Lanni v First Secretary of State & Anor

Bridge House Hotel is a hotel restaurant and conference centre complex situated off the A217 on the wooded south facing scarp slope of the North Downs overlooking Reigate. It is about 1.5 miles north of the town centre. It is outside the defined urban area of Reigate just beyond an area of scattered low density residential development. Mr. Onesto Lanni made a planning application dated 19 June 2002. Its aim was the demolition of the hotel and ancillary buildings in favour of a residential development comprising 23 flats with provision for car parking and landscaping. The site lies within the Metropolitan Green Belt, the Surrey Hills area of Outstanding Natural Beauty and an Area of Great Landscape Value. The Local Planning Authority is Reigate and Banstead Borough Council. Its officials recommended approval of the application. However on 9 October 2002 the Planning Committee resolved to refuse planning permission on two grounds. They were expressed in the following terms:

“(1)

The Development would be inappropriate development within the Metropolitan Green Belt and would also have a detrimental impact on its open character by reason of its bulk, height and massing. It would thereby conflict with policies PE2 of the approved Surrey Structure Plan 1994, CO1 of the adopted Reigate and Banstead Borough Local Plan 1994, LO6 of the Surrey Structure Plan First Alteration (Deposit Draft) 2001, CO1 of the Reigate and Banstead Borough Local Plan First Alteration (Revised Deposit Draft) 2000 and PPG2 – Green Belts.

(2)

The development would have a detrimental impact on the landscape character of the surrounding Area of Great Landscape Value an Area of Natural Outstanding Beauty by reason of its height and massing. It would thereby conflict with policies PE7 of the approved Surrey Structure Plan 1994, PC1 of the adopted Reigate and Banstead Borough Local Plan 1994 and SE6 of the Surrey Structure Plan First Alteration (Deposit Draft) 2001.”

In short, the first reason for refusal related to the open character of the Metropolitan Green Belt (MGB), whereas the second reason related to the landscape character of the Area of Great Landscape Value (AGLV) and Area of Outstanding Natural Beauty (AONB).

Mr. Lanni appealed under section 78 of the Town and Country Planning Act 1990. An inquiry was held by an Inspector appointed by the First Secretary of State on 26 and 27 November 2002. By a Decision Letter dated 10 January 2003, the Inspector dismissed the appeal. The Inspector identified the main issues to be: (1) whether the proposal amounts to inappropriate development in the Green Belt, and if so, whether there are any very special circumstances sufficient to overcome the presumption against such development; and (2) the effect of the proposal on the character and appearance of the Surrey Hills AONB and AGLV.

The relevant development plan includes the Surrey Structure Plan and the Reigate and Banstead Borough Local Plan. Policy PE2 of the Structure Plan indicates that development considered to conflict with the purpose of the MGB, or which would adversely affect its open character will not be permitted except in very special circumstances. Policy PE7 seeks to conserve and enhance landscape quality. Within AONBs and AGLVs, development considered to be inconsistent with this prime objective will not be allowed. The Inspector considered the advice contained in Planning Policy Guidance Note 2: Green Belts (PPG 2) regarding the control of development in such areas to be particularly relevant in this case. He also considered Planning Policy Guidance Note 3: Housing (PPG3) in respect of sustainable residential development, and Planning Policy Guidance Note 7: The Countryside-Environmental Quality and Economic and Social Development (PPG7), with regard to AONBs, to be significant in determining the appeal.

1. Green Belt

The Inspector then revisited the two main issues in his overall conclusion which was expressed in the following way:

“24.

I have concluded that the proposal amounts to inappropriate development in the Green Belt. I accept that the proposal would offer the prospect of visual improvements when compared with the existing development, and have given appropriate weight to these considerations. However I do not consider this to represent the very special circumstances needed under terms of PPG2 and the development plan, to overcome the presumption against the type of development proposed in the Green Belt. In my view that is the decisive factor in this case. This conclusion is supported by deficiencies I have identified in the suitability of this site for housing development given its pronounced physical detachment from town services and facilities and inadequacies of public transport pedestrian connections.

