QUEEN'S BENCH DIVISION
B e f o r e :
(Sitting as a Deputy High Court Judge)
|MICHAEL JONATHAN PARKER|
|(1) SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENT|
|(2) ROTHER DISTRICT COUNCIL|
|(3) PETER BULL|
Wordwave International Ltd (a Merrill Communications Company)
165 Fleet Street, London EC4
Telephone No: 020 7404 1400; Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
appeared on behalf of the Claimant
Mr R Warren and Miss G Ward (04.08.09) (instructed by
the Treasury Solicitor) appeared on behalf of the First Defendant
Mr G Stoker and Ms C Parry (04.08.09) (instructed by DMH Stallard,
West Sussex RH11 7FZ) appeared on behalf of the Third Defendant
Crown Copyright ©
Tuesday 4 August 2009
THE DEPUTY JUDGE:
".... [the] renewal of outline consent RR/98/2292/P for the erection of 15 fishermen's cabins, facilities building, workshop/store, new dwelling and conversion of two existing dwellings into one, also re-siting of access,"
on land at the Wylands International Angling Centre, Powdermill Lane, Catsfield East Sussex.
"1. On 10 August 2006, the Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2006 gave effect to provisions in the Planning and Compulsory Purchase Act 2004. These require design and access statements for most types of applications and implement changes to the application process for outline planning permission including the redefinition of reserved matters and in particular, a greater level of minimum information to allow the impact to be understood and evaluated. The appellant confirmed at the start of the Inquiry that in accordance with these changes, the application was submitted with layout, scale, appearance, landscaping and access reserved for subsequent approval.
2. The appellant submitted further illustrative drawings before the start of the Inquiry which provided information on the internal layout and location of the cabins and internal layouts and three design options for the facilities building (plans A2-A11). Information on the scale parameters of all the proposed buildings was submitted on a table (Document 4) during the Inquiry. It was also confirmed that site layout drawing No. 339/97/10/B remains correct from the previous application. Having regard to all this information together with the supporting statement supplied to the Council by Humberts Leisure on 6 March 2007, I did not consider that there was insufficient information for the inquiry to proceed or that anyone's interests would be prejudiced.
3. The re-siting of the access has since been carried out under a different permission (ref RR/2000/121/P). As a result, the previous outline consent expired on 27 August 2006."
"6. Wylands International Angling Centre (WIAC) comprises a diversified former mixed farm located in gently undulating landscape north of Bexhill-on-Sea. It comprises around 62 hectares of lakes, grassland and woods. The fishery use has gradually developed over more than twenty years and is supported by the Council as an appropriate leisure use in the AONB. A group of loosely sited buildings, mobile homes and containers of varying appearance near the centre of the holding comprises the former farmstead from which the business is managed. A public footpath (No 15A) runs through the centre of the holding past the edge of the farmstead. The fishery as a whole is also visible in glimpses and at times as part of a broader vista from a ridge and other footpaths to the south. Trees hide some of the buildings and many of the lakes from this direction but much of the central farmstead is clearly visible where it lies on the Wyland Farm Ridge.
7. Outline planning permission ref RR/98/2292/P was granted in 2003 following a long period of negotiation leading to the signing of a Section 106 (S106) Agreement. There is no dispute that the leisure activity of fishing as a form of farm diversification remains acceptable in principle."
The Inspector's decision
"whether the proposed development in the High Weald Area of Outstanding Natural Beauty (AONB) is justified, having regard to the countryside protection objectives of national and local development plan policies."
One can see therefore that this was a case in which the Inspector had to form an opinion on what were essentially visual matters: an opinion of a kind in which a significant element of subjective judgment will always play its part, though judgment will be guided by the relevant provisions of planning policy applying to the case in hand.
"I conclude that the overall effect of provision of 15 cabins combined with the removal of caravans on the ridge, a new facilities building and workshop/store, combining two dwellings into one and providing a new dwelling would be to significantly improve the appearance of the existing site in the AONB and enhance the economic and social wellbeing of the area in accordance with the aims of relevant regional guidance, SP policies and LP policies GD1(v) and EM10; and would conform with the objectives of national guidance contained in PPS7."
"I allow the appeal and grant outline planning permission for the erection of 15 fishermen cabins, facilities building, workshop/store, new dwelling and conversion of two existing dwellings into one, also re-siting of access at Wyland International Angling Centre, Powdermill Lane, Catsfield, East Sussex TN33 OSU in accordance with the terms of the application, Ref RR/2006/3470/P, dated 4 January 2007, and the plans submitted with it together with information on the scale of development submitted on 21 October 2008, subject to the conditions set out in the schedule at the end of this decision."
Thus the formal grant of permission explicitly incorporated the information on the scale of the development submitted to the inquiry on its first day (21 October 2008). This was the "information on the scale parameters of all the proposed buildings ... submitted on a table (Document 4) during the Inquiry" referred to by the Inspector in paragraph 2 of the decision letter.
The issues in the claim
"Was the claimant deprived of an opportunity to present material by an approach on the part of the Inspector which he did not and could not reasonably have been expected to have anticipated? Or is he trying to improve his case subsequently, having been substantially aware of, or alert to, the key issues at the inquiry?"
(see Castleford Homes Ltd v Secretary of State for the Environment  EWHC (Admin) 77).
Issue (i): the definition of the proposed development
The statutory and policy framework for outline applications
"Applications for planning permission
A development order may make provision as to applications for planning permission made to a local planning authority."
Subsection (5) of section 62 provides:
"A development order must require that an application for planning permission of such description as is specified in the order must be accompanied by such of the following as is so specified --
(a) a statement about the design principles and concepts that have been applied to the development;
(b)a statement about how issues relating to access to the development have been dealt with."
Subsection (6) provides:
"The form and content of a statement mentioned in subsection (5) is such as is required by the development order."
