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
		Thursday, 20 January 2011

1. JUDGE ROBINSON: This is an application under Section 288 of the Town & Country Planning Act 1990 to challenge a decision given by letter dated 22 January 2010 by the Secretary of State for Communities and Local Government, confirming a purchase notice served by the second defendants on the claimant in respect of land owned by them south west of Home Farm, Cotwalton, Stone, Staffordshire ("the Site"). The effect of the purchase notice served by the second defendants was that it required the claimant to acquire the second defendants' interest in the Site.
2. The claimant was unhappy about that and challenges the decision to confirm the purchase notice now on five grounds which all revolve around the same complaint, namely the way in which the Secretary of State dealt with the extent to which the Site could be used in conjunction with neighbouring land.

Background

3. The claimant is the local planning authority for the area within which the Site is located. The first defendant is the Secretary of State with responsibility for determining whether a purchase notice which a local planning authority has refused to accept should be confirmed or not. The second defendants are the owners of the site. On 22 May 2007 the claimant refused to grant planning permission for construction of a dwelling house and driveway on the Site. As a result of that, on 22 January 2008 the second defendants served a purchase notice pursuant to Section 137 of the Town & Country Planning Act 1990 ("the 1990 Act") on the claimant. The claimant responded to the effect that it did not accept the purchase notice, as a result of which there was an appeal to the Secretary of State. A public inquiry was held before an Inspector appointed by the first defendant on 24 and 25 February 2009. The Inspector's Report recommended that the purchase notice be confirmed. By a decision letter dated 22 January 2010, the first defendant agreed with the Inspector's conclusions and confirmed the purchase notice.

The Law

4. Section 137 of the Town & Country Planning Act 1990 sets out the circumstances in which a purchase notice may be served. Sub-section (1) (a) states:

"(1) This section applies where —

(a) on an application for planning permission to develop any land, permission is refused or is granted subject to conditions."

Sub-section (2) provides:

"(2) If —

(a) in the case mentioned in sub-section (1) (a) ..... any owner of the land claims that the conditions mentioned in sub-section (3) are satisfied with respect to it .....

.....

he may, within the prescribed time and in the prescribed manner, serve on the council of the district ..... in which the land is situated a notice (in this Act referred to as 'a purchase notice') requiring that council to purchase his interest in the land in accordance with this Chapter."

Sub-section (3) provides as follows:

"(3) The conditions mentioned in sub-section (2) (a) are —

(a) that the land has become incapable of reasonably beneficial use in its existing state; and

.....

(c) in any case, that the land cannot be rendered capable of reasonably beneficial use by the carrying out of any other development for which planning permission has been granted or for which the local planning authority or the Secretary of State has undertaken to grant planning permission."

5. I will pause at this stage to interpose. The site is in the countryside and the Green Belt. No one suggested that it was appropriate for planning permission to be granted for any development, save that the claimant undertook to grant planning permission for a stable or shelter ancillary to the use of the land for grazing or recreation if it was considered that that was the only way the land could be put to beneficial use. Because those were rejected by the Secretary of State as reasonable beneficial uses, there was no need for the undertaking to be relied upon, and I refer to this aspect of the case no further.
6. By virtue of Section 138 (1) of the 1990 Act, no account is to be taken of any unauthorised prospective use of the land. The effect of that is that, subject to some exceptions which are not relevant for present purposes, the only uses which can be considered as prospective candidates for a reasonably beneficial use are those for which no planning permission is required or planning permission is deemed to be granted by General Development Order.
7. There are then provisions setting out the procedure to be followed. The Secretary of State's powers are set out in Section 141. Sub-section (1) provides:

"(1) Subject to the following provisions of this section ..... if the Secretary of State is satisfied that the conditions specified in sub-section (3) of section 137 are satisfied in relation to a purchase notice, he shall confirm the notice."

It goes on to indicate that the Secretary of State may, in the alternative, grant planning permission for the development for which permission was refused or direct the grant of planning permission for other developments if an application is made. Those provisions are not relevant in this case.

8. The Secretary of State has adopted a policy to which he will have regard in the exercise of his powers under these provisions, namely Circular 13/83. In particular that gives guidance as to the meaning of "reasonably beneficial use":

"12 The question to be considered in every case ..... is whether the land in its existing state, taking into account operations and uses for which planning permission ..... is not required, is 'incapable of reasonably beneficial use'. The onus is on the server of the notice to show that this is so .....

