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 WC2A 2LL
		10th March 2008

1. MR JUSTICE BURTON: This has been the hearing of an appeal by the appellant, BSP Knockholt Limited, against the refusal by the Secretary of State for Communities and Local Government (the only defendant who has appeared, so I shall refer to the Secretary of State as the defendant) which, by the defendant's Inspector, Mr Whalley, after an inquiry held on 19th September 2006, dismissed an appeal by the appellant against the original decision of the London Borough of Bromley.
2. There were intended to be before the Inspector two appeals: first, an appeal under section 78 of the Town and Country Planning Act 1990 by the appellant against the London Borough of Bromley's refusal to grant planning permission in respect of the planning site which I shall describe, and, secondly, an appeal under section 174 of the Town and Country Planning Act 1990 (as amended) against an enforcement notice issued by the London Borough of Bromley in respect of the use by the appellant, without such permission, of that site. The enforcement notice was withdrawn by the Bromley Council at the start of the inquiry and so the inquiry related only to the appeal which was dismissed and which is now renewed before me.
3. The land in question is a site covered with concrete in the middle of a Green Belt just outside Knockholt in Kent. There is an area round Knockholt railway station which consists of the station, its car park, a waste transfer system ("WTS") operated by the appellant company, this site, which is alongside the WTS and has, as I shall describe, been used in connection with it, and a number of other industrial sites: apart from the car park for the railway station which I have mentioned, the former railway sidings and other buildings. There is vehicular access to the station which is also the vehicular access to the WTS and to this site.
4. There has been lawful use, and continues to be lawful use, of the WTS on its site, by virtue of the grant of an LDC (a Lawful Development Certificate). It was common ground between the parties that it was not, in general terms, an appropriate use of Green Belt to have a WTS in the middle of it, not to speak of the railway station and its sidings. But of course there was, and can be, no challenge to the continued use of the WTS. The issue here was whether the appellant would be able to regularise the position, by way of an express grant of planning consent, in respect of its continued use of the concreted area as ancillary usage in respect of the permitted WTS.
5. At paragraph 7 of the decision letter issued by the Inspector on 2nd October 2006, the issue was described as follows:

"The section 78 application is for the continued use of land as an extension to the adjoining licensed WTS. The appellants emphasised their use of the appeal site was in association with, or ancillary to, their WTS use on the adjoining land. The appellants' 500 or so skips are apparently used in association with the adjoining WTS. The Council took no issue with the description of the use, despite the number of skips hired out from the appeal site. As this is an application for planning permission for an extension to the WTS use, nor do I."

That paragraph is accepted by both parties as correctly setting out the issue which was then decided by the Inspector.

6. The relevant planning guidance which was to be put into effect both by the Council and on appeal by the Inspector, is contained in PPG2 (Revised) (January 1995) Planning Policy Guidance: Green Belts ("PPG2"). The two essential passages in PPG2 are, first, under the heading "Intentions of Policy":

"1.4. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open: the most important attribute of Green Belts is their openness."

That is the most material passage in paragraph 1.4 for the purposes of this appeal. At paragraph 1.5 there are set out the five purposes of including land in Green Belts, the third of which is "to assist in the safeguarding of countryside from encroachment". At paragraph 1.6, under the heading, "The use of land in Green Belts", the code sets out the positive role which the use of land in Green Belts has to play in fulfilling various objectives, the third of which is "to retain attractive landscapes, and enhance landscapes, near to where people live". It is pointed out at paragraph 1.7 that:

"The extent to which the use of land fulfils these objectives is however not itself a material factor in the inclusion of land within a Green Belt, or in its continued protection."

7. The essential paragraphs which were before the Inspector were in section 3 of PPG2, under the heading "Control over development". Paragraph 3.1, under the heading "Presumption against inappropriate development" reads as follows:

"The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. See paragraph . . . 3.12 below as to development which is inappropriate."

Paragraph 3.12 reads:

"The statutory definition of development includes engineering and other operations . . . The carrying out of such operations . . . [is] inappropriate development unless they maintain openness and do not conflict with the purposes of including land in the Green Belt."

