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
		16th March 2007

1. HIS HONOUR JUDGE GILBART QC: This is an application, made under section 288 of the Town and Country Planning Act 1990 by Britannia Developments Ltd against the decision letter of an inspector of the Secretary of State for Communities and Local Government against the dismissal of certain appeals conducted by that inspector in an inquiry which produced a decision letter of 15th June 2006.
2. The circumstances of this case are as follows. The site, which consisted of a terrace of houses, was the subject of an outline application for planning permission for the residential development in 1997 of a larger site of which it formed part. Then a further application was made in 1998, then again in 2000 and eventually approved, on appeal in 2000. The ultimate consent for 81 dwellings was eventually approved in 2004.
3. As happens with housing developments, as the development progressed there were some minor alterations to the site layout which were dealt with, but on seven of the plots the houses which were built were not constructed in accordance with the planning permission which had been granted. They had been built in a position one-and-a-half metres closer to existing houses than had been approved and indeed the way in which the houses were arranged meant that the aspects of the elevations had also changed, so that, for example, the rear elevations now had a main aspect instead of a secondary aspect, as it should have had according to the plan.
4. The local authority, Calderdale Metropolitan Borough Council, issued Planning Contravention Notices under section 171 of the Town and Country Planning Act 1990. As Miss Carrington (who appeared for Calderdale) accepted, that meant that there was the potential for future enforcement action. Three of the houses had been sold and occupied.
5. In the event, when the inspector dealt with the various appeals he allowed appeals in respect of two of the plots and he refused permission on another five. So he was dealing with retrospective planning applications requiring permission for houses that had been built, three of which were occupied.
6. Patently, if retrospective planning permissions were not granted, then some steps were likely to be taken by the local authority, requiring steps ranging from alteration up to replacement of the dwellings. Some disruption to the occupiers of the dwellings would be inevitable and, as all parties agreed, that was plainly capable of being a material consideration. I, of course, remind myself that, under section 70 of the Town and Country Planning Act 1990, the decision-maker must have regard not merely to the development plan but also to all material considerations. That duty informs the duty of an inspector when determining an appeal.
7. The decision letter of the inspector does not address the question of disruption to occupiers at all. What it does do is to consider the effect of the retention of the dwellings (in their as built form) on the privacy and amenity of other occupiers in the area, and then continues as follows in the conclusions. At paragraphs 29 and 30 it says this:

"As the dwellings on plots 6 and 7 are detached from the adjacent terrace, I consider that the proposed developments which relate to plots 6 and 7 are separable from the others before me. For the reasons given above and having regard to all other matters raised, I conclude that appeals G and H should be allowed and appeals C, D, E and F should be dismissed."

(G and H related to plots 6 and 7. C, D, E and F related to other plots).

Then he continued at paragraph 30:

"I have had regard to the view expressed by the appellant at the Inquiry that the proposed developments insofar as they relate to a particular dwelling in the terrace can be considered in isolation. However, in the absence of any evidence to show how it might be achieved, I am not convinced that it would be possible through internal modifications alone to re-configure the dwellings on plots 2 to 5 [I interpose that is appeals C, D, E and F] to ensure that they would not unacceptably harm the privacy of the residents of Rosemount. Furthermore, I am not satisfied that in the event that external modifications were necessary these would not have implications with regard to the layout, design or external appearance of the dwelling on plot 1. Under these circumstances, I consider that the proposals involving the dwelling on plot 1, which have been linked to the others before me for consideration at the appellant's request, cannot be viewed in isolation. Therefore, I concluded on balance, for the reasons given above and having regard to all other matters raised, the appeal B should be dismissed."

Then he refers to another appeal. But the upshot was that the appeal was allowed for two of the plots and dismissed on plots 1 to 5 inclusive. As is apparent from that extract, the decision letter does not address the issue of disruption at all.

