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
		4 June 2009

1. THE DEPUTY JUDGE:

Introduction

2. This is a challenge under section 288 of the Town and Country Planning Act 1990 to an inspector's decision letter dated 25th June 2008. In it the claimant says that the inspector failed to give proper reasons for not imposing a condition which could have addressed one of the amenity concerns which he expressed and thereby failed to properly apply pertinent policy in Planning Policy Guidance 2 ("PPG2") which pertains to land in the green belt. He also fails to give adequate reasons when finding that additional use of car parks on the estate of which the site formed part would give rise to harm and thereby failed to have regard to the fact that the car park which would be used was already permitted development. In the pleadings other grounds were raised but were not pursued before me.

Facts

3. Planning permission was originally applied for on 21st April 2005. The application which was made was for the conversion of the northern range of garage buildings in a courtyard of garages associated with Gilston Park House, which is a Grade II* listed building, so as to include two one bedroom apartments. These apartments had a ground floor kitchen in the space where the garage had been and then other accommodation upstairs. From the kitchen there were French doors, beyond which at the time of the inspector's site inspection there was unkempt land between the north wall of the building to be converted and the track giving access to other houses around the estate.
4. The application was refused contrary to officer's advice on 8th March 2006. There was then an appeal which was dismissed by a decision letter dated 5th February 2007. But that decision was quashed by consent on 25th June 2007 leading to the re-consideration of the appeal in this case which was conducted by an informal hearing. Written statements were provided by both parties. The key issues included whether, given that the site was in the green belt, the development accorded with green belt policy, in particular in so far as it applies to the re-use of buildings. In that connection it is necessary for me to quote the pertinent parts of PPG2:

"Re-use of buildings

3.7 With suitable safeguards, the re-use of buildings should not prejudice the openness of Green Belts, since the buildings are already there. It can help to secure the continuing stewardship of land, especially by assisting farmers in diversifying their enterprises, and may contribute to the objectives for the use of land in Green Belts. The alternative to re-use may be a building that is left vacant and prone to vandalism and dereliction.

3.8 The re-use of buildings inside a Green Belt is not inappropriate development providing:

• (a) it does not have a materially greater impact than the present use on the openness of the Green Belt and the purposes of including land in it;

• (b) strict control is exercised over the extension of re-used buildings, and over any associated uses of land surrounding the building which might conflict with the openness of the Green Belt and the purposes of including land in it (eg because they involve extensive external storage, or extensive hardstanding, car parking, boundary walling or fencing);

...

3.9 If a proposal for the re-use of a building in the Green Belt does not meet the criteria in paragraph 3.8, or there are other specific and convincing planning reasons for refusal (for example on environmental or traffic grounds), the local planning authority should not reject the proposal without considering whether, by imposing reasonable conditions, any objections could be overcome. It should not normally be necessary to consider whether the building is no longer needed for its present agricultural or other purposes. Evidence that the building is not redundant in its present use is not by itself sufficient grounds for refusing permission for a proposed new use."

]

5. PPG2, annex D, provides further advice in relation to residential conversions. In particular it quotes from the then current edition of PPG7 in relation to development in the countryside. It quotes as follows:

"Local planning authorities should examine applications for changes to residential use with particular care. The advice in paragraph D4 of PPG7, is often particularly relevant to such proposals. New housing in the open countryside is subject to strict control (paragraph 2.18 of PPG7); it may be appropriate to apply similar principles to proposals for the conversion of existing rural buildings to dwellings, especially where such buildings are unsuitable for conversion without extensive alteration, rebuilding and/or extension. Residential conversions can often have detrimental effects on the fabric and character of historic farm buildings. While new uses can frequently be the key to the preservation of historic buildings, it is important to ensure that the new use is sympathetic to the rural character. In addition, the creation of a residential curtilage around a newly converted building can sometimes have a harmful effect on the character of the countryside, especially in areas of high quality landscape, including National Parks and Areas of Outstanding Natural Beauty."

