Austin v First Secretary of State

J U D G M E N T

1. MR JUSTICE COLLINS: This is an appeal against the decision of an inspector, following what has been described as "an informal hearing" whereby she dismissed the appellant's appeal against the refusal by Penwith District Council of planning permission in respect of the conversion of three barns to two mixed dwelling and work shops and one detached dwelling and a workshop. The proposal was that the premises should have thereby a mixed residential and business use, although it was perfectly clear that the business use was subsidiary to the residential use.

2. There was an appeal which was to be dealt with on written representations. That was dismissed on 26th March 2001. Unfortunately, the inspector who presided over that appeal chose to obtain evidence of his own motion, which was not put to either of the parties. In those circumstances, it is not surprising that there was a submission to judgment when the appeal was brought before this court. The appeal with which I am concerned was a reconsideration by an inspector of the appeal which had originally been lodged on 27th November 2000, the application for planning permission having been refused on 5th September 2000.

3. The hearing, as I have said, was what is described as "an informal hearing". No doubt that is a convenient method of dealing with these cases because it saves a considerable amount of time. The formalities which otherwise are necessary do not all have to be carried out. On the other hand, it has the disadvantage that it is not always clear precisely what was put to the inspector in the course of the hearing, and there has been in this case some concern expressed on behalf of the appellant that it is not entirely clear precisely to what the inspector may have had regard. I think that on the basis of the material I have seen, there is in fact little in that concern. At page 115 of the bundle there is a document which is headed "Agenda for Discussion", and which I am told was produced by the inspector at the outset of the hearing. She notes the Development Plan, which is a Replacement Cornwall Structure Plan of 1997, and the Penzance Local Plan of 1991. Those were the existing plans. It was common ground that there was nothing in the Penzance Local Plan which was material for the purposes of this appeal.

4. She then refers to the Emerging Local Plan, which was in the process of going through the necessary stages before it became a proper plan, if I may put it that way. She notes against this, "Is this the version on which Council are relying?". It seems from her determination that she must have had a positive answer to that question, and I do not understand Mr Edwards to dispute that.

5. She then sets out the relevant policies in both the Structure Plan and the Emerging Local Plan, and the relevant government guidance in the various PPGs. There is no question that she has in that list set out all the relevant, or possibly relevant, policies. She then goes on to give headings indicating the issues which she considered to be, no doubt, material on the face of what information she had. Again, it hardly seems to be possible that she has omitted any matter which was material; indeed, she has clearly not. So all the right issues were before her. The question is whether she has properly dealt with all those matters.

6. The major complaint made by the appellant is that the inspector attached greater significance to the Emerging Local Plan than she should have done. At the time of the hearing the Emerging Local Plan was going through the inquiry stage. As a matter of fact, as I understand it, questions about the relevant policy, so far as this case is concerned, had been heard by the inspector presiding over that inquiry. He had not reached any conclusions, and indeed I am told that the inquiry did not come to a conclusion until September of last year. The hearing before the inspector was on 15th May of last year and her decision given on 6th June.

7. Ironically, the inspector's report on the Emerging Local Plan is due to be published today, but the parties have not seen it, nor have I. However, for the purposes of this appeal, the conclusions are irrelevant because I have to consider the position as at the date of the hearing, and whether the inspector's conclusions are soundly based having regard to the state of affairs in May 2002.

8. The inspector stated at the outset of her determination as follows:

"The Deposit Draft Local Plan is at a relatively advanced stage and I will allow its policies significant weight."

She then went on quite clearly to rely extensively upon the relevant policy in that Emerging Plan and, as she said, to rely upon it to a significant fashion in dismissing the appeal.

9. I should before going further look at the relevant policies. There are essentially two that were really in issue: one in the Structure Plan, the policy being ENV11, and one in the Emerging Local Plan, the policy being H-11. The relevant policy in the Structure Plan, ENV11, reads as follows:

"Provision should be made for the re-use, adaptation and conversion of existing buildings where the development would not detract significantly from the character and amenity of the surrounding area and where buildings are cable of re-use, adaptation or conversion without major extension or rebuilding.

