England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		26th February 2008

1. MR JUSTICE MITTING: This is an appeal under section 288 of the Town and Country Planning Act 1990. The legal principles which apply to such an appeal have been established for over 40 years by Lord Denning's observations in Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320, and they are so well known that it is not necessary for me to set them out expressly. I apply them in determining the outcome of this appeal.
2. It arises out of the refusal of a planning inspector, in a decision promulgated on 31st July 2006, to allow the appellant's appeal against a deemed refusal of planning permission for three motor vehicles showrooms with servicing, repairs and ancillary offices at Rochester Bridgewood, Rochester Road, Rochester in Kent.
3. As will be apparent from that recital, an application for outline planning permission was made by the appellant to Medway Council, the local planning authority for the area. The local planning authority did not make a decision within the statutory time limit and was accordingly deemed to have refused the application. Consequently, the appellant appealed.
4. In a four-page decision the inspector analysed local policies relevant to the site, the economic benefits that would be caused to the area by the development, and concluded, in a decision that he described as finely balanced, that the pointers in favour of the grant of permission were outweighed by those against it.
5. The inspector's decision is attacked on four grounds. First, that he failed to take into account a particular local policy, R19, in the Medway Local Plan. Secondly, that he failed to mention, or to have proper regard to, the interests of two existing motor showroom operators in the site. Thirdly, that he failed to have regard to the potential economic benefits that would accrue if motor showroom operators would relocate their operations from existing sites within Medway to the appeal site. Fourthly, that he misunderstood and misapplied another local plan policy, BNE34.
6. The issue as it seemed to the inspector was whether or not benefits which were disputed by the local planning authority but found by him to exist, mainly of an economic kind, would be outweighed by the harm to the amenity of the area and its landscape value by granting permission.
7. The site was (in the local jargon) an ALLI. ALLIs are defined in paragraph 3.4.104 of the Medway Local Plan in the following way:

"There are several areas of landscape that enhance local amenity and environmental quality, providing an attractive setting to the urban area and surrounding villages. These locally significant landscapes are shown on the proposals map as Areas of Local Landscape Importance (ALLIs). Some of these areas form part of the green hillsides and backdrops of the urban area, which are recognised in the Thames Gateway Planning Framework as a particularly important environmental resource."

Paragraph 3.4.105 went on to explain why these ALLIs were important.

8. The site was also within (again in the local jargon) a "strategic gap". The purpose of a strategic gap was explained in paragraph 3.4.97 of the local plan in the following way:

"The policy is intended to apply both to the expansion of existing settlements and free standing developments which would erode the open character of the countryside and undermine its function of maintaining the separation of the existing settlements."

9. The site is in fact on the very outskirts of Rochester, in the part of the strategic gap that lies to the west of the M2 motorway. To the west of the M2 is largely unspoilt and scenically attractive countryside, part of the North Downs. The appeal site is within (as the inspector described it) the narrow corridor of undeveloped land between the motorway and the existing urban edge.
10. One of the things which the inspector considered was the extent to which the site, if developed, would be visible from surrounding viewpoints. He found that it would not be a significant feature viewed from the M2, but would be readily visible from a secondary road, the B2097, nearby.
11. The inspector summed up his conclusions about the impact of the development on the landscape in paragraph 9 of his decision in these words:

"Bearing the above in mind it seems to me that the prospect of a dramatic change to the rural character and appearance of the site must conflict with its status as strategic gap and ALLI and the development plan policies that aim to protect such land from inappropriate development ..."

12. The inspector then went on to set out what those plan policies were, including BNE31 and BNE34 in the local plan.
13. One of the points made by Mr Jones in his submissions, his fourth point, is that the inspector misunderstood or misapplied or did not give adequate reasons for his decision in relation to Policy BNE34, the ALLI policy. The policy itself reads:

"Within the Areas of Local Landscape Importance defined on the Proposals Map, development will only be permitted if:

(i) it does not materially harm the landscape character and function of the area; or

(ii) the economic and social benefits are so important that they outweigh the local priority to conserve the area's landscape. ..."