8. The Inspector, it is conceded by the defendant, correctly approached and, on the face of it, applied the two issues which he had to decide in relation to the continued use of the land in question. The Inspector was required to decide, first of all, whether the carrying out of operations on the land was inappropriate, and secondly, if he found that it was inappropriate, he had to consider whether the development should be approved on the basis that there were "very special circumstances". It is accepted that the onus was on the appellant to establish that such very special circumstances existed.
9. A case was put forward by Mr Beard in his skeleton argument for the purposes of this appeal that there was, or may have been, some misunderstanding by the Inspector in relation to the use of the land or the business of the WTS, because of the use of the word "extension" at various places in the decision letter; ie, that there may have been some misunderstanding that what was being sought was an extension of the business to include the site and/or that the need for such site arose by virtue of some extension or expansion of the appellant's business. I am entirely satisfied that there was no such misunderstanding and that the Inspector fully appreciated that what was in question here was the continued use of the land on the same basis as had been carried out for some time and not resulting from any expansion of the business. I say that first because the Inspector plainly knew that there had been unpermitted use of the land, because of the existence of the enforcement notice appeal, which was not pursued before him in the circumstances which I have described. In paragraphs 1 and 7 of the decision letter (the latter of which I have quoted) there are references to the "continued use of land". It is quite plain from the discussion of the facts by reference in particular to the 'very special circumstances' issue, to which I shall return, that he knew that what was being said was not that the appellants could not continue an expanding business, but that they could not operate their existing business without the land which they had previously been using.
10. I turn then to the way in which the Inspector dealt with the two tests which he did apply. Appropriateness is addressed in paragraphs 18 to 26 of his lucid decision letter. In paragraphs 18 to 22 he sets out the case for the appellant, and I shall say immediately that although the appellant was seeking to meet, and perhaps the defendant was putting forward, some case by reference to the second part of paragraph 3.12 -- namely as to the issue of whether the operations conflicted with the purposes of including it in the Green Belt -- the Inspector made no finding in that regard, as Mr Phillpot has accepted on behalf of the defendant, and so there is no need for me to consider that question on appeal. There are some passages in the decision letter which reflect upon arguments which appear to be only background arguments referring to the history of the land, or may perhaps have been directed towards an argument by reference to conflicting with such purposes. But it is common ground, as I have indicated, that the only basis on which the Inspector found against the appellant was on the ground that he was not satisfied that the carrying out of the operations maintained openness. That is dealt with in these paragraphs, as well as the other matters with which I shall not deal.
11. It is quite plain that those matters were dealt with very concisely by the Inspector, who had the benefit of a view of the site on an inspection, but he also had the benefit of an explanation by the witnesses for the appellant as to how the site was used. It is perhaps unfair to categorise as an inevitability an argument which plainly was canvassed on both sides before the Inspector, but it seems to me that the case for the appellant was very difficult indeed on openness. Of course, the site in question was not a green site. It was covered in concrete. Therefore, to that extent, it was never likely to be attractive or facilitate a pleasant atmosphere in the green site. It was part of a gaggle of other industrial sites. However, without anything on it at all, it was flat and therefore open. Inevitably, the bringing on of anything material or substantial would detract from openness.
12. The issue for the Inspector appears to me therefore to have been straightforward. However, he addressed it in two ways, and perfectly properly in my judgment. First, he addressed it by reference to the precise nature of what would be brought on to the land in order to be able to reach a view as to its materiality. He also addressed what Mr Beard has called the "fall-back use", namely by way of what would happen on the land if it was not used for this impugned use by the appellant but for its own other use which was, as I have said, the railway use. He addressed that question perfectly straightforwardly in paragraph 25 of his decision letter. He said this:

"I agree that a return to a full railway use, although unlikely, could have some similar effects. But a railway use of land alongside a railway station would not have the incongruity of a WTS, nor its degree of incompatible use."

13. The factual finding with which one can find it difficult to disagree in these days, long post-Beeching, is that it was unlikely that there would be much, if any, railway use of this land. But nevertheless, the Inspector addressed it and, in my judgment, he was perfectly entitled to take the view that the degree of such use, if it occurred, would be considerably less than that which was already being carried out, and has in the past been carried out, and, as he no doubt saw, is at the very moment being carried out, on the land as ancillary to the WTS. So far as that is concerned, he addressed it very concisely. He said this:

"Use of the appeal site by heavy skip lorries, plant parking, manoeuvring and maintenance and the storage of numerous waste skips does not, in my view, retain openness."