"In rural areas, priority should be given to provision for employment needs."

10. There is an introduction to that policy contained in the Plan which can be found at paragraphs 12.55 and 12.56, which state as follows:

"12.55 A major aim of national policy is to make the best use of existing buildings and encourage their re-use and adaptation to new uses. The County Council fully endorses this principle. Along with maximising the use of previously developed land it can help to reduce the impact of development on 'greenfield' sites and also provides the potential to preserve buildings of architectural or historic merit.

"12.56 In rural areas particularly difficult development issues have arisen over the conversion of existing buildings. This has involved both the extent that a different approach should be taken to new development, the character and quality of the buildings involved and the scale and form of the conversion in relation to the original building. The Plan aims both to maximise the re-use of appropriate buildings to meet development requirements and at the same time help conserve buildings of merit. Government policy in PPG7 emphasises the important role the re-use and adaptation of existing rural buildings can have in meeting the needs of rural areas for commercial and industrial development. This priority is effected in Policy ENV11. Conversion for residential use outside towns and villages should be confined to cases where the benefits that arise from the conversion justify the planning consent in an area where residential development would not usually be acceptable. It may be appropriate for local plans to apply additional tests that any such benefits could not reasonably be achieved by a non-employment use.

11. The reference to government policy in PPG7 is, I think, a reference in particular to paragraph 3.15 of that document, which reads:

"Local planning authorities should cooperate with local bodies to compile and promote registers of rural buildings with unimplemented planning permission for business re-use. The conversion of buildings which are currently in industrial or commercial use to dwellings may have an adverse impact on local economic activity. Residential conversion of buildings which have ceased to be used for industrial or commercial purposes can have a minimal economic impact, whilst business conversion may have a more positive impact on local employment. Residential conversions may however have a part to play in meeting identified needs for new market or affordable housing. Residential conversions are often detrimental to the fabric and character of historical buildings, although in some cases it may be not be possible to find a suitable re-use for a listed or other rural building. Local planning authorities should consider the needs of their areas for business, and residential, conversions. Especially in areas where the creation of local employment is a priority, they may include policies in their development plans which do allow residential re-use unless either

(a) the applicant has made every reasonable attempt to secure suitable business re-use, and the application is supported by a statement of the efforts which have been made; or

(b) residential conversion is a subordinate part of a scheme for business re-use."

12. There is no question that the part of Cornwall in question is an area where the creation of local employment is a priority. There is substantial unemployment in the area, and that is a matter which is reflected in the approach required by ENV11; namely, that in rural areas priority should be given to the provision of employment needs.

13. The Emerging Local Plan, in its policy H-11, has reflected that approach, but has applied it on its face relatively rigidly. The policy, as it existed by virtue of some amendments at the time of the hearing before the inspector, reads as follows:

"Outside towns and the villages referred to above such development [that is to say conversion to residential use] will not be permitted unless the building is:-

(i) of a form, bulk and general design which is in keeping with its surroundings and

(ii) is part of a scheme for the re-use of a building, or complex of buildings, for employment purposes or

(iii) reasonable and sustained attempts have been made to secure suitable business re-use.

Where a proposal meets the requirements of criterion (ii) of this policy planning permission will not be granted unless occupancy of the dwelling is tied, through the use of conditions or a planning obligation, to completion of the works necessary for the establishment of the enterprise and its subsequent operation."

14. There is a note accompanying the policy, which states as follows:

"In order to assess fully that reasonable and sustained attempts to secure employment re-use have been made, the applicant will be required to show, by submitting a statement of the efforts made, that the building, or its location, are unsuitable or that as a result of marketing the property, normally for a period of at least 12 months, there is no demand in the locality. Employment re-use could include tourism proposals which meet the requirements of Policy TM-12."