14. Mr Jones does not criticise the inspector's approach to Policy BNE31, the strategic gap policy, which he submits imposes, subject always to an ultimate discretion, an absolute prohibition on development within the strategic gap. Policy BNE31 provides:

"Within the strategic gap, as defined on the proposals map, development will only be permitted when it does not:

(i) result in a significant expansion of the built confines of existing settlements; or

(ii) significantly degrade the open character or separating function of the strategic gap."

15. The inspector, as is apparent from the part of paragraph 9 which I have read, treated those two policies as running together and as deserving of treatment together.
16. In paragraph 5 of the decision letter the inspector went on to recite the parties' competing contentions about the strategic gap issue. His conclusion was that the proposal amounted to a significant expansion of the urban area into a strategic gap, contrary to development plan policies, and that was a point which "must weigh heavily against the proposal." It is not submitted that he was not entitled to reach that conclusion. But having said that, he accepted that the site was different in character and appearance from the areas within the strategic gap that lie to the west of the M2 motorway, in other words that part of the landscape which was truly rural.
17. Mr Jones submits that the passage in paragraph 9 which I have read, where he deals both with strategic gap and with the ALLI policy, demonstrates a misunderstanding or misapplication of BNE34. He submits that BNE34 does not prohibit development in an ALLI absolutely. What is required is that the economic and social benefits must be so important that they outweigh the local priority to conserve the area's landscape.
18. That is, however, a misreading of the inspector's words. What the inspector expressly decided was that the dramatic change to the rural character and appearance of the area which would be produced by the development "must conflict with its status as ... an ALLI", as plainly it does. It conflicts with its status as an area of landscape which enhances "local amenity and environmental quality" in paragraph 3.4.104 of the policy. It is correct that the inspector did not expressly go on to remind himself that Policy BNE34 contained a let-out proviso in the case of a development which had economic and social benefits so important that they outweighed the landscape value. But he clearly addressed the issue in the remainder of his decision letter, to which I will now turn.
19. In paragraph 10 the inspector dealt with the economic benefits of the proposed development, but this gives rise to the second and third discrete grounds of Mr Jones' argument.
20. In paragraph 10 the inspector noted the need for the Medway towns to make an effective contribution to the Thames Gateway project. He noted the appellant's contention that the development would support those efforts and provide 80 to 90 additional skilled jobs. He noted that none of those contentions were disputed by the local planning authority. He did not expressly refer to two letters from existing car showroom operators within Kent, one from Nigel Hidson, the managing director of Hidsons, dated 6th September 2005, and one from Mr Johnson, the group managing director of the Beadles Group, dated 15th October 2004. Both letters expressed interest in the site and in the most general of terms that they might consider moving to it if planning permission were granted. But they did no more than that. The appellant did not put before the inspector any worked out proposal for the relocation to the site of particular motor dealers and did not put forward any detailed breakdown of the economic benefit which would be produced by the movement of particular dealers to the site. Consequently, the inspector was entitled to conclude, as he did:

"Certainly the evidence before me does not undermine the appellant's claims albeit that in the absence of any details of the prospective occupiers it is difficult to establish the importance of the claimed economic benefits."

It is difficult, however, to see how he could have concluded otherwise on the vestigial details provided in the two letters.

21. The third criticism is that the inspector did not expressly take into account what would happen if retailers with sites within the Medway relocated there in relation to the sites that they would vacate. The appellant did put forward figures for the likely benefits in terms of housing if existing sites were to be vacated and redeveloped for housing, but they did so on an entirely speculative basis. The inspector's conclusion, accordingly, could have been no more precise than it was. He said:

"That said, I am in no doubt that the size and location of the appeal site would attract interest from car dealerships wishing to re-locate or move into the Medway towns."

In other words, he was not able to conclude way or another whether those dealers who might be interested in relocating to this site would come from within or without the Medway area.

