England and Wales High Court (Administrative Court) Decisions

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

		Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		24th January 2013

1. Mr Justice Burton:
2. This has been the hearing of an appeal by the Claimant, Avon Estates Limited, an applicant for two certificates to the Second Defendant, the Ceredigion County Council, which were dealt with by an Inspector appointed by the Welsh Ministers, who are the First Defendants in this appeal. The applications were for a Certificate of Existing Lawful Use or Development ("a CLEUD"), described as appeal A, in respect of what was described as the use of buildings as 42 dwelling houses, and a Certificate of Proposed Lawful Use or Development ("a CPLUD"), in respect of one test case, being unit 37 of those dwelling houses, by way of what was called appeal B. Both matters came before the Inspector, and were dealt with by a decision dated 21 August 2012, when both appeals failed and the applications were refused. Both appeal A and appeal B related to land known as Gilfach Holiday Village in Llwyncelyn Aberaeron, which lies close to the Welsh coast, and contained 42 holiday bungalows.
3. There had been a previous decision of an Inspector, determined by that Inspector on 2 December 2009, which decision was appealed by the Claimant to the High Court, where it was upheld by Beatson J, but then there was a further appeal to the Court of Appeal which had quashed the decision of the Inspector. The background can be very briefly summarised, and that is that for many years the Claimant has operated the Gilfach Holiday Village, consisting of those 42 dwelling houses and ancillary facilities and buildings, as a holiday camp, but the underlying issues are or were: (1) whether that condition had time-expired, and (2) whether the permitted user or the actual user was limited to the summer months. The first Inspector's decision was that the permission had not time-expired, and that was what was overturned on appeal. The first Inspector concluded that the relevant planning units were each of the 42 dwelling houses. That was contrary to the argument that was contended by the Claimant, who argued that the relevant planning unit was the entirety of the holiday village.
4. When the Claimant appealed the first Inspector's decision, there was a Respondent's Notice, as I understand it, which at least in material part included the question of challenging the first Inspector's decision as to the nature of the planning unit. But either by agreement or by discussion in front of the Court of Appeal or otherwise, in any event that matter was not put before the Court of Appeal, on the basis that if the appeal were allowed everything would be back to the drawing board, and that is what occurred. Consistent with that understanding is the decision of the Administrative Court per Coulson J in Vallis v Secretary of State for Communities and Local Government & Anr [2012] EWHC 578 (Admin). What occurred, as I shall describe, in the second appeal before the second Inspector, is that the Inspector concluded, in accordance with the argument made before him by the Second Defendant council, that he rejected the CLEUD for the 42 dwelling houses, on the basis that they were not the subject of C3 planning as dwelling houses, but that he was satisfied that the proper approach to planning was to treat the Gilfach Holiday Village as one unit, namely a holiday village unit, and it is common ground that the classes of planning units are not limited by those specified in planning legislation, and that it is open to a Council, and to an Inspector, to resolve that there is, for example, a composite planning use by way of a unit described as a holiday village.
5. In those circumstances, there was some argument before the Inspector by reference to res judicata or issue estoppel, but it is plain that the Inspector rightly concluded, whether by reference to concepts such as his applying Vallis or otherwise, that given that he was deciding the matter de novo he was entitled to reach his own decision. It is common ground, both in accordance with the decision in Vallis and otherwise, that if the second Inspector is going to reach a different decision from that reached by a first Inspector whose decision has been quashed, he should give reasons for reaching a different decision. But in any event it does not seem to me that that adds great weight, if at all, to the obligations in judicial review in any event for me to consider whether the decision maker, in this case the Inspector, has given adequate reasons for the decision he has reached. And it is quite plain from looking at the report that the Inspector knew full well about, and indeed set out himself, the different decision that had been made by the earlier Inspector.
6. The result was, there having been found to be no planning unit by reference to C3, the two applications were dismissed. So far as logic concerned, that is plainly right. The Inspector concluded, as I will describe, that he was satisfied that the reason why it was not a C3 planning unit was that the planning unit should be treated as the holiday village. But he describes how he did not feel able, positively, to certify this alternative planning unit, because he was not satisfied that he had sufficient information.
7. Consequently, the outcome of the appeal was that the Claimant's applications failed, and the Claimant would be left to start again. It is clear that in the course of the hearing I was told that, not surprisingly, the Claimant has started again and has put forward a new planning application in respect of the village, which includes the statement:

1. "The unit of occupation and the planning unit is the holiday village as defined by the red line plan 5562-102/A, which includes the 42 dwellinghouses."

8. This application is, of course, without prejudice to his existing appeal against the decision of the Inspector which of course he is challenging, such that the Claimant would have preferred to have made an application by reference to C3, but for obvious reasons has not done so. The basis for challenge to the decision of the Inspector is, in general terms, that there is a judicially reviewable decision, and that on ordinary grounds of judicial review I should set it aside, so as to lead, in due course no doubt, to a decision favoured by the Claimant that the planning units were and are the 42 dwelling houses. In order to do so, he must establish an error in law.
9. The Inspector set out the facts in a way that is not in any way in dispute, describing the appeal sites, and there was in fact a statement of common ground which enabled him to do so; and in paragraph 14 of his decision he describes the 42 bungalows, together with an additional seven holiday apartments, a club house and bar, a staff apartment above the clubhouse and stables, a tennis court used by holiday makers, a playground, etc. Having rejected the Claimant's estoppel arguments, he set out the reasons why he came to the conclusion that, although the bungalows were dwelling houses, this was not a C3 case, and that he should not conclude that there were 42, or indeed one, C3 dwelling houses. He founded his decision upon the judgment, which has not been in any way challenged before me, in the case of Burdle v Secretary of State for the Environment [1972] 1 WLR 1207.
10. Burdle, a decision of the Divisional Court given by Bridge J, with whom Lord Widgery CJ, and Willis J agreed, which is not in any way subject to doubt, explains that there can be different approaches to determining the planning unit in respect of a number of different buildings or plots.
11. One way is to consider the whole unit of occupation; another is to regard there as being composite use; and the third is by reference to individual single units. The Inspector concluded that the bungalows were dwelling houses, but that he was satisfied that the bungalows comprised separate uses, and were part of a composite use, and it is not suggested he misapplied the principles in Burdle. What is suggested is that he was irrational in reaching that conclusion, and/or gave inadequate reasons, or had no reasons, for reaching the conclusion he did, and took into account consequently improper immaterial considerations.
12. There is no doubt at all that he set out both sides' arguments very clearly before him. The first two grounds which plainly counted in favour of the Claimant were those which he recited in paragraphs 42 and 43 of his Decision as causing him to reach the conclusion that the bungalows were dwelling houses. Mr Leigh of counsel, who put forward the case very forcefully on behalf of the Claimant, effectively submits that that is where the case should have been left. But in any event, he set out the further arguments which Mr Leigh himself, appearing below, had made as to why, notwithstanding Burdle, this was not a composite use. They are set out by the Inspector in paragraphs 44, 45 and 51 of the Decision. The counter-arguments, as argued by counsel for the Defendant, are set out in paragraphs 48, 49, 50 and 51. After reciting those matters, the Inspector referred to the judgment in Gravesham Borough Council and SSE and Ors [1982] 47 P&CR 142, in support of the proposition, effectively, that 'once a dwelling house always a dwelling house', in terms of planning approach.
13. But in paragraph 59 the Inspector came down firmly on the side of the Council, for all the reasons that he had given, which recited the arguments in favour of the Council in the paragraphs to which I have referred. He said as follows:

1. "59. Nevertheless, for the reasons I have given, I consider that the unit of occupation can only reasonably be taken to be the whole of the holiday village. In that regard, it does not matter that it was not possible for the Council at the inquiry to define its full extent; it is sufficient for this purpose that it was shown to extend beyond the site of the 42 buildings chosen for appeal A, and in so doing envelops other significant activities. In this, I disagree with the previous Inspectors. The conclusion of functional and physical relationship between the various activities to which that larger area of the land was put is such that it should be treated as a single planning unit. My assessment is that it is, in effect, put to a single holiday village use in accordance with Burdle category one, but the same consequence would follow if it were instead a composite use within Burdle category two. In either case, the bungalows are part of the use of the larger, not physically separate and distinct areas occupied by substantially different and unrelated purposes, which emphasises the word "and", to the rest of the holiday village such that they each comprise separate planning units in accordance with the third Burdle category."

14. That is the basis upon which he both found that the application based upon C3 failed, and that he consequently rejected that planning unit.
15. The submissions by Mr Leigh have, understandably, concentrated today, although he has set out arguments in his skeleton argument upon the basis of absence of reasoning or irrationality, upon the reasons given by the Inspector in the Decision, to which I have referred. It seems to me clear that once the Inspector addressed Burdle, and properly set out the principles in Burdle, he was entitled to reach the conclusions that he did that, on the face of it, the facts before him compelled him to a conclusion different from the first Inspector that the independent bungalows did not form themselves single units for the purposes of C3. But what Mr Leigh has put in the forefront of his argument is the fact that, having concluded, as he did in paragraph 59, that though the 42 units were not to be dealt with as independent C3 units, he, the Inspector, did not feel able to go ahead and instead certify that the relevant planning unit was as per the red line plan which had been put before him by the Claimant and not, subject to what I shall say hereafter, dissented from by the Defendant Council, being the same plan as that which has now been put forward in the new without prejudice application, to which I referred at the outset of this judgment.
16. I have already read paragraph 59 of the Decision, but I must return to what he said in his conclusions at paragraph 66 and following:

1. "66. However, my conclusion is that the 42 bungalows are part of a larger planning unit the purpose of which is a holiday village, a 'sui generis' use not falling within any Use Class. They have not otherwise gained a lawful use in isolation. Accordingly it would not be appropriate to grant a CLEUD in the terms proposed by the application. To that extent, the CLEUD should not be granted in the terms applied for and the Council's deemed CLEUD refusal of the application is well-founded.

2. 67. I have, however, considered whether a CLEUD should be granted in other terms. The power to do so is provided at s191(4) of the 1990 Act. Indeed, it requires that the certificate should be granted for such modified description of development the lawfulness of which is satisfied by the information supplied. The duty to do so is confirmed in the Panton & Farmer judgment [[1991] JPL 461]. In that case, the Inspector found that the whole of a mill building had been used for residential purposes but issued a certificate only in respect of that part which had originally been claimed. It was considered that that failed to meet the statutory duty and for that reason alone the certificate should be quashed.

3. 68. In this case, the application site [that is the 42 bungalows] is part only of the overall planning unit. As indicated [and he clearly is referring back here to what he said in paragraph 59 quoted above], the full extent of Gilfach Holiday Village could not be established with certainty at the inquiry. The holiday village use, embracing the bungalow use, is not the subject of the application. The evidence presented was sufficient to lead me to the conclusion that the bungalows' use is not separate from the remainder of the complex but no further. Even were I able, to avoid future uncertainty, satisfactorily, fully and precisely to describe it for the purpose of the CLEUD, I would not be able to be able to identify all of the land to which it relates ... A certificate stating that the use of the bungalows as dwellinghouses is within some broader use -- or indeed part of a composite use -- on a larger, undefined site would therefore be incomplete."

b.


