Exmouth Marina Ltd., R (on the application of) v First Secretary of State & Anor

MR JUSTICE SULLIVAN: This is an appeal under section 289 of the Town and Country Planning Act 1990 ("the Act") against a decision by an Inspector, appointed by the First Secretary of State, to uphold an enforcement notice issued by East Devon District Council, the respondent. The breach of planning control alleged in the notice was the erection, without planning permission, of boat racking systems with dimensions not in accordance with approved plans. The notice required the removal of the boat racks within a period of two months.

Planning permission had been granted on 19th December 2001 for the erection of two boat racks, rack A, on the south side, and rack B on the north side, of an enclosed yard adjoining The Sail Loft, a listed building in Camperdown Terrace, Exmouth, Devon. The planning permission was subject to a condition (number 2), requiring the development to be carried out in accordance with amended plans, received by the local planning authority on 29th November 2001.

The grounds of appeal against the enforcement notice conceded that there had been a breach of planning control because the racks, as built on the site, were not in accordance with the approved amended plans. Although the appeal was made on grounds (a) and (f) in section 174(2) of the Act, for practical purposes the issue was the same in relation to each ground, because the appellant further conceded that planning permission should not be granted for the retention of the racks as they had been built. The appellant was contending that the breach of planning control could be remedied by requiring alterations to the racks as constructed, in particular so as to reduce their overall height, and further contending that it was unnecessary and excessive to require their complete removal, given the continued validity of the 2001 planning permission, for the erection of boat racks on the site. The appeal was determined by written representations.

The Inspector made his site inspection on 18th November 2002. In his decision letter, dated 29th November 2002, he dismissed the appeal, upheld the enforcement notice, and refused to grant planning permission on the deemed application. In a decision letter of the same date, he refused the appellant's application for an award of costs against the Council. That decision is also challenged by the appellant.

It is common ground that the Inspector adopted the correct starting point, in paragraph 5 of his decision letter:

In paragraph 17, the Inspector noted the concession made on behalf of the appellant:

When considering "other matters", such as parking provision, highway visibility, pedestrian safety, noise, and so forth, the Inspector said:

On behalf of the appellant, Mr Fookes submits that the Inspector erred in the following respects. Firstly, he says that in concentrating on the use that was made of the structure, and in particular upon the fact that boats were stored on top of the racks, the Inspector took into account an immaterial consideration. The enforcement notice was not concerned with a change of use. It was concerned with the erection of the structures. There was no condition or limitation preventing the storage of boats on top of the structures as approved. Even if it was proper to have regard to the likely use of the structures as permitted and as built, the proper comparison was between the impact of the structures as built, with boats stored on top of racks A and B, and the structures as permitted, but also with boats stored on top of the racks. The Inspector failed to make that comparison and, therefore, failed to have regard to the full extent of the appellant's fall-back position. He repeatedly compared the impact of the racks as built, with boats stored on top of them, with the impact of the racks as permitted, without any boats being stored on top. Mr Fookes further submitted that although the Inspector had posed the correct question in paragraph 5, by the time one had reached paragraph 13 of the decision letter, the Inspector appeared to have lost sight of the fall-back position, and was comparing the impact of the racks as constructed with a "clean sheet", that is to say, with the impact of the yard absent the structures permitted by the 2001 planning permission.

On behalf of the Secretary of State, Mr Maurici submitted that that was not a fair reading of the decision letter; the letter had to be read as a whole. Having posed the correct question in paragraph 5, the Inspector had not lost sight of it. In paragraph 13, there are repeated references to comparison with the permitted structures: see, for example, paragraphs 16, 17 and 21.

I accept that submission so far as it goes. But reading the decision letter as a whole, it is plain that the Inspector was comparing the position as seen on his site visit with a fall-back position that excluded boat storage on the top of Racks A and B. His extreme concerns in relation to the adverse effects of boat storage on top of the racks permeate the entire decision letter. It is the first reason that he gives for not accepting the appellant's suggested alterations to the height of the structures as built: see the first and second sentences of paragraph 18 of the decision letter. He adopts a similar approach when considering the living conditions of neighbours, in the second sentence of paragraph 20 of the decision letter. He returns to the importance of a fourth storage level when dealing with "other matters" in paragraph 21 of the decision letter. Although I accept Mr Maurici's submission, adopted by Mr Wadsley on behalf of the District Council, that paragraph 18 of the decision letter does contain two distinct reasons, the first relating to boats stored on top of the structures, the second to the position of rack A, being "too far to the west", it is by no means clear that the latter reason would have been sufficient on its own to justify a refusal of planning permission, subject to the imposition of appropriate conditions, and/or a refusal to amend the requirements of the enforcement notice in response to the appeal under ground (f). Reading the decision letter as a whole, and in a commonsense way as urged on behalf of the Secretary of State, it is plain beyond doubt that the use of the top of racks A and B as a fourth storage level was the Inspector's principal concern.