"(1) Where an application is made to the local planning authority for outline planning permission, the authority may grant permission subject to a condition specifying reserved matters for the authority's subsequent approval.
(3) Where layout is a reserved matter the application for outline planning permission shall state the approximate location of buildings, routes and open spaces included in the development proposed.
(4) Where scale is a reserved matter the application for outline planning permission shall state the upper and lower limit for the height, width and length of each building included in the development proposed.
(5) Where access is a reserved matter the application for outline planning permission shall state the area or areas where access points to the development proposed will be situated."
"(2) An application for planning permission to which this article applies shall be accompanied by a statement ('a design and access statement') about --
(a)the design principles and concepts that have been applied to the development; and
(b)how issues relating to access to the development have been dealt with.
(3) A design and access statement shall --
(a)explain the design principles and concepts that have been applied to the following aspects of the development --
(b)demonstrate the steps taken to appraise the context of the development and how the design of the development takes that context into account in relation to its proposed use and each of the aspects specified in sub-paragraph (a).
(4) A design and access statement shall also --
(a)explain the policy adopted as to access, and how policies relating to access in relevant local development documents have been taken into account;
"If, before or during the determination of such an appeal in respect of an application for planning permission to develop land, the Secretary of State forms the opinion that, having regard to the provisions of sections 70 and 72(1), the development order and any directions given under that order, planning permission for that development --(a)could not have been granted by the local planning authority; or(b)could not have been granted otherwise than subject to the conditions imposed,he may decline to determine the appeal or to proceed with the determination."
DCLG Circular 01/2006
"With an application for outline planning permission detailed consideration will always be required on the use and amount of development. In addition, even if layout, scale and access are reserved, an application will still require a basic level of information on these issues in the application. As a minimum, therefore, applications should always include information on:
Use -- the use or uses proposed for the development and any distinct development zones within the site identified.
Amount of development -- the amount of development proposed for each use.
Indicative layout -- an indicative layout with separate development zones proposed within the site boundary where appropriate.
Scale parameters -- an indication of the upper and lower limits for height, width and length within the site boundary.
Indicative access points -- an area or areas in which the access point or points to the site will be situated."
Paragraph 53 of the circular states:
"Design and access statements play a particular role in linking general development principles to final detailed designs. A statement accompanying an outline application must explain how the applicant has considered the proposal, and understands what is appropriate and feasible for the site in its context. It should clearly explain and justify the design and access principles that will be used to develop future details of the scheme. Such information will help community involvement and informed decision making. The design and access statement will form a link between the outline permission and the consideration of reserved matters. Further information on the use of design and access statements in the planning application process is set out in the following sections of this Circular."
"For local planning authorities, design and access statements will enable them to better understand the analysis which has underpinned the design and how it has led to the development of the scheme. This will help negotiations and decision-making and lead to an improvement in the quality, sustainability and inclusiveness of the development."
Paragraph 66 states that a design and access statement "will enable the design rationale for the proposal to be more transparent to stakeholders and the local planning authority". Paragraph 67 refers to design and access statements being "a communication tool". Paragraph 72 states that design and access statements "will explain and justify proposals already set in the planning application" but that they will also set out "the principles and concepts that will be used when that proposal is developed in the future". Paragraph 73 states:
"Fixing the principles contained within the statement to future decisions will be particularly relevant in the case of outline planning applications. Here, the local authority should ensure that the development approved by an outline planning permission is constrained to the parameters described in the design and access statement submitted with the application and that any future decisions relating to that outline permission are consistent with the statement."
Articles 3 (4) and 4C of the GDPO
Scale -- the fishing cabins
Scale -- the facilities building
"9.7 Facilities building barn design (option 2) offers the most feasible proposal. The barn design is suitable within the context, while visually it is a great improvement on the existing Dutch barn, offering a reduced ridge profile and sympathetic materials."
This was confirmed in closing by Mr Stoker:
"The new building (option 2, barn design) will be smaller (256 square metres) than the existing footprint (277 square metres) and will be at 5.4 metres, some 2 metres lower than the existing Dutch barn. The design (see Mr Huskisson's photomontage) .... will look appropriate and harmonious next to the Sussex barn office. It will provide a traditional style building within the footprint of the existing building, as it is seen as the correct approach by ESEC."
Each of the three options for the building had a different height. The heights were indicated in Document 4. The refurbishment option, Option 1, would not have increased or reduced the height of the existing building. Option 2 would be 2.1 metres lower than the existing building; Option 3 some 4 metres lower.
"a low pitched timber clad building with a clay tile roof would be sympathetic to this protected rural location and would not appear out of place .... Many agricultural buildings used for livestock or general storage are similar in scale and appearance. Its function would be obvious close by but hard to distinguish in longer views. It would be significantly smaller in floor area than the building rejected at appeal in 2007 .... The building now proposed would not detract from the quality of the landscape and would support a rural enterprise in what I consider would be a proportionate way."
I do not see how it can be said that the judgment the Inspector reached on this matter, or his conclusion that the detailed design of the facilities could properly be left within the discretion of the Council on a submission for reserved matters approval, were in any respect wrong in law.
"It was suggested at the inquiry that an outline application is inappropriate in view of the engineering works proposed, but the illustrative drawings suggest to me that the changes to the landform would involve minor earthworks as opposed to more substantial engineering operations."
Plainly, therefore, the Inspector appreciated the distinction between "engineering operations", properly so described, and minor earthworks which fell short of being such an operation. I do not see any error in his approach, or in the finding he made. The context, it should be remembered, was a scheme extending across a substantial area within a site of 62 hectares of lakes, grassland and woods in what the Inspector described as "gently undulating landscape". In paragraph 19 of the decision letter the Inspector observed that although the contours of the land would be altered to facilitate access to the cabins, "this would be unlikely to involve more than cut and fill earthworks" and that there "would not be such a significant alteration to the slope that the form of the landscape would be substantially changed". Those findings are, in my view, entirely justified. One can see this by looking at the layout drawing DH1 and section B-B on the sections drawing DH3 produced by Mr Huskisson. Those drawings show the regrading of the land beside the middle lake, to create more even ground on which all of the 15 cabins would sit at levels within approximately one metre of the existing contours. This supports the Inspector's conclusion that the works envisaged were not such as to metamorphose an outline scheme into one which included operations for which a grant of full planning permission would be required. Was this an unreasonable judgment? I think not. It was a conclusion the Inspector could quite properly draw from the information he was given. This part of the challenge therefore fails.
