England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		28th June 2010

1. MR JUSTICE STADLEN: There are before the court two challenges brought by the appellant, the Ryedale District Council, under section 288(1) and section 289(6) of the Town and Country Planning Act 1990 against the decision letter of the first respondent, the Secretary of State for Communities and Local Government, by his inspector, Mr Michael Hurley, dated 7th September 2009.
2. By the decision letter, the Inspector allowed an appeal under section 174(2)(a) of the 1990 Act by the second respondent, Mr Douglas Sleightholme, against an enforcement notice dated 21st April 2009 issued by the Council concerning the breach of a condition, condition number 5, of the planning permission dated 25th July 2001 requiring a dwelling only to be used for holiday letting purposes by substituting a new condition (number 5) allowing the accommodation to be used only:

"(1) for residential occupation by the owner(s) of the Cherry Tree Park Caravan Park Site and their dependents for so long as the caravan site continues to operate; or

(2) for holiday letting, such that no particular individual, family or group shall occupy the premises for more than 28 days in any one calendar year."

The Inspector also granted planning permission subject to the same terms as new condition 5.

3. Permission to appeal was granted in respect of the section 289 appeal by Mr Christopher Symons QC sitting as a Deputy High Court Judge on 11th September 2009. The appeal raises three issues: whether the Inspector erred in law first in failing to take into account a relevant consideration, namely development plan policy TM5, or failing to provide any adequate reasons as to why that policy was inapplicable; second in failing properly to understand or take into account the applicable control mechanisms for the caravan site adjacent to Cherry Tree Barn; and third in failing properly to apply the advice in national policy PPS7.

Factual background

4. The factual background can be briefly stated. Cherry Tree Barn is a two storey, two bedroom house in open countryside a little to the south of the village of Nawton. It was formally an agricultural barn which had fallen into disuse. In 2001, the second respondent applied for and the Council granted planning permission for its conversion to use as a holiday cottage. That permission was subject to a number of conditions including condition 5 prohibiting its use as the main residence of any occupant.
5. In 2003, the second respondent established caravan facilities on land owned by him and his wife lying immediately adjacent to Cherry Tree Barn. One part of the land is now used by the Caravan and Camping Club for caravan rallies, each lasting for up to five days. Another part is used as a certificated site for up to five caravans by members of the Caravan and Camping Club throughout the year.
6. Some time after the caravan facilities were established, the second respondent and his wife commenced occupation of Cherry Tree Barn as their permanent dwelling.
7. In February 2007, the second respondent applied to the Council for the variation of condition 5 so as to allow him and his wife to occupy Cherry Tree Barn as their permanent dwelling. This application was refused.
8. The Council issued an enforcement notice on 21st April 2009 alleging breach of condition 5 and requiring the use of the land for permanent residential occupation to cease. Their stated reason was that such use was contrary to policy AG6 of the Ryedale Local Plan.
9. The second respondent appealed against the Enforcement Notice and made a deemed application for planning permission for the use of Cherry Tree Barn as his permanent dwelling. That appeal was dealt with by the Inspector by way of the written representations procedure and was determined by him on 7th September 2009.
10. The Inspector identified the main issue in these terms:

"... whether the occupation of the appeal premises as a permanent dwelling is justified as a departure from development plan policy."

He identified in his decision letter the relevant policy, namely policy AG6 of the Ryedale Local Plan, which he described as setting out "the limited circumstances in which the re-use of redundant buildings in rural areas for residential purposes will be permitted".

11. As will become clear, he found in effect that those circumstances were not established in this case. It followed that the occupation of Cherry Tree Barn by the second respondent was prima facie contrary to policy AG6. The Inspector, however, went on to consider the reasons put forward by the second respondent as justifying a departure from the development plan policy. He found that part of the adjacent land was used for caravan rallies, each lasting up to five days, by the Caravan and Camping Club, that there were 16 such rallies in 2008 and that in addition another part of the land was used as a certificated site for up to five caravans by members of the Caravan and Camping Club throughout the year and he noted that these uses were permitted development by virtue of Article 3 and Part 5 of schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995.
12. The Inspector recorded the second respondent's case that he and his wife needed to live permanently in Cherry Tree Barn to supervise the caravan facilities. However, he found that on-site residential accommodation was not essential to the operation of the caravan facilities and he noted that the responsibility for the supervision of the certificated site and the rallies rested with the Caravan and Camping Club. However, he found that the permanent on-site presence of the second respondent and his wife was beneficial.
13. In so finding, he had regard to the numerous laudatory comments about their management of the site made in representations submitted by both caravan users and local people. He said that he understood their concerns but without the second respondent's presence the caravan site might deteriorate and become a source of nuisance or might become less successful to the detriment of the local economy. He added that he was impressed by the well managed and well landscaped appearance of the site at his site visit and said that he considered the second respondent's presence on the site made a positive contribution to tourism in the area. On the other hand, he recognised the limited size of the caravan facilities and the importance of applying development plan policy consistently. However, as a matter of judgment, he formed the view that the continued on-site presence of the owner outweighed the harm arising from the breach of the planning condition. He pointed out that his decision was based on the particular facts of the case and should not be regarded as a precedent.
14. Accordingly, he quashed the enforcement notice and substituted a new condition 5 which allowed the accommodation to be used for residential occupation by the owners of the Cherry Tree Park Caravan Site for so long as the site continues to operate or, as in the original condition 5, for holiday letting.
15. Before turning to ground 1, which was the development plan ground, I record that the parties were in agreement as to the legal principles that apply to this case and their differences were not as to those legal principles but as to the particular facts on which the Inspector based his decisions and in particular the way in which he dealt or did not deal with two matters of planning policy, one local and one national.