Was the Inspector correct to conclude that the 2001 planning permission precluded such storage on the top of racks A and B as permitted? It is accepted on behalf of the Secretary of State and the District Council that there is no condition which prohibits such storage, nor is there any express limitation to that effect. Can such a limitation be inferred from condition 2 which requires the structures to be erected in accordance with the approved amended drawings? The drawings show boats at three levels. It is true that they do not indicate any keel supports on the top of the racks, but no keel supports are shown on the internal levels. There is nothing whatsoever to suggest that boats could not be placed upon the top of the structures. The somewhat rudimentary plans which accompanied the application do not indicate that the tops of the structures are to be constructed in any different way from the intermediate levels of the structures.

The application for planning permission sought permission for change of use, alteration and extension, and an accompanying statement provided additional information. Paragraph 6 of that statement said:

The fact remains that there is nothing in the 2001 planning permission to prohibit the storage of boats on top of the permitted structures. Certainly, there is no condition to that effect, nor is there any express limitation. Tempting as it is to imply the existence of such a limitation in order to remedy an obvious deficiency in the 2001 planning permission, it is impossible to read condition 2 as a limitation preventing the storage of boats on top of the permitted structures, or requiring them to be constructed in such a manner as to prevent such storage. It is well established that if a local authority wishes to impose a limitation upon a planning permission, it must do so in clear terms. If the council had wished to prevent the storage of boats upon the top of the racks, it could have imposed an appropriate condition. In failing to do so it may well have missed a trick, but however severe the consequences may be for the amenity of surrounding properties, that does not justify adopting a strained interpretation of the 2001 planning permission and, in effect, importing a limitation which is not to be found within the terms of that permission.

Mr Maurici and Mr Wadsley both submitted that the Inspector's decision could, nevertheless, still stand because paragraph 18 contains two reasons why the Inspector did not find the appellant's revised proposals acceptable. Given the importance attached by the Inspector to the first of those reasons, I very much doubt that the second reason would have been sufficient on its own, on a fair reading of the decision letter as a whole. It is plainly a subordinate concern on the part of the inspector.

Assuming that each of the two reasons would have been a sufficient justification on its own for concluding that the appellant's proposals to modify the structures were not acceptable, Mr Fookes' further submission is that the Inspector failed to grapple with the totality of the appellant's case under ground (f). There was never any question of retaining rack A precisely as it was built. The appellant was acknowledging that both racks had to be modified in order to make them acceptable. The appellant's submissions were primarily concerned with securing a reduction in the height of the structures, so that they were reduced from 8.3 metres down to the permitted height of 6.8 metres. In addition to reducing the height of the structures, the appellants were proposing to reposition the two middle horizontal girders, and also to draw the structures back in visual terms from The Sail Loft by reducing the height immediately adjacent to that listed building. The Inspector does not suggest that any of these modifications would have been impractical. His objection to them is that the revised drawings still show boats stored on top of the structures. By comparison with his view of the fall-back position (no boats on top of racks A and B), that was not acceptable. The Inspector realised that the appellant was also prepared to "remove bays from the western end of Rack A." That suggestion was made in the appellant's further submissions. The initial grounds of appeal had proposed a reduction in the overall height of the structures, repositioning the two middle horizontal RSJs, and removing the two upper RSJs from the first bay immediately adjoining The Sail Loft.

In response to the council's representations, the appellant then put in further and more detailed representations. Paragraph 64 said:

Mr Fookes' submission is that the Inspector, having concluded that "there may well be an 'under-enforcement' solution by modifying the present structure", had ample material to enable him to either frame appropriate conditions upon any grant of planning permission and/or to amend the requirements of the enforcement notice, so as to enable the appellant to retain part of the structures, reduced in height, and with rack A reduced in length towards the west, so that it did not extend further west than the permitted rack A. The Inspector, in paragraph 22, said that he did not have an under-enforcement solution that was "sufficiently clear ... or sufficiently radical, to be acceptable." The use of the word "radical" suggests that the Inspector was primarily concerned, once again, with the overall height of the structures with boats on top of them. There would appear to be no dispute that he was given sufficient information to enable him to secure a reduction in the height of the structures. Reducing the extent to which rack A projected to the west could hardly be described as a "radical" modification.