The red line drawing
"location plan with the appeal site outlined in red and the rest of [Mr Bull's] land outlined in blue has not been submitted with the current appeal, as the requirement ...is that the original plans accompanying the application be submitted. However if required by the Inspector, an accurate plan can of course be drawn up and submitted immediately."
Further correspondence took place between the Council and HLL Humberts Leisure, the Council inviting the submission of a red line plan and HLL Humberts Leisure saying they were "getting such a plan produced in advance of the inquiry".
"I remember the opening day of the Inquiry ... The Inspector located a red line plan in his file of papers, and I circulated copies of a red line plan to the Inquiry. I understand that this is in the same form as it had been lodged at the two previous Inquiries, although I was not at either of those Inquiries. In any event, the plan was familiar to us all, and I am surprised it was now raised as an issue as at the time all parties appeared to be satisfied. ..."
and in paragraph 12:
"... there is now shown to me marked "DM2" the Red Line Plan, copies of which were handed out and discussed on the opening morning of the Public Inquiry."
Issue (ii): the interpretation and application of relevant policy
The approach to the renewal of planning permission
"50. .... The courts must be wary of an approach whereby decision makers can live in the planning world of Humpty Dumpty, making a particular planning policy mean whatever the decision maker decides that it should mean. I make the following observations."
".... That is set out in paragraph 19 of Circular 08/93 which although fifteen years old, has not been superseded. At the very least, the previous permission must be a material consideration."
Mr Hill said this betrayed a wrong understanding of the significance of the advice in Circular 08/93 continuing. The previous permission had only the status of being a material consideration, and nothing more.
Development plan policy
Policy EM10 of the Rother District Local Plan
"In Rother District more than half of all tourist accommodation is provided by static caravans, which adds to the economic vitality of the District. Nevertheless the Council considers that, normally, new holiday centres and static caravan sites are inappropriate in the countryside by reason of their visual impact and demand on services and facilities. There is more scope for touring caravans and camping pitches that can be more visually contained in the summer months."
"In the countryside, proposals for additional static caravan and chalet accommodation for holiday purposes will not be permitted unless it would result in a significant improvement in the appearance of an existing site or is essential in association with a rural enterprise and otherwise meets the policies of the Plan."
Mr Hill also submitted that if the Inspector had understood policy EM10 correctly he had nevertheless failed to apply it properly to the facts of the case. A conclusion that the site was an existing caravan or chalet site would have had to be expressed and very clearly justified. The presence of four units of accommodation converted from a small cow-shed and occasionally referred to as "chalets" was wholly insufficient to bring a site of more than 60 hectares within the definition of an "existing chalet site". And the presence in another part of the site of three static caravans, used only for storage did not bring the site within the definition of an "existing static caravan site". As a matter of fact, therefore, submitted Mr Hill, the appeal site could not reasonably be regarded as an existing site for the purposes of policy EM10. For all of those reasons, submitted Mr Hill, policy EM10 was not satisfied and it ought to have counted against the development. The Inspector's error in thinking that the first limb could apply was a fatal one, disentitling him from the conclusion that the appearance of the existing site in the AONB would be significantly improved. Whilst Mr Hill accepted this was not an irrational conclusion in itself, the route by which it had been reached was, he said, irrational. He urged the basic point, acknowledged by Woolf J (as he then was) in Gransden & Co Ltd v Secretary of State for the Environment (1987) 54 P&CR 86, at page 94:
".... it is essential that the policy is properly understood by the determining body. If the body making the decision fails to properly understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy."
"6.9 .... No information has been submitted with the application to indicate how the development would result in a significant improvement in the appearance of the existing site. The only information regarding this is contained in the statement that accompanied the planning application which indicated that the nine touring caravans the subject of the Lawful Development Certificate .... would be replaced. In my view that would not be a 'significant improvement'. .... The replacement of nine touring caravans with 15 permanent units of holiday accommodation does not appear to be a significant improvement. Indeed, a greater number of units is proposed than is currently permitted. Moreover, as the Lawful Development Certificate site is a touring caravan site not a static one, the first part of Policy EM10 does not apply. ....
6.10 The other issue to be addressed by Policy EM10 is the question of the development needing to be 'essential' in association with a rural enterprise. No evidence has been submitted to indicate how the chalets are essential to the operation of the angling centre. ..."
For Mr Bull, however, Mr Taylor had said this in his proof of evidence:
"4.7.10... I consider that all aspects of the proposal, including the cabins and the café building would result in a 'significant improvement in the appearance of an existing site' as required by new Local Plan policy EM10. It has been demonstrated through the production of drawings showing the detailed design of the various buildings and a very thorough landscape impact assessment that the development would improve the assessment of the site. ...."
Policy S11(b) of the East Sussex and Brighton & Hove Structure Plan
"To help the rural economy, some alternative uses of agricultural land and countryside may be permitted, where the use is appropriate to the area in terms of scale, type and impact on it surroundings (including traffic impact). These uses will be mainly for employment, recreation and tourist accommodation and facilities. Any such development must, where applicable --
(a)meet the requirements of policy S1;
(b)make use of suitable existing buildings that could be converted or demonstrate for any new development that a countryside location is necessary;
(c)be part of a whole farm or enterprise plan so that the ultimate extent of the new venture may be seen in its entirety and in relation to its setting; and
(d)include positive or compensatory measures for environmental enhancement and/or management of the whole site.