13 In considering what capacity for use the land has, relevant factors are the physical state of the land, its size, shape and surroundings, and the general pattern of land-uses in the area; a use of relatively low value may be regarded as reasonably beneficial if such a use is common for similar land in the vicinity. It may sometimes be possible for an area of land to be rendered capable of reasonably beneficial use by being used in conjunction with neighbouring or adjoining land, provided that a sufficient interest in that land is held by the server of the notice, or by a prospective owner of the purchase notice land. Use by a prospective owner cannot be taken into account unless there is a reasonably firm indication that there is in fact a prospective owner of the purchase notice site ..... Profit may be a useful comparison in certain circumstances, but the absence of profit (however calculated) is not necessarily material: the concept of reasonably beneficial use is not synonymous with profit.

.....

16 The Secretary of State considers that, in seeking to satisfy himself whether conditions (a) to (c) ..... have been fulfilled, he may take into account, among other things, whether there is a reasonable prospect of the server's selling or letting the land for any purpose, were its availability to be made known locally. He would normally expect to see some evidence to show that the server has attempted to dispose of his interest in the land before he could be satisfied that the land had become incapable of reasonably beneficial use."

9. These provisions were referred to by the Court of Appeal in Colley v Secretary of State for the Environment and Canterbury City Council [1999] 77 P & C R 190, 197 in this way:

" ..... The statute gives no express indication as to what factors should be taken into account in making that assessment and the case law, in so far as we were referred to it, does not either. In order to produce consistency and to help local authorities and inspectors the Secretary of State published 15 years ago Circular 13/83. None of the parties before us contended that the guidance therein contained was erroneous."

10. Before leaving the law, the legal principles which apply to this challenge were common ground between the parties. By virtue of Section 288 (1) of the 1990 Act:

"(1) If any person -

(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds —

(i) that the order is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that order; .....

.....

he may make an application to the High Court under this section."

11. Normal Administrative Law principles apply which include a duty to have regard to all material considerations and to give reasons. The obligation to give reasons was dealt with in detail by the House of Lords in South Buckinghamshire District Council v Porter [2004] 1 WLR 1953, paragraph 36, where Lord Brown of Eaton-under-Heywood said:

"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 ..... "

The Decision

12. In paragraph 8 of the decision letter the first defendant said:

"The Secretary of State agrees with the inspector that, for the reasons given in IR 55 to 73 and 79, the land in question is incapable of reasonably beneficial use in its existing state. The Secretary of State is therefore satisfied on all the available evidence that condition (a) has been met in the particular circumstances of this case."

It follows that the first defendant essentially agrees with the Inspector's conclusions. Therefore it is to the Inspector's conclusions that I must turn and to which the submissions in this case relate.

13. The Inspector described the site and its surroundings in paragraphs 1 and 2 of his report as follows:

"1 ..... The site which, according to the servers, is about 350m² in extent, forms part of a larger area of land owned by them to the north and south of a watercourse that passes through it. The western part of the purchase notice site is largely taken up by the remains of a former cottage, of which only a few low sections of wall now remain. The site also includes a narrow neck of land about 2.5m wide and about 45m long extending to the north-east, referred to at the inquiry as 'the access stub'. While the ruins of the former cottage are a discernible feature on the ground, neither the access stub, nor a roughly rectangular area within the purchase notice site immediately to the east of the ruins, are physically distinct from the rest of this part of the servers' land.

2 The rest of the servers' land to the north of the watercourse [for the purpose of the report I shall refer to this area as 'the wider site'] comprises in the main a mixture of rough grassland and scrub. To the north of the former cottage, at a higher level, and bounded by a low blockwork wall on its southern edge, is an area of concrete hardstanding, largely covered in moss. Various items of debris can be seen on the wider site and a number of excavations carried out during the site inspection revealed old building materials and the like below the surface vegetation. The rest of the servers' land to the south of the watercourse is down to grazing pasture, as, for the most part, is a larger area of land to the north and east and south that is owned by a Pension Fund, of which the servers are trustees. Taken together, the servers' land and the Pension Fund land add up to 19ha ..... "