Ground 1: the development plan ground

16. By section 38(6) of the Planning and Compulsory Purchase Act 2004, supplementing section 70(2) of the 1990 Act, the Inspector was required to determine the second respondent's appeal in accordance with the provisions of the development plan unless material considerations indicated otherwise. That proposition, which was put forward by the appellant council, was accepted by the first respondent.
17. The Council's case was that the applicable provisions of the development plan were to be found in the Ryedale Local Plan adopted in 2002 and that, the relevant policies included not just AG6 but also TM5, ENV2 and ENV3, to which the Inspector, it was submitted, was bound to have regard.
18. Policy AG6, it was submitted, which is the only development policy to which the Inspector referred at paragraph 3 of his decision letter, sets out the limited circumstances in which the re-use of redundant buildings in rural areas for residential purposes will be permitted. It is pointed out that at paragraph 4 of the decision letter the Inspector noted that there was no evidence to suggest that the building was unsuitable for use as tourist accommodation or that there is no demand for its use as a holiday cottage. Accordingly, it was submitted, such findings could only have led to the inferential conclusion that there was a breach of this development plan policy in that respect, even though he did not expressly record such a conclusion.
19. Reference to policy TM5, it was submitted, was addressed both at paragraph 5 of the grounds of appeal to the Inspector and at paragraph 4.8 of the representations made on behalf of the second respondent, Mr Sleightholme, and also by the Council at paragraph 4.13 of its response representation. It was submitted that the relevance of TM5, having been raised by the parties in their representations, it was surprising that the Inspector made no mention of it at all in his decision letter even though at paragraph 5 of that letter he found that the availability of on-site accommodation is not essential to the operation of the caravan facilities, that being, it was submitted by the Council, an oblique reference to one of the requirements in TM5.
20. The Council further submitted that the relevance of policy TM5 to the appeal determination arose from the scope of that policy which, it submitted, related to the limited acceptability of buildings associated with camping, caravaning or chalet development. Paragraph 10.6.3 of the supporting text was relied upon as requiring applicants to demonstrate why the normal presumption against new dwellings in the countryside should be overridden. Moreover, where such development is found to be appropriate, "a demountable type building/dwelling will be sought to prevent the establishment of the permanent dwelling in the countryside", something not applicable in this case.
21. Criterion (iv) of policy TM5 also required a proposal to be compatible with policies ENV2 and ENV3, which respectively concerned development within the Howardian Hills AONB, not applicable in this case, and within the Wolds and the Fringe of the Moors Areas of High Landscape Value which was applicable but not considered relevant by the appellant as the converted barn was already in existence.
22. It was pointed out that, in its response to the second respondent's representations, the Council had submitted at paragraph 4.13 of its representations that in effect policy TM5 contained a presumption against the second respondent's desire to live on the site and that it had no information to suggest that on-site residential accommodation was required. Further, the Council had drawn attention to the requirement in national policy (planning policy PPS7 paragraph 10 and Annex A) for a special justification for isolated new houses in the countryside concerning the essential need for a worker to live permanently at or near their place of work depending on the needs of the enterprise concerned and not the personal preferences or circumstances of any of the individuals involved. Again, the Council would emphasise that it had no information to suggest that on-site residential accommodation was essential.
23. In those circumstances, it was submitted that it was incumbent on the Inspector to have made express reference to policy TM5 as a material development plan policy and that by failing to do so the Inspector failed to take account of a relevant consideration and/or failed to provide any or any adequate reasons as to why policy TM5 was either inapplicable or overridden by other material considerations. It was submitted that, by reason of his failure to provide reasons, the interests of the Council have been substantially prejudiced as it does not know whether policy TM5 was relevant to his determination of the appeal or not.
24. As already mentioned, the first respondent agreed with the Council that the duty of the Inspector was to determine the appeal in accordance with the provisions of the development plan unless material considerations indicated otherwise. It was accepted on behalf of the Council that the Inspector was lawfully entitled to depart from AG6 if, on the facts, in his judgment that was justifiable. That forms no part of the challenge to his decision.
25. The Secretary of State, the first respondent, submits in response to the Council's complaint that, in finding that the departure from the provisions of the development plan was justified, he failed to take into account policy TM5 and/or failed to provide adequate reasons as to why that policy was inapplicable or overridden by other material considerations, first that policy TM5 is plainly concerned with new buildings and not with the conversion of existing buildings. That, it is submitted, is clear from the supporting text, which refers repeatedly to new buildings, and from the policy itself which is concerned with "buildings to be provided" and which sets out criteria to be satisfied which themselves are relevant only to new buildings. As such, it is submitted that policy TM5 was of no relevance to this development, which concerned the re-use of an existing barn. It was thus not a material consideration for the Inspector to take into account. Second, and alternatively, it is submitted by the Secretary of State that the Inspector was in any event under no obligation to deal expressly with policy TM5 in his reasons because he was obliged to deal only with the principal important controversial issues. His reasons needed to refer only to the main issues in the dispute and not to every material consideration, see South Bucks District Council v Porter (No 2) 2004 1 WLR 1953 at paragraph 36. The Inspector is not obliged, it was submitted, to deal with every or any irrelevant policy.
26. Even if policy TM5 had been material, it was not a principal important controversial issue in that the Council did not identify the policy as being of any relevance in the enforcement notice nor in its appeal statement where it set out the applicable policies. On the contrary, in response to the second respondent's reliance on that policy, the Council's position was that its relevance was "considered to be doubtful". It was plainly the directly applicable policy AG6 which the Inspector dealt with. Accordingly, the Inspector did not fail to take into account a material consideration, nor were his reasons in any way deficient. This was not a main issue or a principal important controversial issue between the parties. Given the way in which the matter was put by the Council, there was no obligation on the Inspector to explain why he did not consider the policy was relevant nor was there any prejudice to the Council in his not doing so.
27. In my judgment, this ground of challenge on the part of the Council fails. In my judgment, first, it is plain that TM5 played no part in the Council's reason for imposing the enforcement notice in the first place. It did not rely on TM5 in support of its decision in the appeal to the Inspector in commenting on the second respondent's appeal and points made in its appeal. On the contrary, as pointed out by the Secretary of State, it positively submitted that TM5 was of doubtful relevance. In my view, TM5 on the appeal to the Inspector was a red herring and it is a red herring on this challenge of the Inspector's decision. It was not a principal issue in controversy between the parties. There was in my view, in any event, not only for that reason no reason for the Inspector to deal with it but also no reason for him to deal with it in that in my judgment policy TM5 is confined to new buildings and not to the conversion of existing buildings and, even if that is wrong, that is certainly a conclusion which was open to the Inspector to arrive at.
28. It is necessary to look at TM5 in the context of AG6. AG6, which appears in chapter 7 of the Local Plan, is headed "Re-use of rural buildings for residential purposes". Policy TM5, which appears in chapter 10 on tourism, is headed "Buildings on camping, caravanning and chalet developments". Policy AG6 is in these terms:

