England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London WC2A 2 LL
		7 April 2009

Ms Patterson QC :

1. This is an application under section 288 of the Town and Country Planning Act 1990 to quash the decision of an Inspector in a decision letter of 27 June 2008. In that decision letter he dismissed the claimant's appeal against refusal by the second defendant of the claimant's application for a temporary change of use from agriculture to recreation for the use of the sport of model aircraft flying and the use of existing farmer's hard standing as car parking and retention of storage containers and wooden shed for club use on Field 5800, Duck End Lane, Wilstead, Bedfordshire.
2. The appeal was by way of written representations.
3. The appeal site forms part of an arable field located to the end of Duck End Lane at the northern extremity of the village of Wilstead. The proposed flying field is some 90 by 50 square metres in area and its nearest point is approximately 330 metres from the site access. The distance from the nearest noise sensitive property is about 520 metres and to the nearest part of the fly zone is 390 metres. The submitted application plan shows a no fly zone to the south and west of the site between it and the right of way on the continuation of Duck End Lane and the nearest residential properties.

Background

4. Before turning to the decision letter and the claimant's criticisms of it, I should mention:-

i) That the planning application was refused by the second defendant on the grounds that "in the opinion of the local planning authority the noise generated by the flying activities would cause an unacceptable impact on the amenities of the occupiers of nearby residential properties. The proposal is therefore contrary to policy 68 of the Bedfordshire Structure Plan 2011 and policy LR11 of the Bedford Borough Local Plan 2011."

ii) There was a history of previous flying by model aircraft off Duck End Lane from about June 2003 albeit on different sites than the appeal site;

iii) On 11 August 2004 temporary planning permission had been granted for a change of use of land off Duck End Lane from agriculture to the flying of model aircraft;

iv) A further planning application was made in July 2005 for another temporary planning permission on another site off Duck End Lane which overlapped with the site granted planning permission in 2004. That application was refused by the local planning authority;

v) Since that refusal the club have continued to fly off Duck End Lane moving to the site from which they now fly in September 2007. That is the site in respect of which the planning application was made that was refused by the local planning authority and which was the subject of the appeal.

Decision letter and grounds of challenge

5. The Inspector defined the main issue in the appeal as the effect of the proposed use on the living conditions of nearby residents in terms of noise and disturbance.
6. The Claimant agreed that was the main issue.
7. The challenge is bought on two main bases by Mr Altaras, who appears for the claimant. First, what might be described as a reason/rationality challenge and second, whether the Inspector omitted a material consideration, namely, a consideration of appropriate conditions.

Ground 1 :_Reasons/Rationality Challenge

8. The legal framework for a reason/rationality challenge is well known and was not significantly in dispute between the parties.
9. As Mr Justice Sullivan said in R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 at paragraph 8:-

"Moreover the Inspector's conclusions will invariably be based not merely on the evidence heard at an inquiry or an informal hearing, or contained in representations but, as this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an application alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment faces a particularly daunting task."

10. As for reasons, the classic exposition is now set out in the case of South Buckinghamshire District Council v Porter No.2 [2004] UKHL 33 at paragraph 36:-

"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. Within ground 1 Mr Altaras raises various points.
12. First, he says that the Inspector, having recognised that the proposals before him would accord with the guidelines in the Code of Practice on Noise from Model Aircraft should have allowed the appeal. Instead, for no reason or for bad reasons the Inspector rejected the criteria set out in the Code as a basis for the acceptability of the proposal. The Inspector said that was because:-

a) The Code does not form part of the development plan;

b) The Code is 26 years old;

c) The Code does not provide hard and fast rules to be applied to every site;

d) Tonal quality was not a factor that the Code took into account.

13. The claimant relied in particular upon paragraphs 7 and 8 of the decision letter. They read as follows:-

"7. The claimants base their case primarily on the fact - which the Council have not disputed – that the proposals would accord with the guidelines in the Code of practice on noise from model aircraft published by the Department of the Environment in 1982. As the Council points out, however, this document does not form part of the Development Plan and is 26 years old. Furthermore, the Code makes it clear from the outset that it does not provide hard and fast rules to be applied to any site and that individual cases may require controls that are either more or less stringent.

8. The Council's decision to refuse permission was based on experience of the use and operation following the granting of temporary planning permission and the findings of the two sets of independent specialist consultants employed to assess the situation. The conclusion was that the use was having an unacceptable impact on the nearby residential property, mainly because of the tonal quality of the noise produced by the aircraft rather than the absolute noise level. The Council has pointed out that tonal quality was not a factor that the 1982 Code took into account."