14. Thus the Site was a small area of land with an access track wholly encompassed by a larger area also owned by the second defendants. The larger area was divided into two separate areas: the first to the north of the watercourse, the land in which the Site lay which the inspector described as rough grassland and scrub and which he called the wider site; and land to the south of the watercourse which was used for grazing. The second defendants' land was surrounded on three sides by land owned by the Pension Fund which was in agricultural use.
15. As Mr James Strachan for the Secretary of State submitted, it was a fundamental part of the Inspector's role to inspect the site and reach his own conclusions as to its condition. It is clear from his description that the Site included the remains of a dwelling and the wider site included concrete hardstanding with a low block-work wall on its southern edge, various items of debris, old building materials and the like.
16. The Inspector recorded the second defendants' case on reasonably beneficial use starting from paragraph 11. He said:

"12 ..... Whilst the land adjoining the wider site is in agricultural use, the purchase notice site is completely incapable of any use in its existing derelict and possibly dangerous condition; the whole of it is strewn with debris and the wider site is also strewn with rubble and other footings of former buildings.

13 The presence of the previous structures and the remaining debris preclude the use of the purchase notice site for agriculture or similar purposes. The land could not be put to any of the suggested alternative uses until work has been carried out. The concrete hardstanding to the immediate rear of, and above the former cottage, is cracked and in poor condition and has a concrete block retaining wall which is in a dangerous condition.

14 The land would be too dangerous for grazing by horses, or by any other livestock. It is also incapable of use for any storage or other ancillary purpose in connection with agriculture. The only way that it could be put to some beneficial use would be by demolishing the structure and removing it. Until the ruins and debris are cleared, the land could not be used for grazing, could not be used for keeping horses and could not be used for private amenity purposes."

17. The costs of clearance were set out. The minimum quote to clear the site was £5,341, the costs of clearing the wider site lay between £51,000 and £66,000. The annual rental value of the land for grazing was identified as lying between £220 and £250 per hectare. That led the second defendants to conclude, as set out in paragraph 17, that -

"Agriculture would be consistent with immediately local land uses and as such would be a potentially beneficial use. But, in this instance it would not be beneficial because of the cost of the site clearance relative to the return from the use. Once cleared, the site could contribute a small amount to the wider site and be farmed beneficially with it - provided that the adjourning land was also cleared. It could then be farmed with the wider 19 ha. But there are now regulations regarding good husbandry of all land for Single Farm Schemes. The larger area would have to carry the cost of clearing the site and putting it to good husbandry. As the negative value of the site would have to be carried, its use is negative, not beneficial."

18. The second defendants went on to consider and reject the possibility of erecting an agricultural building and the use of the Site and wider site as a pony paddock which, it was said, would also be dangerous unless cleared. But again the cost would far outweigh the market value of such a paddock.
19. As to the possibility of recreational use, the second defendants' case was this:

"23 As to the land being used as a private amenity site, there are many beautiful areas of Staffordshire where someone might want an opportunity to picnic in seclusion, but the site could hardly be said to be one of them. The adjoining land is not in private amenity use. It is questionable whether anyone would come to a parcel of land strewn with rubble and the ruins of a derelict building. There is no connection to the walking routes of the area, nor is there any point of interest in the area viewable from the site. There is no evidence whatsoever of a demand for such places in the middle of fields within Staffordshire. The council's planning witness conceded that he had not known of anyone making a proposal for a private amenity shelter.

24 It is hard to imagine anyone wishing to purchase a site such as this which requires considerable work and expense, particularly site demolition and clearance. Someone clearing the land ad hoc is not indicative of a beneficial use. The single plot in Uttoxeter referred to is indicative of the absence of such a market in this area - it is more telling that neither of the surveyor witnesses had come across anyone seeking such land in their careers .....

25 The suggestion that the site may be suitable for a pedestrian shelter, possibly in conjunction with use as a picnic site, would not be suitable or required at this location. Demolition and site clearance would be required first, and being amongst a larger site strewn with debris makes this use far less attractive. There are far better, well maintained, and under-used areas of public open space readily available for 'private amenity land for informal recreation' as stated in the council's response notice."

