England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th December 2014

Mr C. M. G. Ockelton :

1. In 1880 Henry O'Hagan imported a large wooden chalet from Switzerland and erected it on the bank of the Thames at Hampton. It remains there to this day, a reminder of the Alps in suburban outer London. It is a Grade II listed building. Mr O'Hagan owned land on both sides of the chalet. He established a boatyard there in about 1915. Frank Hucks and his son Richard Hucks owned the property and ran the boatyard until the latter's death in an accident there in about 1980. There was a series of subsequent owners operating the boatyard more or less satisfactorily. By 2008 the owner was Prestbury Estates (Hucks) Limited ('Prestbury').
2. Prestbury made a number of planning applications in relation to the original site as a whole. The most important for present purposes was made on 23 July 2007. It was for use of the chalet as a restaurant, for demolition and replacement of a house, 'Fortiter', in the eastern part of the property, and for 'Retention of existing boatyard, moorings, dry dock etc with access provided via Chalet Road entrance'. Permission was granted subject to conditions and informatives on 22 February 2008. I shall call this grant of planning permission 'the 2008 grant' and shall have to refer to the application and the 2008 grant in some detail.
3. There were subsequent variations of the 2008 grant, not affecting the boatyard itself. Mr Djurberg, the appellant, acquired the freehold in September 2011. At some stage (I do not know exactly when) the original property was divided into three: the new house replacing 'Fortiter', the chalet, and the boatyard. It appears that Mr Djurberg's daughter owns the chalet, and that access to the boatyard is through land occupied with the chalet, so the division may not have produced three entirely separate units, but that is not of importance for the purposes of this appeal. The use of the western part of the property as a boatyard is well established and not disputed.
4. The precise boundaries of the site do not seem to be properly established, and certainly the appellant does not accept that some of the plans (including Land Registry plans) are accurate. The difficulty arises because of embankment and conservation work undertaken in the twentieth century, after the property began to be used as a boatyard. The change of line of the bank has the effect that the property now extends into the river.
5. On 24 October 2012 the Council of the London Borough of Richmond-upon-Thames ('Richmond'), the local planning authority and the second respondent, issued a number of enforcement notices in relation to what it saw as breaches of planning control. The appellant appealed against the notices and further appealed against Richmond's failure to give a decision on two planning applications within the prescribed time. A Planning Inspector, Mr Keith Turner, held a public inquiry. His decision is dated 28 May 2014. Two of the notices were withdrawn by Richmond. The inspector allowed appeals against two of the notices. He allowed one and dismissed one of the other appeals; his decision to allow one of them superseded one of the enforcement notices. I am concerned with only the remaining part of his decision, Appeal 4 against Notice D, on the grounds set out in s174(2)(a), (f) and (g) of the Town and Country Planning Act 1990.
6. Notice D identified breaches of planning control in 'the erection of five piles in the river bed next to St Alban's Gardens; the erection of twenty-three piles in the river bed to the south of the property; and the installation of pontoons approximately at right angles to the property with each fixed at one end to the property and at the other end to the aforesaid piles'.
7. It is common ground that the present layout of the pontoons is as follows.. Along the bank of the river adjoining the three properties there is a walkway. As the bank turns (approximately) north at the western end of the boatyard, the walkway continues roughly in a straight line to the west. This continuation is called on the plans, and in this judgment, 'pontoon C'. A number of pontoons run from the walkway (as extended by pontoon C) approximately southwards towards the centre of the river. Pontoons B and D extend from Pontoon C; pontoon E is at the eastern end of pontoon C; pontoons F, G, H, I, J, K and L extend from the walkway adjoining the bank: E-H adjoin the boatyard, I and J adjoin land in front of the chalet, and K and L adjoin land in front of the house.
8. There is also no dispute that the present walkway, piles and pontoons were built very recently. An account of their construction is the principal subject of the appellant's third witness statement, dated 26 August 2014. In it he draws attention to the replacement of the old piles by new steel piles of a design approved by the Environment Agency, and explains that the present piles and pontoons are not in exactly the same places as their predecessors.
9. The inspector concluded that the first element of the enforcement notice (five piles next to St Alban's Gardens) was not properly part of the appeal before him. His decision on the remaining elements of Appeal 4 was to allow it in part and to dismiss it in part. He allowed the retention of pontoons E – J but required the removal of pontoons B, C, D, K and L. The appellant agrees that pontoons K and L should be removed. He appeals in relation to pontoons B, C and D. Permission was granted by Patterson J on 18 July 2014.
10. The inspector gave his decision and his reasons for it in paragraphs 33-77 of his decision letter. After dealing with the five piles next to St Alban's Gardens in paragraphs 33-36, he identified at paragraph 37 the three main issues which it was common ground between the parties were raised by the appeal on ground (a) (that planning permission should be granted):

"(a) Whether the development would preserve the setting of the listed Swiss Chalet and preserve or enhance the character or appearance of the Hampton Village Conservation Area.