"Outside the Development Limits of settlements, applications for the re-use or adaptation of rural buildings for residential purposes will only be permitted where:-

(i) The application is supported by evidence which:-

(a) Demonstrates why the buildings are unsuitable for conversion to business, industrial, commericial, tourism or recreational uses; or

(b) That there is no demand for the building for such uses in the locality by detailing the efforts which have been made to secure a suitable re-use of the building for a business, industrial, commericial, tourism or recreational use; ..."

Policy TM5 is in these terms:

"Outside the Green Belt, proposals for buildings to be provided in association with camping, caravanning or chalet development will be permitted only where it can be satisfactorily demonstrated that they:

(i) Are necessary for the operation of the site, and the size and nature of the buildings are commensurate with the scale of the enterprise;

(ii) Would not have a material adverse effect on the character or appearance of the countryside;

(iii) Are of a good standard of design and satisfactorily blend into the landscape in terms of their siting, design and materials;

(iv) Are compatible with Polices ENV2 and ENV3."

29. In my judgment, not only in the context of the fact that they have to be looked at against the existence of policy AG6 (which explicitly deals with the re-use of existing buildings for residential purposes) but also having regard to the language used in TM5, TM5 is not designed to apply to the conversion of existing buildings for re-use for residential purposes.
30. I draw attention in particular to (iii), that one of the criteria is that the building must be of a good standard of design and satisfactorily blend into the landscape in terms of its siting, design and materials. That in my judgment is an indication that what is referred to in TM5 and what TM5 is concerned with is new buildings. When one has regard to the introductory language in 10.6, in my judgment that is further supported. It is in these terms:

"10.6.1. Outside the Green Belt, the majority of existing sites are, and it is envisaged most future sites will be, small-scale sites that do not warrant the establishment of separate facilities (eg bars, club houses). To avoid new areas of activity being created in the open countryside and to prevent a proliferation of permanent buildings on unviable sites being developed, the District Council will generally resist new build permanent buildings. The proper place for such facilities is within settlements where traffic levels and parking can best be accommodated.

10.6.2. New house building and other new developments in the countryside are strictly controlled to prevent the erosion of the character and appearance of the countryside. Therefore, there will be a presumption against allowing manager's [sic] accommodation on caravan sites.

