QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Proudfoot Properties
|- and -
|(1) The Secretary of State for Communities and Local Government
- and -
|(2) Wealden District Council
Stephen Whale (instructed by The Treasury Solicitor) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing dates: 16/07/2012
Crown Copyright ©
Mrs Justice Lang:
"1. The site lies within a rural area within the High Weald Area of Outstanding Natural Beauty, and beyond any 'development boundary', to which a policy of restraint and strict control over all forms of development is applied in accordance with the approved development plan and the Non Statutory Wealden Local Plan (Interim Guide for Development Control 2005). The proposed development is not needed to serve the essential requirements of the locality, and no other overriding material consideration has been put forward to justify the grant of planning permission for removal of buildings on this site and residential development, such as that within this application; the proposal is therefore considered to be both unsustainable and inappropriate, contrary to the provisions of Policies SP3 and CC1(ii) of the South East Plan, together with Saved Policies GD2, DC17 and EN1 of the Wealden Local Plan, Policies GD2, DC15 and NE5 of the Non Statutory Wealden Local plan, coupled with advice in Planning Policy Statement 1: Delivering Sustainable Development and Planning Policy Statement 7: Sustainable Development In Rural Areas.
2. The proposal would constitute an undesirable and unwarranted significant alteration on this exposed site, which are unlikely to be of comparable appearance and nature, nor be in keeping with the predominant rural character of the locality, having regard to the attractive rural location (within the High Weald Area of Outstanding Natural Beauty). The proposal therefore would compound the impact of sporadic forms of development in the locality which would, without justification, increase the visual intrusion and associated activity in this attractive rural location lying well beyond the development boundary and within the Area of Outstanding Natural Beauty. The proposal would be detrimental to the considerable visual and rural amenities of the locality, and would be contrary to Policies SP3 (i), (ii) and (iii) and C3 of the South East Plan, GD2, DC17, EN6 and EN27 of the Wealden Local Plan, GD2, DC15, NE5 and BE1 of the Non Statutory Wealden Local Plan, coupled with advice in Planning Policy Statement 1: Delivering Sustainable Development and Planning Policy Statement 7: Sustainable Development in Rural Areas.
3. The proposal does not provide adequate provision for access by public transport, pedestrians and cyclists and is therefore contrary to Policies SP3 (iii), CC1 and CC2 (sub section [ii] of mitigation element policy of the South East Plan, TR3 (2) of the Wealden Local Plan, and Policies TR1 (1), (2), (5) and TR2 (1), (2), (3) of the Non Statutory – Wealden Local Plan (Interim Guide for Development 2005) and the advice contained within Planning and Policy Statement 1: Delivering Sustainable Development and Planning Statement 7: Sustainable Development in Rural Areas, Planning Policy Guidance Note 13: Transport.
4. The approach road, Dewlands Hill (UC7897) is unsuitable to serve the proposed development by reason of its narrow width, poor alignment and lack of footways and is therefore contrary to saved Policy TR3 of the Wealden Local Plan and Policy TR2 of the Non Statutory Wealden Local Plan (Interim Guide for Development Control 2005) and the advice contained within Planning Policy Statement 1: delivering Sustainable Development and Planning Policy Statement 7: Sustainable Development in Rural Areas, Planning Policy Guidance Note 13: Transport."
a) the Inspector's failure to explain adequately his view of the direct cause and circumstances of the cessation of the intensive pig-rearing use of the site (Ground 1); and
b) the Inspector's failure to explain adequately his conclusion that the effect of dismissal of the appeal was not disproportionate and so did not constitute a breach of Article 1 of the First Protocol ("A1P1") to the European Convention on Human Rights ("ECHR").
"(5) On any application under this section the High Court –
(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action."
"In the course of his judgment, with which the other members of the court agreed, Lord Parker C.J. said, at p. 491, that when considering whether there has been a change of use 'what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier.' These words have rightly been recognised as extending beyond the issue of change of use: they are accepted as a statement of general principle in the planning law. They apply to development plans as well as to planning control."
"However, like all generalisations Lord Parker C.J.'s statement has its own limitations. Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases. If a planning authority is to give effect to them, a specific case has to be made and the planning authority must give reasons for accepting it. It follows that, though the existence of such cases may be mentioned in a plan, this will only be necessary where it is prudent to emphasise that, notwithstanding the general policy, exceptions cannot be wholly excluded from consideration in the administration of planning control."
"if general planning considerations pointed insuperably the other way, he would have expected those considerations to apply unless economic considerations or financial hardship were matters of great weight."
"I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."