20. The Inspector summarised the case for the claimant on the issue of reasonably beneficial use, starting at paragraph 37:

"37 If the site alone has no beneficial use, sufficient interest is held by the servers in the remainder of the 1.3ha title and, if that area is insufficient, in the larger 18ha [acre] 'pension pot' land, for such areas to be considered with the notice site and to render a use 'beneficial'. Prospective rental values are secondary; the issue is use, not profit ..... "

21. After referring to paragraph 13 of Circular 13/83 and the fact that beneficial use does not have to equate with significant value and other matters, the Inspector's summary of the claimant's case continued in paragraph 42:

"42 The notice site, in some cases in association with adjoining land, could be beneficially used for:

(a) grazing, of horses or livestock (the predominant local land use).

(b) informal recreation, in a very attractive location.

(c) low-key storage.

(d) hardstanding eg for animal feed or a portable shelter."

The claimant accepts that is a fair summary of its case.

22. Paragraphs 43 to 47 elaborate on that summary:

"43 Section 55 (2) (e) of the 1990 Act confirms that the use of land for the purposes of agriculture or forestry, (including grazing of horses) does not involve development. There is, therefore, no planning impediment to the notice site, either on its own, or in conjunction with neighbouring agricultural land, being used for agricultural or forestry purposes. Cattle have been getting onto the wider site, though some efforts had been made to exclude them. Livestock can be put on scrubby rocky ground; no evidence of injured cattle had been observed. The concrete hardstanding could provide for over winter feeding of cattle as well as providing a convenient location to store round hay and straw bales.

44 Schedule 2 Part 4 of the GPDO permits temporary use of any land for no more than 28 days, or for specified purposes 14 days, in total in any calendar year and for any moveable structure on the land for the purposes of the permitted use. The notice site, therefore, can be used for various temporary uses in accordance with limitations set out in GPDO.

45 The land could be used for informal amenity/recreation purposes, including walking and cycling. Such purposes would not result in any constant presence and would not amount to a material change of use of the land. The notice site and the entrance route would provide for safe and pleasant walking and cycling opportunities in a secluded, tranquil and attractive area. The notice site could be used in conjunction with the surrounding public right of way network ..... A recreational use, with or without the benefit of a shelter, would be of interest to individuals and groups with strong interests in the countryside. There would be sufficient space for relaxing, camping, barbecues, parking etc as well as any shelter within the site. Such informal low-key uses could co-exist with grazing. There are firms who specialise in acquiring rural land then dividing it and selling 'leisure plots'. Use in conjunction with the wider site would offer more potential with more activities possible. Scout groups and others would be potential users.

46 There is no need for permanent buildings for the above uses. The granting of planning permission is not advocated and the references in the response notice to a permanent stable or shelter should be treated as a last resort, that is, to be invoked if there is no other way of achieving beneficial use. The undertaking given by the council would take effect only if it is the only reason that the Secretary of State finds the site capable of beneficial use .....

47 Any shortcomings of the site have been exaggerated. Safety issues, whether arising from rubble or criminals, have been overstated and are speculative, not based on actual local experience. Cattle are currently obtaining water from the stream; it has not been necessary to fence the stream. And, if the concrete wall alongside the hardstanding is felt to be dangerous, it can be replaced with a fence at £2 per metre. There is no need to remove rubble off the site. It can be cheaply and simply levelled in situ and beneficially used for storage - the walls could be dismantled to create a flat hard surface. There is potential for low-key storage, which is mentioned as an historic use by the servers' landscape architect in 2004, or the flattened building could be used as a base for a shelter. Rubble can also be used on access tracks. There is no need for electricity for the uses suggested."

23. It will be seen that the claimant's case was that the Site could be beneficially used for a number of purposes, more or less in its existing state. The only reference to works is removal of a wall adjacent to the hardstanding and levelling the rubble in situ, including full use of access tracks.
24. There was no challenge to the second defendants' figures as to the costs of clearance. Further if the Inspector disagreed and concluded that clearance was necessary, the claimant did not put forward any fall-back position. In other words, there was no argument put forward that if clearance was necessary at those prices the Site, whether on its own or taken together with any other land, could have a reasonably beneficial use.
25. The Inspector's conclusions on reasonably beneficial use are set out starting at paragraph 55. So far as agriculture is concerned, the inspector said:

"56 The ruins of the former cottage, together with the fairly modest size of the purchase notice site and its somewhat irregular shape, with its long and narrow 'access stub', all tend to inhibit its potential usefulness. Moreover it is difficult to imagine the part of the site occupied by the ruins of the former cottage being put to any use unless these remnants are cleared from the land. In addition, while most of the rest of the wider site is covered in vegetation, the excavations carried out during the site inspection strongly suggest that a good deal of it at least is underlain by rubble and there is more rubble in evidence in the immediate environs of the former cottage.