15. In addition to the policy itself, and the note which I have read, there are also what can be described as explanatory paragraphs, which were numbered 40 and 41. They require that:

"The location of the building must be taken into account in relation to traffic and trip generation. These and other considerations are reflected in national policy guidance, primarily PPG7, and in the Structure Plan Policy ENV11."

And further:

"In rural areas PPG7 advises that the re-use and adaptation of existing buildings has an important role in meeting the need for commercial, industrial, tourism and recreational development. The PPG (Annex G) also advises that, while residential conversions have a minimal impact on the rural economy, conversions for holiday use can contribute more and may reduce pressure to use other houses in the area for holiday use."

16. It then points out that there were policies which permitted conversion to business and tourism related uses, including holiday accommodation, and that that approach led to an emphasis on employment uses rather than on residential uses. It is stated that while the focus for activity would remain on towns and villages, some uses would be appropriate outside main settlements and could make an important contribution to the rural economy.

17. It then goes on:

"After taking into account the advice in PPG7, relevant Structure Plan policies and the objectives of the Local Plan the following approach to the re-use of buildings have been developed. In towns and villages listed in POLICIES H-5, H-6 and H-7 the conversion of buildings for residential use will usually be acceptable in principle and will make a significant contribution to the amount of housing provided on previously developed sites."

18. It makes the point that use of existing buildings for employment purposes is important, and that outside towns and villages, where the provision of new housing is strictly controlled unless there is special justification, every reasonable attempt must be made, in line with the advice in the PPG, to secure business re-use before residential use is considered. The type of use that is appropriate will depend on the location of the site in relation to traffic and trip generation, but can include conversion to holiday accommodation.

19. If a proposed redevelopment is to provide employment, it might be necessary for a dwelling to be provided as part of the scheme, but the need to live there should be justified, and the residential element should be subordinate to the business element and closely linked to it in terms of occupation.

20. As I say, it is perfectly clear that the policy H-11 in the Emerging Local Plan is on its face consistent with the Structure Plan ENV11 and with PPG7, the general government guidance, and there is likely to be a presumption against residential conversions in rural areas in this part of Cornwall. Nonetheless, the precise way in which H-11 is eventually expressed will be of very considerable importance. There was objection to the proposed H-11; indeed, the policy itself and the explanatory paragraphs, as I have described them, were themselves the subject of amendments before the inquiry took place. Quite how the policy will in due course be spelt out is at the moment unknown. But, as I say, it must be recognised that generally speaking it would appear to be consistent with the approach required by the Structure Plan and by government guidance.

21. It is submitted on behalf of the appellant that in so doing she failed properly to take into account guidance given in PPG1. That guidance is contained in paragraphs 47 and 48. Those paragraphs deal with prematurity and are concerned with the propriety of refusing a planning permission because the Emerging Local Plan makes it clear that an application which otherwise might be allowed would be likely, when that plan came into existence, to be refused. Thus, the guidance is not directly relevant to the situation here. Nonetheless, it is perhaps a matter of common sense. What it says is that the weight given to emerging policies will depend upon the stage of plan preparation, and will increase as successive stages are reached. That is, I would have thought, obvious. It then gives examples:

"Where a plan is at the consultation stage, with no early prospect of reaching deposit, then refusal on prematurity grounds would seldom be justified because of the lengthy delay which this would impose in determining the future use of the land in question;

"Where a plan has been deposited but no objections have been lodged to relevant policies, then considerable weight may be attached to those policies because of the strong possibility that they will be adopted (or approved) and replace those in the existing plan. The converse may apply if there have been objections to relevant polices. However, much will depend on the nature of those objections and also whether there are representations in support of particular policies."

Then it continues:

"Where an Inspector has recommended in favour of relevant policies to which objection has been raised, refusal on prematurity grounds is unlikely to be justified for an application which is consistent with these policies."