"35 It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit.
36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasoned challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
"Whatever may be the position in any other legislative context, under the planning legislation, when it comes to deciding in any particular case whether the reasons given are deficient, the question is not to be answered in vacuo. The alleged deficiency will only afford a ground for quashing the decision if the court is satisfied that the interests of the applicant have been substantially prejudiced by it. This reinforces the view I have already expressed that the adequacy of reasons is not to be judged by reference to some abstract standard. There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given. Here again, I disclaim any intention to put a gloss on the statutory provisions by attempting to define or delimit the circumstances in which deficiency of reasons will be capable of causing substantial prejudice, but I should expect that normally such prejudice will arise from one of three causes. First, there will be substantial prejudice to a developer whose application for permission has been refused or to an opponent of development when permission has been granted where the reasons for the decision are so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the Act. Secondly, a developer whose application for permission is refused may be substantially prejudiced where the planning considerations on which the decision is based are not explained sufficiently clearly to enable him reasonably to assess the prospects of succeeding in an application for some alternative form of development. Thirdly, an opponent of development, whether the local planning authority or some unofficial body like Save, may be substantially prejudiced by a decision to grant permission in which the planning considerations on which the decision is based, particularly if they relate to planning policy, are not explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future applications."
Here again, I regret to find myself in disagreement with Woolf L.J. who said, 60 P & CR 539, 557:
" Once it is accepted that the reasoning is not adequate, then in a case of this sort it seems to me that, apart from the exceptional case where it can be said with confidence that the inadequacy in the reasons given could not conceal a flaw in the decision-making process, it is not possible to say that a party who is entitled to apply to the court under section 245 has not been substantially prejudiced."
The flaw in this reasoning, it seems to me, is that it assumes an abstract standard of adequacy determined by the court and then asserts, in effect, that a failure by the decision-maker to attain that standard will give rise to a presumption of substantial prejudice which can only be rebutted if the court is satisfied that the inadequacy "could not conceal a flaw in the decision-making process." But this reverses the burden of proof which the statute places on the applicant to satisfy the court that he has been substantially prejudiced by the failure to give reasons. When the complaint is not of an absence of reasons but of the inadequacy of the reasons given, I do not see how that burden can be discharged in the way that Woolf L.J. suggests unless the applicant satisfies the court that the shortcoming in the stated reasons is of such a nature that it may well conceal a flaw in the reasoning of a kind which would have laid the decision open to challenge under the other limb of section 245. If it was necessary to the decision to resolve an issue of law and the reasons do not disclose how the issue was resolved, that will suffice. If the decision depended on a disputed issue of fact and the reasons do not show how that issue was decided, that may suffice. But in the absence of any such defined issue of law or fact left unresolved and when the decision was essentially an exercise of discretion, I think that it is for the applicant to satisfy the court that the lacuna in the stated reasons is such as to raise a substantial doubt as to whether the decision was based on relevant grounds and was otherwise free from any flaw in the decision-making process which would afford a ground for quashing the decision."
Evidence and submissions on appeal to the Inspector
" The appeal site was in use for intensive pig-rearing until that use ceased in 2000. Mr Proudfoot's Statement to the Hearing addressed the planning issues generally and placed heavy emphasis on the circumstances in which that use ceased, and these formed a prominent part of the case presented in favour of the grant of planning permission. The gist of the case was that, in December 1999, the Council served an abatement notice pursuant to section 80 Environmental Protection Act 1990 alleging pollution nuisance caused by the discharge of slurry from the pig-rearing operation and suffered by the occupants of the neighbouring dwelling, Grondheise. The notice required that the relevant land drain be removed within the appeal site boundary and that it should terminate in a soakaway. Mr Proudfoot appealed to the magistrate's court against the notice on the basis that a soakaway would be ineffective to remedy the alleged nuisance because of the underlying clay strata. Engineers advising the Council agreed that this was so, and it therefore faced the prospect that the notice would be ineffective to bring the nuisance concerned under control. Recognising that the appeal site was, in those circumstances, 'no longer suitable for the operation of an intensive pig-rearing unit, in the manner in which this operation has traditionally been undertaken', Mr Nigel Taylor (Assistant Manager, Public Protection and Environment) brokered – on the Claimant's case - a deal between Mr Proudfoot and the Council, in accordance with which he would cease the pig-rearing operation and a change of use of the land would be secured to compensate Mr Proudfoot for the resulting economic losses. Mr Proudfoot ceased his use in accordance with his undertaking to the Council to do so; but no change of use was agreed."