His use of the word "retain" was perhaps an error for "maintain". Even still, it comes to the same thing.

14. In my judgment, albeit concise, that was an inevitable and certainly a reasonable conclusion for him to reach and it cannot begin to be a candidate for what Mr Beard recognises he has to do, namely establish Wednesbury unreasonableness in this regard: a conclusion that no reasonable Inspector could have come to. I am satisfied that this ground must fail.
15. It may be because of the attempt to salvage both arguments (which, in my judgment, there was never much likelihood of their being able to do) that there may well have been an eye off the ball on the part of the appellant in relation to where really their only chance in my judgment -- certainly their best chance -- lay of obtaining planning consent, and that was establishing 'very special circumstances'. The very special circumstances which they would need to establish would be the loss of the WTS, with all its amenities, to the local population, and its recognition, if not its express place, in the local development plan.
16. The case that was put forward by the appellant was forcefully put by its witnesses and does not appear to have been the subject of any challenge before the Inspector. It is summarised in paragraph 17 of his decision letter:

"The appellants said the WTS dealt with skips and containers of commercial and industrial waste from construction sites, commercial and domestic premises. Wastes were sorted and segregated by hand into separate containers. The separated wastes were exported from the site. All waste sorting and separating took place within the LDC land. That area also contained the site office and weighbridge. The appellants said they could not operate the WTS without the ability to use the section 78 appeal land. There was just not enough room within the LDC site to service, store and repair skips, machinery and vehicles."

17. It is apparent that the business of the appellant was operated by having an ancillary operation of hiring out skips, which would thus facilitate the collection and return of the kind of waste which was then served up to their WTS. Those skips are kept on the appeal site. In addition, there is also kept on the site other plant and equipment which is described by the Inspector in the passage to which I have just referred.
18. At paragraph 32, the decision letter states as follows:

"My view is that the particular needs of the appellant company are not advantages which weigh heavily. There was no evidence the recent UDP had failed to take proper consideration of the Borough's waste management needs, nor that it had not taken account of the considerations set out in PPS10. The UDP is almost as up to date as it could be. It does not show an unmet need which might require an expansion of facilities in the Green Belt. The appellants may have been unaware of the progress of the UDP or that they could have objected in respect of areas of concern to them. But they should have known the extent of the LDC area, which excludes the appeal site."

He then turns to what appears to be central in his conclusions:

"Yet they said they could not manage without it. As presently operated, with a large element of skip hire as part of the business, that may be. But I am not persuaded that the adjoining LDC land cannot continue to be used as a WTS."

That is attacked by Mr Beard on the basis that it was not a case that was put to his clients and consequently amounts to procedural unfairness. He submits that it was not open to the Inspector to reject the appellant's case based on evidence unchallenged by Bromley, without at least putting such challenge himself to the appellant.