22. There is a paucity of evidence, and was before the inspector, it seems, something of a paucity of evidence, as to the precise nature of the objections to H-11, and indeed whether there was any positive support for H-11 in the form in which it was put before the inspector. As I say, it is clearly consistent with ENV11 and PPG7, but all might turn upon how rigidly the policy was eventually expressed. The proposal was clearly very rigid, and it is not surprising in the light of that policy that the inspector found as she did. I am well aware that weight is a matter for the inspector, and that a complaint that an inspector attached too much weight to A rather than B is not something which normally founds an error of law. But the situation here is, as it seems to me, somewhat different. The reason that the inspector has given for allowing significant weight to the Emerging Policy was because it was, as she put it, "at a relatively advanced stage". She notes in the decision letter that the inquiry was currently under way and, as it seems to me, the stage had not been reached when it was appropriate to give significant weight to it. It is perfectly plain when one looks at the decision which she reached, that she has relied upon it to a very great extent. In paragraphs 6 and 7 she says:

"(6) Structure Plan Policy ENV11 includes a criterion that, in considering the conversion of existing buildings in rural areas, priority should be given to provision for employment needs. Emerging Policy H-11, as amended, expands on this requirement and reflects more closely advice in PPG7. Policy H-11 indicates that in rural areas the conversion of non-residential buildings and dwellings will be permitted subject to criteria. These include that the residential use is a subordinate part of a scheme for the re-use of buildings for employment purposes, or that reasonable and sustained attempts have been made to secure a suitable business re-use. In the proposed development the employment floorspace would be a relatively small proportion of the total floorspace of the proposed scheme. It will thus be subordinate to the residential use and that criterion of Policy H-11 would not be fulfilled.

"(7) The property has not been marketed for employment re-use. The explanatory note to accompany Policy H-11, as further amended by the Council at the Local Plan Inquiry, indicates that if the applicant shows that the buildings or their location are unsuitable for employment use, this may replace the requirement for proof of attempts to market the property. The parties make no claim that the buildings themselves are unsuitable for conversion to wholly employment use. The site is in a somewhat isolated position in open countryside, although only about 3-4Km from Penzance. It is not well served by public transport."

23. Pausing there, what she does not refer to is what Mr Edwards submits is a very significant matter of fact which is referred to in paragraph 6 of his claim, and that paragraph is supported by the statement of truth supporting the claim. What is there said is:

"It was confirmed by the Second Respondent [that is to say the local planning authority] at the informal hearing that a full employment use was not likely to be suitable in this location being remote from any settlement and that the nearest bus route was over 1 km away and which would require employees to walk a narrow unlit country lane to reach the appeal site."

24. That, of course, was some evidence which might have shown that the location was unsuitable for employment use and, as the inspector has recorded in paragraph 7, the explanatory note indicated that if the applicant showed that the buildings or their location were unsuitable, that might replace the requirement for proof of attempts to market the property.

25. She goes on in paragraph 7 as follows:

"However PPG7 emphasises the benefits of the re-use of rural buildings for business or tourism in terms of reducing demands for new building in the countryside, and of promoting a healthy local economy. Such stimulus of the local economy could come not only directly from the creation of new jobs, but also indirectly from increasing business to local suppliers, shops, advertisers and so on. The use of the barns as holiday accommodation might not directly generate as much employment as a workshop use, but would be likely to stimulate local businesses such as visitor attractions, shops, pubs and restaurants. It is clear to me that any disadvantages of the site in terms of a relative lack of sustainability would be outweighed by such benefits."

26. What she appears there to be saying, but it is not entirely clear, is that the difficulties of full business use would not extend to use as holiday accommodation; that would be a tourist use which would be within the policy. There was no evidence before her that tourism use would not be a viable use. Equally, there was no evidence before her that it would be a viable use. But in that respect it may well be that it was appropriate and proper to indicate that the burden lay upon the appellant, assuming that he had to meet the constraints of the policy to establish that that use was not a viable one.