57 As agriculture in the form of grazing pasture is the predominant land use in the vicinity, the suggestion that the land could be used for grazing is, on the face of it, quite logical. That said, while I saw evidence of what appeared to be fairly recently deposited cow dung on the wider site, my impression was that any encroachment by livestock onto this land or the purchase notice site was probably by accident rather than by design, even if, as is suggested, the fence is fairly recent. The apparent presence of cattle on the wider site appears therefore to have been opportunistic. I am not inclined to attach much weight to this factor as [a] clear indicator of the site's present suitability for agricultural use.

58 It may be that the purchase notice site, or at least the vegetated parts of it, could be used for very rough grazing, but this is not an activity in evidence in the area and so it seems unlikely; no evidence of any demand for such land in the locality has been put before me. My impression was that the state is such that it was to be used as grazing land, either agriculturally or for keeping horses, either on its own or in conjunction with the wider site, the rubble and debris would need to be cleared.

59 The estimates for clearing the purchase notice site put forward are from companies and it may be that an individual might take it upon himself or herself to carry out the works without remuneration. Nevertheless, the sums involved in the estimates, the cheapest of which amounted to in excess of £5,300, exclusive of VAT, were not challenged. Nor were the much more expensive costings for the wider site.

60 The council's expert witness told me that he agreed with the servers' estimated annual rental for the site for grazing - about £8.50. Even though Circular 13/83 advises that a use of relatively low value may be regarded as reasonably beneficial, this level of return would be disproportionately low relative to the outlay needed to bring the land up to scratch to the extent that it is highly unlikely to be worthwhile doing so. The site specific circumstances are such that I do not consider grazing would be a reasonably beneficial use in this instance. The same view applies to the wider site when the likely cost of clearing it is taken into account.

61 It may be that the concrete hardstanding offers some potential for use in association with agriculture, but as it does not form part of the purchase notice site it is not relevant in its own right. I saw that there are pockets of woodland in the vicinity, but there is nothing to indicate that forestry is a common component of the local pattern of land use. Having regard to this, coupled with the site's limitations, I do not see this activity being reasonably beneficial either.

62 The use of land for storage, be it low-key or otherwise, other than that associated with agriculture is likely to need planning permission, as is any permanent building. Accordingly, such a prospective use does not fall to be taken into account ..... "

26. It will be seen that the Inspector, in effect, accepted the second defendants' case that the Site could not be put to any form of agricultural of forestry use without clearance, the cost of which would be so great relative to the return which would be expected as to make any such uses not reasonably beneficial.
27. Turning to informal recreation, the inspector said:

"63 I also find the council's suggestion that informal recreation could be a beneficial use somewhat vague. Furthermore it is not claimed that such a use is commonplace in the area, or that a strong level of demand exists. The purchase notice site is rather secluded and lies within an area of pleasant countryside, but it is well away from any of the public rights of way in the area, in which case it is difficult to see it being particularly attractive to anyone as a base for walking or cycling. Moreover while potential users such as scout groups and the like are mentioned, there is nothing that points to, or even suggests, a strong degree of interest in putting the land to such uses. This is perhaps not surprising, as the size, shape and condition of the purchase notice site are factors that are likely to deter, rather than attract, interest of this nature.

.....

