Stilwell v First Secretary of State

J U D G M E N T

Monday, 17th November 2003

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of an inspector appointed by the first respondent to grant planning permission, subject to conditions, for a change of use of the first floor of Abbeydale Court, 98 Bisterne Avenue, Walthamstow, from a 34 bed elderly residential care unit to a 22 bed acute psychiatric care unit. An extension to the entrance of the property at the ground floor level and car parking and landscaping were also proposed. The Inspector's decision is contained in a decision letter dated 1st May 2003.

2. Abbeydale Court was built as a nursing home for the elderly, a use within Class C2 of the Town and Country Planning (Use Classes) Order 1987, following a grant of planning permission in 1995. That permission was subject to a number of conditions, including condition number 8:

"The premises shall be used only as a Nursing Home for the elderly and for no other purpose whatsoever (including any other purpose within Class C2 of the Town and Country Planning (Use Classes) Order 1987."

There had been two appeals relating to the variation of condition 8 which were allowed in 1997. The Inspector explained:

"Both these decisions permitted use of the building as a nursing home and for intensive psychiatric therapy (12 beds). In addition, Appeal A referred to stress alleviation treatment and Appeal B to 12 beds for pre- discharge supervision".

3. The Inspector described the present and proposed uses of Abbeydale Court in paragraph 2 of his decision letter as follows:

"The ground floor of the building is currently used as an 11 bed intensive psychiatric care unit (York Suite) and as a 13 bed acute psychiatric care unit (Ripon Suite). No patients occupy the first floor (Skipton Suite). This area was previously registered for 34 beds for nursing care of the elderly but closed around the end of 2000. It is intended that the use of the York Suite would be unchanged and Ripon Suite would be for female patients only. The proposal is to use the first floor for acute psychiatric care with 22 beds."

4. Pausing there, it follows that there would be no more elderly residents at Abbeydale Court, the number of intensive psychiatric care beds was intended to remain at 11, but the number of acute psychiatric care beds was proposed to be increased from 13 to a total of 35.

5. In paragraph 3 of the decision letter the Inspector set out the reason for which the Council would have refused planning permission had it been in a position to determine the appeal application:

"'The change of use of the premises known as Abbeydale Court to a 46 bed space unit for psychiatric care will constitute an over intensive use of the site for these purposes within a residential area. It follows that the activities at the site resulting from the expanded use will give rise to justifiable fear and apprehension on the part of people living in the surrounding area, which will cause undue harm to their general living conditions contrary to Policy ENV1 of the Waltham Forest Unitary Development Plan.'"

6. It will be seen that to the extent that the local planning authority raised a development plan objection, it was concerned with conflict with policy ENV1, and that its concern was based upon the proposition that the over- intensive use of the premises for psychiatric purposes would give rise to justified fear and alarm.

7. The Inspector noted in paragraph 4:

"Local residents thought the proposal should have been dealt with as a comprehensive change of use for the entire site. However, the Council considered it as a change of use of the first floor and the proposal before me is that described on the application form."

That approach of the Inspector is not surprising given the terms of the application and the terms of the planning permissions which had been granted in 1997.

8. The Inspector then identified the main issues as follows:

"• The effect of the proposed use on the living conditions of the occupiers of adjoining residential properties in terms of fear and apprehension, noise and disturbance, light pollution and overlooking;

• Whether satisfactory living conditions would be provided for residents of the unit with reference to outdoor amenity space;

• The effect of the proposed use on highway safety in Bisterne Avenue; and

• Whether the proposed use is in accordance with Government policies relating to sustainable development."

9. It will be seen that compliance with or conflict with development plan policy (apart from the question of fear and apprehension in relation to policy ENV1) was not a main issue in the Inspector's view. Again, that is hardly surprising given the basis of the local planning authority's objection to the proposal.