22. Neither the second nor the third grounds of criticism of the inspector's decision begin to hold water as challenges of, or akin to, challenges of law.
23. Mr Jones' first point, and the one to which I turn finally, is that the inspector did not mention in his decision letter Policy R19. The large-type policy in R19 is addressed simply to the need to ensure that vehicle showrooms and open sales areas should be of high quality as regards design, landscaping and so forth. Mr Jones relies on the preamble to the policy statement which reads:

"The council wishes to encourage high quality showrooms and associated uses in appropriate locations ..."

24. That sentence begs the very question that the inspector had to answer, namely whether or not the location for this proposed set of showrooms was an appropriate location. If the inspector, accordingly, had expressly referred to Policy R19 in his decision letter, then it would not have taken him much further. It would simply have begged the question that he had to answer. Accordingly, it is not remotely sustainable that his failure expressly to mention Policy R19 undermines his decision.
25. The inspector concluded in paragraph 12 that the decision was finely balanced. It is that which causes Mr Jones to say that the failure to take into account what on any view are pretty marginal considerations might have tipped the balance just in the claimant's favour rather than just against them. But given that on individual analysis there is nothing in any of the four points, it is hard to see how putting them together would have made any difference to the ultimate outcome. The inspector's conclusion in paragraph 12 was as follows:

"To my mind the proposed development would not damage Rochester's rural setting to the degree claimed by the Council and the impact on the wider landscape to the west would be limited. The proposal is also likely to offer a range of important economic benefits. Moreover if planning permission is not granted, it is not certain that alternative sites could be found within Rochester or the other nearby urban areas that could accommodate a cluster of car dealerships. Even so, I am not convinced that the urban area should expand onto land that is part of a strategic gap and included within an ALLI. In the final analysis, and accepting that the relevant policies do not rule out the possibility of built development in strategic gaps and ALLIs, I am not convinced that the points raised in support of the proposal outweigh the planning objections to the expansion of built development onto land currently subject to a raft of protective development plan policies. If the protective policies are lightly set side, the cumulative effect of even small scale developments could seriously undermine the purposes of the strategic gap."