6. The claimant in its representations in respect of the appeal was alive to the issues about the potential for harmful effects of residential curtilages. In his written representations, Mr Fairbrass on behalf of the claimant made the following observations at paragraph 5.7 of his written material:

"...

(b) No extension is proposed to the existing building. There is already a hard surfaced courtyard on its south side, providing access to the garages within it, and the other legs of the courtyard. No additional garaging is required or proposed for the two new flats. A total of 51 garage and parking spaces will remain for the 14 existing and 2 new dwellings. No boundary walling or fencing is proposed, although additional hedge planting will further reduce the impact of the courtyard on the landscape. No individual gardens are proposed, since the future residents will have access to the entire grounds of the estate. With no individual gardens, there will be no domestic paraphernalia outside the building, just as there is none outside Gilston House. The appellant is willing to accept any reasonable condition controlling the provision of walls, fences, hedges and other external elements."

7. The parking spaces which were referred to include an area of overspill parking. It appears that this parking area was created when the property was occupied formerly by a pharmaceutical company. At the time of conversion of the main house, from the documents which have been produced to me, it seems to be a reasonable inference at least that this area of parking was retained both in the plans that were then proposed and also through the landscape strategy that was then approved as part of that planning permission.
8. After the hearing the inspector reached his conclusions in his decision letter. He identified in the decision letter that there were two main issues he had to determine. The first related to green belt policy and the second to the special architectural and historic interest of the nearby listed building. His conclusions in the decision letter firstly in relation to the green belt were as follows:

"8. The conversion would occupy part of the garage block. The proposal would therefore reuse an existing building and I acknowledge that its current use is not an impediment to its reuse. It follows that the proposal would not be inappropriate development providing it met all the criteria in paragraph 3.8.

9. The garages stand on the edge of the park. Although previously landscaped and complementary to the mansion, much of the park retains the appearance of countryside. On my visit, during the middle of the day, no one was using any of the garages and the area was calm and tranquil. The block was clean, tidy and uncluttered although the area to the rear was overgrown. One of the garages was vacant. There was no access to inspect the other garages and no information on whether these accommodate cars in daily use or other domestic storage. In my experience garages typically have a mixture of contents, with comings and goings mostly in the mornings and evenings. Overall, I assess the current use as low key with the garage block having limited impact on the openness of the Green Belt, beyond its physical presence.

10. It is likely that the proposed apartments would be used on a daily basis. Even if the occupiers all went out to work, they would probably be in residence most evenings and weekends with the usual frequency of comings and goings, noise and activity. The proposal would alter the garages from peaceful outbuildings into a block which would include occupied dwellings. Compared with the present usage, I find that the proposal would be significantly more intensive.

11. The appellant has argued that two additional apartments would not be significant compared with the 40 or so dwellings on the former estate as a whole. However, while a few are close to the mansion, with a pedestrian link, the new houses, mews and stable conversions are all to the north of a boundary line to the park. The garage block, on the other hand, is linked to the parkland surrounding the west side of the house. Compared with the 14 flats in the house, I find that the two additional apartments would lead to a significant increase in activity. For all the above reasons, I find that the proposal would have a far greater impact on the Green Belt and would effectively encroach into the countryside.

12. There would be new dormer windows and French doors. While the dormers would be extensions, on their own I find that they would not be obtrusive. Suggested conditions would require storage for refuse and cycles, and I was told that these could be located in the corner near the French doors. By themselves, these doors would not extend the building. However, by implication, they would allow access out onto the adjoining ground which is currently overgrown. The appellant has argued that these areas need not be used, that their use could be prevented by conditions, and that the occupiers would have the right to use the extensive grounds. While technically feasible, I find it would be unreasonable to prevent future occupiers from making use of space immediately outside their French doors. There is no mechanism before me to ensure that future occupiers would be allowed to use the wider grounds.

13. While I have found that the proposal would not displace any vehicles, it would be likely to generate 2 or 3 additional cars. These could be kept in the car park adjacent to Gilston Park House or, more likely, at the permitted overflow car park which is slightly closer. However, the latter is surfaced with reinforced grass and may often, as on the day of my visit, only accommodate a few cars so that its appearance currently detracts little from the adjoining parkland. The additional cars would therefore increase the impact on the parkland and Green Belt. While individually of little consequence, taken together, I find that the dormer windows, refuse and cycle storage, activity around the appeal site or in the park, and the additional cars, would be significant.

