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
		9th November 2006

1. MR JUSTICE SULLIVAN:

Introduction

2. This is an application by the claimant under section 288 of the Town and Country Planning Act 1990 (the Act) to quash a decision by the first defendant contained in a decision letter, dated 30 June 2005, dismissing the claimant's appeal under section 78 of the Act against the second defendant's refusal of planning permission for the use of land adjacent to Kenwood, Green Lane, Chessington as a private gypsy caravan site.
3. In deciding to dismiss the appeal and refuse planning permission the first defendant accepted the conclusions (so far as relevant for present purposes) and recommendation of one of his Inspectors who held a 10-day inquiry which commenced on 10 February 2004 and as a result of a number of adjournments did not conclude until 1 November 2004. The Inspector carried out his site inspection on 1 November and his report, which runs to 43 pages, is dated 12 January 2005.
4. In paragraph 163 of his report the Inspector said:

"I believe the main considerations in this case to be:

1. Whether the Appellant, Mr Doherty and their respective families, are gypsies as statutorily defined.

2. Whether the development conflicts with policy to protect the Green Belt.

3. The effects of the proposed development on the character and appearance of the area.

4. The effects of the proposed development on the living conditions of neighbouring residents with particular reference to privacy, visual impact, noise and disturbance.

5. The suitability of the site for residential occupation, having regard to the adjoining commercial dog kennels.

6. Whether the benefits of the scheme would clearly outweigh any harm resulting from the above issues, and thus justify the development on the basis of very special circumstances."

5. With one exception the claimant's grounds of challenge relate to the manner in which the Inspector (and the first defendant in accepting the Inspector's conclusions) dealt with issue 5.
6. Sustainability
7. The exception is a criticism of the manner in which the Inspector dealt with the issue of sustainability in terms of the policy guidance in PPG13. While this was one of the issues raised at the inquiry it was not identified by the Inspector as a major issue (see paragraph 163 above) and was dealt with under the heading of "other considerations" in paragraph 189 of the Inspector's report:

"The appeal site is within reasonable walking distance of local facilities and public transport. I consider that it is a sustainable location for the type of development proposed. I find no conflict with the guidance in PPG13 [59, 143]."

Paragraph 59 records the second defendant's submission that the site was not easily accessible to community and other facilities; paragraph 143 records the claimant's submission that the site was "highly sustainable" in PPG13 terms.

8. On behalf of the claimant Mr Masters acknowledged that the Inspector had considered the issue in paragraph 189, but submitted that he had not put his conclusion that this was a sustainable location into the balance as a positive factor when he was deciding whether or not planning permission should be granted.
9. I reject that submission for two reasons. First having mentioned the issue in paragraph 189 the Inspector was not obliged to return to it in a subsequent paragraph: see Seddon Properties Limited v the Secretary of State for the Environment (1981) 42 P & CR 26 at page 28 (final sentence.) Similarly, the first defendant having agreed with the Inspector in paragraph 22 of the decision letter:

"The Secretary of State agrees with the Inspector at IR 189 that the site does not conflict with the guidance in PPG13 and that it is a suitable location for the type of development proposed in terms of access to local facilities and public transport"

was not required to repeat that agreement subsequently in the decision letter. Since both the Inspector and the Secretary of State specifically mentioned the point there is no reason to suppose that they forgot it, or overlooked it, when they were deciding whether on balance the appeal should be allowed or dismissed.

Secondly, while it is clear that the Inspector did not accept the second defendant's submission that the site was not sustainable in terms of PPG13 it is equally clear that he did not go so far as to accept the claimant's claim that the site was: "highly sustainable." The Inspector merely concluded that the site was sustainable and that there was not conflict with PPG13. In summary while there was no objection in relation to this point, which was a subsidiary one in any event, nor was there any very positive case to be made. Mr Masters rightly conceded that even if the Inspector had fallen into error under this head it could not, on its, own justify the quashing of the decision letter.

