveloped but some of which are empty.  The building itself has been largely empty for about 5 years and attempts to find tenants willing to occupy it in accordance with its existing permitted use have proved unsuccessful.  It is functionally obsolescent and the evidence before the inspector was that it was unlikely to be let before the termination of the current lease in 2009 and that without refurbishment there could be no guarantee of use  in the permitted class thereafter.  The claimant thus had a wasting and useless asset on its hands unless some practical scheme could be put into effect.  It was the claimant’s case that the development which was proposed was the only feasible way in which the building could be brought back into productive use.  It was not contributing to employment while it stood empty and the proposed change would not only bring the building back into use but, since part of the scheme involved refurbishment of the rest of the building for B1 use, that coupled with the attraction of the club in the building would attract the very use for which the relevant area was designated.  In addition, the club’s existence might attract businesses to other surrounding buildings which were at present empty or under used.
3.	The inquiry before the inspector was due to open on 21 April 2004 but was adjourned because on 8 April 2004 the inspector who had been considering the Local Plan Review issued his report and both the claimant and the Council needed time to consider it and its possible impact on the claimant’s appeal.  The plan as proposed by the Council had indicated that leisure and retail uses should be unacceptable in Employment Areas.  The inspector recommended that that policy should be modified and replaced with a policy which (as further amended by the Council) contained a paragraph reading:-
“Proposals for any other uses in the designated employment areas should generally be resisted and will only be permitted where it can be clearly demonstrated that the existing land or premises are no longer required to meet future employment requirements and business and community needs”.
4.	Policy CLT2 of the Plan Review stated that the preferred location for new leisure facilities was in the District’s two town centres (one of which is Welwyn).   If there were no suitable sites available at the centres, but there was a clear need for the facility, the Council might consider proposals on a sequential basis in line with PPG6.  This would also be subject to certain criteria, including that the facility would not adversely affect the vitality and viability of the two town centres and that the site would be easily accessible by passenger transport, walking and cycling.
5.	While the County Structure Plan had been subject to review, and a draft of the alterations up to 2016 had been published in 2003, it was not being progressed because of pending development framework changes.  But the inspector attached weight to the guidance on future employment forecasts which showed that Welwyn/Hatfield would lose about 104,000 m2 of employment floorspace (or about 1700 jobs) and in particular to Column (v) of the Policy which asked District Councils to secure: -
“planned regeneration, particularly through redevelopment, including mixed use schemes to make more efficient use of employment land and buildings.”
6.	The inspector identified the main issues in the appeal in paragraph 3 of his decision.  This reads: -
“There are two main issues in this case.  Firstly, whether the proposed development is an appropriate use of employment land, having regard to local planning policies, and secondly, whether there is a need for the proposed development in this location, having regard to the sequential approach to leisure development set out in national and local planning policies.”
Mr Griffiths criticises this on the ground that it is incomplete in that it fails to deal with the question whether there were material considerations indicating that the restraints set out in the plans should not be followed.  It was submitted that because the inspector did not refer to s.54A of the 1990 Act he must have failed to consider in accordance with its terms whether there were such material considerations.  I do not accept that submission.  When an inspector sets out the main issues, as is usual in any decision letter, he does not go into detail and spell out the various matters which are material to those issues.  The decision letter when read as a whole will indicate whether the inspector has had regard to material considerations within the main headings and it is in any event impossible to believe that any inspector is unaware of the approach dictated by s.54A.
7.	In the grounds the claimant had asserted that the inspector had failed to make certain findings based on evidence put before him.  The inspector joined issue with some of those in a witness statement produced.  Such a course is permissible but care must be taken that an inspector does not seek to explain or to expand on his reasons in the light of criticisms made in grounds.  There may be exceptional cases in which an explanation is appropriate, but usually the decision letter must speak for itself and, if the reasons given are inadequate, it may be quashed.