(b) Its impact upon the Thames Policy Area.

(c) Whether the development is inappropriate development within the MOL and, if so, whether there are any very special circumstances sufficient to outweigh the harm arising from that or any other identified factors."

He looked at them in order.

11. Under the first head the inspector began by setting the scene. At paragraph 41 he wrote this:

"[41] The Council submitted aerial photographs of the appeal site taken between 1966 and 2007 which show a variety of arrangements for jetties and pontoons along the river front of the site. Two things are clear from them. First, the arrangement was adaptable to parallel mooring as well as mooring at right angles to the river banks. Second, the pontoons were shorter and smaller overall. Evidence given at the inquiry indicated that those pontoons maintained a constant height above the water, rising and falling with changes in water level. It is also particularly evident that there were high levels of activity before 1980 and a noticeable decline in the later photographs. This in part supports the Council's suggestion that until recently the character of the boatyard was low key, but that was clearly not always the case."

12. The first aspect he covered was the difference between the new metal pontoons and their predecessors. The inspector noted that they have a number of features that makes them 'more conspicuous in the riverside scene' (paragraph 43). On the other hand their 'state of the art' appearance was not of itself harmful to their setting (paragraph 44). Richmond accepted that some form of moorings was necessary for the lawful use as a boatyard to continue effectively, and the new size and spacing of the pontoons was justified by the increased size of craft using the river (paragraph 45). Paragraph 46 raises questions about pontoons I, J, K and L and whether the appellant had any obligation to provide them for the occupiers of the Swiss Chalet and the house. The inspector continued as follows:

"[47] No explanation is given for the extension of moorings to the west of the slipway. That is, in my judgement, particularly visually prominent because it partially encloses what was previously an open part of the river. It comprises a pontoon some 26.6m long with 3 finger pontoons running from it into the channel. This extension of development into the river is conspicuous from Taggs Island, the bridge to that, from the public open space of Terrace Gardens and also, no doubt, from the river itself. Although that area of water may have been occupied by moored boats at times in the past, the photographic evidence indicates that the infrastructure which allowed that was considerably less obtrusive when boats were not there.

[48] Whilst explanation has been provided for the different size and arrangement of the pontoons from earlier installations, no evidence of an established requirement for additional pontoons at present was given. In the absence of that I consider that the scale of the riverfront development should be limited to that necessary for the use of the boatyard to continue. This would minimise the impact upon the surroundings. According to the plans submitted by the Council 5 finger pontoons existed in June 2011 (the date on the drawing),

[49] Whilst I accept that activity in the boatyard may have been more extensive in the more distant past than it is now, the use of the former moorings was unrestricted, having evolved over time. Removal of the former mooring facilities effectively removed those unrestricted rights because the replacement development requires planning permission. The former rights are a material consideration of some weight, but they are not a fallback position. Therefore they must be balanced with other factors including, particularly, the aims of planning policy to preserve designated heritage assets. "

13. Turning then to the setting of the Swiss Chalet, the inspector took into account various factors connected with its history, setting and contrast to (rather than blend with) neighbouring properties. The property had always incorporated riverside activity, and for many years had a boatyard with moorings. In terms of the setting of the listed building, this case was 'somewhat different from the norm', and the presence of the listed building did not alter the decision made in relation to the conservation area (paragraphs 50-54).
14. Under issue (b) the inspector summarised the relevant policies. He concluded that pontoons and piles are typical features of a riverside and that in the current location they are 'part of a use which is to be protected and encouraged'. But, for the same reasons as under issue (a), 'I consider that it is the extent of the development rather than its character or appearance which is harmful because it constitutes extension of the development along parts of the river bank and over the water which were previously open' (paragraphs 55-56).
15. Under issue (c) after setting out the relevant policies the inspector decided at paragraph 59 that the pontoons taken together could not be regarded as 'small structures' for the purposes of Policy DM OS2, 'because they are too substantial and extensive', and in any event would not be permissible under the exceptional cases provision of that policy because 'they detract from the openness of the MOL by enclosing an area [of] the river which would otherwise be open, and by extending development further along the river front than previously'. Also, unlike moored boats, they are permanent and fixed.
16. The inspector's conclusion on issue (c) is as follows:

"[60] For these reasons I find that the harm arising by reason of inappropriateness and harm to the openness of the MOL is not outweighed by the need for the development as it currently exists in terms of the vitality and viability of the boatyard. A reduction in size would mitigate the harm to openness and better balance the need for such development in policy terms."