Noise from the kennels

10. I therefore turn to his principal ground of complaint: the manner in which the Inspector dealt with Issue 5 in paragraph 163 of the report (see above).
11. The Inspector's report
12. The relevant passages in the Inspector's report are as follows:

"16 ... The south-western boundary of the appeal site, some 145 metres long, adjoins buildings, kennels, cages and runs that form part of Star Boarding Kennels. The kennels are commercial premises, which are licensed to provide accommodation for up to 62 dogs and 94 cats. Star Boarding Kennels employs seven full-time and one part-time staff."

13. To the northeast of the site and separated from it by residential property and its curtilage is another kennels, Green Lane Kennels and cattery. A number of interested parties, including the owners of Star Green Kennels, gave evidence at the inquiry and were represented by counsel. Based on the documents submitted and the evidence given at the inquiry itself the Inspector summarised the interested parties' evidence on issue 5 as follows:

"Effects of the proximity of the dog kennel business

79. The dogs at the kennels sometimes bark, but prior to the establishment of the caravan site the kennels had the advantage of being reasonably isolated. Star Boarding Kennels do not want to cause unnecessary disturbance to any neighbour, and there is concern that any increase in nuisance caused by the close proximity of the gypsies may jeopardise the business. Litter in the hedge and on the land between the kennels and the fence erected within the appeal site, and unsocial activities, may affect the kennels' business.

80. It is also right to consider whether gypsy caravans should be legally sited so close to boarding kennels. There is evidence to suggest that either Mrs Casey or Mrs Doherty find it stressful living next door to such a number of dogs, who at times bark. A previous application for residential development in the area has been refused on the basis of being too close to boarding kennels. The fact that these particular occupants feel that they could live with such intrusion is not relevant and an objective assessment of the conflicting land uses is necessary."

14. The appellant's response to those submissions is summarised in paragraphs 147 and 148 under the heading "Proximity of kennels":

"147 Gypsy sites must provide a satisfactory residential environment, but realistically they cannot be located within or adjacent to existing housing areas. They must avoid sites close to existing houses, and those which offer an inadequate standard of residential amenity, and sites must be physically available and financially affordable.

148. Although the site is sandwiched between two bad neighbour uses (dog kennels) it is isolated from the main flow of countryside/Green Belt. There is very little evidence of noise nuisance from the kennels. No noise survey has been undertaken and no expert evidence was adduced. No case has been made with respect to the guidance in PPG24 Planning and Noise. There are two dog Kennels close by and barking in one starts the dogs in the other barking, so there is already potential to set this off. It is absurd to say that gypsies should not be allowed to live in the middle of them. Mr Casey said that the dogs barked when being fed, but that this was 'alright and not an issue.'"

In paragraph 159 the Inspector summarised the points that had been made in other written representations and those points included: "Proximity of mobile homes to boarding kennels and the effects of noise and the adjoining business." The Inspector dealt with the suitability of the site for residential accommodation in paragraphs 185 to 188 as follows:

"185. The site has a long boundary with commercial dog kennels. The proposed mobile homes would be sited very close to the kennels and runs that provide accommodation for up to 62 dogs. The dogs bark at feeding times and when disturbed. Although no noise survey was submitted, it was evident at my site inspection that the dogs can make a substantial noise. I consider that the noise would, given the proximity of the proposed caravan site, have a serious adverse impact upon the residential amenity of the occupiers of the appeal site. This would be particularly so as the occupiers would be likely to spend a lot of time outside their mobile homes. The variety of pitch and the variable sounds from different dogs barking, along with the intermittent and irregular nature of the noise, would be particularly intrusive, and would result in substantial noise and disturbance for anyone living close by. [16,79,80,147,148,159)

186. The noise is likely at times to be so great that the close-boarded fence within the appeal site would not, in my view, attenuate it to an acceptable level. Any acoustic fencing to ameliorate the noise and disturbance would, in all probability, need to be a substantial structure that would have other implications for the character and appearance of the area, and the openness of the Green Belt.

187. Mr Casey has occupied the site for more than 12 months and considers that the noise is 'alright and not an issue'. However, no evidence is available from the women and children, who spend more time than the men on the site. I am not convinced that because the noise is something that Mr Casey is prepared to tolerate, that it would not result, at times, in conflict between the occupiers of the site and the operators of the kennels. It seems to me that the juxtaposition of the two uses would result in on-going conflict that would both seriously impair the residential amenity of the occupiers of the caravan site, and possibly have an adverse effect upon the day-to-day operation of the kennels. This could, in the long-term, affect the viability of the kennels. The scheme would be fundamentally inimical to the proper planning of the area.