10.6.3. Where proposals are submitted for manager's accommodation, the District Council will require applicants to demonstrate why the normal presumption against new dwellings in the countryside should be overridden. Where the District Council does consider such a development appropriate, it will seek a demountable type building/dwelling to prevent the establishment of the permanent dwellinghouse in the countryside."

31. The references to new build permanent buildings, new house building and other new developments, new dwellings and demountable type building/dwelling in my judgment all point to the restrictive interpretation of TM5 as being concerned with new buildings. I accept, as was argued on behalf of the Council, that there are one or two references which are ambiguous but in my judgment, looking at it in context, that is the correct interpretation of policy TM5. It is in any event certainly an interpretation which was reasonably open to the Inspector but in my judgment it is also actually the correct interpretation and it follows that TM5 was not a relevant issue for the Inspector to deal with on the appeal and therefore his failure to deal with it constitutes a breach neither of his obligation to take into account relevant matters nor of any obligation to provide adequate reasons for his decision.
32. So far as this not being a principal issue in controversy between the parties is concerned, the material is in my judgment very compelling. One starts with the enforcement notice itself in which the annex expressly refers only to AG6 and is in these terms:

"The unauthorised use of the property for permanent residential development which, since the building is considered by the Council to be suitable for commercial use and not to form part of a scheme for business re-use, and the applicant has provided no evidence that it is unsuitable or unviable for such use as set out in Policy AG6(i)(a) and (b) of the Ryedale Local Plan, is contrary to Policy AG6 of the Ryedale Local Plan."

In other words, the notice against which the second respondent successfully appealed to the Inspector was a notice which of its very essence confined itself to a complaint that the unauthorised use was in breach and in breach only of policy AG6. There was no reference to or reliance on any assertion that there was a breach of TM5 or indeed that TM5 was in any way relevant to the matters which were dealt with in the enforcement notice.

33. Indeed, on the appeal to the Inspector, reference to policy TM5 was made in the first instance on behalf of Mr and Mrs Sleightholme in paragraph 5 of their grounds and facts. It was they who submitted that the use of the dwelling by the caravan site owners and managers, Mr and Mrs Sleightholme, was in accordance with the relevant policies applicable in the locality, particularly policy AG6 and policy TM5, which was described as a policy referring to use as a property associated with caravan sites. In a further document, it was again the second respondents who referred to support contained in the policy documents being given further strength (the policy documents referred to being policy AG6) by policy TM5, which was said explicitly to relate to buildings on camping, caravan and chalet developments and which it was said specifically related to new buildings. It was said that the planning authority refers to the policy in the reasons for refusal and, although it is not a new building, it is reasonable to quote the policy which states that development would be permitted if it is shown to be necessary for the operation of a caravan site. Thus it was an argument used by way of analogy on behalf of the Sleightholmes.
34. What is in my judgment striking is that, in the response to the appeal by the Council, which sets out policy AG6, the policy referred to in the enforcement notice sought to be upheld by the Council, the Council commented on the submission made on behalf of the Sleightholmes in these terms:

"The relevance of Policy TM5 - Buildings on camping, caravan and chalet developments is considered to be doubtful as the Policy appears to relate to ancillary facilities such as bars/clubhouses on caravan sites, which the appeal site or surrounding area is not."

35. This, in my judgment, argues against the submission now sought to be raised by the Council that TM5 was a central part of the issue between the parties to which therefore the Inspector should have referred in his decision, both as a matter for him to take into account and also in terms of giving his reasons. Put shortly, the position adopted by the Council was that TM5 was irrelevant and it was not relying on any aspect of TM5 to support the submissions that it was making which was that the decision that it made should be upheld on the basis that there had been a breach of AG6. For these reasons, in my judgment ground 1 is not made out.
36. Ground 2 was pressed on behalf of the Council by Mr Pugh-Smith with considerably less vigour than ground 1, which was the centre piece of the challenge against the decision the Inspector. The challenge is put in these terms. The Inspector found at paragraph 7 of his decision letter that the availability of on-site accommodation was not essential to the operation of the caravan facilities. He noted that the responsibility for the supervision of the certificated site and the rallies rested with the Caravan and Camping Club in accordance with the provisions of 1960 Act. The Inspector set out a number of reasons why he considered their permanent on-site presence to be beneficial. Based on representations submitted by both caravan users and local people, he acknowledged their concerns that, without the second respondent's presence, the caravan site might deteriorate and become a source of nuisance or become less successful to the detriment of the local economy. He found that their presence made a positive contribution to tourism in the area. However, it was submitted that the land in question was not a permanent caravan site nor did its continuing existence, control and supervision procedures under the 1960 Act require any presence, let alone the permanent presence of the second respondent and his wife in an adjoining dwelling house. Nor, it was submitted, had the Caravan and Camping Club, the relevant exempt organisation under the provisions of the first schedule to the 1960 Act, submitted any special case for requiring the physical presence of the second respondent or his wife. At best, it had been contended on behalf of the respondent that it was necessary for the second respondent and his wife to be present but no supporting letter from the caravan club had been produced, let alone one to substantiate that assertion.
37. The Council's representations drew attention to the fact that the caravan site would be subject to a licensing renewal procedure every five years administered by Natural England. Accordingly, it had no guaranteed performance and required very little supervision which in any event was under the direction of the club. Accordingly, it was submitted that, in accepting the need for the permanent residence of the respondent and his wife as a justification for occupation of the dwelling house, the Inspector misunderstood or ignored the full extent of the applicable control mechanisms for the site under the 1960 Act and so failed to take account of a relevant consideration.
38. The Secretary of State's response on ground 2 to those submissions was that nothing in the Inspector's decision rested on or implied a finding that the caravan site is permanent. On the contrary, the substituted condition 5 imposed by the Inspector expressly confines the residential occupation by the owners of the caravan site to the period during which the caravan site continues to operate. If it ceases to operate as a caravan site, such residential occupation will no longer be authorised. Further, there is no basis, it was submitted, for the assertion that the Inspector failed to take into account that the continued existence of the caravan site under the 1960 Act did not require any presence of the second respondent. On the contrary, the Inspector expressly found that the availability of on-site residential accommodation was not essential to the operation of the caravan facilities and expressly noted that responsibility for supervising the certificated site and the rallies rested with the Caravan and Camping Club under the 1960 Act. Thus, the Inspector's decision was not based on a requirement for the second respondent's presence on the site, it was based on the advantages of that presence. In my judgment those submissions are plainly right.
39. In paragraph 6 of the decision letter, the Inspector found:

"The appellant's case is that he and his wife must live permanently in the appeal premises to supervise the caravan facilities. He seeks a relaxation of the breached condition, so as to permit this.

I note that the caravan facilities were first established in 2003, prior to the unauthorised occupation of Cherry Tree Barn as a permanent dwelling. In the circumstances, I do not consider the availability of on-site residential accommodation to be essential to the operation of the caravan facilities. Furthermore, I note that responsibility for the supervision and certificated site and the rallies rests with the Caravan and Camping Club, in accordance with the provisions of the Caravan Sites and Control of Development Act 1960.

Nevertheless, I consider the permanent on-site presence of the appellant and his wife to be beneficial."

He then concluded that on balance he considered that the continued on-site presence of the owner of the caravan site outweighs the harm arising from the breach of the planning condition and in particular it is plain from paragraph 8 that in reaching his conclusion he was influenced by what he described as laudatory comments referable specifically to the second respondent.

40. In my judgment, the second ground is simply misconceived in that it does not accurately reflect the process of reasoning by which the Inspector reached his conclusion.

The third ground: the policy ground

41. The Council submitted that in paragraph 4 of the decision letter the Inspector in effect found that the appeal proposal was in breach of policy AG6 of the Ryedale Local Plan in that the building was suitable as tourist accommodation and that there was no absence of demand for its use as a holiday cottage. Even allowing for his lack of reference to policy TM5, he made a clear finding at paragraph 7 that the availability of on-site accommodation was not essential to the operation of the caravan facilities. In consequence, it is submitted, the Inspector must have found that the appeal proposal was in breach of PPS7 advice and in particular, and this is of critical importance, in breach of the requirement in paragraph 10 and Annex A of planning policy PPS7 for a special justification for isolated new houses in the countryside concerning the essential need for a worker to live permanently at or near their place of work depending on the needs of the enterprise concerned and not the personal preferences or circumstances of any of the individuals involved.
42. Accordingly, it is submitted, if there were counterbalancing material considerations, they had to outweigh the lack of essentiality found by the Inspector and by simply finding that the continued on-site presence of the owner of the caravan site outweighed the harm arising from breach of a planning condition the Inspector applied the wrong test. Further and alternatively, his finding in paragraph 9 of the decision letter was unreasonable in the particular circumstances.
43. The response of the Secretary of State to that submission under ground 3 is that it is clear that paragraph 10 and Annex A of PPS7 are concerned with newly built residential development and not with the re-use of existing buildings. The passages in that document refer repeatedly to new development and their content make clear that that is what they are concerned with. It is submitted that the matter is put beyond doubt by the fact that the re-use of existing buildings is explicitly dealt with in a different part of the PPS, namely paragraphs 17 and 18. Thus, it is submitted, paragraph 10 and Annex A of PPS7 were of no relevance to the appeal and the Inspector was not obliged to apply any test of essentiality or special justification. Insofar as PPS7 was of any relevance, it was submitted that it was paragraph 17 and 18 of that document that applied, which effectively advised that it should be dealt with in development plan policies, the relevant policy, it being submitted in this case, being AG6, which is what the Inspector applied. Reliance was placed on the fact that in paragraph 17 and 18 there is recognition that in some locations residential conversions may be more appropriate than other uses and that they are supportive of residential conversions in accordance with PPG3 in locations adjacent or closely related to villages. There is nothing in those paragraphs requiring the application of a test of special justification or essentiality in this case.
44. I accept the Inspector's submissions on this ground also. In considering paragraph 10 of policy PPS7, it is in my judgment necessary to do so in context. Part of that context is to be found in paragraph 17 and 18 of PPS7. The heading of those two paragraphs is "Re-use of buildings in the countryside". Paragraph 7 is in these terms:

"The Government's policy is to support the re-use of appropriately located and suitably constructed existing buildings in the countryside where this would meet sustainable development objectives. Re-use for economic development purposes will usually be preferable, but residential conversions may be more appropriate in some locations, and for some types of building. Planning authorities should therefore set out in LDDs their policy criteria for permitting the conversion and re-use of buildings in the countryside for economic, residential and any other purposes, including mixed uses."