17. What Mr Leigh submitted in support of his submission is effectively that the decision of the Inspector not to accept the 42 bungalows as C3 units, taken together with his rejection of C3 and his declining to make any alternative determination, was irrational. The only basis on which this could be put, and indeed was put by Mr Leigh, is that the Inspector subliminally or instinctively or implicitly realised that he was not able or not willing to set out what the planning unit was, simply because the existence of such a unit was unarguable or impossible to define. In those circumstances, that should have been a, possibly the, major, if not only, feature in a conclusion to the contrary effect from that which he had made; i.e., he should have concluded that, because no other unit was feasible, therefore the C3 for the 42 should have been found. That, of course, puts Mr Leigh's case very high, but in my judgment it has to be. If it was open to him to reach the decision he did, then my conclusion that his reasons were otherwise rational, and well argued and well founded, must prevail.
18. I am entirely satisfied that that is not a proper interpretation, or even an arguable interpretation, of what occurred, or of what the Inspector found.
19. First, the without prejudice application to which I referred at the outset of this judgment was not before me in the papers, or referred to by any of the parties; it emerged as a result of discussion between the parties before me in the course of the hearing. It seems to me that the formulation of this fresh application by the Claimant, which expressly asks for a ratification of a planning unit of the holiday village as defined in the red line plan, takes away the strength, possibly the entire arguability, of any argument that such planning unit is impossible, or so difficult, to define that it makes any C3 unarguable. That application is without prejudice to my decision, but the Inspector's Decision was simply that the planning unit was not C3, and of course naturally the new application is put forward without prejudice to the contention that it was C3. But what is not, in my judgment, arguable, in the light of the very way the new application is itself put, is that no arguable planning unit based upon the red line plan could be put forward as an alternative, and thus that C3 is the only arguable basis or planning unit.
20. Second, in any event I am not satisfied at all that the reason the Inspector did not decide what the planning unit was, in accordance with the red line plan or otherwise, was that he felt unable to do so, because he realised the unarguability or impossibility of doing so such as to undermine his decision that C3 was not the appropriate planning trust. He says why he felt unable to reach that decision. I understand, having been so informed by Mr Leigh, that, in the course of the hearing before the Inspector, the Council was asked to agree that the red line plan accurately represented the delineation of the holiday village, and it declined to do so. I have been further told by Mr Stinchcombe QC that, in the course of evidence, the Planning Officer said that he felt unable to confirm the precise details of the site. In those circumstances, it is not a surprise at all to me that the Inspector said what I have recorded him as saying in paragraph 59 and 68, namely that he did not feel able to certify, in the absence of either agreement or firm evidence, what the delineation of the holiday village planning unit was. Mr Leigh submits that that means that the Council did not know what its own planning unit, that it was putting forward, was. I do not conclude that that is a proper conclusion at all. All that the Council said was that they were not able to confirm the accurate and absolute delineation of such planning unit, but they were firmly submitting that the village as a whole was the planning unit, and not the 42 bungalows, and that position was made clear.
21. Thirdly, in any event, as the Inspector explains himself in his own judgment, in the passages which I have recited, what he was deciding was whether, on the balance of probabilities, the class that he was being invited to apply, C3, was correct; and on the balance of probabilities, he decided it was not. The information and the arguments upon which he was forming that conclusion included the suggestion that the alternative was correct, namely the village. But he was not reaching, and he explains that he was not in a position to reach, a conclusion precisely delineating and certifying the exact description of the preferable unit, namely the whole village, for which the Council was contending, and which he in principle was deciding.
22. In my judgment, when the Inspector said in paragraph 59 that it was sufficient for his purpose that the village was shown to extend beyond the site of the 42 buildings chosen for appeal A, and in paragraph 67, that, having considered whether a CLEUD should be granted in other terms, he was not satisfied that he was able to do so, he was fulfilling his jurisdiction to the letter, and not acting any way irrationally.
23. In those circumstances, I am satisfied that there is no basis in law to challenge the decision of the Inspector, whether by reference to the reasons that the Inspector gave, or by reason of the unwillingness or failure of the Inspector to certify an alternative, save to say what that unit would, once delineated, be.
24. The only other matters that I mention are not directly relevant to the substance of the appeal. The first is that in the course of his Decision the Inspector referred, Mr Leigh points out, at paragraph 61 and paragraph 65 to paragraph 8.17 of Circular 24/97; and Mr Leigh points out that that Circular is not applicable in Wales. Mr Lewis of counsel, who has appeared on behalf of the Welsh Ministers, has pointed out that in fact the Circular might be applicable by analogy, particularly if there is no relevant circular to the contrary, and accepts that it would have been better if the Inspector had made that point, rather than simply referring to the Circular itself. But in any event, I am satisfied that his reference to the Circular was of no materiality to the challenged Decision with which I have dealt.
25. The only matter to which it could be relevant is a matter which, in any event, I am satisfied, although Mr Leigh has set out his complaint about it, is not relevant to my decision today. In paragraph 65 of his Decision, the Inspector said as follows:

1. "Should a CLEUD be justified ... the certificate would need to refer to the dwellinghouse use falling within Use Class C3. In accordance with my conclusion [that the class was a holiday village unit], for precision the description of the use of the bungalows would also need to include the facts that their actual use has been as holiday accommodation only and between Easter and the end of October each year."

26. Then he said:

1. "…My conclusion is that the 42 bungalows are part of a larger planning unit the purpose of which is as a holiday village… it would not be appropriate to grant a CLEUD in the terms proposed by the application."

27. Mr Leigh submits that by so concluding the Inspector has expressed a view with which his client does not agree, and which may be founded inter alia upon a misapprehension as to the relevance of the Circular to which I have referred. The Counsel for the Defendants have made it clear that, so far as they are concerned, that is not a view which is integral to the Inspector's Decision, given that he was in any event refusing the certificates, and therefore, in accordance with Vallis if nothing else, would not bind any fresh planning application or Inspector, if the issue comes to be decided, whether by reference, as it now turns out, to what I call the without prejudice application or otherwise. Therefore, I need say nothing as to whether it is right or whether it is wrong; I need only say that it is not, in those circumstances, anything other than an expression of view by an experienced Inspector, being in legal terms obiter dicta. On that basis, though the challenge to that paragraph was put forward as one of the grounds for quashing the decision, I am satisfied it does not amount to any such ground.
28. In those circumstances, this appeal is dismissed.
29. Order: Appeal dismissed.
30. Mr Lewis: My Lord, I am grateful for that. I make an application for costs on behalf of the Welsh Ministers in this matter. There is a schedule, my Lord. Does my Lord have a copy of the --
31. Mr Justice Burton: I have seen it, I think, but have you seen it, Mr Leigh?
32. Mr Leigh: Yes, I have, indeed.
33. Mr Lewis: I will hand it up, if I may.
34. Mr Justice Burton: Thank you.
35. Mr Lewis: I will deal with the principle of costs first, and then deal with quantum if I need to.
36. Mr Justice Burton: Yes.
37. Mr Lewis: I simply say that this would follow the event in this matter, and as I quantum I say in general terms that that sum is modest in respect of an application of this nature, where we have go directly to the substantive hearing, of course. If there are any specific points of concern, then of course I will deal with those.
38. Mr Justice Burton: Yes. Mr Stinchcombe?
39. Mr Stinchcombe: I make no application.
40. Mr Justice Burton: Yes?
41. Mr Leigh: My Lord, my specific instructions are not to contest. It is tempting, as it always is, to try and do something for one's client. They are, I am bound to say, relatively modest. We have looked at all the hours and so on. There is a cost for even doing it here, whereas it might have been somewhere else, but quite frankly I do not want to spend time on it. My clients do not argue the point. It would be churlish of me to do so; we saw it yesterday, so I make no points on the sum claimed, so whatever the usual time is, can we have it please to make the necessary payment to the Treasury Solicitor?
42. Mr Justice Burton: Yes, how long do you want?
43. Mr Leigh: 14 days?
44. Mr Justice Burton: Is that all right, yes?
45. Mr Lewis: Yes.
46. Mr Justice Burton: Yes.
47. Mr Leigh: So that is £7 --
48. Mr Justice Burton: £7,134.
49. Mr Leigh: In 14 days.
50. Mr Justice Burton: In 14 days. Thank you very much.