65 On the face of it, the interest in the land shown by Mr Hodgkiss, who was essentially seeking to enjoy the environment, is an indication that informal recreation could be a beneficial use. His interest appeared to me to be rather more than passing or vague. On the contrary, that he was prepared to contact the servers' agent and make an offer, and to appear at the inquiry points to a degree of seriousness and commitment on his part. Moreover while some may regard sitting out reading or marking exam scripts - two of the activities Mr Hodgkiss described under cross-examination - amidst rubble and the like as fanciful, Mr Hodgkiss was clearly aware of the need to carry out some site clearance and said he did not regard that as a major obstacle. However cross-examination revealed that Mr Hodgkiss's initial interest encompassed all the land in the servers' ownership and he was notably circumspect when it came to the question of the purchase notice site alone. I am reluctant therefore to conclude that his interest demonstrates that the use of the purchase notice site for informal recreation, including hobby farming - in cross-examination Mr Hodgkiss mentioned his wife being interested in keeping pigs - is a practical and realistic proposition or that it would be reasonably beneficial ..... "

28. Thus the Inspector pointed to the lack of evidence of demand or interest in informal recreation as well as the physical characteristics of the Site. And the only firm evidence of any interest was from somebody who wanted to buy all of the second defendants' land, not just the Site.
29. Having dealt with the parties' cases and the inspector's conclusions at some length, I can deal with the parties' submissions quite shortly.

Grazing

30. On behalf of the claimant, Mr Graeme Keen submitted that although the inspector considers whether the Site or wider site might be used for grazing he fails to address the question as to whether if more land were included, either land in the second defendant's ownership to the south of the watercourse or pension fund land, the Site would have a reasonably beneficial use for grazing.
31. The difficulty with that submission is this. As paragraph 13 of Circular 13/83 indicates, it may be possible for an area of land to be rendered capable of reasonably beneficial use by being used in conjunction with neighbouring or adjoining land, but whether it is or not will depend very much on the circumstances of the individual case. The inspector plainly had regard to the generality of that proposition in the Circular because he looked at use of the Site with the wider site. But nobody ever suggested, nor was there any evidence to the effect that, if the site had to be cleared in order to be put to agricultural use, that use would be a beneficial use of the Site if it were used in conjunction with neighbouring land already in agricultural use.
32. The claimant submitted that the fact that clearance would be costly does not necessarily mean that agricultural use or grazing in particular would not be a reasonably beneficial use if more land were included. That may or may not be right. Neither that point nor any evidence to support it was made at the inquiry. Therefore in my judgment it was not incumbent on the Inspector either to have regard to or deal with the point. This is the gist of the submission of Mr Strachan on behalf of the first defendant, which I accept. In effect, once the Inspector had disagreed with the claimant's contention that clearance was not necessary, that was more or less an end of the case.

Hardstanding

33. Mr Keen submitted that in paragraph 61 of the inspector's report he rejected consideration of the use of the hardstanding because it lies outside the site and that therefore the Inspector had again failed to have regard to the question as to whether, if the hardstanding were used in conjunction with the Site, the Site could have a reasonably beneficial use.
34. The uses suggested by the claimant in paragraph 42 of the inspector's report included (c) low-key storage and (d) hardstanding, eg for animal feed or a portable shelter. They elaborated on this, as set out at the end of paragraph 43, by saying:

"43 ..... The concrete hard hardstanding could provide for over winter feeding of cattle as well as providing a convenient location to store round hay and straw bales."

The reference to a portable shelter was for the purposes of informal recreation (see paragraph 45).

35. Mr Keen accepted that any use for the hardstanding being suggested by the claimant was in conjunction with use of the Site for grazing or, so far as a portable shelter is concerned, informal recreation. If the Site, with or without the wider site, could not have a reasonably beneficial use for such a purpose then neither could the hardstanding. There is no evidence that the claimant suggested any other lawful use of the hardstanding. Having rejected grazing as a reasonably beneficial use, there was nothing else for the Inspector to consider.
36. The same is true of the suggestion of informal recreation, a point to which I return in more detail in a moment.

Forestry

37. Mr Keen submitted that in the second half of paragraph 61 of the Inspector's Report the Inspector failed to consider use of the site for forestry in conjunction with any other land. Again the difficulty with his argument is that the Inspector's conclusion that forestry would not be a reasonably beneficial activity is based in part at least on "the site's limitations", a clear reference, amongst other matters, to the ruins of the cottage which would inevitably have to be cleared. It was no part of the claimant's case at the inquiry that if clearance were necessary, forestry would be a beneficial use of the Site with or without other land. Further it would not appear that forestry was pressed very hard, if at all, by the claimant as a suggested use. It does not appear in the list set out at paragraph 42 which, I am told, comes from the claimant's closing submissions. It is referred to in paragraph 43 but only as to the lawfulness of such a use, not whether it would as a matter of fact be reasonably beneficial in this case. This is perhaps not surprising as the claimant's written evidence only refers to forestry as a possibility. There was no evidence as to its practicability with or without clearance, no evidence of demand for it or of the viability of such a use.
38. I note that in the evidence of Mr Morgan, a surveyor called on behalf of the claimant (paragraph 3.24 (c), page 104), he stated that -

"Although forestry is possible, I would expect the current grazing use to be more likely."

