England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/07/2010

Mr Justice Wyn Williams:

1. In these proceedings, which are brought under section 288 of the Town and Country Planning Act 1990, the Appellant seeks an order quashing the planning permission granted on 9 September 2009 by an Inspector duly appointed by the First Respondent. The grant of planning permission was made on an appeal to the Inspector against the failure of the Second Respondent to determine an application for planning permission which had been made by the Third Respondent on or about 26 November 2008.
2. The application made by the Third Respondent on 26 November 2008 was for full planning permission for fully serviced leisure and visitor moorings at River Brent Moorings, Ferry Quays, Brentford. The site which was the subject of the planning application was shown in detailed drawings which accompanied the application form. The Third Respondent supported its application for planning permission by providing to the local planning authority an operational management plan which, as its name suggests, contained many details relevant to the management and operation of the moorings and water traffic associated therewith.
3. The Inspector considered the Third Respondent's application at a local public inquiry which was held on 30 June 2009. The Appellant in these proceedings, Mr Moore, appeared at the inquiry to object to the Third Respondent's proposals.
4. The planning application was concerned with a stretch of the River Brent near its convergence with the River Thames. The proposed siting of the moorings was along the northern bank of the river. The drawings submitted with the application demonstrated that the length of river over which the leisure moorings would be constructed was 180 metres with a further 22 metres set aside for visitor moorings as required. The drawings also demonstrated that the moorings together with any moored vessel would intrude between 5 and 6 metres into the navigable waters of the river.
5. It is common ground that one of the main issues for consideration by the Inspector was the effect of the proposed development upon the safety of vessels using the rivers Brent and Thames especially at the entrance to the River Brent.
6. The Inspector considered that the two main issues in the appeal were i) the effect of the proposed development on the character and appearance of the surrounding area – the surrounding area being a conservation area; ii) the effect of the proposed development on the safety of vessels using the waterways, particularly at the entrance to the River Brent.
7. The Inspector concluded that the scale, design and materials of the proposed moorings would respect the character of the existing architecture and, overall, they would enhance the character and appearance of the conservation area. The Appellant does not challenge those findings. However, the Appellant does mount a challenge to the conclusions of the Inspector in relation to the issue of the safety of vessels using the waterways. I shall explain the nature of the limited challenge which the Appellant mounts after setting out those parts of the Inspector's decision letter which relate, specifically, to the safety of vessels on the waterways.
8. This issue was considered in paragraphs 13 to 16 of the decision letter. These paragraphs read as follows:-

"13. It seems to me that some of the issues in this case would be likely to be matters for the navigation authority and covered by them in the exercise of their statutory functions. I saw the rivers and their confluence whilst the tide was low and on a calm, summer day. The difficulties that can easily occur, however, were very clearly explained to me at the Hearing and on site. Circumstances such as tides, weather, currents, type of vessels, experience and skill of the crew, can combine to cause hazardous conditions, particularly at the mouth of the River Brent. The high, shuttered banks would be hostile to anyone having the misfortune to be accidentally in the river. Naturally I agree that a single accident or casualty would be one too many. I have also taken into account that these concerns were voiced by parties who have a long-standing and practical knowledge of the waterways in this area.

14. There is disagreement, however, over the level of danger and the position has been clouded by varying assessments. I have noted, for example, that a 2003 risk assessment of moorings in a similar position gave ratings of greater than 12 in 3 out of 7 scenarios. The level of risk identified at that time was not, therefore, as low as reasonably practical. I am also aware that, at a similar time, boats were refused British Waterways' licences on the grounds that Point Wharf was unsafe and unsuitable for moorings. It was considered necessary to keep the end berth clear because of the difficulties for craft turning.

15. British Waterways has no objection to the current proposals subject to the installation of navigational aids to mark the entrance to the River Brent and the moorings. This appears to be a significant reversal of its earlier assessment but I do not consider that it results from a commercial interest in the site. I must give significant weight to this most recent position particularly since it is supported by the Port of London Authority and the Inland Waterways Association although the latter has some reservations. The Council's own marine expert, commissioned to advise on the proposals because of their specialist nature, also concludes that the proposed development of the River Brent moorings would not compromise the safety of navigation.

16. Overall, therefore, I consider that the proposed moorings would not interfere with the waterways nor impede navigation or the free flow of tidal water, complying with UDP policy ENV-W.2.6. In improving mooring facilities on the Blue Ribbon Network, without having any harmful impact on navigation and having been the subject of the necessary risk assessment, the proposed development would also meet the requirements of Policies 4C.13, 4C.14 and 4C.15 of The London Plan, adopted 2008."