51. Mr Leigh: Well, I have already tipped up that I might try and persuade your Lordship to give me permission to appeal. I do ask your Lordship to consider granting permission for this solitary, and we say this is a good reason. I would postulate the ground of permission to appeal is this: is an Inspector entitled as a matter of law to refuse to treat as the identified planning unit an area of land identified on plans before him, in circumstances where the argument advanced by the planning authority is not that it can identify a different planning unit, but that it cannot agree with the planning unit, alternative unit, identified in the plans before the Inspector? Put another way, as a matter of law does an applicant in a fluid application do enough if on balance he places evidence before the Inspector of a planning unit or alternative planning unit, is there a requirement to also deal with an unarticulated and unidentified different area of planning unit advanced by the planning authority, and which persuaded the Inspector to reject the applicant's contentions? I hope, my Lord, I put it carefully and succinctly --
52. Mr Justice Burton: You did put it carefully, but not persuasively.
53. Mr Leigh: I ask -- I have done my job.
54. Mr Justice Burton: Yes, thank you. No, for the reasons I have given in my judgment, I do not believe that is an arguable matter of appeal which would interest the Court of Appeal. But thank you for articulating it. I refuse permission to appeal. Now you said you might want an extension of time for consideration of any application for permission either to me or, as it has now turned out, to the Court of Appeal/
55. Mr Leigh: The Court of Appeal, yes.
56. Mr Justice Burton: And how long do you want?
57. Mr Leigh: Well, ordinarily I think I have 21 days to file.
58. Mr Justice Burton: In fact, you are right, you have.
59. Mr Leigh: One could do it as a matter of safety, but I do not want to do unnecessary work.
60. Mr Justice Burton: No, I do not think anyone wants to push you into making an application that you otherwise would not make.
61. Mr Leigh: I understand, doing the best we can, that the local authority may be making a decision in the next five days, but I spoke with Mr Murphy, who says he has no indication when it is coming.
62. Mr Justice Burton: Yes.
63. Mr Leigh: I do not know whether my learned friend knows any better, but because I do not know when it is, I would look for -- throwing something out, I was going to say six weeks at least, which ought to be more than enough for the council to give us their answer, and then I can formulate anything if I need to, incorporating whatever they have determined or not determined. Mr Stinchcombe may tell me when we are going to get the decision?
64. Mr Stinchcombe: Well, I cannot put it quite that far, but I can be of some assistance. My Lord, I am told that we are essentially waiting, given that we have not expired it for eight weeks, in any event, waiting for the judgment of this court. Now that the judgment has been given that is obviously additional material for us to work on, and we anticipate giving the decision shortly.
65. Mr Leigh: So --
66. Mr Justice Burton: Well, I do not think six weeks is objectionable.
67. Mr Stinchcombe: No, of course not.
68. Mr Justice Burton: No.
69. (pause)
70. Mr Leigh: My client is concerned that we may not even get a decision, notwithstanding the offer of making a decision. It seems to me that I would be, I am sure, going nowhere if I said can we have an indeterminable appeal period, based on as and when they may make a decision. Six weeks ought to cover them to make a decision, and if they will not, any non-determination -- and we may have to make a protective appeal.
71. Mr Justice Burton: You may. No, I shall say that any renewed application to the Court of Appeal must be made within six weeks of today.
72. Mr Leigh: Six weeks. I think it is the time for me to file an appeal --
73. Mr Justice Burton: Of course, must be lodged. Any renewed application for permission to appeal to the Court of Appeal must be lodged within six weeks of today.
74. Mr Leigh: Thank you very much.
75. Mr Justice Burton: Thank you very much.