14. For the above reasons, I find that the proposal would be contrary to criteria (a) and (b) of paragraph 3.8 of PPG2, and would be inappropriate development within the Green Belt. I shall therefore consider issue (ii) and weigh up all the other material considerations, before concluding on whether or not very special circumstances arise."

The inspector then went on to consider his second issue, namely the impact on the listed building. He concluded in relation to that as follows:

"16. For the above reasons, the proposed conversion would lead to increased domestic activity within the park. I find that this would detract from the setting of the listed building. No justification in relation to the preservation of the listed building has been put forward. Moreover, if the appeal was allowed, and as the application previously sought conversion to 3 units within the garage block, I find that pressure for further conversions would be likely. Cumulatively therefore, the proposal could have an even greater impact on the setting of the listed building, contrary to advice in PPG15."

The law

9. The law in relation to this case is not in dispute and is well-known. I summarise it as follows. This court must not engage in any re-hearing of the planning merits which were determined by the inspector, or reinvestigate in substance the planning judgments which the inspector has reached. This court needs to concentrate on whether or not the decision which has been given by the inspector discloses an error of public law.
10. An error of law can arise, for instance, from a failure to provide proper reasons which causes substantial prejudice to the claimant. In making an assessment of whether the reasons are adequate, it has to be borne in mind what the cases were which were put to the inspector and what the issues were as they were presented in the appeal. The inspector only needs to address the principal controversial issues and not every single one that was raised. In reading the letter it should be approached with a straightforward and down to earth reading and without deploying any unnecessary legal sophistry. With that approach in mind, the legal principles have been definitively summarised by Lord Brown in South Bucks District Council v Porter No 2, [2004] 1 WLR 1953 at 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."

11. Planning policy is an important material consideration in nearly all of these cases and an error of law can arise if it has been overlooked, or not applied, or not applied properly. In this case, as set out above, we are concerned with the application of PPG2.

Did the inspector properly apply paragraph 3.9 of PPG2 or give proper reasons for not imposing a condition in relation to not using the unkempt land immediately outside the apartments?

12. The claimant accepts that in paragraph 8 of the decision letter the inspector posed the correct test. But the claimant also draws attention to the fact that the conclusion on that question which led to the finding the development was inappropriate was finely balanced and based on a cumulative effect - see paragraph 13 of the decision letter. Thus, Mr Lowe on behalf of the claimant contends if the inspector's decision in relation to this question is flawed, it would lead to the need for that finely balanced equation to be re-assessed. This, he submits, is the fulcrum of the decision. That it is the fulcrum of the decision is not disputed by Mr Kimblin on behalf of the defendant.
13. In my view it is clear from paragraph 12 of the decision letter that the inspector has properly applied the test from paragraph 3.9 of PPG2 and also asked the right question in relation to that paragraph. The detrimental impact of allowing a formal or informal creation of external amenity space or the new homes proposed was not in issue - see the evidence of Mr Fairbrass quoted above. The issue when applying this policy was whether it could be reasonable to impose a condition precluding that use. The inspector concluded not that such a condition could not be drawn up or that it would be unenforceable but simply as a matter of planning judgment it would be unreasonable to impose it. Mr Lowe says that the inspector has not explained why it would be unreasonable and he should have provided that reasoning. For my part I do not think that it required any more exposition because, firstly, the point was obvious, and secondly, it is clear from the decision letter as a whole the basis of the inspector's conclusion.
14. To deal firstly with my view that the point is obvious, when one examines the plans and sees that designed into the plans were what is described as "doorways" and "doors" next to unused external space, that creates an obvious expectation for an occupier that that external space both will and can be used by then. In other words it is implicit if not explicit in the design. That, as I say, means that the point made by the inspector about it being unreasonable was obvious and did not require further exposition.
15. So far as the second point is concerned, namely reading the decision letter as a whole, it is clear to me from the last sentence of paragraph 12 that what the inspector was concerned about and was considering was the opportunity for external amenity space to be provided in connection with the residential occupation of these dwellings. In that regard it is clear that he regarded a condition which could have the potential to exclude any such space being available to the future residential occupiers as being unreasonable.
16. Mr Lowe responds in effect to these two points in these ways. In relation to the first point, bearing upon the design of the buildings, part of his argument was to contend that the inspector could have proposed that the French doors were fixed shut by means of a condition or alternatively that a condition could have been imposed requiring the re-design of that element of the conversion so as to preclude the opportunity for use. I accept the response which is provided by Mr Kimblin in respect of that submission. First and foremost that was not the case which was being made to the inspector. Secondly, and in any event, that would not preclude the use of the unkempt land and the harm to the green belt which the inspector was concerned about in paragraph 12. In relation to the 2nd issue about the wider grounds, Mr Lowe contends that that point could have been met by providing a condition requiring access to the wider grounds to have been made available to the occupiers. However, in my view that would not have resolved the inspector's concern that it was unreasonable to prevent future occupiers from using the land which was immediately outside their apartment. This point made by the inspector in paragraph 12 about the wider grounds effectively reinforced his planning judgment that preventing the use of that land would be unreasonable. In my judgment that is an obvious planning judgment with which there is no warrant for this court to interfere.