Proposals will be judged by the local planning authority in relation to other activities and developments in the wider area, to ensure the cumulative impact will not give rise to adverse impacts on the character of the area on infrastructure and on the vitality of towns and villagers."
Policy for the AONB
"The conservation of the natural beauty of the landscape and countryside should therefore be given great weight in planning policies and development decisions in these areas."
The Inspector was, I believe, demonstrably well aware of this proposition. It is encapsulated in the counterpart policies at strategic and local level. The Inspector knew this. In the opening sentences of paragraphs 10 and 11 of the decision letter he said:
"10. The main thrust of relevant policies of the East Sussex and Brighton and Hove Structure Plan 1991-2011 .... is to conserve and enhance landscape quality and character in AONBs by careful control of development, whist supporting the viability of the local economy. ....
11. Amongst other aims, policy GD1(v) of the Rother Local Plan of 2006 .... indicates that all development should be compatible with the conservation of the natural beauty of the AONB. ...."
Subsequent passages in the decision letter, in which the Inspector comes to grips with the likely effects of the development on the AONB, culminate in the unequivocal judgment, in paragraph 35, that the development would conform with the objectives of national guidance in PPS7. One would look in vain here for any failure to apply the principles governing such development in the AONB. In my view the Inspector went about this analysis conscientiously and correctly.
Issue (iii): the Inspector's consideration of the evidence
"10.5 In respect of the fisherman's accommodation, the current occupancy rate at Wyland for the chalets is 12% and static caravans 15%, giving a combined average occupancy of 13.5%. This is significantly below the national average for holiday accommodation which is in the region of 35-40%. On some fisheries where there is good quality accommodation, in particular log cabins, occupancy rates .... between 50% and 80% are not uncommon.
10.6 It is clear that the poor occupancy rates reflect to a large extent the quality of the accommodation at Wyland".
The figure for the proportion of anglers using overnight accommodation, as a national average came from, Mr Taylor, who in his proof of evidence said:
"4.4.24 In my Statement of Case I alluded to research showing an increasing number of fishing leisure trips involving an overnight stay away from home. This research .... indicated that 18% (146,000) of anglers stayed overnight on a fishing trip in England and Wales in 2000-2001. This data is referred to in the Environment Agency's publication 'Our Nation's Fisheries', ...."
"... Improved accommodation in terms of floor area, numbers and quality would raise this figure and improve overall turnover. Whilst I accept that fishermen visiting WIAC would be able to use local inns and hotels rather than stay at the centre, that may not be satisfactory for night fishing and is not a strong argument against a limited amount of additional simple accommodation on the site, if it complies with the relevant development plan policies. In any event, the total of 22 units now proposed would only be a modest increase."
In the light of this analysis and the cautious judgment to which it led, I cannot accept that the Inspector's erroneous comparison of the two percentage figures made any difference, let alone any material difference, to the outcome of the appeal. To suggest otherwise is, I think, unrealistic. As Mr Warren submitted, when one reads all of the relevant part of the Inspector's letter, one can see that the influence of the false comparison between the two percentage figures was, if anything, minuscule. Certainly, in my view, it was not such as would justify, in the exercise of the court's discretion, a quashing of the Inspector's decision. Nor do I consider that the Inspector's essential reasoning on this aspect of the case leaves its audience in any real doubt as to the basis for his conclusions. Read in its totality it is, I think, perfectly clear. This ground therefore fails.
The facilities building
"With regard to the scale of the proposed replacement building, the floor area of the multi-function room, kitchen, toilets, showers and small shop would not in my opinion be unreasonably generous. Whilst greater in area than other similar buildings at some other angling centres, WIAC is one of the largest in the country in terms of lake area and number of pegs, even taking into account the competition lake which has a high ratio of pegs to water area. I do not consider the proposed main café area of 72 covers to be unreasonable; between 250 and 350 anglers may visit WIAC at weekends, many of whom start the day with breakfast. It would also provide a reasonable amount of undercover space suitable for a range of other activities such as tuition and prize giving which currently take place out of doors."
On these matters the Inspector had evidence both from Mr Freeman and Mr Taylor. In his proof of evidence, Mr Taylor said:
"2.3.4 The peak four months for fishing on the site are June to September. The site is open on a 24 hour basis for 365 days a year. Currently, the fishery sells between 250 to 350 tickets a weekend and between 40 to 50 day tickets the rest of the week."
Mr Freeman and Mr Taylor were available to be cross-examined at the inquiry. Having heard their evidence the Inspector clearly found reliable the figures he had been given on Mr Bull's behalf. This is not a finding one could conceivably describe as irrational. It was open to the Inspector to make it on the evidence he had. And I can see no deficiency in the reasons he gave for his conclusion in paragraph 23 of his letter, which, basically, was that the proposed facilities building was not too big. He made no error of law.
"13.3 In 2006, the appellant secured permission under RR/2006/1808/P for the rebuilding of an open store to provide a storage building 4.5m tall with a footprint of 120 sq m.
Two years later, the open store remains unaltered ....
Given the appellant has not implemented the permission for 120 sq m store, need for an additional 261 sq m new storage building for general or secure stores is evidently lacking."
In fact, the footprint of the workshop as indicated in Document 4 was slightly smaller than this, at 252 square metres.
"This would replace an existing simple similarly sized agricultural building that is in poor condition. There would be no harmful impact on the AONB providing its appearance is similar. That can be controlled at the submission of details stage. I accept that the indicative height of 3.5 metres would be insufficient to accommodate much modern agricultural equipment but it would be adequate for quad-bikes, small tractors, nets and storage of many other items associated with a fishery. Larger items such as excavators and balers would be kept in an existing open 'Atcost' type barn which is being retained."
Although the Inspector did not refer to the 2006 permission, I do not accept that he was obliged to do so. He was obviously persuaded by the justification he was given for the larger building now proposed, which was about twice the size of the one permitted in 2006. Again, I see no error of law in the Inspector's decision. This ground of the claimant's challenge therefore fails.