25.

My findings that the proposal would accord with policies designed to protect the landscape quality of the AONB and AGLV, do not overcome these objections. For the reasons set out above, and having had regard to all other matters raised, I therefore conclude that this appeal should not succeed.”

There is now before this court an appeal under section 288 of the Town and Country Planning Act 1990 against the decision of the Inspector. On behalf of Mr. Lanni, Mr. Pickles has helpfully grouped the several grounds of appeal under three headings. As is often the case, there is an overlap between the several grounds of appeal. The three headings are: (1) grounds arising from the Inquiry process; (2) other grounds relating to substantive consideration; and (3) human rights. I shall consider the grounds of appeal in the order advanced by Mr. Pickles.

In a nutshell, the case for Mr. Lanni under this heading is that one way or another, the Inspector failed to comply with the requirements of procedural fairness. The principal complaint is that the Inspector proceeded to determine the appeal by reaching conclusions which did not reflect the position of the parties, upon which Mr. Lanni’s representatives had not had the opportunity to comment and with inadequate reasoning to justify departing from the positions of the parties. Mr. Pickles submits that it is important in this regard to keep in mind the sequence of events at the Inquiry.

In accordance with the current procedure, the case for the local planning authority case was presented before that advanced on behalf of Mr. Lanni. The presentation of the local authority’s case had to confront the difficulty that its officers took a different view of the merits of the planning application from that which prevailed in the decision of the Planning Committee. On behalf of the local planning authority counsel called one officer, Mr. Williams, the area development control coordinator. Given the view of the officers, he simply gave factual evidence setting the decision of the Planning Committee in context. He was followed by Councillor Bennett, a member of the Planning Committee. He explained why the Committee did not find “very special circumstances” and why it was considered that the proposal was significantly worse than the existing development in terms of relationship with and impact on the AONB and AGLV. There then followed the three expert witnesses on behalf of Mr. Lanni, namely Mr. Tebbutt (an architect), Mr. Cook (a landscape architect) and Mr. Hayward (a planning expert). After the Inquiry and the site visit, an issue arose as to the submission of further material on behalf of Mr. Lanni. I shall return to this later. Before that I shall address the complaint about the relationship between the evidence and the Inspector’s conclusions. In so doing, I shall follow the sub-headings adopted by Mr. Pickles. In due course of submissions, he volunteered the mature concession that he would have to succeed on more than one of them to have a hope of success in this appeal in relation to procedural unfairness.

I do not find there to be any force at all in these complaints. It is apparent that the Inspector used the term “country hotel” as nothing more than a description, and an accurate one at that. There can be no objection to the finding that the hotel fulfils a need. Mr. Pickles accepts that the Inspector was entitled to have regard to need. He does not challenge the finding that “this site is currently in full and active use for that purpose, a role it has performed for very many years”. Indeed, Mr. Lanni’s case at the Inquiry on travel patterns implicitly accepted as much. These are undoubtedly points which the Inspector was entitled to consider. If the evidence had pointed the other way – for example, to the hotel being derelict or run down, or the business being non viable – these would be points upon which Mr. Lanni would no doubt have relied. The Inspector accepted that the previously developed status of the site is a material consideration but concluded that, on its own, it did not outweigh the general presumption against inappropriate development within the Green Belt. I detect no legal error or manifestation of procedural unfairness in that approach. Nor does any error result from the fact that the Inspector had not identified the issue in advance of the hearing as the Procedure Rules enable, but do not require him to do so.