17. The inspector continued at paragraphs 61-65 by dealing with issues of safety and use. Concerns had been expressed that the present pontoons, being longer than their predecessors, compromised the safety of users of the river. The inspector noted that the present pontoons do encroach a little further than the earlier ones, and 'It is also a fact that those were unlawful, never having been granted planning permission' (paragraph 62). But taking everything into account the inspector concluded at paragraph 64 that the development did not constitute an unacceptable hazard to users of the river. Richmond's concerns that the moorings might be used for residential occupation were met by assurances from the appellant; and the lawful use was only as a boatyard: paragraph 65.
18. The inspector's general conclusions were thus as follows:

"[66] Both parties accept that some piles and pontoons are necessary to provide moorings for the boatyard use on the appeal site to continue effectively. The differences in design between the former development, albeit unauthorised, and the present is not a matter which I find harmful to the surroundings in the narrow and wider sense. I accept that this type of installation is safer and provides facilities that may not be widely available on the river. To this extent I find the development acceptable.

[67] However, the development is more expansive than the former provision. It therefore has a greater visual impact upon its surroundings. In particular, it reduces the openness of this part of the MOL by covering and enclosing parts of the river which were previously open. It also increases the extent of development along the river bank. No substantial evidence has been provided to justify such a substantial increase in pontoon provision in terms of the vitality and viability of the business. In this respect I find that the development is too large for its context, particularly having regard to the environmental quality and sensitivity of the surroundings which planning policy seeks to protect.

[68] Consequently, I conclude that the development should be permitted but only in part. This would permit the continued use of the appeal site as a boatyard, which is supported by local planning policy and, as sustainable development providing employment, by the NPPF. This would also ensure that the impact upon the surroundings is kept within reasonable limits by mitigating the demands upon it."

19. His precise ruling on the removal of pontoons is under the heading 'Conditions' at paragraph 70:

"[70] The Appellant suggested that, as part of his case for this appeal under Ground (f), if I considered that the 10 finger pontoons were harmful in planning terms, then removal of the two easternmost ones would overcome this harm. For reasons set out above I consider that those 2 pontoons could and should be removed from the development. However, that alone would not overcome the harm I have identified to openness of the MOL and to the designated heritage assets. I have also identified the intrusion of pontoons to the east of the slipway to be similarly harmful. Consequently, I find that they too should be removed, though the westernmost finger could be retained attached to the shoreline. That would leave six finger pontoons and the interconnecting walkway which, for reasons set out above, I consider would balance the impact upon the surroundings with the needs of an accepted and acceptable use. I shall make a split decision to retain six pontoons and the walkway link between them and uphold the Notice against the remaining four which shall be removed. "

20. The inspector also indicated that there should be a condition against use of the moorings by houseboats for residential purposes. He left issues of the lighting of the pontoons and the impact on bats for further discussion. He did not need to deal in substance with the other grounds of appeal against notice D, save to say that he regarded the three months set out in the notice as a reasonable time for compliance with the surviving part of it and so dismissed the ground (g) appeal (paragraphs 71-77).
21. The appellant objects to having to remove pontoons B, C and D, which form the western extension to the structure. He says they are essential to the commercial viability of the boatyard. He is therefore anxious to demonstrate that the inspector erred in his conclusions in appeal 6. He seeks remittal for redecision. He cites the obiter dictum of Goff LJ in LTSS Print v Hackney LBC [1976] QB 663, 681-2:

"[I]t becomes unnecessary to consider the Secretary of State's second point … but I would have thought that if the Secretary of State had misdirected himself on the point of law, then, although the risk of this having influenced his decision may have been very slight, unless it was a mere scintilla, which I do not think it was, it was right to remit the decision"