Did the inspector fail to have regard to the planning approval of the overflow car park or fail to give adequate reasons in relation to his consideration of it?

17. Mr Lowe relies upon the fact that the existence of the overflow car park and its retention and use was sanctioned and endorsed in the planning permission for the conversion as I have set out above. Given that its retention was endorsed and its use was lawful, how, he says, could a limited number of additional vehicles materially affect the impact in planning terms of what was proposed? He says that the inspector is apparently not alive to the significance of this point or alternatively that he failed to give any reasons as to the weight he attached to the fact that the car park was approved for use by a larger number of vehicles.
18. Whilst this argument appears attractive, in my view it needs to be carefully put into the context of the policy that the inspector was applying, namely that of paragraphs 3.8(a) and (b) of PPG2. That policy requires a comparison between the current use and the proposed use. I emphasise use, not extent of development permitted or existing. The issue is rather like the point made by paragraph 3.7 of PPG2 about the buildings to be re-used already being there. The car park was already there, so the question was what was the extent of its use and how was that likely to change? That is precisely the way in which the inspector analysed the matter in paragraph 13 of his decision letter. Thus in my view this is not a valid criticism of the inspector's decision letter, since the established nature of the car park in the green belt was a given in the equation which the inspector had to solve in just the same way as the range of buildings to be converted were a given. The question which he had to address was how the use of that existing development might change and whether any change would be harmful to the openness of the green belt and purposes for retaining land within it. That is precisely what he did and unfortunately for the claimant he reached an adverse conclusion which fed into his planning judgment based upon the accumulation of impacts which would arise.
19. This point could also have been put as a form of fallback argument in the same way that it has been formulated by the claimant in this case. But then again, the question would be similar if not identical; requiring an examination of the likely use of the car park to act as the parameter against which to measure the materiality of this pre-existing activity. I am therefore not satisfied that the claimant's contentions in this respect disclose any error of law on behalf of the inspector.

Conclusions

20. I have no doubt that the claimant was bitterly disappointed by the appeal decision which was reached, but having considered carefully the grounds which have been pleaded and raised, I can discern no error of law in the inspector's decision and thus this claim must fail.
21. MR KIMBLIN: My Lord, there is only then the question of costs which I would ask to raise. I ask your Lordship to summarily assess costs in an agreed sum. The agreed sum is £5,177.75.
22. THE DEPUTY JUDGE: I am happy to award costs in that sum, Mr Lowe, if it is agreed.
23. MR LOWE: It is of course agreed. Thank you, my Lord.
24. THE DEPUTY JUDGE: Are there any other matters which we need to deal with?
25. MR LOWE: No, my Lord.
26. MR KIMBLIN: Thank you very much.