10. Under the heading "Planning Policy" the Inspector referred to policies SP1 and ENV1 in the development plan and then said this in paragraph 9:

"Policy GCS1 indicates that residential care homes will, in principle, be acceptable within areas primarily residential in character. Where practical they should be located within those residential areas they are intended to serve. Furthermore, proposals for residential care should preferably be located near shops and other services and close to public transport and pedestrian routes. Such proposals will not normally be granted permission where there is already a high proportion of care establishments in the locality. Policy GCS5 generally welcomes proposals for doctor's surgeries and other associated primary health care in residential areas."

11. Having referred to the first review of the development plan, the Inspector then set out the reasons for his decision. He dealt first with the issue of living conditions and subdivided his consideration of that issue into a number of headings, the first of which was "Fear and apprehension". The Inspector described how Abbeydale Court was being used and said in paragraph 13:

"The Ripon Suite is for patients suffering from acute episodes of mental illness in a health care environment. Patients may be detained under the Mental Health Act or admitted on an informal basis. The proposed use of the first floor would operate in this way ...

14. The unit has specific exclusion criteria for admission. These include patients who are referred for long- term rehabilitation or respite care or who require placement in medium secure units. It also encompasses those with a forensic history who may be dangerous or with a criminal record for severe offences, those referred by the Courts or Prison Services or those with a primary diagnosis of substance misuse. It was also said at the inquiry that mothers with babies would not be admitted. There is a clearly defined procedure for scrutinising potential admissions which may involve some exercise of clinical judgment.

15. The Council and local residents expressed concern that almost doubling the number of patients would increase the fear and apprehension felt by those living nearby. These fears relate mainly to the risk of patients absconding from the unit and the possible attraction to the site of local groups of youths ... This anxiety has been heightened by the incidents in August 2002 when the same patient twice climbed onto the roof of the building. There is also some evidence about patients getting onto an adjoining garage roof and staying out in the Forest."

In paragraph 16 the Inspector referred to Newport Borough Council v Secretary of State for Wales [1998] Env LR 174 and said that all parties at the inquiry had agreed that fear was a material consideration. Moreover, the Newport case established that even fears that had been shown to be unjustified might be a material consideration. Accordingly, the Inspector said that he needed to reach a view "on the weight to be given to those fears arising from the category of persons to be accommodated at Abbeydale Court".

12. In paragraphs 17 and 18 the Inspector referred to the National Care Standards Commission ("NCSC") and the Mental Health Act Commission ("MHAC"). He summarised their statutory functions.

13. In paragraph 20 the Inspector said that the existing acute and intensive psychiatric units at the site were being run in accordance with the existing regulations. He continued:

"In the future the NCSC will be responsible for ensuring the physical design, equipment, layout and management of the premises and the nature of the assessment and treatment processes are satisfactory to meet patient needs. All parties at the inquiry accepted that the planning system should operate on the basis that other statutory control regimes would operate in an effective manner.

21. Consequently if the proposed unit were not physically or organisationally capable of securing the safe and reliable detention and treatment of its intended patients it would not be registered for that purpose. If it was registered but failed to perform then the registration would be removed. It is therefore reasonable for me to assume that the NCSC will properly apply and enforce the relevant standards. To my mind, this detailed level of control should ease many of the anxieties of residents.

22. I accept that the actual experiences of the site since 1997 are relevant. The Council particularly highlighted the occasions when a patient from York Suite ascended a drainpipe in order to access the roof...

23. I do not underestimate the potential seriousness of these events nor the concerns that would be likely to be engendered amongst those living close by. They occurred despite the security arrangements taken at the home and the separate system of regulation that was in place at the time. However, I consider it is relevant that the patient was from the York Suite which is for higher- risk patients and which will remain whether or not I allow this appeal. Furthermore, the fact is that the roof incidents were contained within the appeal site and there is no evidence that members of the public were put at risk.