22. I should say that I am far from confident that Mr Village QC's summary of that as 'the matter should be remitted if there was any possibility that he was influenced by an error, however slight' (his emphasis) is correct. Even if one elevates the dictum to ratio and ignores the distinction between error in formulating legal principles (as in LTSS) and error as to the application of law to facts (as is said to be the case here) the context was a Secretary of State's appeal against remittal by the Divisional Court, and the impact of Goff LJ's words is directed to whether the Divisional Court was permitted to remit, not whether it was required to remit. But no specific point was taken on this before me and I am content, initially at any rate, simply to determine whether the appellant has shown an error of law by the inspector.
23. A number of different grounds of challenge have been raised at various stages of this claim. A Further Amended Statement of Facts and Grounds of Challenge is dated 15 September 2014. The grounds at paragraph 28 of that document are the following:

"[28] The Applicant challenges the Decision on two grounds. The First Respondent's inspector erred:

c) because he considered that the 2008 permission did not provide a fallback because the 2008 permission had been partly, not wholly, implemented. The Claimant contends that a permission cannot be "part" implemented. It is either implemented or not and this error infected the Inspector's understanding of whether there was a fallback position (including the provision of moorings with piles).

d) because he failed to have regard to a highly material consideration, namely that the Council had previously granted planning permission for the retention of finger pontoons in the same location as the two westernmost pontoons in respect of which the enforcement notice was upheld. "

24. Submissions ranged widely at the hearing, but there was no further amendment of the grounds. Each of the grounds relies on an underlying assertion that the 2008 grant was a grant authorising pontoons in positions similar to those now at the site, in particular pontoons (a) stretching out into the water from the walkway in a roughly southerly direction, (b) stretching west in roughly the position of pontoon C, and (c) stretching into the river in a roughly southerly direction from pontoon C. As the application and grant of permission were in relation to the 'retention of existing boatyard moorings dry dock etc' that assertion depends on demonstration that there were such pontoons in existence at the time of the application or (perhaps) at latest at the time of the 2008 grant. But before investigating whether that assertion is made out, it is worth looking at ground (c) in isolation.
25. The general proposition that a permission is either implemented or not and that a single permission cannot be implemented in part (leaving the other part to lapse) is likely to be regarded as generally correct. But that proposition has no relevance to the present proceedings, for at least three reasons, each of which separately is a sufficient answer to ground (c).
26. The first is that, as Mr Thomann points out on behalf of the Secretary of State, there is no reason to think that the inspector made the error of which Mr Village complains. In paragraph 23 of the Decision Letter the inspector records Richmond's position that 'the remainder of the original permission was not implemented and has now lapsed'. He immediately goes on to deal with division of the land that in 2008 was one holding into three separate properties, and briefly discusses whether separate planning units have been created. He then noted that all parties agreed that the boatyard with which he was concerned was a separate entity with established use as a boatyard. He did not adopt Richmond's assertions about lapse.
27. Secondly, in relation to the pontoons, there was no question of lapse. The permission was for retention, not for construction. Even if the inspector had taken the same view as Richmond and had reached the conclusion that certain parts of the 2008 grant (as subsequently amended) had lapsed either because of the amendments or because of the division of the property, he could not possibly have thought that applied to the pontoons. If they were there at the time of the 2008 grant they were not subject to a requirement of the commencement of work in order to keep their permission alive, because there was no work on them that the 2008 grant permitted.
28. Thirdly, it is perfectly clear that the inspector took the view that the 2008 grant did not authorise the pontoons that were the immediate predecessors of those subject to the Enforcement Notice. That is the necessary conclusion from his sentence in paragraph 62 (set out above) that the earlier pontoons 'were unlawful, never having been granted planning permission'. I appreciate that that fact is precisely what is disputed by ground (d), but the phrase is the final blow to ground (c). An inspector who does not think that an earlier permission permitted a development cannot be materially misled by a suggestion that the earlier permission has lapsed in relation to that development.
29. Ground (c) therefore fails and I turn to ground (d), the argument that the previous finger pontoons and their arrangements was not 'unlawful', but had had planning permission. That is, for the reasons already given, an argument that the pontoons immediately preceding the present pontoons were in place at the time of the 2007 application or the 2008 grant, so that the grant of permission for the 'existing' moorings legalized them. The appellant asserts that that is the case; more precisely he needs to demonstrate that the material before the inspector was such that the inspector's view (that that arrangement was, at the time it was replaced by the present pontoons, unlawful) is marred by error of law. Mr Thomann on behalf of the Secretary of State says that the evidence did not and does not show what the appellant claims. Mr Caws, on behalf of Richmond, offers a spectacular coda. He says that the evidence could not show that, because, first, the riverbed where the pontoons are was not within the red line area of the 2008 grant, and, secondly, that it could not have been within the red line because the applicant in 2007 did not own that part of the riverbed.
30. There was some photographic evidence before the inspector, including the photographs in a 'Historical Report' produced by the appellant. A photograph given the date '1945' shows no evidence of any pontoons at all: the walkway along the bank continues to the end of the slipway (which is now the eastern end of Pontoon C) and the boats shown in the photograph preclude either its continuation westwards or any finger pontoons off it to the south in the western part of the property. Two pictures are given the date '2004'. One shows five finger pontoons running southwards, of which the westernmost is roughly equivalent to the present Pontoon E. The same arrangement is shown in a photograph said to be of 2007. In the latter it can be seen that the walkway parallel with the bank does extend a little beyond the end of the slipway, but it is impossible to see how far. The other photograph said to be of 2004 shows a different arrangement altogether. Only one pontoon stretches southwards from the bank in front of the chalet, apparently rather to the east of those shown in the arrangement previously described. It returns westwards and ends well before the eastern end of the present Pontoon C, and has been conveniently referred to as the 'reversed L' layout. Although I have stated the dates given by the appellant in his report, there does not seem to be any firm dating of the photographs.
31. Mr Village relies primarily on the documents accompanying the application in 2007. There is no doubt that those documents included a plan, the general 'Siteplan', drawing 01-00C, which shows an arrangement of pontoons including Pontoons B, C and D stretching into the water west of the boatyard. There is also no doubt that the 2008 grant permitted the 'retention of existing boatyard, moorings, dry dock etc'. There is also no doubt that in the 'Informatives' appended to the 2008 grant is the following passage:

"For the avoidance of doubt the drawing numbers to which this decision refers are as follows: drawing nos 01-001C …"

32. The presence of the pontoons on the drawing, however, cannot of itself establish that they were in place at the date of the application, of the drawings themselves, or of the 2008 grant. To take the most obvious point first, the drawings, including 01-001C show proposed developments in other areas of the site: at the top of this very drawing, for example, is a new access arrangement which is on the drawing precisely because it is not, at the date of the drawing, yet in existence on the ground. Secondly, despite the terms of the application, the pontoons shown on drawing 01-001C are not described as 'existing'. There is a legend 'EXISTING WORKING BOAT YARD', and trees and a neighbouring property are also described as 'existing'. There is an 'existing' pavement along the road, and in two places on it an 'existing' crossover to be retained. If drawing 01-001C was intended to identify the existing arrangement of pontoons that it was part of the purpose of the application to legitimize, it is to say the least surprising that the pontoons are not described as 'existing'. Instead they are labelled in two places as 'changed mooring/pontoon layout as agreed with environmental agency'.
33. Various documents accompanied the application. There were Design and Access Statements for the chalet and for the replacement for Fortiter. Each contains sketch plans. None of the sketch plans show an arrangement of pontoons including B. C and D, although at least one clearly shows the five-pontoon arrangement with no westward extension (page 6 of the Chalet Design and Access Statement). A number of the sketch plans show the 'reversed L' arrangement. The latter is also what is shown on a number of plans, apparently deriving from the same Ordnance Survey original, which of course may not have been up-to-date at the time it was used. Nevertheless it is again noticeable that none of these plans provides any support for the assertion that there was a pattern of pontoons existing at the time of the application that was similar to that there now.
34. Also accompanying the application was a document entitled 'Business Plan – 1 January 2007 for Hucks Boatyard'. This indicates an

"… intension [sic] … to offer the river user with the following facilities:

1. A pontoon for the sole use of 'The Restaurant' …

2. A Visitor's Pontoon …

3. 3 Pontoons for contract moorers …"

and other facilities.

35. At paragraph 14 is the following:

"The existing layout for the moorings made it difficult to accommodate many boats. By repositioning the pontoons back to their original layout it will increase the number of pontoons available as follows:

Type	Current	Proposed 1	Proposed 2
Visitors	0	4	4
Contracted	8	6	12
Working	0	2	2
Total:	8	12	18

The final plan would be to accommodate a total of: 4 Visitors/12 Contracted Moorers and a pontoon suitably sized to accommodate 2 vessels for the purpose of general maintenance work or awaiting the use of either dry dock facility."

There are then set out the dimensions of the pontoons A-J and their intended uses, A as a working pontoon, B for visitors, J for the restaurant and the rest for contracted mooring. The lettering and the proposed dimensions do not quite match the arrangement on the accompanying sketch plan, but the latter is essentially the same as drawing 01-001C.