9. Mr Burton for the Claimant does not challenge the Inspector's entitlement to reach the conclusions which are expressed in these paragraphs. However, he submits that the Inspector unlawfully failed to ensure that the development which she approved was subject to a condition restricting the extent to which the development could lawfully encroach into the navigational channel.
10. It is true that there is no such condition – certainly no such condition in express terms. In my judgment, however, there was no need for such a condition.
11. The planning permission was granted in the following terms.

"I…..grant planning permission for fully serviced leisure and visitor moorings at River Brent Moorings, Ferry Quays, Brentford in accordance with the terms of the application, ref 0112HE-P3 dated 26 November 2008, and the plans submitted with it, subject to the conditions listed below in Schedules 1 and 3."

12. In R (Shepway District Council) v Ashford Borough Council [1998] EWHC Admin 488 Keene J (as he then was) summarised the following legal principles as governing the interpretation or construction of the grant of outline planning permission by reference to other documents.

"(1). The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions….

(2). This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application….

(3). For incorporation of the application in the permission to be achieved, more is required than mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as "….in accordance with the plans and application…." or "…on the terms of the application….", and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted."

13. In my judgment, in the light of those principles the application and plans which accompanied it were clearly incorporated into the permission which was granted by the Inspector. To be fair, Mr Burton did not really submit to the contrary.
14. In any event this planning permission was a grant of full permission. It is inconceivable that the plans submitted with the application did not become part of the permission – see Barnett v Secretary of State for Communities and Local Government [2010] 1P and C.R. 8.
15. As I explained above, the plans define the limits of the site which was the subject of the planning permission. Accordingly, in my judgment, there can be no basis for the suggestion that the Inspector unreasonably or irrationally failed to impose a condition which had the effect of defining the limit to which the development could lawfully encroach into the navigational channel.
16. It is also to be observed that the Inspector granted planning permission subject to condition 10 which was in the following terms:-

"10. The development hereby permitted shall at all times be operated in accordance with the Brentford Moorings – Ferry Quays Operational Management Plan Revision B dated November 2008 unless otherwise agreed in writing by the local planning authority."

Clause 2.5 of that plan provides that:-

"Safe navigation with a marina is important to ensure that both those using the marina and passing traffic can proceed without significant risk to people, property, business or the environment. The marina management will make regular inspections to ensure vessels are adequately moored within the authorised limits of the marina."

In my judgment, there can be no doubt that the phrase "authorised limits of the marina" refers to the limits of the moorings which are specified upon the plans which accompanied the planning application.

17. In these circumstances the first ground of challenge fails.
18. The second and remaining ground of challenge asserts that the Inspector failed to give adequate reasons or make clear and rational findings in respect of the impact of the development on the potential for increased use of the waterways by waterborne freight.
19. As the Inspector herself points out the use of the River Brent for waterborne freight is a use which is encouraged by national policy. I accept Mr Burton's submission that future use of the river for waterborne freight was a material consideration to be taken into account by the Inspector when deciding whether or not to grant planning permission. That said, the weight to be attached to any material consideration, including this one, was a matter for the judgment of the Inspector.
20. The Inspector dealt with this issue in paragraph 17 of her decision letter under the heading "Other matters". The fact that the issue was dealt with under this heading demonstrates that the Inspector considered that the issue was less significant to her decision than the issues that she had earlier identified as being the "Main issues" (see paragraph 6 above). That exercise of judgment on the part of the Inspector cannot be challenged and is not. Paragraph 17 reads as follows:-

"The use of the waterways by freight traffic is encouraged in national policy. I understand that the Council itself is exploring the possibility of moving waste in this manner although there are no firm proposals to do so at the moment. I heard from British Waterways, however, that whilst it promotes freight use it does not think that this is a priority in Brentford. The Inland Waterways Association would welcome the development of commercial traffic around Brentford but does not envisage that it would ever be on the scale suggested by other parties. As the waterway currently sees very little freight traffic and such movements would not be precluded by the proposed development I do not consider this is a compelling reason to dismiss [the appeal]."

