QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF ELIZABETH MARGARET WALKER | (CLAIMANT) | |
-v- | ||
(1) THE FIRST SECRETARY OF STATE | ||
(2) BARNSLEY METROPOLITAN BOROUGH COUNCIL | (DEFENDANTS) |
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MR T BULEY (instructed by Treasury Solicitor) appeared on behalf of the FIRST DEFENDANT
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"Substantial employment in the locality - Early education for your children - Ancillary accommodation for security and maintenance - Out of School Club - Before & After School Club ..."
I need not read the other matters which they said would be the advantages of what they proposed.
"The subject building is proposed to be used as a nursery and would create up to 20 jobs (some part time, some full time)."
"Fourthly - the use intended is very much in line with Government policy - another announcement came very recently about the need to provide nursery places for all - no change of use is involved as the last use of the property was for education - Woollery Colliery Village and Darton needs facilities such as this proposal and with new housing planned right next door the location is right."
"The internal works are not yet complete but both floors would be used for education in its wider meaning but primarily as a private day nursery for ages 0 to 4 years. A retrospective application seeking to retain those works was refused in January 2004 for similar reasons to those given for issuing the notice."
Then the withdrawing of that planning application was noted.
"... and although it is accepted the site could generate up to 75 children in the 0 to 5 age range, there is no certainty that they would use this facility."
The inspector went on to say that, in policy terms, the particular housing site in question was not within the Green Belt and there was no survey evidence to support a need for 140 nursery spaces on this particular relatively isolated site in this semi-rural location.
"Whether very special circumstances exist is a judgment which has to be made on the particular circumstances of each case but I do not consider that any of the factors in this case, either individually or collectively, constitute the very special circumstances necessary to justify permitting this development which is inappropriate and harmful to the Green Belt and in a conflict with policy guidance for its protection."
"Further, I recall that in response to my question ... Mr Walker said that the appeal site would be used for 'all the stated activities but predominantly as a day nursery for ages 0 to 4 years'. For this reason, I say [in the decision letter] that both floors would be used 'primarily as a private day nursery for ages 0 to 4 years'."
"It is recalled that in evidence Mr Walker did state the premises would be used for children up to 16 years old as an out of school hours club."
That would seem, for the most part, to accord with what Mr and Mrs Walker say was said. It seems to me that it is not in fact necessary for me to seek to resolve this difference in recollection, because ultimately what the inspector had to do was to make his finding as to what was going to be the essential use. It seems to me that, even though this may not have been the words or express acceptance of Mr Walker, the inspector was entitled to conclude as a fact that the use would be primarily as a private day nursery for ages 0 to 4 years. The words "primarily" connote an acknowledgment that there would be other uses as well. But that that would be the primary use, seems to me to be a decision well open to the inspector to reach, and it should be noted that is entirely consistent with what Mr and Mrs Walker had themselves previously been saying, including and in particular in the enforcement appeal notice itself.