24. Although I can understand the disquiet that they may have caused I regard these incidents as unusual and isolated given that the unit has been operating for about five years. To my mind, it is reasonable to place the roof incidents into context. 630 patients have been admitted to Abbeydale Court without any harm being caused to the public by attacks, bad language or nuisance. As a result I consider it unlikely that the proposal would disrupt the lives of those residing nearby or endanger day- to- day living.

25. There is no evidence linking crime to the unit. However, the appellant's collation of crime statistics shows a high number of violent attacks on people in the Walthamstow area. This does not imply that such unpleasant events are to be accepted at the appeal site. It does, however, suggest to me that on a rational basis the degree of apprehension arising from the proposed use should be very low compared to the existing conditions of law and order.

26. The planning system does not operate on the basis that development should proceed only if harm can be guaranteed never to occur. Bearing in mind that patients at the unit are mentally ill it is to be expected that their behaviour will at times be unpredictable. This is shown by the list of incidents produced by Mr Rosenberg [the Chief Executive of the appellant company]. However, I judge that none of these occurrences outweigh the reliance that can be placed on the statutory regulatory regime dedicated to the proper functioning of the premises."

14. In paragraph 27 the Inspector concluded on the basis of all of the evidence to the inquiry "that the proposal would not lead to justifiable fear and apprehension". He acknowledged in paragraph 28 of his decision letter that "it may be that fear and apprehension exists even if it is not justified". He went on to consider that aspect of the case and said this in paragraphs 29 and 30:

"29. Acute psychiatric units are almost always located in residential locations. Abbeydale Court is therefore not unusual in this regard. Furthermore, Policy GCS1 accepts care homes in residential areas in general terms. If residents' unsubstantiated fears were to prevail then it would not be possible for acute psychiatric units to operate in residential areas. Apart from not fulfilling the thrust of development plan policy there would be a great difficulty in meeting this specialist need. The evidence to the inquiry was that there is a dearth of such provision but a growing requirement to treat those with mental illness.

30. I therefore consider that the existence of a separate and effective system of regulatory control and the need for acute psychiatric units to locate in residential areas outweighs the fears and apprehension of local residents."

15. The Inspector then dealt with noise and disturbance, light pollution and overlooking. He concluded his consideration of living conditions in paragraphs 36 to 38 as follows:

"36. Policy GCS1 of the UDP sets out the Council's approach for dealing with proposals within Class C2 of the Use Classes Order. This includes the appeal proposal. The associated paragraph 7.27 cross- refers to Policy ENV1. The aim of this policy is to achieve an attractive environment by ensuring a high standard of design and layout. There is no specific reference to the issue of fear. However, Policy ENV1 does refer to changes of use and to the amenities of the occupiers of adjacent property.

37. As set out above the living conditions of adjoining residents would not be harmed by reason of noise, lighting or overlooking. I also find that, in practice, the proposal would not be likely to lead to events that would increase fear and apprehension and thereby demonstrably harm the living conditions of residents.

38. I conclude that the proposal would not harm the living conditions of the occupiers of adjoining residential properties. It would therefore comply with criteria (i) and (iii) of Policy ENV1 of the UDP."

16. The Inspector next considered outdoor amenity space. He noted that:

"... Local residents thought that the amount of amenity space would be inadequate for the proposed number of patients. In particular, that the scope for relaxation and outdoor recreation as part of their treatment would be limited and that the varying needs of patients could not be accommodated."

He answered these concerns in paragraphs 40 and 41 of the decision letter:

"40. The previous Inspector considered that there would be sufficient space for elderly residents and psychiatric patients to relax and enjoy themselves outdoors. I see no reason to depart from his view on planning grounds as the proposal would involve a reduction of 12 persons compared to the 1997 appeals. Furthermore, there is no evidence that a lack of amenity space has led to difficulties with existing patients or from those using the footpath to the Forest. There is no indication that suitable treatments could not be devised. There is also no certainty that three separate areas for the different suites would have to be created.