Then various criteria are set out. Paragraph 18:

"Local planning authorities should be particularly supportive of the re-use of existing buildings that are adjacent or closely related to country towns and villages, for economic or community uses, or to provide housing in accordance with the policies in PPG3, and subject to the policies in paragraph 7 of this PPS in relation to the retention of local services."

45. These provisions, which are explicitly to do with the re-use of existing buildings in the countryside, is to be contrasted with the language to be found in paragraph 10 and in particular when paragraph 10 is put in the context of the paragraphs immediately preceding and following it. Paragraphs 8 to 11 of PPS7 are in these terms:

"Housing

"8. The Government's planning objectives and policies for housing are set out in PPG3, Housing. The key aim is to offer everybody the opportunity of a decent home. The needs of all in the community should be recognised, including those in need of affordable and accessible, special needs housing in rural areas. It is essential that local planning authorities plan to meet housing requirements in rural areas, based on an up to date assessment of local need. To promote more sustainable patterns of development and make better use of previously developed land, the focus for most additional housing in rural areas should be on existing towns and identified service centres. But it will also be necessary to provide for some new housing to meet identified local need in other villages.

9. In planning for housing in their rural areas, local planning authorities should apply the policies in PPG3. They should:

(i) have particular regard to PPG3 guidance on the provision of housings in villages and should make sufficient land available, either within or adjoining existing villages, to meet the needs of local people; and

(ii) strictly control new house building (including single dwellings) in the countryside, away from established settlements or from areas allocated for housing in development plans."

10. Isolated new houses in the countryside will require special justification for planning permission to be granted. Where the special justification for an isolated new house relates to the essential need for a worker to live permanently at or near their place of work in the countryside, planning authorities should follow the advice in Annex A to this PPS.

11. Very occasionally, the exceptional quality and innovative nature of the design of a proposed, isolated new house may provide this special justification for granting planning permission. Such a design should be truly outstanding and ground-breaking, for example in its use of materials, methods of construction or its contribution to protecting and enhancing the environment, so helping to raise standards of design more generally in rural areas. The value of such a building will be found in its reflection of the highest standards in contemporary architecture, the significant enhancement of its immediate setting and its sensitivity to the defining characteristics of the local area."

46. Annex A is too long to justify setting out in full. However, the introductory words in paragraph 1 are:

"Paragraph 10 of PPS7 makes clear that isolated new houses in the countryside require special justification for planning permission to be granted. ... It will often be as convenient and more suitable for such workers to live in nearby towns or villages or suitable existing dwellings, so avoiding new and potentially intrusive development in the countryside...

2. It is essential that all applications for planning permission for new occupational dwellings in the countryside are scrutinised thoroughly ...

...

Temporary agricultural dwellings

12. If a new dwelling is essential to support a new farming activity, whether on a newly-created agricultural unit or an established one, it should normally, for the first three years, be provided by a caravan, a wooden structure which can be easily dismantled, or other temporary accommodation ..."

In my judgment, it is plain that paragraph 10, on which the Council places reliance, is concerned with new buildings and not with the conversion of existing buildings for residential purposes. In my judgment, this follows both from the contrast between paragraph 10 and its immediately preceding and succeeding paragraphs on the one hand and paragraph 17 and 18 on the other, which explicitly deal with the re-use of existing buildings in the countryside. It also follows from the language used in paragraph 10 and the reference to isolated new houses. It also follows by inference, in my judgment, from paragraph 11 and its reference to and emphasis of the significance of the innovative nature of the design of a proposed isolated new house and its reference to the highest standards in contemporary architecture. It follows also in my judgment from paragraph 9(2) and the reference to the need strictly to control new housebuilding. In my judgment, that is the correct interpretation of paragraph 10 and it follows from that that in my judgment ground 3 is based on a false premise and cannot succeed. I would add that in any event, and putting it at its lowest, that the interpretation of paragraph 10 in PPS7 which I have found is one which the language of the paragraph is capable of bearing and one which the Inspector was entitled and/or would have been entitled to adopt.

47. In all these circumstances, in my judgment, these appeals fail.

MS DAVIES: I am grateful, my Lord. I do not know if a schedule of costs has reached your Lordship.

MR JUSTICE STADLEN: No.

MS DAVIES: Let me hand one up. (handed)

MR JUSTICE STADLEN: Thank you.