The existing dwelling
"14.1 Following permission RR/93/2145/P approved in 1994, one of the joint owners moved to a residence in Powdermill Lane and the cottages at Wylands were converted into one dwelling for the current fishery manager and former joint owner. As the permission was implemented, planning permission would be required to separate the dwellings."
In its letter of 6 August 2008 to HLL Humberts Leisure the Council had asked for:
".... evidence of the need for a second dwelling for use in association with the permitted uses on the site bearing in mind the period of time that has now elapsed since the conversion of the two former cottages to a single dwelling."
Mr Hill said that at the inquiry Mr Taylor had acknowledged, and the Council had asserted, that the conversion of the former farmhouse back to a single dwelling had already occurred. Yet the Inspector had failed to explain how he had addressed the evidence on this matter, and to give proper reasons for his approach to it.
"A pair of semi-detached single storey farm cottages lies on the west side of the farmstead, of 2 and 3 bedrooms. These are currently unoccupied due to their poor condition, the manager residing in a nearby mobile home. I saw that the layout of the dwellings is not ideal. Combined together and upgraded as desired they would make a reasonably large family dwelling. In my view there would be little need to make any significant alterations to the external envelope of the building to achieve this and the proposal would not conflict with policies that seek to protect the AONB."
The new dwelling
"4.4.35 The functional test for new permanent dwellings in the countryside for essential workers contained in Annex A of PPS7 is met in the case of Wylands. Essential care for the fish is occasionally required at short notice .... Similarly, the theft of fish and equipment is a real threat, as evinced by recent attempted thefts at Wylands.
4.4.36 Annex A of PPS7 goes on to advise that once the functional requirement is established, the number of workers to meet it should be calculated. Both a manager and deputy manager are required in order to oversee the angling centre on a 24/7, 365 days per year basis. This job cannot continue to be satisfactorily carried out by one person as at the present time, as demonstrated by the fact that Mr Harding is undoubtedly over-stretched and unable to take time off from the running of the centre. The managerial workload will only increase if the building is allowed to develop to its permitted fishing capacity through the provision of a replacement facilities building and improved visitor accommodation.
4.4.37 Wylands is an established angling centre, with a regular income, which can sustain employing two full-time managers. Therefore the financial test (Annex A, paragraph 8) is also met."
There was thus before the Inspector evidence for Mr Bull on the Annex A tests. In paragraphs 27 and 28 of his decision letter the Inspector said:
"27. I accept there is an essential need to prevent theft of valuable stock, to provide security for the buildings and equipment and to monitor water quality. There would be clear advantages in staff residing on the unit, particularly in dealing with de-oxygenation of the water, which, if not rectified quickly, can lead to the death of many fish. Angling also takes place during the night which is likely to necessitate some administrative and supervisory functions outside normal hours. The Council accepted the need in 2002 for two dwellings to service the unit and no significant changes have occurred in relevant policy or in the nature of the business since then.
28. The new dwelling would be for an assistant manager and would be of very modest size, single storey and sited within the general area of the central group of buildings. ... PPS7 resists new house building in the countryside but development associated with a rural enterprise that demands a rural location is encouraged. Providing the occupation of both dwellings is tied to the angling centre or agricultural employment, I consider that the new dwelling would be acceptable in the AONB and would satisfy the requirements of policy."
In paragraph 31 of his letter, dealing with other aspects of need, the Inspector said:
"Very little information has been provided in respect of the trading accounts of the existing business or a business plan. However, I am satisfied that the angling centre has been in existence for more than 20 years and has a loyal customer base. There are understandable reasons why the owner might not wish to reveal precise levels of profit or loss but I do not consider the failure to provide detailed figures has a material bearing on the planning matters in this case: the improvements sought would be modest and would support an established leisure and tourism business as well as bring[ing] about environmental improvements in the AONB; and these are policy objectives."
The Inspector's analysis in these paragraphs seems to me to be unimpeachable. I therefore reject the allegation that he failed properly to apply the Annex A tests.
"It is noted that your predecessor Inspectors have refused a dwelling of precisely this location with far more information in support than you have (see G Frall's Appendix 6)."
It was, said Mr Hill, well-established that, in the interests of consistency in decision-making, an inspector is obliged to acknowledge the existence of previous decisions on similar proposals and to distinguish them if he chooses to take a different view from his colleagues. Mr Hill relied on what Glidewell LJ had said in R v Secretary of State for the Environment and others, ex parte David Baber and Others  JPL 1034 (at pages 1037 and 1038):
".... [North Wiltshire DC v Secretary of State for the Environment  JPL 955] was authority for the proposition that since an inspector, when making a determination, is obliged to have regard to other material considerations if he had placed before him a previous decision of the Secretary of State or a delegated inspector which was similar to the decision with which he was dealing, either because it deal with the same site or because it dealt with a nearby site which raised in effect precisely the same issues, then he ought to treat it as a material consideration. If he was treating it as a material consideration he of course was not obliged to follow the previous decisions, but he then had to have some reason for differentiating it and he had to explain, at least in brief terms, what that reason was. The requirement that he should give reasons was now of course trite law, although it invariably resulted in a number of differences between judges as to whether the reasons are adequate or not. ...."
Glidewell LJ went on (at page 1040) to say that the test the Inspector ought to have posed to himself was this:
".... a previous decision having been drawn to my attention, do I take the view that it may well be sufficiently closely related to the matters in issue in my appeal that I ought to have regard to it and follow it or distinguish it?"