27. Mr Edwards complains that although, no doubt, the question of tourism was raised, and indeed it is in the agenda note which was produced by the inspector, it does not appear to have been something which figured in the local planning authority's approach to the matter, and it was not a matter which loomed large in the approach made by the appellants, although it is fair to say that it was clearly referred to in the detailed proof of evidence submitted on their behalf.

28. In paragraph 8 the inspector continues:

"Paragraph 3.15 of PPG7 points out that it is especially in areas where the creation of local employment is a priority that local planning authorities may wish to include policies which require proof of attempts to secure business re-use, or which allow residential conversions if a subordinate part of a scheme for business re-use. Unemployment is an important issue in the District, which is in receipt of EU Objective 1 funding. I consider therefore that the policies ENV11 and H-11 are soundly based."

29. Miss Davies relies on that particularly as indicating that the inspector was quite entitled to attach significant weight to H-11 because it was doing, in her eyes, no more than confirming the policy set out in ENV11 and in PPG7, and it was on the basis of ENV11 that the local planning authority had refused planning permission. Accordingly, submits Miss Davis, there was every justification for the inspector to attach weight to H-11, quite independently of the stage which the Emerging Plan had reached.

30. While I see the force of that, the reality is that the inspector was basing her decisions very largely upon the policy set out in H-11 and upon the rigidity of that policy, and, in my view, to indicate that she attached the sort of weight she describes as significant because it had reached a relatively advanced stage was an error. It did not take proper account of the reality, which was that there were reasoned objections to the policy before the inspector, and that while a policy along those lines was clearly going to be approved, because anything else would not be consistent with ENV11, the rigidity might be well be reduced.

31. If that were the only point, it may be that I would be in doubt as to whether it was appropriate to allow this appeal, but it does not, in my view, stop there. The problem arises in paragraph 9 of the inspector's decision, in which she says this:

"I am aware that there are employment areas in nearby settlements which are well served by public transport, and which may represent more attractive locations for business than the appeal site. However it is for the Appellant to prove that there is no demand for business re-use of the premises through substantial attempts to market the property over a significant period. In the absence of such proof, and for all the other reasons which I have given, I find that the proposed development would not give priority to provision for employment needs, and would thus result in unjustified dwellings in the countryside."

32. She herself had noted in paragraph 7 that a demonstration that the buildings or their location were unsuitable for employment use might replace the requirement for proof of attempts to market the property. She bases, and could only base, her assertion that it was for the appellant to prove there was no demand through substantial attempts to market on H-11, but H-11 does not go that far, as the note and her own previous indication had shown. I appreciate, of course, that one should not take isolated sentences from inspectors' reports, and should read them as a whole and fairly and in the knowledge that they are for parties who know what the issues are. But that is an unequivocal statement, and it is perfectly plain from it that the inspector was regarding the absence of substantial attempts to market as in itself an added reason for refusing permission, and it seems to me that there was no proper basis upon which she should have so concluded. That, added to the concern about the over-dependence upon the Emerging Policy H-11, the elevation of that policy to a status which it could not reasonably bear, means that this decision cannot stand.