41. However, in terms of the specific needs of patients the key point is that the NCSC would not allow registration if amenity space were an issue. This means that the area available would need to satisfy the separate regulatory regime that exists for the project to proceed. Nevertheless, from the evidence before me, I consider that the outdoor environment would be acceptable in planning terms."

17. The Inspector dealt with highway safety and sustainable development. When considering the latter he said in paragraph 48:

"Patients at Abbeydale Court are nearly totally drawn from the NHS as an overspill service. Purchasing authorities using the proposed acute psychiatric unit would be widely spread but it is excepted that these would be from the Midlands, the West Country and the South East. Because of this it was argued for the local residents that the proposal equates to a regional hospital. Accordingly it should be located in a district centre and be subject to a sequential approach."

In the succeeding paragraphs the Inspector dealt with and rejected that argument made on behalf of the residents. He concluded in paragraph 52 that the proposal was in accordance with Government policies relating to sustainable development.

18. Having considered the other matters raised at the inquiry, the Inspector turned to conditions. In paragraph 59 he said:

"In order to provide consistency the Council requested a condition specifying the type of use and the number of bedrooms for the entire premises. It also wished to prevent sub- division to avoid an intensification of use. Given the proximity to housing and the potential implications of other Class C2 uses I consider that such a control is justified. However, I see no planning purpose in defining which floor the acute or intensive beds should be on."

In consequence, the Inspector imposed condition 5:

"The premises shall be used as a psychiatric care unit with a maximum of 46 beds comprising 11 beds for intensive care and 35 beds for acute care and shall not be sub- divided. The premises shall be used for no other purpose in Class C2 of the Schedule to the Town and Country Planning (Use Classes) Order 1987 ..."

19. The Inspector's conclusions are set out in paragraphs 61 to 63 and are as follows:

"61. Policy GCS1 of the UDP is directly concerned with residential health care uses. These are acceptable in principle in residential areas such as that surrounding the appeal site. There would not be a high proportion of similar uses in Bisterne Avenue. I also find that the appeal site is located near shops and other services and close to public transport. In this case the proposal is not serving a local residential area. The proposal would therefore be consistent with the provisions of Policy GCSC1.

62. The relationship of residential care homes to their surroundings should also be considered with particular reference to Policy ENV1. I find that the relevant criteria of this policy would be met and that there would be no harm in relation to living conditions (including fear and apprehension), highway safety or outdoor amenity space. There would also be no conflict with Government objectives for sustainability.

63. I therefore conclude that the proposal accords with the development plan and there are no material considerations that indicate to me that the appeal should be determined other than in accordance with the UDP. Furthermore, the proposal would bring about benefits by increasing care for the mentally ill and this reinforces my view that it is acceptable."

20. On behalf of the claimant, Mr Jones challenged the Inspector's decision on nine grounds.

21. The first two grounds related to the Inspector's treatment of policy GCS1. First, it was submitted that having concluded that the proposal was not serving a local residential area, it was unreasonable and illogical of the Inspector then to say the proposal would therefore be consistent with the provisions of Policy GCS1 since the policy says that "wherever practical residential and day care facilities should be located within those residential areas they are intended to serve". In my judgment, that criticism is misconceived. It takes the two sentences in paragraph 61 entirely out of context and ignores the content of the remainder of the decision letter. There is no dispute that the Inspector correctly summarised policy GCS1 in paragraph 9 of the decision letter. Looking at the criteria set out in the policy, he concluded in paragraph 61 that the area surrounding the appeal site was a residential area where such proposals were acceptable in principle, that there would not be a high proportion of similar uses in Bisterne Avenue, and that the appeal site was located near shops and other services and close to public transport. That left the criterion that proposals covered by GCS1 should, wherever practical, be located within those residential areas they were intended to serve. The Inspector was not under any misapprehension about the nature of the proposal before him. He said, correctly, that it was not serving a local residential area. He had explained why this was so in paragraph 48 of the decision letter. The patients would have come from a widely spread area: the Midlands, the West Country and the South East. This was not a proposal which was intended to serve a particular residential area in which it could be sited. That is hardly surprising. Subject to the claimant's next submission, policy GCS1 is concerned with a wide range of institutions within Class C2. It is not in the least surprising to find, for example, that patients requiring acute psychiatric care come from a more diffuse catchment than persons requiring care in a conventional elderly person's home.