14. The Code of Practice for Noise on Model Aircraft came into force on the 1 February 1982. The accompanying circular states:-

"The Codes of Practice provide guidance to those responsible for the noise sources on means of avoiding undue disturbance to the public and, at the same time, decreasing the risk of noise nuisance action being taken against them."

15. The Code of Practice itself states at paragraph 3.1:-

"This Code of Practice contains guidelines which, if followed, should ensure that undue disturbance is avoided in most circumstances. Its terms are not intended as hard and fast rules to be applied to every site; local circumstances differ. More stringent or less stringent controls may be appropriate in individual cases or on the same site over the year.

a) Where a site has been used for some years without causing complaint, there will normally be no need to require the pattern of use to be modified, unless external circumstances or the character of use alters significantly and disturbance is caused as a result.

b) Where complaints have been received by existing sites, the Code is intended to guide local authorities, model fliers and others on the ways in which intensity and manner of use may be adapted to allow the use to continue, if possible, without causing further disturbance."

16. The Code thus recognises compliance with the Code is not, of itself, sufficient to mean that the development has to be granted planning permission. The Code expressly recognises that local circumstances can be taken into account.
17. In circumstances of the instant case the Inspector was required by the reason for refusal to go on and consider the effect on the living conditions of nearby residents to the proposed site.
18. The local residents had put in written representations as part of the appeal process. Mr Abbott, who lived at 3 Duck End Lane, said as follows:-

"Our objection relates purely to noise. This can best be described by drawing comparison to other noise sources;

It could easily be mistaken for a motorcycle passing by except that will normally disappear after a few seconds, whereas this will continue after 10 minutes or more at a time. Accumulatively, it may last for several hours a day.

It is very similar to the noise from a garden strimmer. Indeed, on one occasion I went outside to look, convinced there was an aircraft flying only to find that my neighbour's gardener was actually using a strimmer. Imagine your neighbour using a strimmer for several hours a day, several days a week and it gives some idea of the level of nuisance that can occur."

19. Mr Abbott went on to exhibit his noise diary which, he said, gave a detailed indication of the level of annoyance that this activity causes.
20. Mrs Snare, who lived at 2 Duck End Lane also put in written representations, which included the following:-

"Since flying from the new site we have noticed a reduction in noise nuisance. However, some of the models flown, mainly delta wings, still cause noise nuisance

Therefore, we have no choice but to continue to oppose the planning application on the grounds of noise nuisance, unlimited flying time and the proposed flying zone, which encompasses a public footpath, footpath 12."

21. Mr Maskell of 5 Duck End Lane wrote on 12 January 2008.

"We all that live along Duck End Lane had our concerns to start with regarding the model flying club. But after raising our concerns with the club they answered all our questions and rectified any issues we had with their activities down at the field. If a resident does have a problem I know that the club will take appropriate action as they have done before to rectify or evaluate any problem that may arise."

22. The Inspector recorded the residents' position in paragraph 6 of his decision letter. That reads as follows:-

"The site is in a predominantly rural area but there are several residential properties and public footpaths close to it. Local residents have conceded that moving the point of launch (POL) to its present position has improved matters but say that noise is still a problem, particularly when certain types of aircraft are being operated."

23. The council produced evidence on noise and submitted an expert report in rebuttal as part of its written representations.
24. The claimant did not produce any new noise evidence for the appeal. It submitted 2 expert reports obtained earlier but relied upon compliance with the Code as the answer to the reason for refusal. Given the reason for refusal the claimant was clearly aware that noise was the key issue.
25. Given that the Code itself is not absolute and provides guidance only and permits of local variation it was clearly not only open to the Inspector to have regard to the evidence on noise as a whole including that from the local residents but it was something that he was obliged to do.
26. Having set out and recorded the evidence from the parties in paragraph 6, 7 and 8 of the decision letter the Inspector then set out his conclusions in paragraph 9 of the decision letter. That reads as follows,

"I have some sympathy for the appellants because it is clear that they have sought to minimise the impact on residents by complying with the Code of Practice and by exerting control over the way aircraft are operated. Nevertheless, the evidence before me indicates that, notwithstanding the moving of the POL to a point of 50 metres further away from the houses on Duck End Lane, the use is still close enough to have an unacceptable impact on the living conditions of their occupants. Consequently it conflicts with policy LR11 of the 2002 Bedford Borough Local Plan."