33. Mr Ewards took various other points, but they all seem to me to be subsidiary to the points with which I have dealt. There was a separate one in relation to a complaint that the inspector had not dealt properly with an argument that a proposed development at another site, a place called St Erth, had been allowed by the inspector. It was argued that that was a similar development, and that if that succeeded, so ought this. The inspector rejected that, simply saying that it differed significantly from the circumstances in the appeal before her. I need not go into detail, but Miss Davies has drawn my attention to the decision in the St Erth case, and it is perfectly clear that there were differences which the inspector was perfectly entitled to regard as significant. In particular, and by way of example, that was a proposal where the only objection was to the division of floorspace between office and residential, and the complaint was that employment was not a dominant use in the circumstances of that case. It was also noted that the proposal brought forward a positive scheme for the re-use of a fine set of traditional buildings, which all parties agreed would be an unfortunate loss should they deteriorate. The proposal did make some contribution to local employment, and the inspector considered that that would meet the aims of ENV11 and the Structure Plan, and that to resist on the basis that the dwelling would be subservient would be unduly rigid in the particular circumstances of the case. He recorded the council's concern that to allow the proposal might weaken its position to resist inappropriate conversions to dwellings elsewhere in open countryside. The conclusions state that each case must be considered on its own merits, and he could see no reason why allowing this proposal would weaken the council's position to resist residential conversions elsewhere, should they, for whatever reason, be inappropriate. That is as clear a statement as one could want that the inspector was indicating that his decision should not be regarded as a precedent for any other decision. So, as it seems to me, the St Erth point is clearly a bad one.

34. I do not consider it necessary to go through the other points in detail. As I have said, they are subsidiary and none of them, even cumulatively, would suffice to persuade me that that the inspector's decision should be regarded as flawed.

35. For the reasons that I have given, I allow this appeal.

36. MR EDWARDS: I would ask for an order that the First Secretary of State's inspector's decision letter be quashed. I would also ask that the First Secretary of State pay the claimant's costs. I believe a schedule was served.

37. MR JUSTICE COLLINS: You can not resist, I take it, Miss Davies, the costs in principle?

38. MISS DAVIES: In principle, my Lord, no, although I would wish to make some submissions about a part of the costs orders in the light of your Lordship's decision.

39. MR EDWARDS: Can I hand up the schedule that has been served?

40. MR JUSTICE COLLINS: When you say you want to say something about costs, do you mean that you are contesting some of the detailed schedule, or are you contesting that he should have all his costs?

41. MISS DAVIES: Simply this, my Lord. Seven grounds of appeal were raised, and in your Lordship's findings they have succeeded on only two of those. In my submission that would have given rise to costs both on the claimant's part and, of course, on the Secretary of State's part, in considering those additional grounds on which the claimant has not succeeded. So I would invite your Lordship to make a deduction of some kind to reflect that a number of those points were brought forward, which in my submission were --

42. MR JUSTICE COLLINS: They were all subsidiary points, and most were covered as part and parcel of the argument to the main point. I do not think this is a case for deduction on that basis. What about the actual amounts?

43. MISS DAVIES: As to the actual amounts, my Lord, I do not dispute those. The statement I have been given refers to the hearing being 14th November; that, of course, is the date when it was adjourned. I do not contest the individual items.

44. MR JUSTICE COLLINS: In that case I shall allow the appeal with costs in the sum £5,770.57.

45. MISS DAVIES: Before your Lordship rises, I wonder whether I might just ask your Lordship about the question of permission to appeal.

46. MR JUSTICE COLLINS: By all means.

47. MISS DAVIES: Obviously, the Secretary of State will wish to go away and consider your Lordship's judgment.

48. MR JUSTICE COLLINS: It is an one-off, is it not? I have not sought to try any new principles.

49. MISS DAVIES: Indeed, the point on which I want to ask your Lordship to grant permission to appeal is, of course, that it is unusual for an appeal to succeed when what is really at issue is the weight that has been attached to something.

50. MR JUSTICE COLLINS: It is not the only issue. It is also setting out a requirement which does not accord with the policy anyway, the requirements that there must be proof of marketing over a substantial period.

51. MISS DAVIES: Again, for the reasons I have traversed with your Lordship, I say that it can be argued that that is not in fact the reason that the inspector --

52. MR JUSTICE COLLINS: It can only be argued if you disregard what the inspector says.

53. MISS DAVIES: I do ask your Lordship at this stage --

54. MR JUSTICE COLLINS: No, Miss Davies, this is clearly not a case in which it would be appropriate to give leave to appeal. If you want to pursue the matter, you will have to go to the Court of Appeal. Thank you both very much.