Mr. Palmer submits that there was nothing unfair about this aspect of the case. He takes issue with the expression “the principle of flats”. Those words do not appear in the Decision Letter. Moreover the impact of the proposed development on the surrounding landscape was always going to be an issue at the Inquiry. Thus, Councillor Bennett’s evidence compared the proposed development unfavourably with the existing buildings on the ground that the proposed development would be visually more intrusive. He specifically referred to the bulk of the proposed development being “out of character with the area”. In these circumstances, I accept Mr. Palmer’s submission that there was no unfairness in the way in which the Inspector dealt with this issue. The point was raised with Mr. Hayward by the Inspector. In the context of the case as a whole, it ought not to have come as a surprise to him or to have embarrassed him in any way. As Mr. Palmer observes, if such problems had arisen, it would have been open to Mr. Hayward, or counsel for Mr. Lanni, to request an adjournment but no such request was made. I find no unfairness in the addition of two sites to the site visit. Nor do I find any shortcoming in the Inspector’s reasoning, having regard to Bolton MDC v. Secretary of State for the Environment [1995] JPL 1043. Density and consistency within the locality were clearly matters which the Inspector was entitled to consider. In my judgment, neither his conclusion on this point nor the process by which it was reached discloses any legal error or unfairness.

Travel patterns

This is another aspect of the case in respect of which it is suggested that the Inspector was procedurally unfair. In his witness statement Mr. Hayward describes events at the Inquiry as follows:

“In response to questions from the Inspector, Mr. Williams confirmed that…..officers had regard to the suitability of the site for housing in terms of PPG 3 and sustainability; the fact that – in terms of the sequential approach – the site was not previously developed land within the urban area, was not seen as overriding; the site is within reasonable walking distance of the town centre though there is a steep gradient and it is not ideal; the site is on a bus route but it is probably not an attractive option and the predominate mode of transport would be by motor vehicle.

Again in response to the Inspector, Councillor Bennett indicated that in highway terms members’ main concern had been that there was no footpath on the western side of Reigate Hill and pedestrians therefore needed to cross the road but that this had been addressed by Surrey County Council (the highway authority) who said that, despite that, there was no highway objection.

With neither of these witnesses did the Inspector investigate either the relative merits of the site in hotel and restaurant use as against residential or the likely impact of closure of the hotel on travel patterns.

Towards the close of evidence in chief, I gave evidence on the inappropriateness of the appeal site as a location for a hotel and restaurant. I emphasised that national policy encouraged the provision of hotels and restaurants in urban areas and in or on the edge of town centres in particular. I observed that removal of the existing uses may encourage hotel/restaurant development in these locations favoured in policy terms. I then produced my further Appendix….it indicated a likelihood that the appeal proposal would generate between about 46 and 180 vehicle movements per day. On the other hand, it indicated that the hotel….has the potential to generate about 350 or 440 vehicle movements per day and the restaurant…has the potential to generate almost 200 further vehicle movements per day.

Questioned by the Inspector I emphasised that it was the Appellant’s case that a residential use was more sustainable than that existing (on the basis of the trip generation figures quoted) and that Local Plan Policy encouraged hotel development in urban areas and within town centres.”

The Inspector clearly had this evidence well in mind. The Decision Letter refers in paragraph 18 to evidence suggesting that the proposal would result in a net reduction of vehicular movement to the site. The Inspector continued:

“Whilst this may be so, much of this movement, in my opinion, would not be lost, but rather displaced to other locations, by people seeking access to comparable facilities at other establishments in the area.”

The Inspector then referred to the likelihood that the residents of the proposed flats would be heavily dependant on the motor car for access to normal day to day services and facilities. He did not consider that there was good accessibility for jobs, shops and other services by modes other than the car. This produced the conclusion that the proposal is contrary to the requirement of PPG3 and does not offer the potential for improving accessibility.

Mr. Pickles submits that paragraph 18 is redolent with unfairness. First, it is suggested that the Inspector erred by not making a finding on the reduction of vehicular movements to the site. He complains about the wording “whilst this may be so”. Secondly, the complaint is made that it was unfair or unreasonable to dilute the benefit of reduced vehicular movement to the site by reference to displacement to comparable facilities in the area when neither the existence nor the extent of such facilities had been canvassed at the Inquiry. Thirdly it was unfair to fail to take into account that the public transport implications are the same with or without the proposed development.