27. The Inspector's reasons are brief but, in my judgment, are clear and deal with the main controversial issue. I do not accept the Claimant's submission that one should draw inferences from the earlier paragraphs 6, 7 and 8. In my judgment those paragraphs are a record of the cases that were put by the parties through their written representations.
28. Dealing with the detailed points of criticism raised by Mr Altaras namely,

1. That the Code does not form part of the development plan,

2. That the Code is 26 years old and,

3. That the Code does not provide hard and fast rules.

Mr Altaras accepted that all those points are factually correct.

29. As to the absence of a reference to tonal quality in the Code I accept the submission of Mr Honey, who appeared for the Secretary of State, that one must read the decision letter as a whole and as it stands. As a result paragraph 9 of the decision letter is the operative paragraph which contains the decision of the Inspector and reflects his planning judgment. The lack of detailed reasoning or comparison between the different aspects of the evidence which Mr Altaras seeks to advance as deficiencies in the decision-making process, in my judgment, go beyond the duty to give reasons as restated in the case of Porter at paragraph 36.
30. It is further submitted that the Inspector's reasoning cannot be devined from paragraph 9 because it does not relate to any numbers of model planes flying or particular makes of model aircraft. I disagree that the reasoning is deficient. In my judgment the Inspector sets out clearly, succinctly, but adequately, his conclusion on the main controversial issue and concludes that notwithstanding compliance with the Code the impact on the local residents was unacceptable. He had a clear evidential basis to come to that conclusion on the evidence before him and he was entitled to do so. There is nothing irrational or deficient in his reasoning in so concluding.

Ground 2 : Omission of a Material Consideration

31. Mr Alteras submits that there was an omission of a material consideration, namely, consideration of conditions.
32. Mr Altaras submits that by relying on compliance with the Code that carried with it an assumption that there would be conditions on the part of the development proposed by the claimant which would secure compliance of its operation with the Code. It is right to note that reference to conditions by Mr Bellingham, in his written representations on the part of the claimant, is in passing. It was not any main or significant part of his representations. Mr Altaras accepted that there was no positive averment to conditions by the claimant in the event that its development was held not acceptable even though it complied with the Code.
33. The Council included a draft set of planning conditions without prejudice to their main case that planning permission should be refused in their evidence.
34. Against that background Mr Altaras submits that the Inspector failed to grapple with either, 1) whether the conditions proposed by the Council met the tests of Circular 11/95; or 2) whether the conditions put forward by the Council addressed the problem of residential amenity.
35. Mr Altaras referred me in that context to the case of Brightwell –v- Secretary of State for the Environment and Broadland District Council 73 P and CR 418. In particular I was referred to the judgment of Lord Woolf on pages 426-427. That reads as follows:-

"In considering a matter of this sort, the decision letter has to be looked at as a whole. It is for that reason and for that reason alone, that I refer to the third consideration on which Mr Ouseley relied, namely, the failure of the Inspector to say anything about the possibility of granting permission but with a limited time condition. So far as that is concerned I fully accept, as has been made clear in the case of Top Deck Holdings Limited –v- Secretary of State for the Environment that there is no obligation on an Inspector, in the absence of any reference to any appropriate condition, to search for a condition which might be used to assist an applicant who is appealing against a decision of a planning authority.

However in this case one of the matters which clearly influenced the Inspector was the viability of the whole operation. As I have indicated, there were signs that the operation was improving in its viability and that Mr Brightwell was in fact making a success of it. On the other hand, it was only viable on the basis that he devoted a very considerable amount of time personally to the operation and if, for example, he became ill the position could be transformed.

A time condition was obviously a possibility and was relevant, as is recognised by the specific reference by the local planning authority. Again, I would say that the appellant is not being unreasonable in making a criticism of the Inspector for not making any mention of that possibility. That is a further factor that I would put into the balance. One does not know whether the Inspector has considered it but not mentioned it, or whether it is a case of his failing to consider it. In either event, he could be criticised to a minor degree in that regard. Whilst that is not a consideration with which I would have interfered with a decision of the judge I think it is a matter to be taken into account on the general approach."

36. The law in relation to the consideration of conditions and the planning appeals process has been reviewed by Ouseley J in Hann –v- Secretary of State for Local Government and the Regions and Sedgemoor District Council 2002 EWHC 507 Admin. The following paragraphs from that judgment are relevant, paragraphs 37, 43, 52, 56 and 58.