If a use for grazing was not practicable or viable then that suggests that forestry would be unlikely to be practicable or viable either. It is right to say that Mr Morgan's evidence was that if there had been a proper marketing exercise conducted then evidence of demand for forestry would have arisen. However the inspector rejected Mr Morgan's criticisms of the marketing exercise in paragraphs 69 to 71. Further many of those criticisms related to the failure to market other land together with the Site. As Mr Keen conceded on behalf of the claimant, the second defendants were under no obligation to offer to sell the rest of their land, only the purchase notice site, a point to which I will return in a moment.

39. Therefore, in my judgment, there was no obligation on the inspector to consider or deal with use of the Site for forestry with other land if clearance were necessary.

Informal Recreation

40. Mr Keen submitted that paragraph 63 of the Inspector's Report does not address the potential for use of the Site with the wider site or other land for recreation. In my judgment that overlooks the fact that the points the Inspector makes in this paragraph apply equally to the Site on its own as they do to the land surrounding it, relating, as they do, to the prevalence of such use in the area, demand, the location of the site, its proximity to public rights of way and lack of evidence of any interest in such uses. But the main point made on behalf of the claimant is that the Inspector, in effect, rejected the evidence of Mr Hodgkiss because he wanted to buy all of the second defendants' land, not just the Site.
41. The claimant accepts that the second defendants were under no obligation to offer for sale land other than the Site or, indeed, to sell other land. However it was submitted that Circular 13/83 requires consideration to be given to whether use of the Site with neighbouring land for the use proposed by Mr Hodgkiss would be reasonably beneficial. In the light of the concession that the second defendants were not obliged to sell or offer for sale anything other than the Site, in my judgment, this submission is hopeless.
42. The question of reasonably beneficial use is concerned with reality, not abstract possibility. Even if Mr Hodgkiss's proposal would be a reasonably beneficial use of the Site and the rest of the second defendants' land, it is one which could never come to fruition because the second defendants were not proposing to sell the rest of their land, nor were they under any obligation to do so.
43. Further the inspector has dealt with this matter entirely in accordance with the guidance in paragraph 13 of Circular 13/83 which states:

"13 ..... It may sometimes be possible for an area of land to be rendered capable of reasonably beneficial use by being used in conjunction with neighbouring or adjoining land, provided that a sufficient interest in that land is held by the server of the notice, or by a prospective owner of the purchase notice land."

Thus the use proposed in conjunction with adjoining land is only to be taken into account if either the server of the purchase notice owns the adjoining land or the adjoining land is owned by a prospective purchaser of the purchase notice land. Mr Hodgkiss did not own any land adjacent to the Site, and, although the second defendants do, there is no suggestion that the use proposed by Mr Hodgkiss for informal recreation would be a reasonably beneficial use. There was no evidence of any demand for such a use other than by him.

44. Therefore, in my judgment, the Inspector has not failed to have regard to the Secretary of State's policy or erred in the approach to Mr Hodgkiss's evidence.