8. There is evidence before me from three sources about what happened at the inquiry. There is evidence from Mr Hardy, who was counsel for the appellant claimant (Mr Hardy is employed by Messrs Cobbetts, Solicitor, of Manchester and Leeds). There is evidence from the inspector himself, and there is evidence from Miss Anne Fiona Markwell, a principal enforcement officer and chartered town planner employed by Calderdale Council. I am only going to refer to the evidence of Mr Hardy and of the inspector because that actually deals with the central issue that arises.
9. Mr Hardy's evidence includes the following passages. It describes how evidence was given for the claimant at the inquiry by a chartered town planner, Ms Marilyn Brichard, a Member of the Royal Town Planning Institute. Her proof was entirely silent on these matters. Then Mr Hardy continues:

"Following the conclusion of my re-examination of Ms Brichard, I recall that the Inspector asked a considerable number of questions of her. Amongst other things, he asked her about physical works that might be carried out to the dwellings on Plots Numbers 1-7 in order to reduce any impact on the amenity of existing neighbouring occupiers. This included questions requiring the possibility of reconfiguring the internal layout of the dwellings. [He gives more detail about that]... Ms Brichard gave evidence that in the Claimant's view, there were no straightforward physical solutions.

The Inspector went on to ask a specific question regarding the relationship between the dwelling on Plot Number 1 and the remaining parts of the terrace. He wanted to know whether physical works to the terrace would be possible which materially altered the dwellings on Plot Number 2-5 but left the dwelling on Plot Number 1 untouched. Ms Brichard answered by saying that in her opinion, no such physical works would be possible. He also wanted to know whether physical works to the terrace would be possible which materially altered the dwellings on Plot Numbers 1-3 and Plot 5 but left the dwelling on Plot Number 4 untouched. Again, Ms Brichard answered by saying that in her opinion, no such physical works would be possible."

Then Mr Hardy continues thus:

"At the end of the inquiry, closing submissions were presented verbally by myself and Miss Carrington on behalf of Calderdale MBC. In my submissions, I recall making specific submissions that:

• three of the dwellings had been sold to private purchasers.

• short of demolition, there were no straightforward physical works that could be carried out by the Claimant which would remedy any impact on the amenity of neighbouring occupiers, if such impact were thought to be unacceptable.

• given the degree of any impact on the amenity of neighbouring occupiers, there would be a disproportionate amount of disruption, distress and inconvenience for the owners of the dwellings on Plots Numbers 1, 4 and 5 in the event that planning permission were to be refused."

He then referred to financial implications for the claimant, and legal, logistical and practical consequences for the claimant.

10. The inspector has submitted a witness statement. In his witness statement he describes questioning Ms Brichard, the chartered town planner called by the claimant/appellant, on what he describes as "the practical implications" of the appeals in relation to some but not all plots of 1 to 5 being allowed. He has some difference with Mr Hardy as to whether Ms Brichard said that it would be practical to address each dwelling individually, and he says that she told him that the appellant had agreed with the third party owners that it would undertake any works necessary to gain planning permission. He then goes on to say that while works such as the reconfiguring of the internal arrangement of the dwellings, in order to reduce any impact on amenity, were not straightforward, he did not recall that Ms Brichard called the matters impractical.
11. He records that a local councillor appeared as an interested party and expressed concerns about the dwelling house on plot 4. Mr Hardy raised with the councillor the question of reconfiguring it internally rather than demolishing it. The inspector confirms that he knew that three of the houses had been sold, and records that he adjourned the public inquiry to ensure that one of them was given notice of it. Then he says this:

"I do not recall Mr Hardy making, in his closing submissions, the points set out in bullet points two to five of paragraph 16 of his witness statement and no such points are recorded in my notes. It is possible that some reference was made to these matters in closing but not noted. However, as I explained above, they would have been unsupported by evidence."

12. I regard it as surprising that the point about disruption to occupiers was not raised in the evidence called on behalf of the claimant/appellant, but I accept Mr Hardy's evidence that the matter was raised at the inquiry, and I find that as a fact. I discount the distinction drawn by Mr Moffett, on behalf of the Secretary of State, between considerations which were raised in evidence contained in a proof, and evidence which was elicited either in questioning by an inspector or indeed from matters raised properly in submissions. I do not consider that Mr Moffett's submissions reflect the real world of the public inquiry. This was a submission which Mr Hardy was entitled to make on the evidence before the inquiry, and I find that he did so.
13. I also discount the submissions made by Miss Carrington, for Calderdale, and Mr Moffett, for the Secretary of State, that the inspector had no evidence that there would be any enforcement action and no evidence on what would be required. It was obvious that enforcement action was a real possibility. There had, after all, been Planning Contravention Notices served by the council and it was obvious that, if enforcement action took place, it could, and probably would, cause significant disruption to occupiers of the houses and might require their removal during reconsideration. In my judgment, it was patently a material consideration that disruption could be caused to occupiers, and both the Secretary of State and Calderdale MBC accept before me that it was so.
14. That then raises the question of what the duty was on the inspector when dealing with the issue. Here one goes to the decision of the House of Lords in South Bucks District Council v Porter (No 2) 2004 UKHL 33, reported at [2004] 1 WLR 1953 and the well-known speech of Lord Brown of Eaton-under-Heywood. In that speech Lord Brown deals with the history of decisions on the giving of reasons and he turns, at paragraph 33, to consider two recent authorities:

"The Save [Britain's Heritage] case was followed by the decision of the Court of Appeal in Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P & CR 263 where, on another reasons challenge, Sir Thomas Bingham MR felicitously observed, at pp 271-272:

'I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication.'"

The overall import of what Sir Thomas Bingham said is clear. Lord Brown continued at paragraph 34:

"Passing finally to the Bolton case 71 P & CR 309, the last of the three earlier cases before the House concerned with the scope of the reasons requirement in the planning context, I need refer only to a short passage in Lord Lloyd of Berwick's speech, at pp 314-315:

'in so far as [the Court of Appeal in that case] was saying that a decision letter must refer to 'each material consideration' I must respectfully disagree. This seems to go well beyond Phillips J's formulation in Hope v Secretary of State for the Environment 31 P & CR 120, 123. What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the 'principal important controversial issues'. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden … Since there is no obligation to refer to every material consideration, but only the main issues in dispute, the scope for

drawing any inference'-the inference suggested being 'that the decision-maker has not fully understood the materiality of the matter to the decision'- will necessarily be limited to the main issues, and then only, as Lord Keith pointed out [in R v Secretary of State for Trade and Industry, Ex p Lonhro plc [1989] 1 WLR 525, 540], when 'all other known facts and circumstances appear to point overwhelmingly' to a different decision."

15. Having referred to those authorities, then Lord Brown continued, at paragraphs 35 and 36, to set out guidance which is now regarded as the main source of guidance in this area on the way in which a decision should be written.

Paragraph 36:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

If the disruption to occupiers is a material consideration, it may be quite important when considering what enforcement action is taken, what the degree of disruption is which is regarded as being acceptable or not. So, it does seem to me that the disruption issue here is not a merely technical question.