I do not consider that the wording “whilst this may be so” is susceptible to criticism. In context, what the Inspector was saying was that, assuming a net reduction in vehicular movement as advanced on behalf of Mr. Lanni, it would in the judgment of the Inspector result in the displacement to which he referred. Moreover, there is no question of an unfair dilution of the point. That current users of the present facilities would seek similar facilities in comparable establishments in the area is a perfectly reasonable inference. I can find no legal error in this part of the Decision Letter. Although the charge of unfairness is raised again in the context of a point said not to have been specifically raised at the Inquiry, it is pertinent that there is no evidence before the court as to what Mr. Lanni’s experts would have wished to say on the subject if the matter had been raised directly. I reject the complaints under this sub heading.

This matter relates not to what took place at the Inquiry but to a subsequent development prior to the Decision Letter. Mr. Hayward states:

“Following the Inquiry my attention was drawn to a recent appeal decision of the Secretary of State concerning a development of flats within the vicinity of the appeal site. It appeared to me that this was relevant to the issues raised by the Inspector at the Inquiry. I thought that it was important – in the context of how these issues had been raised and in the interests of both Mr. Lanni and the consistency of decision making – to bring it to his attention. I sent it to PINS with a request that it be forwarded. But it was not. Whether (the Council’s) response to it….was forwarded, I do not know.”

Thus, the context is one of submission of material after the Inquiry but before notification of decision. On this single issue, the Inspector has made a witness statement in these proceedings. He recounts that he had announced at the Inquiry that any late evidence submitted would be disregarded save in extraordinary circumstances. As a matter of law, he plainly has a discretion in this regard. By rule 18(2) of the Town and Country Planning (Appeals) (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 an Inspector may disregard any written representations or evidence or any other document received after the close of the Inquiry. The evidence of the Inspector is that he had considered Mr. Hayward’s letter but had concluded that there were no circumstances justifying its reception in evidence. He instructed the Secretariat to return it to Mr. Hayward and took a similar step when he disregarded the Council’s response. He states that the circumstances pertaining to the other appeal site were very different from those concerning Mr. Lanni’s appeal. Moreover the other appeal decision predated the Inquiry in Mr. Lanni’s case by several weeks. The fact that Mr. Hayward only learned of it and sought to rely on it a considerable time after the closing of the Inquiry does not amount to an extraordinary circumstance. I have no doubt that the Inspector’s decision not to consider this later material was an unimpeachable exercise of his discretion.

Other grounds

Green Belt: openness

In paragraphs 13 and 14 of the Decision Letter, the Inspector came to the conclusion that “overall, the proposal would maintain the openness of the site”. Mr. Pickles submits that this does not do justice to Mr. Laurie’s case or the evidence which was that the relevant impact would be positively beneficial. He points to Mr. Hayward’s evidence to this effect and complains that the somewhat neutral word “maintain” implies a rejection of the evidence which is not justified or reasoned. Secondly, it is said that the Inspector did not take into account the removal of car parking alongside the A217 to the north of the Hotel and to the front of it. Thirdly, it is suggested that the Inspector did not take into account Mr. Hayward’s evidence relating the proposal to the purposes and objectives of the Green Belt.

I do not find these points to be sustainable. In paragraph 13 the Inspector expressly referred to “more interesting and appropriate frontage detailing, and an archway that would allow vehicles to penetrate to the rear of the site, where parking would be contained and concealed”. Moreover, when addressing visual impact in paragraph 15, he referred to “visual benefits over the existing development”. In my judgment, the approach taken by Mr. Pickles to these matters is unduly schematic and involves an approach to the interpretation of the Decision Letter which is excessive. I detect no basis upon which it can be said that the Inspector did not properly consider Mr. Haywards’s evidence on all or any of these points. Nor do I find any insufficiency of reasoning.

Green Belt: visual benefits.

In paragraph 15 of the Decision Letter, in the context of visual impact, the Inspector observed of the existing buildings that “their horizontal alignment, utilising the gradient of the land, limits their visual presence”. The submission on behalf of Mr. Lanni is that this is irreconcilable with a later passage, in relation to the AONB and the AGLV, where the Inspector refers to “strongly linear visual impact on the landscape” and to the visibility of the existing buildings being “heightened by the horizontal emphasis of the detailer of …..external construction”. Thus, Mr. Pickles claims to identify an inconsistency or discrepancy which has been deployed in a way that unjustifiably dilutes the case on the visual benefits of the proposal.