" The Appellant considers that the Council was active and instrumental in the closure of the pig unit. However, there is no evidence before me to suggest that it acted unfairly or unreasonably. The closure was undertaken under environmental legislation. The decision was therefore taken by appropriate agencies for the public good. In these circumstances I do not accept that there is any obligation of the Council to find an alternative use for the complex other than being receptive to discussing potential redevelopment proposals with the Appellant, and considering any positive proposals that might emerge in the light of the development plan and any other material considerations."
" It is a matter of public record that the Council did not enforce closure of the previous use. Following the service of the abatement notice, the appellant voluntarily entered into the undertaking with WDC pollution control section not to use the land for pig farming.
The site was subsequently decommissioned, and has effectively remained unused since 1999. During this time the applicant has discussed alternative proposals for the site with the Council, but these have to date proved to be unsuccessful."
"8.18. It is stated by the Appellant that the Council had no right to seek closure of the pig unit without an alternative use being granted. In turn, the financial position of the appellant was been impaired. In addition to the comment already made (that Inspector Aldous took fully into account the argument about requirement for an alternative form of development and that the issue was carried out under separate legislation from the Town and Country Planning Act (as amended) and in the public interest), was that the Council did not seek to close down the unit and use.
8.19. The abatement notice served under the Environmental Protection Act sought redress of drainage issues on the site in connection with the discharge of slurry contaminated ground water from a land drain on the site. The Notice was not enforced. An appeal against the abatement notice at Lewes and Crowborough Magistrates Court, 22 February 2000, was adjourned to 23 March 2000 for full Hearing into the matter. However, the Hearing did not take place because the Appellant voluntarily closed the unit. There was no need to enforce the Notice which in any event only dealt with drainage matters. "
" I write following our recent telephone conversation, regarding the notice served upon you under the Environmental Protections Act 1990.
It has been apparent over a period of many years that the keeping of pigs in an intensive way at Briar House Farm has generated a substantial number of odour complaints. The odour at nearby residential premises has been witnessed by officers of the Environmental Health Department both during and after periods of slurry spreading and on many occasions has been a serious intrusion into the lives of those around you. The odour problems that the farming operation has caused, together with the overloading of adjacent land with slurry, leads me to the conclusion that intensive pig rearing can only successfully be carried out at this site, if waste handling procedures are improved and the majority of the waste produced is tinkered away from the farm, to be carefully disposed of elsewhere. It is the final disposal of the waste arising from the intensive pig unit which has cause substantial problems, culminating in the service of notice under the Environmental Protections Act 1990.
According to the figures supplied by the Environment Agency, the area of land that you have available for the disposal of slurry and dirty water is inadequate for the purpose. This means that the intensive application of slurry will eventually damage the land and, because of the frequency and rate of application, increase the likelihood of run-off to the watercourse and the generation of odour nuisance at nearby properties. I have considered the comments made to you by Mr Holmes of the Environment Agency, in his letter of 7th January 2000, and together with the concerns of this department, it is apparent that Briar House Farm is no longer suitable for the operation of an intensive pig rearing unit, in the manner in which this operation has traditionally been undertaken.
I am sure you will be aware that any proposals to change the use of the land or building at Briar House Farm should be discussed with the appropriate officers from the Planning Department."
" I have spoken to everyone and the attached letter is as far as we are able to go."
The Inspector's decision letter
"'27. Submissions were made by the appellant relating to Articles 1 and 14 of the European Convention on Human Rights, although it was not expanded upon at the Hearing. However, this consideration must be balanced against the wider public interest. For the reasons given above, I have found that the proposal would be harmful to the character of the area, sustainability and highway safety and I am satisfied that these legitimate aims can only be safeguarded by the refusal of permission. On balance, I consider that the dismissal of the appeal would not have a disproportionate effect on the appellant. ... With specific regard to Article 14 of the European Convention on Human Rights, as I found no disproportionate effect in relation to Article 1, there is no breach of Article 14.
28. The appellant has also set out his particular personal circumstances which he states should be taken into account in reaching a conclusion on this matter. I have carefully read the statements made by the appellant and the Council and I note that there is a level of basic disagreement relating to the direct cause of cessation of the pig rearing use and other matters. Having taken these matters into account, I consider that the circumstances of the appellant are insufficient to outweigh the harm that would arise from the proposed development."
" … the Council has breached Article 1 and prevented my peaceful enjoyment of my possessions being in this case my farm and my right to run a business from it by removing its legal use through insisting I sign an Undertaking that effectively precluded me from making use of its legal function, it being my business premises, without recompense or substitution."