8.	Mr Coppel did not in his submissions seek to rely on the inspector’s statement.  This is not surprising since, in setting out from his recollection the evidence he thought had been put before him, he has in respect of some of the criticisms sought to bolster the findings he made.  But the statement was produced and in at least two respects it casts doubt on the accuracy of the inspector’s recollection.  A ground relied on was the failure by the inspector to refer to one of three inspectors’ decisions that health and leisure facilities were appropriate within employment areas in that they could enhance the quality of the area and so encourage employment use and they were becoming common features in modern business parks.  In his statement, he states categorically that one of the cases involving a development in York was not mentioned.  Mr Griffiths, who appeared for the claimant at the inquiry, told me that was wrong and he is supported by the record of the documents put before the inspector which shows that it was before the inspector.
9.	The other matter is of considerable importance.  It relates to the way in which the inspector dealt with need.  As the policy CLT2 indicated, there must be demonstration of a clear need and then the sequential approach was to be applied.  The inspector dealt with need in paragraph 18 of his decision in these words: -
“Turning to the second issue, I have considered the proposed Health and Fitness Club against the town centre and leisure policies of the Development Plan.  Even though there has been no local survey it is clear that there is a strong growth in this activity generally and that a demand for further facilities exists in the area.  The Local Plan Review does not identify a specific need for health and fitness facilities, but I accept that a facility or facilities could beneficially be located in the north of the District over and above the two existing sites to the south of Welwyn.”
In his statement, he sets out what he recalls of the evidence and asserts that he was not persuaded that there was an immediate and pressing need.  Mr Coppel submitted that in paragraph 18 the inspector was accepting that there was a clear need and that the meaning was not obscure.  I wonder why in those circumstances it was thought right to submit the inspector’s statement which casts doubt on what he was intending to convey in paragraph 18.  The claimant states that it called evidence which in its view did establish a clear and, if those adjectives are considered appropriate, an immediate and pressing need for such facilities.  In the light of Mr Coppel’s approach to the issue, I must accept that such a need has been found to exist notwithstanding the inspector’s attempts to qualify what he said in the decision letter.  Again, this does not engender confidence in the reliability of the inspector’s conclusions.  In any event, it is apparent that nowadays there is a much greater and growing emphasis on the need for exercise and fitness and clubs such as the one proposed are more and more popular.  I note that a welfare centre has recently been constructed in the Royal Courts of Justice for those who wish to have access to such a facility in the building.
10.	Having found that a need for such facilities (not facility) existed, the inspector went on to consider the sequential approach. Before doing so, he referred to the need for a swimming pool.  The Council had not required a pool, but the claimant was prepared to include one.  The inspector accepted that the residents of Welwyn were disadvantaged by the need to travel outside the town to reach public swimming facilities, but he noted that there was no certainty that the proposals would include a swimming pool.  Mr Griffiths rightly points out that if permission were granted, a condition could be imposed requiring the inclusion of a swimming pool.  The inspector’s further concern that such a pool would not provide a community facility but would be limited to paying club members was, it was submitted, unreasonable.  Most public swimming pools require payment for their use and arrangements could be made whereby at certain times (perhaps during ordinary office hours and at weekends) temporary membership could be made available.
11.	The appeal site is 150 metres beyond the 500 metre walking distance from the town centre set out in PPG6 and so is to be regarded as out of centre.  But it is within 10 minutes walking distance and readily accessible by public transport and bicycle.  The inspector purported to identify three potential town centre sites.  The claimant accepted that one of these, known as the Chinacorp site, although not immediately available, might be available within a reasonable time and so could properly be regarded as a possible alternative.  Since in paragraph 18 the inspector had accepted a need for more than one facility, there was a need for more than the Chinacorp alternative.
12.	The inspector identified two.  The first was Oaklands College which was hoping to move to another site.  The evidence before the inspector made it clear that Oaklands would only move if the necessary funding was obtained and that was by no means certain to happen.  Furthermore, nothing was likely to happen until 2009 at the earliest.  The inspector thought a 5 year wait was reasonable and accorded with the guidance in PPG6.  If there was a clear and immediate need and the alternative identified was not certain to materialise at all and would not in any event be available for at least 5 years, it seems to me that it was hardly reasonable to regard it as a realistic alternative so that a site which was only just out of centre should be rejected.