MS DAVIES: It is on two sides, my Lord, and your Lordship sees that the final figure at the end is a figure of £6,844 and I would ask your Lordship to make an order for the claimant to pay the first respondent's costs summarily assessed at that figure of £6,844.

MR JUSTICE STADLEN: Mr Pugh-Smith?

MR PUGH-SMITH: Good morning, my Lord. My instructions are not to object to that sum.

MR JUSTICE STADLEN: Right.

MR PUGH-SMITH: My Lord, I do have an application to make.

MR JUSTICE STADLEN: Well, shall I just deal with costs first?

MR PUGH-SMITH: Well, if you like. I did not know whether you wanted to deal with everything together.

MR JUSTICE STADLEN: No, I will just deal with that first of all.

There is an application for costs to be paid by the Council to the Secretary of State to be summarily assessed at £6,844. That is not resisted either as to principle or as to quantum. Accordingly, I make that order. Yes?

MR PUGH-SMITH: My Lord, as intimated by me when I addressed you on policy ground 3 on 16th March, I highlighted the fact that the approach taken by the Secretary of State raised a very interesting point of national policy interpretation, certainly one that came as something of a surprise to this local authority. Now, my Lord, clearly there is an issue of wider importance than simply the facts of this matter and my instructions are to seek permission to appeal in respect of your findings on the policy ground. I should point out --

MR JUSTICE STADLEN: Just that ground?

MR PUGH-SMITH: Just that ground, my Lord. I think that is being realistic. It is a matter, as I say, of wider importance and, your Lordship may recall, I took you through the entirety of the document and, of course, I took you to paragraph 3 and the issue of context of how new development was then addressed subsequently in the context of housing and of course re-use and adaptation of existing buildings, and, as your Lordship may be aware, it was my submission that, when one came to paragraph 10, in contrast with paragraph 11, the wording was capable of embracing new houses by way of conversion.

My Lord, put simply, clearly there is a concern on the part of my clients as to the extent to which this issue needs to be dealt with at an appropriate level of consideration and whilst I appreciate, in the context of which your Lordship has found, you have taken the view that it was within the range of findings open to the Inspector. As you know, we take a different view. So, for these reasons, my Lord --

MR JUSTICE STADLEN: Well, I have made two findings. One is what it actually means and what it was open to him to consider.

MR PUGH-SMITH: Indeed.

MR JUSTICE STADLEN: And you need to succeed on both of those, would you not?

MR PUGH-SMITH: I appreciate that, my Lord, but clearly, if it was the view of another court that my interpretation was correct, then clearly that calls into doubt the Inspector's judgment on that aspect.

MR JUSTICE STADLEN: If the Court of Appeal were to hold that it means what you say it means but that it is capable of meaning by implication what the Inspector considered it meant, you do not win, do you?

MR PUGH-SMITH: Well, not in those circumstances, my Lord, but put in another way there is -- I would --

MR JUSTICE STADLEN: Well, I am just trying to establish -- in order for you to succeed on the appeal, you would need to persuade the Court of Appeal not only that my interpretation is wrong but that the words are capable of bearing that interpretation. Is that right?

MR PUGH-SMITH: Well, my Lord, I do not think I need to go that far. I just need to establish that the words are capable of bearing the interpretation that I have put forward in order to call into doubt the soundness of the Inspector's finding.

MR JUSTICE STADLEN: You need -- what do you need to establish?

MR PUGH-SMITH: My Lord, in my submission, I simply need to establish that the interpretation that we place on paragraph 10 is capable of bearing the meaning that I put forward, in other words it embraces conversions.

MR JUSTICE STADLEN: Well, supposing it is capable of that, how does that help you on the substantive appeal?

MR PUGH-SMITH: Because, my Lord, it is within the range of interpretations that the Inspector could have taken. Therefore if --

MR JUSTICE STADLEN: But if my interpretation is also within that range, how can you challenge his decision as being unlawful?

MR PUGH-SMITH: Well, my Lord --

MR JUSTICE STADLEN: Do you not have to -- in order to succeed on the appeal -- I mean, I understand that your clients are interested in knowing what the Court of Appeal thinks, how it interprets paragraph 10, but the Court of Appeal does not exist for, as it were, giving academic declarations.

MR PUGH-SMITH: I appreciate that.

MR JUSTICE STADLEN: And therefore I am just trying to identify whether I am right, whether you accept that your appeal on ground 3 could not succeed unless the Court of Appeal held not only that my interpretation is wrong but that it is not one that the words are capable of bearing.

MR PUGH-SMITH: Well, my Lord, I appreciate the way in which you have put matters and that is the basis upon which I would have to put the matter to the Court of Appeal. But the point --

MR JUSTICE STADLEN: You could not succeed unless you got that far.

MR PUGH-SMITH: Indeed, my Lord, but what I am suggesting is this, that the matter is sufficiently open to interpretation and the reasonableness of the interpretation that we place, that the Inspector should have addressed the matter in the way I suggested. In other words, he should have provided more sufficient reasons to explain his position and certainly with regard to the issue of PPS7.