16. If the issue was controversial both the Secretary of State and Calderdale accepted through their counsel that they had to deal with it. Neither of them argued that the decision would have been the same in any event (i.e. a submission based on the principle set out in Simplex GE Holdings Ltd v Secretary of State for Environment [1988] 57 P & CR 306). In other words, both the Secretary of State and the local authority accept that this could have made a difference to the decision.
17. The next question then is: was it controversial? It was, in this sense; whether the fact of the potential for disruption was such as to outweigh the adverse effects in the planning balance of the retention of the buildings in their current form. That question of balance went precisely to the question of whether a refusal and its potential consequences were disproportionate, to use the word used by counsel for the appellant/claimant in his final submissions. This, in my judgment, was an issue which the inspector had to grapple with, and he did not do so. I do not consider that I am entitled to imply into his decision letter a conclusion that it was of so little weight that it would have made no difference. I repeat that neither the Secretary of State, nor Calderdale, have urged on me that that is an approach I should adopt.
18. I have some sympathy with the inspector, because, in my judgment, the appellant had failed to take an obvious point in its case, when it was getting ready for the inquiry. I consider also that a responsible local planning authority should have reflected in its evidence on the potential adverse effects on occupiers of the planning permission not being granted. But my sympathy for the inspector is not such as to allow me to overlook what I regard as an omission which I find to be legally significant. I conclude by saying that nothing in my judgment is intended to give even a hint of whether a refusal of permission and subsequent action by the local authority would or would not be disproportionate. That is a matter for planning judgment and not for this Court. This application is allowed.
19. MISS LIEVEN: My Lord, I am grateful for that. In those circumstances, if your Lordship could quash the decision and remit it back to the Secretary of State.
20. So far as costs are concerned, the Secretary of State accepts that he should pay my costs, but we have agreed it should go to detailed assessment?
21. HIS HONOUR JUDGE GILBART QC: Why?
22. MISS LIEVEN: My Lord, because there is a dispute about the figure.
23. HIS HONOUR JUDGE GILBART QC: Is that not a job for me to deal with. I thought I had to do that these days?
24. MISS LIEVEN: I do not think your Lordship has to, but my experience in this Court is that if the parties agree that if the sum cannot be agreed to--
25. HIS HONOUR JUDGE GILBART QC: But point 1 in the JSB course is: do not let the parties get away with sending it off to detailed assessment.
26. MISS LIEVEN: I am afraid I have not--
27. HIS HONOUR JUDGE GILBART QC: How much is in issue here?
28. MISS LIEVEN: If I can have the schedule.
29. HIS HONOUR JUDGE GILBART QC: If you have the schedule -- are we talking about issues of principle?
30. MISS LIEVEN: I do not believe so, my Lord.
31. HIS HONOUR JUDGE GILBART QC: By that I mean are we talking about rates per hour, or number of hours, or what?
32. MISS LIEVEN: I have to say, in defence of my learned friend and myself, we simply got to point of saying we have agreed that it should go for detailed assessment. I do not think we have analysed out what the disagreement is about. My Lord, I think I better leave it.
33. HIS HONOUR JUDGE GILBART QC: £19,000, for this?
34. MISS LIEVEN: My Lord --
35. HIS HONOUR JUDGE GILBART QC: Gosh.
36. MISS LIEVEN: What can I say? In my experience of the other side's cost -- of course your Lordship will be well familiar with the fact that I am far more often appeared on behalf of the Secretary of State in this situation -- that sum is not that surprising. My Lord, if I can just draw attention to a few points. First of all.
37. HIS HONOUR JUDGE GILBART QC: Miss Lieven, I do not mean to be disrespectful, but your brief free for a case that has lasted half a day is pretty substantial.
38. MISS LIEVEN: My Lord, I do not know what on earth I am supposed to say in this situation. It looks like an awful--
39. HIS HONOUR JUDGE GILBART QC: You are supposed to give your clerk a vote of thanks for negotiating that brief fee.
40. MISS LIEVEN: These things all depend on comparison. I think probably the best I can say is that compared to many, many brief fees I have seen in this situation, it is perhaps not that high, but I cannot -- well, I do not know what I can say, my Lord. It is not, I would suggest, out of keeping with the kind of fees.
41. HIS HONOUR JUDGE GILBART QC: What the law says I have to do is I have to look at it overall and say if it is proportionate. If it is not, then I have to get into condescending to detailed assessment.
42. MISS LIEVEN: Can I say this about proportionality? It is quite interesting that the Secretary of State's figure was £8,156. That is important, my Lord, because the differential is usually something like, in my experience, which is extremely extensive, something like the Secretary of State is --
43. HIS HONOUR JUDGE GILBART QC: I am going to send this off for detailed assessment.
44. MISS LIEVEN: I am very grateful for that, my Lord.
45. HIS HONOUR JUDGE GILBART QC: I think I would require more information than I have in front of me to be able to deal with it.
46. MISS LIEVEN: I am quite happy with that, my Lord.
47. MR MOFFETT: I am also content with that route.
48. I have one application. My clients are not in Court today and obviously I have not myself had the opportunity to consider in detail your Lordship's judgment. In order to protect their position, I would ask for permission to appeal, on the basis that there is a real issue as to whether or not in circumstances in such as this, where at best issues are raised peripherally at an inquiry, they are principal, important, controversial issues in respect of which it is required to deal with. I ask for permission to appeal to the Court of Appeal to decide that issue my Lord.
49. MISS CARRINGTON: My Lord, might I add that I am also -- I do have my clients in Court -- and I am also instructed to ask for permission for leave to appeal. The point, we would say, being the extent to which the inspector can or should address the issues of disruption to third parties at a pre- enforcement stage.
50. HIS HONOUR JUDGE GILBART QC: At what stage?
51. MISS CARRINGTON: At a pre-enforcement stage when enforcement issues are not clarified.
52. HIS HONOUR JUDGE GILBART QC (to Miss Lieven QC) : I need not call on you.
53. HIS HONOUR JUDGE GILBART QC: Both arguments are hopeless. Mr Moffett's arguments seeks to distinguish between what is raised in the form of a proof of evidence on the one hand, and on the other what is said in submissions and Miss Carrington seeks to argue that it can be a material consideration at one type of planning inquiry but not another. I regard both of those arguments as hopeless. Permission to appeal is refused.