188. I consider, for the reasons given above, that the site is highly unsuitable for residential occupation. Notwithstanding the Appellant's acceptance of the situation, it seems to me that the proposal would be contrary to the aim of Policy STR3, which seeks to ensure that all residents enjoy a standard of accommodation to meet their needs."

15. When considering the issue:

"Whether the benefits of the scheme would clearly outweigh any harm, and thus justify the development on the basis of very special circumstances"

The Inspector said in paragraphs 193 and 194:

"193. The proposal is inappropriate development. In addition it would result in harm to the openness of the Green Belt, and would conflict with one of the purposes of including land in Green Belts. In accordance with PPG2, substantial weight will be attached to this harm to the Green Belt.

194. Additional harm would result from the adverse impact to the character and appearance of the area, and by reason of the unsuitability of the appeal site for residential occupation. The appeal site lies in a sensitive location at the edge of the countryside and ribbon development along Green Lane. The proposal would have a significant urbanising effect on this part of the countryside and would result in substantial harm to the local landscape. The proximity and scale of the commercial kennels render this site a highly unsuitable location for residential occupation. The juxtaposition of mobile homes with commercial kennels would result in on-going conflict that would have serious implications for both uses. The proposal would result in substantial harm to the proper planning of the area. In my judgement, these are considerations that weigh heavily against the proposal."

16. Having considered all of the very special circumstances that were relied upon by the claimant, the Inspector concluded in paragraphs 204 and 205 (with which the first defendant agreed in paragraph 31 of the decision letter) as follows:

"204. The proposal would result in actual harm to the Green Belt, as well as harm by definition. I have weighed this against the local and families' need for gypsy accommodation, taking into account that some weight should be given to the educational needs of the children and possible hardship to the families. In the circumstances that apply in this case, I do not consider that the material considerations that weigh in favour of the proposal are sufficient, either individually or cumulatively, to outweigh the harm to the Green Belt, which should be given substantial weight.

205. The significant harm I have identified to the character and appearance of the area, and to the proper planning of the area, tip the balance even further against the proposal. The harm by reason of inappropriateness, and any other harm, is not clearly outweighed by other considerations in this case, and so no very special circumstances exist to justify the inappropriate development. The proposal would conflict with the guidance in PPG2."

The claimant's submissions

Although the complaint was put in a variety of ways by Mr Masters, it amounts to this: that the Inspector wrongly elevated the issue of noise from the kennels into a "pivotal issue" when undertaking the balancing exercise for the purpose of deciding whether or not planning permission should be granted, despite the fact that this issue had not been raised by the second defendant; that his recommendation in this respect "was based not on evidence or submissions that the Inspector had heard but on his own investigations carried out at the site visit after the inquiry had closed"; that in absence of evidence from a noise expert there was no proper evidential basis for the Inspector's conclusion that the noise from the kennels would be particularly intrusive and result in substantial noise and disturbance for anyone living close by, and that therefore the juxtaposition of the two uses would result in ongoing conflicts that would seriously impair the residential amenity of the occupiers of the site; that the Inspector had failed to have regard to PPG24 "Planning and Noise"; and that there was unfairness and/or a breach of the inquiry rules because the Inspector had effectively received evidence about the issue of noise on the site visit and if, as a result of his site visit, he considered that noise was a significant issue, then in all fairness he should have reopened the inquiry to give the claimant a proper opportunity to deal with the issue.

Conclusions

In my judgment there is no force whatsoever in any of these criticisms of the Inspector's report for the following reasons. First, the submissions are based upon a false premise that Issue 5 was: "a pivotal issue in regard to the balancing exercise undertaken" by the Inspector and by the first defendant. While issue 5 was regarded by both the Inspector and the Secretary of State as a significant issue, it is plain when one reads paragraphs 204 and 205 of the Inspector's report (see above) that it was not "pivotal". Having considered all of the factors which were said to weigh in favour of granting planning permission, the Inspector concluded in the final sentence of paragraph 204 that they were not sufficient:

"either individually or cumulatively, to outweigh the harm to the Green Belt, which should be given substantial weight."