36. Despite its ambiguities, this document makes a number of things clear. At the time of its writing there were only 8 moorings available. There was a proposal to increase capacity by returning to 'the original layout'. The lack of any details (other than in the table) relating separately to 'Proposed 1' and 'Proposed 2' must mean that they were not alternatives but were a staged proposal; at the end of the second stage the accommodation would be as envisaged in 'the final plan', which is identical to the last column of the table.
37. The availability of only 8 moorings at the time of the writing of this document is in my judgment wholly irreconcilable with a theory that even as few as five finger pontoons were already in place. At the time of writing there was evidently no space for visitors (and no mooring devoted exclusively to 'the Restaurant'), so five pontoons would have offered a minimum of ten moorings. Indeed, the appellant's photograph of the five-pontoon arrangement, said but not otherwise shown to be of 2007, shows nine moored vessels against the five pontoons, with the easternmost mooring vacant. The boatyard business plan is the clearest evidence that at the beginning of 2007 the finger pontoons were not in place but that it was proposed to erect them.
38. The question then is whether there is any evidence that the pontoons in the arrangement claimed by the appellant were erected in the period between the production of the Business Plan and the 2007 application for planning permission. There appears to be no evidence at all of the construction of pontoons in that period. The appellant's witness statements do not assert it. None of the other witness statements assert it. There is no photograph securely dated to the first six and a half months of 2007 that shows finger pontoons. The material before the inspector showed that the finger arrangement did not exist at the beginning of 2007 and was not said to have commenced between then and the 2007 application; and nobody has suggested that the application was amended to reflect a change to the 'existing' moorings after it had been submitted.
39. For these reasons it is my judgment that the Inspector made no error of law in his conclusion that the arrangement immediately previous to that existing in 2012 was unlawful. The previous finger pontoons had been erected without planning permission; they were not 'existing' and so were not covered by the 2008 grant.
40. Further, they had superseded the 'reversed L' arrangement, which (although lapse of time may have rendered enforcement impossible) was itself not shown to have had the benefit of any permission. It follows that there was no lawful fallback, either to the previous finger pontoons, or to the 'reversed L'. Construction of either arrangement in 2012 would have been unlawful as a breach of planning control. The inspector was clearly right to reach that conclusion, and (it follows) not wrong to ignore the possibility of a fallback to something resembling the 2012 arrangements.
41. There is one further matter. In the course of his submissions, Mr Village referred to the piles that support the pontoons as mooring facilities that might have been used independently of the existence of any pontoons. There is no evidence that the piles in front of the site were available for mooring in that way at any time to which the inspector was referred. The 'reversed L' arrangement appears to have used those piles to support the pontoon running parallel with the bank. The vessels moored in other adjacent parts of the river do not, from their configuration in the photographs, readily support a theory that there was mooring from posts. The one exception may be a post to the west of the site that was the relic of a demolished bridge, and which appears on some of the photographs.
42. I am far from confident that the argument before the inspector was put in the way it was put before me. After all, the appellant's position is and was that the finger pontoons were in place at the time of the 2008 grant, and the 'existing' arrangements therefore (on his case) did not incorporate loose mooring from the piles. It must, however, be right that if (contrary to the appellant's principal argument) there was, on the land covered by the 2008 grant, mooring for the purposes of the boatyard from piles unconnected with pontoons, that use would have been made lawful by the 2008 grant.
43. But, because he did not take the view pressed on him by the appellant, the inspector did deal with this very point. He contrasted the provision of pontoons with the provision of moorings without pontoons. He took the difference into account when considering the impact of the development both on Designated Heritage Assets (in paragraph 47, set out above) and on the openness of Metropolitan Open Land (in paragraph 59, summarised above). Those opinions are exercises of planning judgement; they were relevant to, and properly contributed to, his final conclusion. The presence (or possible presence) of piles in the river enabling mooring without pontoons at the time of the 2008 grant therefore does not show an error by the inspector in considering whether the pontoons should be allowed
44. The inspector also noted that mooring at any available piles did not constitute a fallback, because the construction of the previous pontoons had superseded any lawful free uses of the moorings without pontoons. That was correct, but even if it had not been, a fallback to use of the piles without pontoons could not have turned the inspector in favour of the present development because of his view, identified in the previous paragraph, that the presence of moored boats was materially different from the presence of pontoons.
45. My judgment on this point too is therefore that the inspector's treatment of the mooring arrangements apart from pontoons does not justify a conclusion that his decision should be set aside for error of law.
46. It follows that ground (d) also fails. I do not need to reach a view on the additional matters raised by the Second Respondent. The appeal is dismissed.