26. That seems to me to be a classically formulated, thoroughly well-reasoned statement of planning judgment, a judgment for the inspector, and only for the inspector, and not capable of challenge on Ashbridge principles to this court.
27. For those reasons, this appeal is dismissed.
28. MS BUSCH: Thank you very much, my Lord. I simply ask for our costs.
29. MR JUSTICE MITTING: Is there a schedule?
30. MS BUSCH: There is a schedule, yes.
31. MR JONES: I have not seen a schedule. (Handed)
32. My instructing solicitor was apparently given this after lunch.
33. MR JUSTICE MITTING: If it has not been served until now, then you are in their hands as to whether or not I undertake an assessment now, are you not?
34. MS BUSCH: Otherwise I would ask for them to be assessed if not agreed.
35. MR JUSTICE MITTING: It is better to avoid that if it is possible. Would you like a minute or two to read it and take instructions?
36. MR JONES: If I could. My Lord, could indicate I do not oppose the principle, obviously.
37. MR JUSTICE MITTING: What will do, I will rise for — how long do you need?
38. MR JONES: Five minutes.
39. MR JUSTICE MITTING: I will rise for five minutes to enable you to take instructions and you can come back to me and say I cannot deal with this now, but it would obviously be in everybody's interests if you can.
(Short adjournment)
40. MR JONES: My Lord, thank you very much for the adjournment.
41. The position is we are anxious to avoid, even though I think it would probably fall on the respondent in terms of it going off for taxation in terms of cost, but we want to avoid any undue delay in costs. So, my Lord, we are content with the quantum, save for one issue, which we are content for your Lordship to deal with on a summary basis, but against the background that obviously it has been raised at this moment.
42. The only point is 12.3 hours. It is at the top of the schedule, £160 per hour on documents which comes to — it is actually the largest amount. It is nearly £2,000. We simply say that, given the pretty slim amount of documents in this case and given that counsel was involved in dealing with it, we have difficulties in seeing how there was a couple of solid days' work going through this documents.
43. MR JUSTICE MITTING: The explanation usually given in these cases is it is the preparation of a report to the Planning Inspectorate.
44. MR JONES: Well....
45. MR JUSTICE MITTING: I will see what it is in this case.
46. MR JONES: Yes, but my Lord — I will see what the explanation is, and whether we should have to pay for that privilege is a matter I will invite you to consider.
47. MS BUSCH: My Lord, in the first place I do say that the overall global figure is eminently reasonable, even by Treasury Solicitor's standards.
48. MR JUSTICE MITTING: It is still done on the basis that you can only recover costs which you have actually incurred in relation to the litigation, however reasonable the sum may be.
49. MS BUSCH: Naturally. It is not on the face of it excessive. The explanation is, as my Lord has (inaudible), in this case as is often the practice the Treasury Solicitor effectively submitted an advice for the Planning Inspectorate and that took up, I would suggest, the bulk of the time.
50. Also, the Treasury Solicitor very responsibly does not simply act as a postbox for documents. They actually read the documents that they receive. That includes comments by planning inspector; obviously the evidence that comes in; my skeleton argument; any advice I might write; a skeleton argument for the other side, and so on and so forth. In those circumstances, I accept that there is not an excessive number of documents in this case, but there is certainly sufficient to occupy around about 12 hours of time, when all those matters are taken into account.
51. MR JUSTICE MITTING: Your total prehearing preparation time, solicitors' time, is 14 hours in round terms, which is not unreasonable.
52. MS BUSCH: No, not at all, my Lord. That is counterbalanced — my learned friend takes the point that counsel has been involved. Your Lordship will see that my own fee for advice on documents, i.e. my preparatory work prior to the hearing, is relatively small.
53. MR JUSTICE MITTING: I do not hear a breath of criticism of that.
54. MS BUSCH: My Lord, the point is counterbalanced by the amount of work done by the solicitors.
55. MR JUSTICE MITTING: I agree. Of course one looks at the total picture. If both solicitors and counsel are claiming very large fees for doing the same work, one looks a bit askance at it. It has not happened in this case. It does sometimes. It very rarely happens with the Treasury Solicitor. That may indeed be unkind to the Treasury Solicitor, I am not conscious of it ever happening.
56. MR JONES: My Lord, the only thing I would say, I have made the point I am not claiming that there is doubling up.
57. My Lord, the only thing I would say just in context is that, rather unusually, your Lordship will be aware in this form of litigation, the claim is lodged. There is, unlike any form of other litigation, rarely a response from the Treasury Solicitor. They may be preparing notes or --
58. MR JUSTICE MITTING: That is not right. Sometimes they consent to the allowing of the appeal.
59. MR JONES: Yes, sometimes they do.
60. MR JUSTICE MITTING: They take a view on it.
61. MR JONES: No, that is quite right. What you do not have is the normal exchange where you have a response and it is simply the way the system works. The first you know, unless the Treasury Solicitor is consenting to judgment, of what their case is is the skeleton argument. So you do not have the normal toing and froing of solicitors' letter and the suchlike.
62. MR JUSTICE MITTING: In some cases knowing what the Treasury Solicitor's stance was might assist, but here you were always going to meet a blank wall --
63. MR JONES: Probably.
64. MR JUSTICE MITTING: -- I am afraid.
65. MR JONES: I was not involved at that stage.
66. MR JUSTICE MITTING: Yes.
67. MR JONES: My Lord, I have nothing to add.
68. MR JUSTICE MITTING: I think the sums claimed are both individually and in total what is reasonable and necessary for the conduct of this appeal. I therefore assess the defendant's costs in the sum of £4,228 and I order that the appellant pay that sum.
69. MR JONES: I am grateful to your Lordship. Thank you.
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