19. I am satisfied, however, that the Inspector was not rejecting the appellant's case. Admittedly he did use the words "that may be" rather than "I accept that is the case", but I conclude that that is simply a form of words which means "Even assuming all that evidence to be true, I reach the following conclusion". That means that he did not need to reject, and did not reject, any of the evidence put forward by the appellant. The conclusion he reached was that the appellant's evidence had not satisfied the burden of showing that there were very special circumstances. The very special circumstances that he was looking for were circumstances which meant that the local and urban community would lose any waste disposal station, that there would be needs of the local community which would not be met by virtue of an insufficiency of waste management in the Borough. For the reasons he gives, he was not satisfied that the evidence of the appellant went that far.
20. The appellant could perhaps (or perhaps they could not) have produced evidence to show that if the appellant could not operate a waste management station in that site then no-one could, or that there was no other way of operating a waste management station economically in that site unless they were able to have the skip hire operation in tandem with it. It seems that they could not operate without skips, and that they could not find an adjacent site to put their skips. But it is plain that the Inspector was saying that he was not satisfied that in order to keep the WTS in place where it was, any ancillary skip hire business was necessary. That was not the evidence that was before him, so he had no need to reject it. It was its absence that caused him to reach the conclusion that he did.
21. In those circumstances, I am satisfied that there was no procedural unfairness and that the Inspector was entitled to reach the conclusion that just because he was told about and accepted these assertions, that the appellant could not continue to operate their permitted WTS in the way they presently were doing without the ancillary site, that did not amount to very special circumstances, such as might well have been established had the evidence been that no WTS could operate at all and the Borough's needs for a WTS might thus not be satisfied. This is a heavy burden for any appellant to have to establish: the word "very" being attached to the word "special", coupled with the onus being upon them. I take the view that that the Inspector was entitled to find that the appellant had not satisfied that burden, and that he neither acted procedurally unfairly nor Wednesbury unreasonably in doing so.
22. I have not needed to consider any of the authorities which counsel put before me because there was, in the end, no difference between the two sides as to the issues in the case. I am satisfied for the reasons I have given this appeal must be dismissed.
23. MR PHILLPOT: My Lord, I am grateful. There is an application for costs.
24. MR JUSTICE BURTON: Yes.
25. MR PHILLPOT: We have put in a schedule of costs. My Lord, we want to deal with the principle first and then the issue of quantum.
26. MR JUSTICE BURTON: First of all, let us hear from Mr Beard as to the issue on paying costs.
27. MR BEARD: There is no issue, my Lord.
28. MR JUSTICE BURTON: As far as quantum is concerned, I am constitutionally unhappy with summary assessment. What I normally do is make an interim order, because I think it is best to sort out later exactly what is due and what is not due. Are there two schedules?
29. MR PHILLPOT: There are, my Lord.
30. MR JUSTICE BURTON: I mean, has the appellant put in a schedule?
31. MR PHILLPOT: They have.
32. MR JUSTICE BURTON: Are they dissimilar?
33. MR PHILLPOT: They are not entirely similar.
34. MR JUSTICE BURTON: Shall I have a look at them?
35. MR PHILLPOT: I understand my learned friend has a copy here. (Handed).
36. MR JUSTICE BURTON: I do not have either of them, I am afraid. I do not know why. I just feel it is so easy for costs to be waved away, when they are very often the most important part of the whole litigation. If the two schedules are similar then that may not --
37. MR PHILLPOT: My Lord, they are quite similar. My client's costs are assessed. I added a little bit but not a lot.
38. MR JUSTICE BURTON: I have been given two copies of the same thing.
39. MR PHILLPOT: It may be that they have been stapled together. My client's costs come first. It is a total of £6,291.
40. MR JUSTICE BURTON: And their costs come to £5,900 odd.
41. MR PHILLPOT: Indeed. So they are not very dissimilar. There are some differences between them which I can explain if necessary.
42. MR JUSTICE BURTON: Let me first of all ask Mr Beard about quantum.
43. MR BEARD: My Lord, I have no instructions to take issue with the sums claimed. My learned friend said there is a small addition as a result of attendance. My Lord, it seems to me that one good reason why there is some difference is the fact that I am not attended today. I do not in principle take issue with either the principle or the quantum.
44. MR PHILLPOT: I am grateful, my Lord.
45. MR JUSTICE BURTON: You may be pushing at a open door, Mr Phillpot.
46. MR PHILLPOT: Can I just mention, my Lord, the small sum. Because it is public money, I feel obliged to raise it. If one goes to the second page of my schedule of costs, under my fees there are two matters. First of all, there is a fee for advice on documents. Currently that is down to £775. It should in fact be £975 for two hours --
47. MR JUSTICE BURTON: So that takes you up to £6,491. Do we need to worry about VAT?
48. MR PHILLPOT: No, my Lord.
49. MR JUSTICE BURTON: So it is £6,491.
50. MR PHILLPOT: In addition to that, my Lord, the fees for the hearing -- which is all on a hourly rate so it is the preparation plus the time spent today -- instead of being £500 would be £550, so an additional £50 there. Essentially, it is another £250 on the total.
51. MR JUSTICE BURTON: It is £6,541. Where is the differential? Attendance at the hearing is obviously a difference.
52. MR PHILLPOT: Yes. My Lord, my client's solicitor has a slightly higher charging rate and that would account for some of it.
53. MR JUSTICE BURTON: Has it been five hours?
54. MR PHILLPOT: No, so in fact attendance at hearing, five hours at £200 an hour should be three hours at £200 an hour.
55. MR JUSTICE BURTON: That brings it back down.
56. MR PHILLPOT: Having added £250 one then has to take away £400.
57. MR JUSTICE BURTON: So it is £6,141. That is what I am minded to order.