Mr Hill submitted that in the present case the Inspector had completely ignored the existence of the earlier decisions. The dwelling proposed here was on the same site, in virtually the same location and for exactly the same purposes. The 1995 appeal inspector, had he wished to do so, could have tied the dwelling to the holding by condition, even though the then appellant had resisted such a restriction. There was no sensible basis, said Mr Hill, for distinguishing the two cases. The previous inspector had found that the proposed dwelling would "consolidate and intensify existing development and be contrary to local policies of restraint in the countryside" and that there was no need for more than one unit of accommodation on the site. It was, said Mr Hill, impossible to know whether or how the Inspector in the present case took those conclusions into account, or how, if at all, he distinguished them.
"To state that like cases should be decided alike presupposed that the earlier case was alike and was not distinguishable in some relevant respect. If it was distinguishable then it usually would lack materiality by reference to consistency although it might be material in some other way. Where it was indistinguishable then ordinarily it had to be a material consideration. A practical test for the Inspector was to ask himself whether if he .... decided this case in a particular way was he necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement could not be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there was disagreement then the Inspector had to weigh the previous decision and give his reasons for departure from it. These could on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they might have to be elaborate." [emphasis added]
As Mann LJ went on to say (at page 960), an inspector was under no obligation to manifest his disagreement with other decisions which were distinguishable. That, said Mann LJ, "would be a gratuitous and pointless exercise".
"therefore the Council refused the permission. However, when application RR/98/2292/P was being considered the applicant did enter such an agreement and therefore the permission was granted ...."
In his report on application RR/98/2292/P the Council's planning officer had stated:
".... It has been accepted in the past that two dwellings on the land would be acceptable if tied to the land and I remain of this view."
"... [The] dwellings should be occupied only by persons wholly or mainly employed in the recreational fishery business or (in accordance with the recommendations of paragraph 103 of Circular 11/95) in agriculture or forestry. This is to avoid it being occupied by persons unconnected with a rural enterprise in an unsustainable location away from established settlements."
The relevant condition is condition 15, which states:
"The occupation of the dwellings shall be limited to a person solely or mainly working, or last working, in the management and operation of the angling centre or in the locality in the agriculture or forestry, or a widow or widower of such a person, and to any resident dependants."
Other aspects of need
"There is no doubt that some competing angling centres are providing permanent café and facilities buildings and on-site accommodation. I also accept evidence from the objectors that some fisheries are able to prosper with very few facilities and little or no accommodation; and that the provision of accommodation or a facilities building does not necessarily prevent a fishery being popular. To my mind, the approval of the large match lake in 1991 set down a marker, in that it was accepted at that time that many more fishermen would be likely to visit WIAC and that this would support the expansion of a commercial business that is appropriate in the AONB. National and local development plan policies since then have continued to strongly support rural diversification for its social and economic benefits. That is not to say that unrestricted development can take place; a balance between commercial aspirations and the quality of the landscape has to be struck."
This paragraph is one of six in which the Inspector set out his reasoning on several aspects of need (paragraphs 29 to 34 of the decision letter). To understand why he accepted Mr Bull's case on the need for the development proposed, one has to read the whole of this part of the decision letter. Salient in the Inspector's analysis are the last two sentences in paragraph 32 of his letter. He noted that, despite the appeal site being "one of the largest angling centres in the country", the number of competitions held there was in decline and then said:
".... I accept that there may be many contributing factors that influence those that decide where competitions should be held and that the number of national competitions is limited, but the poor standard of refreshment facilities and most of the accommodation provided at the centre cannot be discounted as a contributory factor. The quality of the fishing is not in dispute."
When one reads the Inspector's assessment of the several factors leading to his conclusion on need, I do not believe one can discern any legal flaw in it. It was a rational and properly reasoned planning assessment. I do not accept that the Inspector had to explain why he was prepared to approve a building larger than any other of its type in fisheries in the United Kingdom. This, in itself, was of no particular consequence. As I have already said, the Inspector clearly grappled in paragraphs 23 and 24 of his decision letter with the issues of the need for the building and its likely effect on the landscape, and reached conclusions whose legal integrity I accept. I therefore reject this ground of the application.
"I have given some weight to a survey of existing customers commissioned by the appellant. There is overall satisfaction with WIAC but the results bear out the drawbacks which the new facilities building and improved accommodation seek to address."
I see absolutely nothing wrong in this conclusion. As well as being on its face a perfectly sensible way of dealing with this matter, it has behind it the evidence given at the inquiry by Mr Taylor who, in his proof of evidence, had said this about the market research surveys undertaken for Mr Bull by BMG Research:
"4.4.10 This research was designed to elucidate customer opinions on both catering and accommodation facilities. When existing customers were questioned, 17% of respondents stated that they were dissatisfied with the snack bar/cafeteria (Table 3, page 14 of BMG Research Report, Appendix 21). When asked to give unprompted answers as to how Wylands could be improved the majority of respondents suggested improvements to the catering and other facilities that are proposed as part of the facilities building. When previous overnight customers were shown drawings [of] the proposed café facilities building, the vast majority (94%) thought that a new facilities building would improve Wylands (Q12, Appendix 22), with 76% stating that they thought the new facilities building would improve Wylands 'a lot'. Over half (54%) said that they would be 'very likely' to visit Wylands after the introduction of the new facilities building and 82% said they would be at least 'fairly likely' to re-visit under these circumstances.
4.4.11 What this shows is that Wylands Angling Centre is losing custom as a direct result of not having a proper facilities' building. It is clear that a new facilities building is essential to the needs of this rural enterprise ...."
Mr Taylor appended to his proof BMG's summary report of its survey of fishermen at the appeal site in September 2008. Mr Hill did not suggest that the inspector had misinterpreted this evidence, or that the brief conclusion he drew upon it in paragraph 34 of his decision letter was unreasonable. In my judgment the Inspector's conclusion on the survey evidence was entirely a lawful one. This ground therefore fails.
Issue (iv): the Inspector's approach to conditions and obligations
".... I am not convinced that the sale of parts of the site should necessarily be prevented or that it would have any effect in respect of the planning benefits provided by the undertaking, as the covenants therein would also apply to subsequent owners. Nor would the dwellings need to be owned by a person with an interest in the business or the site, providing they are occupied by persons wholly or mainly employed in connection with the angling enterprise."