Reasons

45. Finally it was submitted that if the Inspector has had proper regard to the matters already mentioned then he failed to give adequate reasons as to why they led to the conclusion that the site was not capable of reasonably beneficial use. It follows from the conclusions which I have already reached that either these were matters to which the inspector was not obliged to have regard or they were not principal, important controversial issues which he was required to deal with in the decision letter or, in the case of Mr Hodgkiss's evidence - - I have found the inspector had regard to the evidence and gave proper, adequate and intelligible reasons why it did not lead to the conclusion that the proposed use would be reasonably beneficial.
46. For all those reasons this application is dismissed.
47. MR STRACHAN: I seek an order in those terms that the claim be dismissed or the application be dismissed. I also seek an order that the claimant pay the first defendant's costs which I understand not to be controversial. The sum is also not controversial. It is agreed by the claimant in the sum of £7,405.
48. JUDGE ROBINSON: I have not seen a schedule from you.
49. MR STRACHAN: I am sorry it has not made it to you. Would you like a copy?
50. JUDGE ROBINSON: Yes. (Same handed) That is right, Mr Keen?
51. MR KEEN: Yes. As Mr Strachan indicates, I do not take issue with it in principle or in amount.
52. JUDGE ROBINSON: The claimant will pay the first defendant's costs assessed at £7,405.
53. MR BLACKIE: I, too, have an application. I make that application by reference to the two costs schedules to which my Lady referred earlier, those with the wrong numbers on. I apologise for that. I am very conscious of the principle in Bolton, that only one set of costs is awarded in a Section 288 challenge. May I invite an award on two bases in this instance in favour of the second defendants, bearing in mind that in Bolton Lord Lloyd said that, as in all questions of costs, a fundamental rule is that there are no rules. Bolton then sets out propositions that can be supported. I note also that the third proposition is that a second set of costs is more likely to be awarded at first instance than in any other situation.
54. There are two schedules, the smaller schedule being number 2 and being in a total sum of £666. That schedule relates entirely to the cost of putting together the witness statement by Mr McCluskey, including the evidence. In order to effect that witness statement there had to be some consideration of the nature of the claim and attendance on Mr McCluskey to explain what is envisaged and then the preparation and service of the statement. In my submission that has been of assistance to the court. It is a different path from what the Secretary of State was taking and it is a different path from what the appellant/claimant was taking, the claimant having restricted the evidence solely to the decision letter and one or two other documents.
55. The witness evidence has been of use to the court. My Lady has referred to it at several points in the judgment as amplification of the summary of evidence given by the inspector. My submission on this narrow point and the second schedule [is] those costs could and should be awarded against the claimant. The broader schedule of costs subsumes within it that smaller schedule. So the £666 does not stand alone if my Lady accedes to the second suggested order. The second suggested order is an order for the full costs of the second defendants in relation to the proceedings. As I indicated when making my submissions, the claimant abandoned one ground of its claim today, and that was a ground in which there was to be a difference between the approach of the Secretary of State and the approach of the second defendants. And that was solely in relation to the production of Adams v Wade which is referred to in my skeleton argument but not referred to in the skeleton argument of the first defendant. That may be considered a very small point but it is a point which emerges only from the assistance which the second defendants were prepared to offer.
56. The second defendants also offered within their case the evidence as to the pay-back period in relation to the grazing matter and the evidence as to forestry in relation to that which appeared within the witness statement and Mr Morgan's particular comments about forestry to which my Lady has referred in giving judgment.
57. I am very conscious of the Bolton principle. I therefore put the suggestion that you have before you the second schedule of costs, the smaller schedule. You also have the larger schedule. One can see from that that there are divisions as to the attendance at the hearing and the preparation work in advance of the hearing. So, if there is to be a suggestion that those costs be split or apportioned in some way in some way, we can deal with that. But I think the principle is the matter which my Lady is invited to address first.
58. MR KEEN: I do oppose the application on behalf of Mr and Mrs McCluskey, both of them, on the basis of normal principles in Bolton. I say they should apply, and costs should only be awarded to the Secretary of State at first defendant. There was no requirement for Mr and Mrs McCluskey to be separately represented. They have not needed to be separately represented to address the separate issue not covered by the Secretary of State. So I object to the larger compendious schedule in principle.
59. As to the second, likewise. The Secretary of State's decision letter and the inspector's report are the documents that need to be assessed to determine this challenge. It is right that the evidence was put in attached to Mr McCluskey's witness statement. It has been referred to, but it has been referred to largely responding to matters that were raised by Mr Blackie in his skeleton argument, took you to forestry and questions that you put, my Lady. So I would submit that there is no reason to depart from the normal Bolton principles in this case in relation to Mr and Mrs McCluskey's costs, either in the smaller schedule or in a nutshell.
60. JUDGE ROBINSON: Mr Blackie, I am not going to order a second set of costs. In my view there was no particular need for separate representation. While your submissions were helpful, the matter could have been dealt with perfectly adequately by Mr Strachan on behalf of the Secretary of State without your input.
61. The extent to which the documentation put in was referred to was actually minimal.