17. Thus the balance had tipped against granting planning permission for the proposal. The first defendant agreed (see paragraph 31 of the decision letter.) Having so concluded there was one conclusion rationally open to the First Defendant to dismiss the appeal. Paragraph 205 of the Inspector's report, which was also accepted by the First Defendant, gives two further reasons which tipped the balance "even further against the proposal." The second of those reasons "the proper planning of the area" refers to the Inspector's conclusion that the proximity and scale of the kennels rendered the appeal site a highly unsuitable location for residential development: see paragraph 187, especially the final sentence thereof, and paragraph 194 of the Inspector's Report (above).
18. Even if this second reason is discounted altogether, as Mr Masters submits that it should have been, that still leaves the significant harm which the Inspector had identified to the character and appearance of the area as a factor which would have tipped the balance further, albeit not so much further, against the proposal.
19. In these circumstances the criticisms of the manner in which the Inspector dealt with Issue 5 are academic since they could not have affected the outcome of the appeal. This was not a case where Issue 5 tipped the balance. The balance had already been tipped against granting planning permission. Issue 5, together with the other matter referred to by the Inspector in paragraph 205, merely tipped the balance even further against the grant of planning permission. Accordingly, even if I had considered that there was any substance in the criticisms of the Inspector's report I would not, in the exercise of my discretion under section 288(5)(b) of the Act, have quashed the first defendant's decision.
20. It was for the Inspector to decide what issues were and were not the significant issues in the appeal. The fact that the second defendant did not raise Issue 5 in its grounds of objection to the development cannot be regarded as in any way determinative. The purpose of considering an appeal at a public inquiry is to enable members of the public to participate in the appeal process. While the evidence given by interested parties may often, in practice, be somewhat less cogent than the evidence given by appellants and/or by local planning authorities, the weight to be given to any particular piece of evidence in any individual appeal is for the Inspector to determine.
21. It is clear, from paragraphs 79 and 80 of the Inspector's report, that the third parties were contending not merely that the use of the site as a gypsy caravan site might jeopardise the kennels' business, but also it was wrong to site residential caravans so close to commercial kennels because of the noise made by barking dogs. The claimant was well aware that the interested parties were making this point and responded to it in paragraphs 147 and 148. The Inspector there records the submissions made on behalf of the claimant that there was: "very little evidence of noise nuisance from the kennels", that no noise survey had been carried out, that there was no expert evidence and that no case had been made by reference to PPG24. In summary it was being submitted on behalf of the claimant that while the site was "sandwiched between two bad neighbour uses (dog kennels)" it was "absurd to say that gypsies should not be allowed to live in the middle of them."
22. Thus the issue was squarely raised at the inquiry. It was entirely a matter for the Inspector's judgment as to whether this particular issue was to be regarded as one of the main considerations in the case. There was no conceivable unfairness in the Inspector resolving the issue, it having been raised at the inquiry. Indeed, if the Inspector had failed to resolve the issue the interested parties would have had a legitimate sense of grievance (even though resolution of this particular issue would not have affected the outcome of the appeal.) The issue having been raised at the inquiry, the Inspector was then entitled to use his ears at the site visit, just as he was entitled to use his eyes in deciding the impact of the development on the character and appearance of the area, and would have been entitled to use his nose if odours had been one of the issues raised during the inquiry.
23. The fact that dogs make a noise when barking is a matter of common knowledge, as is the fact that if there are a number of dogs there will be "a variety of pitch and ... variable sounds from different dogs barking", and that the noise from dogs barking will be "intermittent and irregular." Had I not heard Mr Masters submit that the Inspector could not fairly assess the impact of noise from the kennels without the assistance of expert noise evidence, I would have said that the submission was wholly unarguable.