These were matters of judgment for the Inspector. His conclusions are in my view both clear and rational. He had to decide whether the development was less than adequately controlled by planning conditions and the obligation. As he said in paragraph 43 of his letter, he was content with the degree of control on the occupation of the dwellings achieved by condition 15. He also imposed three other conditions which went to the coherence and continuity of the whole fishing enterprise. Condition 4 requires that
"No fishermen's cabin hereby approved shall be occupied as a sole or main place of residence."
Condition 6 requires that
"The operators shall maintain an up-to-date register, to be kept on site, of the names of all occupiers of individual holiday accommodation cabins on site, the dates of their occupation and of their main home addresses, and shall make this information available at all reasonable times to the local planning authority."
Condition 14 requires that
"The main café/facilities building shall be used only for purposes ancillary to the main use of the site as an angling centre."
The Inspector's thinking on these matters is apparent in paragraphs 38 and 42 of his letter:
"38. ... Restrictions on the occupation of the cabins are necessary to prevent them being used as a main residence and to limit the period for which they are occupied. The previous consent and the section 106 undertaking include a restriction on occupation up to 56 days in any year and in the interests of clarity I have included this in a condition using similar wording. To ensure that these are enforceable, the operators are required to maintain and up-to-date register of all occupiers for inspection by the local planning authority.
42. ... A restriction on the use of the facilities building to activities connected with the angling centre is required to avoid harm to the natural beauty of the area that would occur if it was used for other purposes or became a destination for people with no interest in fishing, particularly if using cars. However, I am unconvinced that restricting the café element to self-service is necessary in addition. In itself, self-service would not necessarily prevent the provision of quality food or discourage visitors unconnected with angling; and would be difficult to enforce."
The Inspector was not, however, persuaded of the need to take the further step of placing some form of control on the ownership of the site constraining the ability of its owner to dispose of it or parts of it: matters with which the planning system would not normally interfere. He appreciated, as he made clear in paragraph 36 of his letter, that the section 106 obligation would run with the land and that its covenants would apply to subsequent owners, assuring the delivery of the planning benefits it had secured. This, in my judgment, was not an unreasonable conclusion for the Inspector to reach. I conclude, therefore, that this ground of the application is not made good.
Conditions to control the parameters of development
"No development shall take place until full details of both hard and soft landscape works including access tracks have been submitted to and approved in writing by the local planning and these works shall be carried out as approved. These details shall include proposed finished levels or contours including the area previously occupied by the bund; car parking layouts; other vehicle and pedestrian access and circulation areas; hard surfacing materials; external lighting and proposed and existing functional services above and below ground."
The Inspector explained why he placed this stipulation on the development in paragraph 40 of his decision letter:
"Details of the re-profiling of the contours in the area of the new cabins, the access tracks, planting, general landscaping, parking and hard surfacing, utility services and external lighting are required to be submitted at this stage in order to reduce as far as possible the visual impact of the development. I do not consider that the bund needs to be reinstated but the land occupied by it needs to be regraded in a way that is sympathetic to the natural lie of the land. For the same reason, the finished floor levels of all the buildings need to be confirmed prior to the development taking place."
There the Inspector was focusing on the need for controls to moderate the impact of the development on the landscape. Entailed in the confirmation of contours and finished floor levels for the buildings would be a consideration of the acceptable profile of the buildings, their influence on the topography of the site and their compatibility with their surroundings.
"'reserved matters' in relation to an outline planning permission, or an application for such permission, means any of the following matters in respect of which details have not been given in the application --
access, appearance, landscaping, layout, and scale, within the upper and lower limit for the height, width and length of each building stated in the application for planning permission in accordance with article 3(4)."
The last of those five matters, "scale", is defined in this way:
"'scale' means the height, width and length of each building proposed within the development in relation to its surroundings."
In reserving "scale", therefore, the Inspector was leaving to the discretion of the Council as local planning authority the precise determination of those dimensions. He did not find it necessary to impose a condition prescribing either the upper or the lower limits on the height, width or length of each building in the development. He knew that any reserved matters submission including details of the scale of the buildings would have to specify those dimensions and that if the Council was not satisfied with the proposals as thus refined it would be able to turn them away. The context here was the grant of outline permission in the form described in paragraph 4 of the decision letter, incorporating the drawings referred to and the "information on the scale of development submitted on 21 October 2008". Having thus defined the outline approval he was giving, the Inspector was at liberty to leave decisions on the aspects of design of the development reserved by condition 1 to the Council. I do not believe it was unreasonable or otherwise unlawful for him to do so. This ground of the claimant's challenge therefore fails.
The obligation to carry out four hours of fishing a week
"Not to permit the Occupation of any Cabin or any part thereof for any purpose other than purposes associated with the use of the Property as an Angling Centre which for the avoidance of any doubt shall mean that at least one occupant of any Cabin must be in possession of an annual rod licence as issued by the Environment Agency or any successor agency and shall participate in angling on the Property for a minimum of four hours during each stay (unless prevented by sickness or force majeure)".
A further covenant, in paragraph 1.2 of the schedule is this:
"No one person shall Occupy the Cabins or any part thereof for more than 56 days in total in any calendar year."
