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
		28th September 2005

Wednesday, 28th September 2005

1. SIR MICHAEL HARRISON: This is an application under section 288 of the Town and Country Planning Act 1990 to challenge a decision of the First Secretary of State's Inspector, dated 12th April 2005, dismissing the claimant's appeal against the refusal of the King's Lynn and West Norfolk Borough Council to grant planning permission for a dwelling at Creemore Farm, Burnt Lane, Wiggenhall St Mary, Magdalen, King's Lynn in Norfolk.
2. The Inspector's decision letter is short and succinct. It contains seven paragraphs dealing with her reasons for refusal. The claimant, Mrs Smith, who appears in person, disagrees with many of the points made by the Inspector. As I pointed out to Mrs Smith at the beginning of this hearing, for her to succeed on this application it is necessary for her to show that the Inspector has, in some way, gone wrong in law in reaching her decision for the reasons that she did. It is not good enough on a hearing such as this to put forward matters which, in effect, constitute a disagreement with the Inspector's decision on the merits.
3. There are a number of points which have been raised and I will briefly deal with them. The first point made by Mrs Smith is that she thinks that PPG3 does not apply as this was an application for a replacement dwelling of an original farmhouse which was previously on the site. She also maintains that Structure Plan Policy H8 does not apply as it is not a new dwelling. The position is, as was remarked upon by the Inspector in paragraph 3 of the decision letter, that there was a house on this site which was demolished some years ago. It is not clear exactly how many years ago. The Parish Council said it was 35 years ago and Mrs Smith produced a photograph to show that it was there in 1966. She has told me this morning that somebody had told her that it was pulled down in 1976. However many years ago it was that the house was pulled down, it is quite clear that it was many years ago. That being so, the Inspector was, in my view, perfectly entitled to discount the idea of this being a rebuilding project and to treat it as a new building and thereby to apply the planning policies relevant to new buildings.
4. Another point raised by Mrs Smith is that this is garden land. Whether or not that is the correct description, I am not really in a position to say, but if it is the correct description, then, as Mr Coppel, who appeared for the First Secretary of State, says, it does not take the matter any further because it is still an erection of a building in a location which is open countryside, even if it may be within what is called garden land. It follows that I do not think that there is any error of law by the Inspector in applying the planning policies which she applied.
5. Another point taken by Mrs Smith is that the site is not remote. That point arises from the last sentence in paragraph 1 of the decision letter in which the Inspector said that PPG3 opposes new housing in remote locations. However, as Mr Coppel has rightly pointed out, the main point here is that contained in paragraph 2 of the decision letter, namely that this is in a very open area of countryside where, the Inspector concluded, the house would be highly and harmfully prominent. She concluded it would seriously harm the character and appearance of the countryside. That is the main thrust of her decision. It is a point with which Mrs Smith strongly disagrees, as she has told me today, but that is a matter of planning judgment which the Inspector was entitled to make.
6. Mrs Smith has today cast doubt on whether the Planning Inspector did, in fact, visit the site. The appeal decision records that she made a site visit on 30th March 2005. The suggestion that she may not have visited the site is, firstly, a completely new point not raised before, but also there is nothing before me that could possibly lead to the conclusion that she did not visit the site.
7. The next point raised by Mrs Smith relates to the Inspector's comments relating to the Pump House, which are contained in paragraph 4 of the decision letter. That relates to a situation where there was a redevelopment of the Pump House to allow what I understand to be a significantly larger building than that which was previously there. As the Inspector stated in paragraph 4 of the decision letter, she had not been told all the circumstances relating to it, but it did appear to her that there was a building still standing on the site. It was, therefore, a redevelopment, as opposed to the erection of a new building on a site where there had not been a building since probably the 1970s. It is, therefore, not a like-for-like situation and the Inspector was, in my view, entitled to deal with it as she did.
8. The next point raised by Mrs Smith is that she believes that, if she had applied for a tourist-related facility on the site, she would have been given planning permission. That may or may not be so, I simply do not know. It was a matter touched upon by the Inspector in paragraph 5 of the decision letter, but it does not have any bearing on whether or not the Inspector erred in law in deciding this application for this development which was not a tourist- related development.
9. Next, Mrs Smith deals with Burnt Lane, pointing out that it is a public highway, maintained to a high standard and with no traffic restrictions, along which some 28 to 32 ton articulated lorries sometimes travel. I have no reason to doubt what she says. It is right to say that there was a ground of refusal by the District Council which was a highways objection relating to Burnt Lane. However, it is absolutely clear to me from the decision letter that the Inspector did not refuse this application on the basis of a highways objection. In paragraph 5 she referred to Burnt Lane as being a narrow road, but that is simply in the context of what might have been relevant if there had been a tourist-related application, which, of course, there was not.
10. Next, Mrs Smith asserts that she had submitted a flood risk assessment to the District Council with her planning application. What I think she was referring to was the Jordan's Report, which I refer to as the Enviro Search, on the last page of which, as a result of that search and answering a question, "Is the area search within a coastal flood plain?" the comment was contained:

"The Environment Agency has assessed the area searched as being within a natural indicative coastal flood plain. This does not necessarily mean there is a cause for concern."