24. The submission having been made I hereby say that it is misconceived. Whether the noise from barking dogs in the kennels would seriously impair the residential amenity of the occupiers of adjoining land was pre-eminently "a matter of ordinary common sense ... that the Inspector could perfectly well handle himself without the need for any expert evidence": see Winchester City Council v the Secretary of State for the Environment (1979) 39 P&CR 1 per Lord Denning MR at page 6. It is part of an Inspector's function not merely to exercise his professional judgment, but also to use his common sense, where necessary, in order to resolve disputed issues in appeals. There is no question here of the Inspector receiving "new evidence" or acting as his own "expert". He had been told by the interested parties during the course of the inquiry that the noise of the dogs barking in the kennels made the site unsuitable for residential caravan use. That proposition had been denied by the claimant, so the Inspector listened to the dogs for himself and having done so, agreed with the interested parties. There can be no conceivable unfairness in his adopting such a course. It is no different in principle from a case where interested parties argue that a caravan site is visually intrusive, the appellant contends that it is well hidden, and the Inspector resolves that issue by looking at the site on his site visit.
25. There is no substance in the complaint that the Inspector did not refer to PPG24. The Inspector was well aware that there was no expert noise evidence and well aware that there had been no analysis in terms of PPG24. He recorded the claimant's submissions to that effect in paragraph 148 of his report and referred again in paragraph 185 to the fact that no noise survey had been submitted. In the absence of any expert evidence, and/or analysis, the Inspector had to resolve the disputed noise issue as best he could by using his own judgment and common sense. The complaint in relation to PPG24 is, in any event, devoid of substance since it is far from clear how PPG24 might have been of any assistance in the particular circumstances of this case: where the noise in question was the barking of dogs. Perhaps unsurprisingly that particular noise source is not dealt with anywhere in PPG24. It is difficult to see how reference to the detail of the policy guidance would have been of any assistance beyond the general proposition that noise sensitive development (which includes residential development) should be located away from existing sources of significance noise (see paragraph 2 under the heading "general principles").
26. As mentioned above, whether or not the noise from this particular kennels would be significant was bound to be very much a question of judgment or common sense since unlike, for example, an assessment of the likely impact of noise from aircraft or road traffic, or railways where there are recognised "acceptable" levels of noise (see annex 1 to PPG24), no such guidance exists as to any recognised threshold for when the barking of dogs is, or is not, likely to be judged unacceptable.
27. Finally it was submitted that in paragraph 186 of the Inspector's report he had acted as his own expert in concluding that the noise was likely at times to be so great that the close boarded fence within the appeal site would not attenuate it to an acceptable level, and that acoustic fencing to ameliorate the noise and disturbance would, in all probability, need to be a substantial structure. Again there is no force whatsoever in this submission. The Inspector was simply making the common sense point that if any acoustic fencing was to be effective then it would, in all probability, have to be a substantial structure which would have implications for the character and openness of the Green Belt. The Inspector did not need the assistance of a noise expert in order to reach that wholly unsurprising and commonsensical conclusion.
28. In summary issue 5 was a relatively straightforward issue on which expert evidence was not required and would have been unlikely to have been of much assistance even if it had been available. It was for the Inspector to assess the significance of the issue, which had been raised fairly and squarely by the interested parties and to which the claimant had had a proper opportunity to respond. He was entitled to agree with the interested parties in the light of what he heard at the site visit, just as he was entitled to agree with the second defendant's view as to the impact of the development on the character and appearance of the area in the light of what he saw at the site visit. There was no unfairness whatsoever in the Inspector resolving Issue 5 in the manner set out in his report.
29. For these reasons, this application must be dismissed.
30. MR MAURICI: First in addition to my Lord dismissing the application I would ask for an order for costs. We understand that there is actually a Legal Aid Certificate on the court file, although we had not seen it until today. In those circumstances I think I have to ask for the standard order, which is effectively that the claimant pays our costs subject to the community legal funding regulations. I do not think I can ask for any other order in those circumstances.
31. MR JUSTICE SULLIVAN: Can I just check with the associate if there is an order on the file. There is.
32. MR MASTERS: My Lord, I am sorry, it was sent to the court but we understood it was sent to the other side.
33. MR JUSTICE SULLIVAN: Can you resist an order for costs on the usual terms?
34. MR MAURICI: No.
35. MR JUSTICE SULLIVAN: Then the application is dismissed. The claimant is to pay the first defendant's costs, but there is to be what I still call the usual legal aid order, which the associate will know the wording of.