Mr Maurici and Mr Wadsley submitted that the Inspector was entitled to conclude that the information in relation to reducing the length of rack A, so that it did not extend too far to the west, was insufficiently clear. It is true that the appellant did not provide as much detail about this aspect of the case as was provided in relation to the reduction in height, but it has to be remembered that the appellant was responding to what appeared to be the District Council's main area of concern: the height of the structures. Although the proximity of rack A to the houses in Shelley Reach was mentioned, the fact that the rack as built extended a further one and a half metres to the west did not feature with any degree of particularity in the District Council's representations. It would appear to have been a matter of concern to the Inspector, perhaps as a result of his site visit.

Mr Maurici referred me to the decision of the Court of Appeal in Taylor & Sons (Farms) v The Secretary of State for the Environment, Transport and the Regions [2002] PLCR 11, at page 154. In that case, the Court of Appeal was concerned with a challenge to an enforcement notice, where the appellant had not put in any submissions on his ground (f) appeal. Large quantities of waste and rubble had been imported onto a site. The Inspector found that the large area of hard standing that had been laid down was not reasonably necessary for the purposes of agriculture, and that even if it had been, its area would have exceeded the area of hard standing permitted under GPDO. She, therefore, required the removal of all the imported material. Notwithstanding the fact that no submissions had been made in respect of the ground (f) appeal before the Inspector, it was apparently argued in front of the judge at first instance that the Inspector should have decided what lesser area of hard standing would have been reasonably necessary for the purposes of agriculture, thus identifying the appellant's fall-back position, and not upheld the enforcement notices, requiring the removal of all of the imported material. Lord Justice Schiemann said this, in paragraphs 40 and 41:

In my judgment, the contrast between the circumstances in that case and the ground (f) appeal as presented by the appellant to the Inspector in the present case could not be more clear. Here, the sole issue in front of the Inspector was: "Could the racks as erected be modified in such a way as to make them acceptable in planning terms, given the existence of the 1991 planning permission? If the Inspector was concerned by the extent to which the southernmost rack extended westwards (1.5 metres further than rack A as permitted) then he was obliged to grapple with the fact that the appellant had said, in terms, that it was prepared for one or more third or fourth tier boats, behind 18 to 20 Shelley Reach, to be deleted. The significance of that is apparent from the plans and elevations. If the third or fourth tier boats are removed there is some degree of screening by reason of the wall between the yard and 18 to 20 Shelley Reach. This was not a case where the Inspector had no plans. There were plans available, and even in the absence of plans, the extent of the required reduction could have been described in words when varying the requirements in the enforcement notice. The architects had specifically advised that it was possible to reduce the height of the structure without there being any structural difficulty. Whilst it is perfectly true, as Mr Maurici and Mr Wadsley pointed out, that there is no express statement that reducing the length of the structure would not pose any structural problems, there is equally no suggestion that it would.

On the facts of this case, the Inspector was not entitled to brush aside the appellant's ground (f) appeal. It is plain that he did so because he was not satisfied with the proposals to reduce the height of the structures, because of his overriding concern about the storage of boats on top of them. If, and in so far as, his concern about the extension westwards of the southern-most rack by one and a half metres might have been sufficient to justify a refusal, then there was simply no basis on which the Inspector could conclude that the appellant had not put forward a solution to enable him to address that problem by way of the imposition of an appropriate condition, and/or a variation of the requirements of the notice.

The importance of the fourth storage level to the Inspector's decision is also reflected in the costs decision. I accept, of course, that this was an entirely separate exercise of discretion, and it does not automatically follow that merely because the primary decision letter has to be remitted to the Secretary of State that the costs decision is flawed. It is sufficient, for present purposes, to read from paragraph 6 of the costs decision:

For the reasons set out above, the company was entitled to take "a very robust approach" that there was nothing to prevent storage on the top of the racks permitted by the 2001 planning permission. In failing to accept that fall-back position, the Inspector made a fundamental error, which fatally flaws both his decision letter on the enforcement notice and his decision letter in response to the costs application. For these reasons, both of these decisions must be remitted to the Secretary of State.

Yes, Mr Fookes?

MR FOOKES: I ask for an order for costs against the first defendant. There are assessments, but there is also, subsequently, an agreed figure.

MR JUSTICE SULLIVAN: Oh, right. Good.

MR FOOKES: That agreed figure being £12,500.

MR JUSTICE SULLIVAN: You confirm that, Mr Maurici?