37. "In Top Deck Holdings the court had to deal with a submission that the Inspector had failed to consider whether an objection to planning permission for additional buildings on a rather untidy site could be mitigated by the imposition of a condition requiring the demolition of all, rather than just some, of the existing structures on the site. This proposal was not something which the appellant had put before the Inspector at the appeal. Mann LJ said at page 964:

"The Local Planning Authority's representations before the Inspector made no reference to such a condition, albeit others were proposed. Far more significantly, in his (Mann LJ's) judgment, the appellants' representations were silent upon the point. There was no mention of a condition or of willingness to enter into what would then have been a section 52 agreement. He would have expected the developer to proffer such a condition particularly as they were aware of the Planning Officer's recommendations, contained in his report, which they had troubled to annex to their own representations.

What was the inspector to do in regard to a condition which was neither requested nor, more significantly, offered? Upon that question the court was referred helpfully to the decision of Forbes J in Marie Finlay v Secretary of State for the Environment and London Borough of Islington [1983] JPL 802. The issue before the court, was described by Forbes J as follows:

'The notice of motion took two broad points. The first was that the Secretary of State failed to take into account a material consideration being, in effect, the possibility of attaching conditions to any planning permission which might get rid of some or all of the objections raised to this particular change of use.'

Upon that point the learned judge said this:

'It was one thing to say that where the question of conditions was being canvassed it might be sensible for the Secretary of State to consider making a slight alteration to the condition if that would deal with the problems that might arise: M J Shanley Limited v Secretary of State and South Bedfordshire District Council [1982] JPL 380. It was a wholly different thing to suggest that where there had been no canvassing of any possible condition, the Secretary of State was bound to look around and consider whether there was or was not some possible condition might be attached which might save this planning application.

If the Secretary of State were to consider attaching a condition, the possibility of which had never been canvassed at the inquiry, he would be accused of doing something without giving the appellant a chance of making representations about it. Clearly, if the Secretary of State were minded to adopt any kind of policy of this character, he would have to re-open the inquiry in those circumstances in order that the appellant should have a chance of dealing with the imposition of a condition which had never been canvassed at the inquiry.

If a party to an appeal wanted the appeal to be considered on the basis that some condition could cure the planning objection put forward, then it was incumbent on the appellant to deal with that condition at the inquiry. Unless such a condition has been canvassed the Secretary of State was not at fault in not imposing such a condition. For those reasons, it seemed to him (Forbes J) that the attack on this decision on the grounds of failure to consider the application of conditions failed.'

He (Mann LJ) respectfully agreed with the view expressed by Forbes J. Such an approach had to work sensibly in practice. An inspector should not have imposed upon him an obligation to cast about for conditions not suggested before him. He emphasised 'obligations'. If, of his own motion, he wished to impose a condition, then, as Forbes J suggested, different considerations would arise, including perhaps the reopening of the appeal. He (Mann LJ) expressed no view upon such a situation. In his judgment, in this case the inspector was under no obligation, such as Mr Cochrane had suggested he was, and he would reject that argument also."

43. In my judgment, the most important case is Top Deck Holdings. It is important that Shanley should be read in the light both of the later Court of Appeal decision in Top Deck Holdings and recognising that Top Deck Holdings was approved by the Court of Appeal in Brightwell. The comments made by Woolf J in Shanley reflect the requirement on a planning decision-maker to consider conditions, but when that decision-maker is the Secretary of State or an inspector on an appeal, the extent to which such a decision-maker has to think of conditions which had not been proposed, has to be read in the light of what Mann LJ said in Top Deck.

52. I am satisfied, having heard the submissions of both Miss Lieven and Mr Bedford, that there is no obvious solution which the inspector could have chosen and should have considered and dealt with in his decision letter. These possible conditions are not obvious remedies to an obvious problem, but possible remedies to an obvious problem. Such possible remedies should have been raised by the claimant before the inspector in the light of the obvious problem with a positive condition.

56. Mann LJ pointed out that the approach of inspectors towards conditions which the parties had not suggested had to work sensibly: what can realistically be expected of inspectors in the absence of any specific submissions by the parties? No more onerous burden can sensibly be placed on them than that they deal with obvious problems to which, without further material, there is the sort of obvious solution which any reasonable inspector would propose. This will never be easy for a party to show precisely because that party has not put forward an obvious solution to an obvious problem.