I am unpersuaded by this submission. In both passages, the Inspector accepted that the proposal would be visually beneficial compared with the existing development. This was a matter which he correctly stated had to be weighed against other considerations.

Green Belt: “very special circumstances”.

PPG 2: Green Belts refers in paragraph 3.1 to the “general presumption against inappropriate development” within Green Belts. It is common ground that the present proposal would be “inappropriate development”. Paragraph 3.1 goes on to state that such development should not be approved “except in very special circumstances”. Paragraph 3.2 provides that it is for the applicant to show why permission should be granted and that very special circumstances will not exist “unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations”. It is clear that this is a particularly high threshold. In response to my question, neither counsel knew of any other planning requirement that is pitched as high. Nevertheless, Mr. Pickles submits that the Inspector fell into error by assuming that a strong “visual benefits” case would not, on its own, amount to a “very special circumstances”. As his argument developed, Mr. Pickles came to identify this as the fundamental flaw in the decision.

In my judgment, these complaints are wholly unfounded. As Mr. Palmer points out, the Inspector did not conclude that visual benefits alone are legally incapable of amounting to very special circumstances. He concluded that, having taken into account all material considerations as he was bound to do, the established visual benefits in this case do not amount to very special circumstances. I cannot see that that was an impermissible conclusion or that it was reached by an erroneous process of reasoning. To the extent that Mr. Pickles refers to a “moving of the goalposts”, in the sense that the Inspector’s approach did not reflect the position of either of the parties, the answer is plain. An Inspector is not simply a referee between two contesting positions. It is his duty to decide the appeal in accordance with published policy and the public interest, having taken into account all material considerations, even if his judgment leads him to a view which is not that of either of the parties.

Enhancement of the AONB/AGLV

The case for Mr. Lanni before the Inspector included the contention that the proposal would enhance and not merely conserve the character and appearance of the AONB and the AGLV. Mr. Cook, in particular, gave evidence to this effect and it also received some support from the two witnesses called on behalf of the Council. Mr. Pickles’ submission is that this evidence was unjustifiably rejected because the Inspector merely found that the proposal would “conserve” the character and appearance of the AONB and the AGLV. However, I do not consider this to be a fair reading of the relevant parts of the Decision Letter. In paragraph 22 the Inspector referred to “a more varied and interesting frontage”, a “more visually pleasing” frontage design, “more subdued materials of construction and additional landscaping”, the flats being “less conspicuous from distant viewpoints” and “more consistent in terms of design with other buildings in the general area” and the visual benefits flowing from relocated car parking and a reduction in signage. In paragraph 23 he referred to “a better building of suitable design for its setting”. Indeed, Mr. Lanni succeeded on the AONB/AGLV part of the Decision Letter. To suggest that the use of the word “conserve” implies a rejection of Mr. Lanni’s case on enhancement is not correct. It follows that I do not accept the associated submission that what went into the balance sold Mr. Lanni short on this issue.

Human rights

Although the grounds of appeal and the written and oral submissions of Mr. Pickles include references to alleged breaches of Article 6 of the ECHR, it is conceded that, an analysis, if Mr. Lanni is unable to make good any of the points which I considered under the heading “grounds arising from the Inquiry process”, Article 6 will not avail him. There is a diffident suggestion that the Inspector’s approach to the evidence, policy and his appraisal of Mr. Lanni’s case is indicative of a lack of patent impartiality but that suggestion is utterly unsustainable. I can find no semblance of a breach of Article 6.

It follows from what I have said that none of the grounds of appeal is made out and the appeal is therefore dismissed. I do not imagine that that leaves any scope for an argument about costs. I am minded to award the First Secretary of State his costs and to assess them summarily in the amount of £4746 as per schedule dated 4 June. That figure seems to me to be reasonable bordering on modest. If the terms of the final order can be agreed between counsel, there is no need for anyone to attend when this judgment is handed down.