13.	The other suggested alternative was even more speculative since the site identified had had leisure use specifically deleted by the Council in Policy TCR5 of the District Plan review.  The inspector’s answer was that: -
“Even so leisure is a town centre use that is encouraged and the use of this site for that purpose cannot be discounted at this stage.”
In my view, it was in the circumstances unreasonable to regard this as a realistic alternative site.  In addition, the inspector stated that ‘first floor sites over the existing shops in the town centre would also be appropriate for leisure use, although they would probably not be strong enough structurally for a swimming pool use’.  It is difficult to follow why the inspector included that sentence since he had placed emphasis on the desirability of a swimming pool and, as he must surely have recognised, the suggestion that a swimming pool could be constructed above a parade of shops was absurd.
14.	In my view, the inspector’s conclusion that one or more of the other sites he identified ‘on the more sequential preferable locations’ could be used for a Health and Fitness Club in preference to the appeal site was flawed.  He could not in my view have reasonably concluded, as he had to do in the light of his findings on need, that more than one of the sites was capable of providing a suitable alternative.  In paragraph 24 he said this: -
“I acknowledge that the proposed development is not of sufficient scale to adversely effect the vitality and viability of the town centre.  However, unlike the possible alternative sites that have been identified, it would not meet the Government’s objective to sustain and enhance the vitality of the town centre either.  It is true that the appeal site is readily accessible by a wide choice of means of transport, is within 10 minutes walking distance of the town centre and satisfies the other criteria in Policy CLT2.  But it does not pass the sequential test and is not so accessible as the other sites I have identified.  It is therefore not a preferred location for a leisure facility and would not comply with policy CLT2 of the Local Plan Review”.
For the reasons I have given, I regard that as plainly wrong and the inspector should have found that there was full compliance with Policy CLT2.  His conclusion that it would not sustain and enhance the vitality of the town centre is in my view highly questionable, but I recognise that he was entitled as a matter of judgment to reach that conclusion, insofar as it was material to his decision.
15.	The inspector also decided that the proposed use was not an appropriate use of employment land.  He noted that there was a dispute between the District and the County Councils as to the future surplus of employment land.  That there was an existing surplus was clear and that the inspector accepted. The building in its present state was undoubtedly unsuitable for modern business use and would have to be at least refurbished.  It was equally clear that the proposals would, as it was put, kick start the regeneration of the building for business use within it and there would be an employment gain.  The inspector attached little weight to this because he decided that planned regeneration meant regeneration through the local plan and did not cover piecemeal redevelopment of parts of existing buildings.  In paragraph 15 of the decision letter he said this: -
“It is true that the proposal satisfies all of the criteria in Policy EMP2 and would itself provide employment.  It might also provide the kick start required to regenerate the complex as a whole.  But the level of employment from the proposed change of use would be much lower than if the building was refurbished for business use and a kick start could also be provided by an imaginative business use scheme”.
16.	Mr Griffiths complains with justification that the last sentence is entirely unreasonable.  The uncontradicted evidence was that, despite continuing efforts, it had proved impossible to attract business tenants to the building.  It was hardly likely that the claimant had not considered all possibilities to enable some profit to be made from the building.  There was no evidence that any refurbishment and business use scheme was possible nor that it could improve on the employment potential from the scheme.  There was evidence that positive interest had been expressed by potential business users if the scheme were to go ahead.  In addition, there was, it was submitted, no justification for limiting the means whereby regeneration could be achieved in the way indicated by the inspector.
17.	Both the criticisms made are in my judgment valid.  The inspector’s conclusion that the proposed development was not an appropriate use of employment land, having regard to local planning policies, is not justified by the reasons he gives nor by the evidence put before him.
18.	The claimant set out some 14 separate grounds.  I have not dealt with each one in detail.  It is unnecessary to do so.  It will be apparent that I have formed the clear view that neither of the inspector’s conclusions on the main issues he identified can stand.  I am not surprised that the claimant was surprised and disappointed that it lost the appeal.  It is in truth difficult to see how on the material before him and having regard to the unimpugned findings he made, the inspector could reasonably have decided that permission should not be granted.  But all I can do is to quash his decision and remit the case for reconsideration in the light of this judgment.