58. I accept that there may be circumstances in which the problem may not be evident to the parties until the inspector's decision has become available. But in my judgment this was not a case which it can be said that there was uncertainty as to what the problem might be: it is a self-evident problem in the light of Circular 11/95 and there is no reason why the criticisms now made of the inspector cannot be made with equal or rather greater force of the claimant, upon whom the primary responsibility for formulating and presenting his case rested."

37. I accept that in promoting an application for development in accordance with the Code the claimant was proposing such conditions as would make the development proposed Code compliant. Other than that absolutely no reference is made in any of the claimant's written representations to conditions. There were, therefore, from the claimant no alternative other conditions for the Inspector to consider. The claimant argues that in those circumstances the Inspector had to go on to consider the without prejudice conditions proposed by the Council. Those, it is said, cut down the application in a way that was acceptable to the claimant.
38. In my judgment there are fundamental errors in that submission.
39. First, there was no indication that the conditions proposed by the Council were acceptable to the claimant in its written representations. Indeed, it could be argued that the converse was the case. In its written representations on the appeal the claimant had been entirely silent on the conditions suggested by the Council. The claimant did comment on the second bullet point in the Committee report which says:-

"Given the operation history of the first two sites, the grant of planning permission even for a temporary period and with restrictive conditions would be unlikely to secure a satisfactory noise climate. Members are advised that given the problems of monitoring the site that such conditions are likely to be unreasonable and unenforceable thus failing the circular tests."

40. The claimant in commenting on that part of the Committee report did observe that it was difficult to see justification for the conclusion of the planning officer that given the problems of monitoring of enforcement, such conditions were unlikely to be reasonable and enforceable. However, the claimant did not go on to say how either 1) problems of monitoring enforcement were to be overcome, or 2) which restrictive conditions it would accept and which would be lawful. Previously, its own advisers had been adamant that a different set of restrictive conditions would probably fail the test of reasonableness and enforceability.
41. That approach on the part of the claimant meant that when the Inspector found that compliance with Code was insufficient to protect residential amenity in the circumstances of the proposal and hence a set of conditions that secured that was insufficient the claimant left the Inspector with no room to manoeuvre or to consider any of the other conditions.
42. Second, on Mr Altaras' submission, on every occasion when a use or development has been found to be unacceptable by the decision maker, the decision maker would then have to proceed to consider the without prejudice set of conditions submitted in the event that the use or development was acceptable in principle even in cases such as here when the claimant expressed no view on those conditions. The implications of such an approach when the proposed development has already been found to be unacceptable are potentially enormous. In my judgment, such a contention is misconceived.
43. It is particularly important in a written representations appeal that the parties are clear about both their primary case and, secondly, what they would accept if they do not succeed in the entirety of their primary case. That was not the position in this appeal.
44. It is unrealistic to expect an Inspector, in the circumstances of this appeal, to proceed to consider conditions suggested by the Council on the basis that they were agreed conditions in the event of the Claimant not succeeding in satisfying the Inspector that the proposed use was acceptable through compliance with the Code. There was simply no evidence to enable the Inspector to go down that route.
45. Further, the differences between the parties on the history of the use meant that there was no obvious solution to the noise from the model aircraft and no obvious set of conditions that the Inspector could be satisfied would deal with the noise. Absent that position, there was no further duty on the Inspector.
46. It is correct that the Inspector does not deal expressly with conditions on the face of the Decision Letter. However, his decision in paragraph 9 of the Decision Letter, that compliance with the Code of Practice and exerting control over the way aircraft are operated was insufficient to avoid an unacceptable impact on the living conditions of the occupants of Duck End Lane meant that conditions that secured compliance with the Code were unacceptable also.
47. As I have set out, there was simply no evidence from the Claimant that it would accept any more restrictive set of conditions than those that would secure compliance with the Code. There was nothing from the Council to indicate that with a more restricted position they found that the use was acceptable. Nor was there anything from any of the local residents that elevated the issue of conditions other than those required to secure compliance with the Code into a main controversial issue in the Appeal. In my judgment, the issue of other conditions was not such an issue in the context of this Appeal. There is, therefore, no deficiency on the part of the Inspector in not taking the issue of conditions further. I accept the submission of Mr Honey that the issue of other conditions was not a main controversial issue in the context of this Appeal.
48. Accordingly, I dismiss this Appeal on both of the grounds on which it has been brought.
49. I invite submissions as to costs.