This requirement was replicated in condition 5 imposed by the Inspector. Condition 4, precluding the occupation of any cabin "as a person's sole or main place of residence", and condition 6, requiring a register to be maintained of all occupiers of cabins on the site, also limit the use of the fishermen's accommodation in the development. In paragraph 38 of his decision letter, the Inspector considered the effectiveness of the controls on the occupation of the cabins having regard to all of those restrictions. His conclusion was not an unreasonable one. Mr Warren submitted, and I accept, that the principal control in paragraph 1.1 of Schedule 1 is enforceable, and would be so even in the absence of the requirement for a register of occupiers to be kept in condition 6. The other controls applying to the use and occupation of the cabins were not criticized as ineffective by Mr Hill. And I do not accept that the stipulation of the minimum period of fishing is practically unenforceable, dull as an officer's job might be in seeing it enforced. Even if I were wrong about this, however, I would not regard the enforceability of the four hour rule as critical to the effective policing of the occupation of the cabins. I also agree with Mr Warren's submission that the weight to be given to Mr Bull's unilateral undertaking was a matter for the Inspector. In my judgment, it cannot be said that the Inspector strayed into the realms of unreasonableness in giving it the weight he did. This ground of the application therefore fails.
"To demolish the buildings on the site of the proposed workshop/store (as identified in the Application) and remove the resultant debris from the Property within five years of the commencement of the development of either the café/facilities building (as identified in the Application) or the first of the Cabins whichever is the sooner."
This commitment was considered by the Inspector in paragraph 36 of his letter:
".... Insofar as the appellant would have a longer period, five years, in which to demolish the existing workshop/store and dispose of the debris, I do not consider that this would have a noticeable effect on the appearance of the farmstead in the AONB."
I see nothing irrational in this conclusion. It seems to me to be perfectly sensible and clear. Nor do I see anything in the other aspects of this ground, alleging that the Inspector ought to have insisted on different or additional controls on demolition and the disposal of waste arising from it. These, again, were matters for the Inspector in the exercise of his own planning judgment. This ground of the application therefore fails.
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. ..."
In view of the way in which this challenge has been mounted to numerous aspects of the Inspector's decision-making -- though not, as I have noted, to his conclusion in substance on the main issue, which was essentially an aesthetic judgment for him to make in the light of all the evidence and submissions he received and based upon the impressions he was able to take from his site inspection -- it is, I think, apt to repeat that principle again. In any event, the claimant's application is not a stronger one for the multiplicity of the grounds advanced. None of those grounds, in my view, is cogent.
MISS WARD: My Lord, I appear this morning in place of Mr Warren, who is unfortunately unavailable.
THE DEPUTY JUDGE: Yes.
MISS WARD: My Lord, there is an application for the Secretary of State's costs.
THE DEPUTY JUDGE: Yes.
MISS WARD: I hope a schedule has reached you?
THE DEPUTY JUDGE: I have that, yes. That has a figure of £9,135.50. Is that right?
MISS WARD: £9,135.50, yes. My Lord, I am told that my instructing solicitor has somewhat under-budgeted for the time that we would be in court this morning, and there is a further sum of £480, which makes the figure of £9,6150.50. She only anticipated being here for two hours this morning, and it has been four. That is for her time and my time. My Lord, I am told that, subject to that small addition, the total is agreed.
THE DEPUTY JUDGE: I would not be minded to give you more than the figure that you have provided in the summary assessment, Miss Ward.
MISS WARD: So be it, my Lord.
THE DEPUTY JUDGE: Anyway, I will hear what Mr Hill has to say about that, both in principle and in its particular amount.
MR HILL: Thank you, my Lord. I cannot resist the application as it is made, my Lord --
THE DEPUTY JUDGE: No.
MR HILL: -- for obvious reasons. I just want to be sure I have understood what the precise figure is that will be the subject of the summary assessment. Did I write down correctly £9,615?
THE DEPUTY JUDGE: No, £9,135.50. Do you not have a copy of the schedule?
MR HILL: I do have that, but there was an oral amendment.
THE DEPUTY JUDGE: What I understood Miss Ward to be submitting was that there was an additional figure, which takes account of the time that it has taken me to give a judgment dealing with all the matters that you have required me to deal with.
MR HILL: Indeed so.
THE DEPUTY JUDGE: And I would not be minded to increase the amount in the summary assessment provided in the Statement of Costs, which I understood had taken into account, Miss Ward, the taking of judgment at the lower figure. Is that correct?
MISS WARD: My Lord, yes. It takes into account being in court for two hours this morning.
THE DEPUTY JUDGE: Which included the waiting time before I sat, as I understood what you said to me. No, I am not minded to increase the summary assessment, Mr Hill, beyond the figure given in the statement of costs, which is £9,135.50. I make it clear to help you both to understand my position on that, I have read out the judgment, rather than handing it down, because you will all have thus had my judgment sooner than you would have had it had it been a handed-down judgment.
MISS WARD: My Lord, there is absolutely no complaint about that. It is simply an underestimate of the time --
THE DEPUTY JUDGE: No, I appreciate that, but the time it has taken me to deliver judgment, of course, has been dictated by the format of the judgment as a read-out judgment, and it has been a long judgment for reasons which you will all understand because I have had to deal with so many points in it. Mr Hill, I am not penalizing you or your client for that in increasing the summary assessment in the statement of costs.
MR HILL: I am obliged. Can I just say that I am instructed to raise no points in respect of the figure of £9,135.
THE DEPUTY JUDGE: No. That is what I propose to award. The claim will be dismissed. The claimant will pay the costs of the Secretary of State, summarily assessed in the sum of £9,135.50. I assume there is no other application for costs?
MISS PARRY: No, my Lord.
MR HILL: My Lord, I was prepared to address you had there been one but for obvious reasons I did not expect that would detain the court for long.
THE DEPUTY JUDGE: No.
MR HILL: My Lord, I would like to apply to your Lordship for permission to appeal in respect of your decision. That is not an easy task in a situation such as this, to persuade the court that an appeal has a reasonable prospect of success --
THE DEPUTY JUDGE: No.
MR HILL: -- and, of course, I have the opportunity to go to the Court of Appeal and ask them --
THE DEPUTY JUDGE: Yes.
MR HILL: -- but I nonetheless ask your Lordship for permission, fairly confident in the answer that I will receive.
THE DEPUTY JUDGE: The answer is no, Mr Hill. I do not believe that you have any reasonable prospects of success with an appeal to the Court of Appeal.