MR MAURICI: Yes, my Lord, that is correct. I am grateful to the solicitors for agreeing that matter.

MR JUSTICE SULLIVAN: I will make the order. The appeals are allowed. The matter is remitted to the Secretary of State. The first respondent is to pay the appellant's costs. Those costs were summarily assessed to the agreed sum of £12,500.

MR MAURICI: My Lord, the tests for permission to appeal lead me, having had my arguments rejected, to suggest to your Lordship that I was right, and your Lordship wrong; and that there is a reasonable prospect of the Court of Appeal agreeing.

MR JUSTICE SULLIVAN: There is no problem about that; it is part of the job really.

MR MAURICI: I would like to raise two points, my Lord. First of all, I do say that there is a real prospect of success in the Court of Appeal: that your Lordship was wrong in relation to the interpretation of the planning permission, and that the Inspector was correct. I say that also in relation to what the proper approach for the Inspector to take was on the ground (f) appeal, given the material that he did and did not have in front of him. Another point, which, I say, also has a prospect of success is the Court of Appeal taking a different view from your Lordship's on whether one can effectively disentangle reasons one and reasons two, even if my submissions in relation to the interpretation of planning permission are not accepted by the Court of Appeal.

My Lord, beyond that, in terms of the prospect of success, I do say that there is a wider point of interest in terms of the application of the Court of Appeal's guidance in the Taylor judgment to a situation like the one in this case, where the appellant does not provide no information, but provides some information that, in the Secretary of State's submission, is insufficient, and may well have required the Inspector to remit to the parties. I do not think your Lordship distinguished Taylor in this case. My Lord, I say the reason (inaudible) Taylor applies is to accept that that is an adequate point to raise, but not in sufficient detail, anything like the detail one sees for another point in the case. For those reasons, I submit that permission to appeal should be granted.

My Lord, can I just say now while I am on my feet, whether your Lordship is minded to grant permission or refuse it, can I ask for an extension of time for lodging the appellant's notice for 14 days after the transcript is available? I say that for two reasons. One, because it is always much easier to take a view as to whether to appeal and how to appeal once the transcript is available. Secondly, your Lordship will know that the Secretary of State does not appeal every decision that he loses at first instance. There are a number of internal consultations which have to take place, and 14 days would simply be very unlikely to be sufficient. So for those reasons, I would ask for 14 days after ...

MR JUSTICE SULLIVAN: I would actually be minded to give a little longer, because I know that the Treasury Solicitor will go back to the client, ie the department, and that department's lawyers will turn it over ...

MR MAURICI: It is perhaps even more complicated, because normally the client would be the Planning Inspectorate, but with appeals, one has to go to the department as well. So there is a complicated process, which need not concern the court other than the fact that it takes time.

MR JUSTICE SULLIVAN: Thank you very much. Mr Wadsley?

MR WADSLEY: If I may, I would join my learned friend in making a similar application, primarily on the interpretation of planning permission and the application of the Taylor judgment, particularly in the light of sufficiency, or otherwise, of the material.

MR JUSTICE SULLIVAN: Thank you very much. Mr Fookes, I assume you have no objection to the Secretary of State being given, I was thinking of, 21 days.

MR FOOKES: I have just been thinking about that. I was wondering if I could ask the applicants jointly whether they might consider waiving the effect of the stop notice during their extra time, because it applies to the whole of the yard. I do not object to the extra time, but it does seem that it should not really be to their convenience that it should apply to the time of the stop notice applying. I do not know how that can be dealt with, whether they might like to think about that. This is not a stop notice for which compensation would be payable later, because the appeals are under grounds (a) and (f).

MR JUSTICE SULLIVAN: But there is no doubt that there has been a breach of planning control.

MR FOOKES: We have been stopped for a very long time from doing anything.

MR JUSTICE SULLIVAN: Well, notwithstanding that, Mr Fookes, I think the appropriate course is that I am not going to grant permission to appeal. I do not consider there is a real prospect of success on the interpretation of the planning permission. If that is right, then frankly the whole decision falls away, whatever the view one takes of Taylor on the second ground. So far as time to consider appealing is concerned, I am aware of the fact that the Secretary of State considers the matter very carefully and does not automatically appeal, so I think it is sensible to give sufficient time for that consideration to take place. It could possibly only advantage the present appellant in these proceedings today. I am going to give a direction of 21 days from the date of the transcript.

MR WADSLEY: Does that apply to me too?

MR JUSTICE SULLIVAN: Yes, of course. Notwithstanding Mr Fookes' observation, I am going to give extra time.

Thank you all very much indeed.