MR JUSTICE STADLEN: Thank you very much.

MS DAVIES: First of all, my Lord, there is no evidence before you of any general difficulty in the application of this particular policy. It is said that it is of wider importance but there has been nothing put before you to show that there is a wider difficulty with this. If and in so far as there is any concern about the way in which it is to be interpreted, if I may respectfully say so, that has now been put beyond doubt by your Lordship's extremely clear and thorough analysis of the position and statement of the approach and I would say for that reason it is not arguable that there is another interpretation of this policy. So it is not arguable, if there is a broader implication, well, that has been dealt with by your Lordship's judgment, it does not need to go to the Court of Appeal, and, my Lord, it is right, as your Lordship has engaged with my learned friend, that of course he has to show that the Inspector gave the policy a meaning that it was not capable of bearing. So he is quite wrong when he submits to your Lordship that he merely has to show that there is another meaning. He has to show that this Inspector erred in law and that means that the interpretation that your Lordship has found is the right interpretation is one that the words are not capable of bearing and, my Lord, in my submission that is a wholly unarguable proposition for the reasons your Lordship has given.

MR JUSTICE STADLEN: Thank you very much.

MR PUGH-SMITH: My Lord, if I could draw your Lordship's attention to page 24 of the bundle, there was evidence in front of you. It is paragraph 5(1) and I will read it out: "Because of --

MR JUSTICE STADLEN: What are we looking at?

MR PUGH-SMITH: Page 24 of the bundle.

MR JUSTICE STADLEN: Yes. Is this the --

MR PUGH-SMITH: It is the supporting witness statement of the head of planning, Mr Housden and he said this:

"Because of the strict control on residential development in the open countryside both within National Policy (Planning Policy Statement PPS7) and development plan policy and the need for "essentiality" we are very concerned that the Inspector's approach and findings in this Decision Letter will be used as a precedent for further relaxations elsewhere within the district. Although the Inspector states that this decision is not a precedent this rural district has hundreds of barns adjoining agricultural land which could be used by owners to repeat the circumstances of this case; for the decision, effectively, allows manager's accommodation for a temporary permitted 'caravan site', which is an agricultural field, where that manager is good at his job."

Now, my Lord, the point is this: if our interpretation is correct, then paragraphs 17 and 18 need to be read subject to paragraph 10. There is a sufficient certainty in that regard, my Lord, for the Court of Appeal, with respect to you, to take a different approach as to the Inspector's determination. So, my Lord, there is substance in what I put forward to your Lordship and I think, with great respect to my learned friend, it makes light of the seriousness of the issue and its implications for this determination, which is simply saying it is a good thing to have Mr and Mrs Sleightholme living on the site is not sufficient in these particular restraint circumstances.

MR JUSTICE STADLEN: Do you want to say anything about the witness statement reference?

MS DAVIES: Well, it does not go to the point, my Lord, that I think was being argued, that there is a wider policy importance about the interpretation of paragraph 10 of PPS7. The policy means what it says it does. That has an implication in terms of the dwellings, the buildings within the district. That is a separate matter, that there is not a wider difficulty with the meaning of the policy.

MR JUSTICE STADLEN: Thank you very much.

Well, I will not give permission to appeal. First of all, there is no application to appeal against my conclusions on grounds 1 and 2 but there is an application to appeal against my finding on ground 3 in relation to paragraph 10 of policy PPS7. In that regard, it is accepted by Mr Pugh-Smith on behalf of the Council that, in order to succeed on an appeal, he would have to show not only that my interpretation of paragraph 10 is wrong but that that interpretation is one which the words are not even capable of bearing and it would not be sufficient for him to succeed in showing that my interpretation was wrong. That in my view is an insurmountable obstacle in the path of the Council. Whether my interpretation is right or wrong, in my judgment there is no realistic prospect of the Council succeeding in showing that the words are not capable of bearing that interpretation. The interpretation for which he contended, namely that it is not confined to new buildings, even if that is an interpretation that it is capable of bearing, it does not follow that the interpretation which I have put upon it is one which the words are incapable of being born. In my view, there is no realistic prospect of success on that point and accordingly in my judgment there should be no permission to appeal. Thank you very much.

Do you have the form? Thank you. (pause)

MR PUGH-SMITH: My Lord, before you complete the paperwork, I think I just need to deal with logistical matters. You have made your judgment and others might disagree. We have to deal with the practical stages now. I do not know how long the transcript will take to be produced, but could I suggest, my Lord, and this follows the experience of certainly Mr Griffiths, who sits behind me for Sharpe Pritchard, that we have permission to serve the appeal papers 21 days after receipt of the transcript, please?

MR JUSTICE STADLEN: Certainly. Are you happy with that?

MS DAVIES: No objection to that, my Lord.

MR JUSTICE STADLEN: Of course.

MR PUGH-SMITH: Thank you.

MR JUSTICE STADLEN: Can I thank both counsel very much for the very helpful way in which the arguments were advanced and also the solicitors for the way in which the matter was dealt with on the papers. Thank you both very much.