21. I deal, first, with a point of interpretation which arose in the course of the argument. Mr Burton suggests that the phrase "such movements" in the last sentence of paragraph 17 is a reference back to "very little freight traffic". I do not agree with that interpretation. The whole of paragraph 17 is addressing the possible future use of the rivers for freight traffic. In my judgment the phrase "such movements" is a reference to freight traffic in the future rather than the negligible amount of freight traffic at present. If the last sentence of paragraph 17 is interpreted as Mr Burton suggests it adds nothing to the conclusion which the Inspector has already reached namely that such movements as exist on the river at the moment do not justify the refusal of permission. Clearly, in my view, paragraph 17 read as a whole is addressing the different point of freight traffic in the future.
22. However, Mr Burton does not rely simply on a linguistic point. He submits that, upon analysis, the reasoning of the Inspector is flawed. He points to the fact that the basis for the conclusion of the Inspector that the proposed development would not give rise to unnecessary risks for users of the river is that the use of the river by freight vessels is negligible. If, as he submits, there is at least potential for an increase in freight use there would be potential for an unacceptable risk to the users of the river if the proposed development was permitted. Essentially, submits Mr Burton, the granting of permission for the proposed development inhibited the potential future use of the river by freight vessels.
23. I do not accept Mr Burton's analysis. It is true that increased use of the river by freight traffic was supported by national policy. However, there was no evidence before the Inspector so far as I can discern from which she could sensibly predict whether and, just as importantly, when any increase in freight traffic on this river would increase by more than a negligible amount. Further, as Mr Thomann in particular points out, the expert evidence adduced before the Inspector to deal with the issues of risk assessment did not advance the proposition that the proposed development was objectionable in principle. The expert evidence proceeded on the basis that if the proposed development was granted permission and if there was an increase in the use of the river unconnected with the development greater precautionary measures to regulate the traffic on the river would or at least may become necessary. There was no suggestion in the expert evidence adduced before the Inspector that the proposed development together with an increase in the use of the rivers by freight traffic was, inevitably, objectionable.
24. In these circumstances the Inspector was fully entitled to conclude, as she did, that the potential future use of the river by freight vessels was not a compelling reason which justified the refusal of the permission.
25. Further, I do not accept Mr Burton's alternative submission that the Inspector failed to make rational findings about the impact of the development upon the potential for increased freight traffic on the river. There were no rational findings to be made other than the ultimate one – was the impact unacceptable to such an extent that planning permission should be refused. The Inspector clearly and concisely answered that question.
26. It is also to be observed that the Inspector concluded that the proposed development was not merely unobjectionable in principle but also provided positive benefits; further it accorded with local policy relating to recreational development. None of these findings are or could be criticised and, accordingly, such positive benefits had to be weighed against any negative effects of the development. In my judgment, the Inspector's conclusion that the potential future use of the river by freight vessels was not a compelling reason for refusal was well within the discretion afforded to her in light of the positive benefits of the proposed development which she identified.
27. During the course of oral submissions I raised the possibility that the Inspector had in mind when reaching her decision that there were regulatory bodies which would be able to enforce practical and sensible measures for eliminating the risk to users of the river should the freight traffic increase to any substantial extent. I did that because the Inspector referred, specifically, to the statutory powers of the navigation authorities at the beginning of paragraph 13 of her decision letter– see paragraph 8 above.
28. Out of an excess of caution I asked Counsel in the case to investigate the nature and extent of those regulatory powers. I have been provided with a note from Mr. Thoman on behalf of the First Respondent with which Mr. Pickles for the Interested Party agrees. On the basis of that note it would appear that there are appropriate regulatory powers in existence to deal with any future risks which might arise by virtue of an increase in freight vessels on the river. Mr. Burton disagrees. He has provided me with a note which seeks to demonstrate that use of regulatory powers so as to minimise safety risks associated with an increase in freight traffic would be fraught with difficulty.
29. I do not propose to adjudicate upon a dispute which I did not foresee would give rise to complicated legal arguments and which I am sure cannot have had any influence, one way or the other upon the Inspector's reasoning process. The opening sentence of paragraph 13 of the decision letter was not wrong. On reflection and having read and re-read the decision letter I am satisfied that the Inspector concluded that the effect of the proposed development upon the potential for increase freight traffic on the river was not a reason which, on its own, justified the refusal of planning permission. I do not consider that she also concluded that any risks to safety which came into existence by virtue of the development and an increase in freight traffic were unobjectionable because the risks would be managed by regulatory powers.
30. I have reached the conclusion that the second ground of challenge fails. Accordingly the appeal must be dismissed.
31. Finally, I should record for completeness that Mr. Burton appeared for the Appellant with my permission since he was no longer instructed by a solicitor.