11. That is simply the result of a search and does not, as Mr Coppel has rightly pointed out, involve a detailed flood risk assessment, which is what the Inspector was referring to in paragraph 6 of the decision letter when she said that no detailed flood risk assessment had been submitted. I will not read the whole of the rest of that paragraph, but she said that an assessment was needed to convince her that a house here would or could be made safe from a one in 200 year flood and that it would not increase the risk of flooding of the cottages nearby.
12. In that respect, I should also mention that Mrs Smith has drawn my attention to a number of developments which had been permitted by the District Council within the flood plain and she has produced a number of photographs of them, which I have seen. She has told me that those photographs were not submitted to the Inspector. She obviously did refer in her observations to the Inspector to some building that had been allowed closer to the river because, in the last sentence of paragraph 6 of the decision letter, the Inspector says that she was told that there has been recent building closer to the river, but she says, "Again, I do not know the relevant facts and circumstances." As she did not know the relevant facts and circumstances, it is not surprising that she dealt with the matter as she did, because there is a requirement for property in this sort of location for a detailed flood assessment to be submitted, and it was not. As Mr Coppel rightly pointed out, there sometimes are developments which are allowed in the flood plain where certain measure have been taken to alleviate certain risks. Whether or not that was so in relation to the other developments to which Mrs Smith has referred, I do not know, but I do not see any wrong approach by the Inspector on this aspect of the matter.
13. Next, and, I think, finally, so far as the points that have been raised are concerned, Mrs Smith takes issue with the Inspector's remark that the site is remote from very limited local services in Magdalen village. She has told me that it is quite a large village, comparatively speaking, having an infant school, a post office, a public house and a fish and chip shop. Whether it is right to refer to those as very limited local services is a comparative matter upon which different views may, quite properly, be held, but it was not a conclusion which was so unreasonable that no Inspector could possibly reach it so as to amount to an error of law. I do not consider that that is an aspect upon which the Inspector erred in law.
14. The general point, which I have really already covered, which is made by Mrs Smith, is that the Inspector applied the wrong principles because this was a previously developed site within a garden and should be considered to be a brown field site. I am afraid that simply does not stand up on the facts of this case. For the reasons I have mentioned, I do not consider that the Inspector wrongly applied the relevant legal principles.
15. Having, therefore, considered all of the points raised by Mrs Smith with care, I have come to the inevitable conclusion that this was not a case where the Inspector had erred in law. Whilst I well understand and sympathise with Mrs Smith that she strongly disagrees with a number of the points raised by the Inspector, I am afraid they are not sufficient for a legal challenge. It follows that this application must be dismissed.
16. There you are, Mrs Smith. I have dealt with the matters you raised as fully as possible. I am afraid they do not give rise to a legal challenge.
17. Yes, Mr Coppel?
18. MR COPPEL: My Lord, I ask for an order formally dismissing the application.
19. SIR MICHAEL HARRISON: Yes, that is granted.
20. MR COPPEL: And I do ask for an order that the claimant pay the First Secretary of State's costs, to be summarily assessed. Your Lordship should have a statement of costs.
21. SIR MICHAEL HARRISON: No, I have not got that.
22. MR COPPEL: My Lord, may I hand this up. (Handed.)
23. SIR MICHAEL HARRISON: Has a copy been given to Mrs Smith?
24. MRS SMITH: Yes.
25. MR COPPEL: Yes, it has, my Lord.
26. SIR MICHAEL HARRISON: Yes, thank you very much. Mrs Smith, have you got a copy of this document, the statement of costs?
27. MRS SMITH: Yes, my Lord.
28. SIR MICHAEL HARRISON: Do you want to take it out in case you want to refer to it at all? You will see that it gives a breakdown of the costs which have been incurred by the First Secretary of State. The total is given at the bottom of the second page as amounting to £4,122. There are two questions: one is, do you oppose the principle of the matter, that you should pay the First Secretary of State's costs, and secondly, do you agree the sum of £4,122 as being costs properly incurred?
29. MRS SMITH: I cannot argue with it, my Lord, because if they say this is what it has cost them to produce, although I know I would have to pay for Mr Coppel, et cetera, but in actual fact they have not really had to do much in reply to the Inspector's report. It is just replying to it. If anyone has done any work, it is me, my Lord. But if that is what they want, I am going to have to pay it, my Lord.
30. SIR MICHAEL HARRISON: Mrs Smith, as you appreciate, I have some experience on how much these things do cost, and I am satisfied that it is a reasonable sum to claim for costs in these circumstances. It is plain that the First Secretary of State is entitled to his costs. Therefore, I make an order that the claimant pays the First Secretary of State's costs in the sum of £4,122. Thank you very much, both of you.