22. While the Inspector was required to give adequate reasons for his decision, he was not required to spell out the obvious; nor was he required, having mentioned the point once in paragraph 48 of his decision letter, to repeat it subsequently. It is plain, reading the letter as a whole, that he was satisfied that this was not the kind of proposal which, in practical terms, could be located in a residential area which it was intended to serve given the broad catchment from which patients could be drawn. Thus, there was no breach of policy GCS1 or, to use the Inspector's terminology, the proposal was consistent with the provisions of that policy.

23. It is important to bear in mind that the policy does not require that every proposal falling within policy GCS1 must be located in the residential area that it is intended to serve. It requires this to be done wherever it is practical. It was plain from the material set out in paragraph 48 of the Inspector's decision letter that this was not practical in the circumstances of the present case.

24. I turn to the second criticism made of the Inspector's approach to policy GCS1. The claimant had submitted that the policy was applicable to the proposal. It is said the Inspector failed to grapple with that argument. In Mr Jones' skeleton argument it was contended that this was "a central feature of the case". It is true that there is a short passage which deals with this issue in the proof of evidence of the planning expert, Mr Plenderleith, called on behalf of the residents. He said in paragraphs 8.4 and 8.5 of his proof:

"It is noted that Policy GCS1 refers to 'residential care homes and hostel accommodation', it does not use the phrase 'Institutional Use' referred to in the Town and Country Planning (Use Classes Order 1987) nor does it apply to 'acute psychiatric units'.

8.5. The proposal for the change of use from a 34 bed elderly care unit to a 22 bed acute psychiatric unit is not considered to fall within the provisions of Policy GCS1 because we are not dealing with a residential care home. It is material that the Development Plan distinguishes between residential care homes and other 'Residential Institutional uses'."

25. Just how far this continued to be an issue at all is in dispute. The closing submissions of leading counsel for the appellant say this: "All parties (including Mr P[lenderleith] post XX [cross- examination] [and a foot note is given - "see e- mail and note concession of XX [cross- examination]"] agree that GCS1 of the current UDP is the most relevant policy". Mr Plenderleith takes issue with this, saying in a witness statement:

"Looking at the Closing Submissions on behalf of the Appellant, I am unclear what counsel meant [in the passage to which I have just referred]. Certainly, I would not and to the best of my knowledge did not agree anything beyond paragraphs 8.4 and 8.5 of my Proof of Evidence."

Whatever the position may be, it is difficult to elevate those two passages in Mr Plenderleith's proof into a central feature of the case. The Inspector was not required to deal with each and every issue raised by the parties, merely with the principal points in contention. Understandably, given the local planning authority's only reason for refusal (see paragraph 3 of the decision letter), compliance or non- compliance with policy GCS1 was not viewed by the Inspector as one of the main issues. Its relevance appears principally to have been that it provided, in paragraph 7.27 of the explanatory text of the policy, the linkage to policy ENV1 on which the local planning authority had relied.

26. In any event, there was no elaboration in Mr Plenderleith's proof of evidence of his contention that policy GCS1 did not apply to the proposal. Given the brevity of Mr Plenderleith's treatment of the matter, the Inspector was entitled to respond briefly in paragraph 36 of his decision letter:

"Policy GCS1 of the UDP sets out the Council's approach for dealing with proposals within Class C2 of the Use Classes Order. This includes the appeal proposal."

The Inspector then said: "The associated paragraph 7.27 cross- refers to Policy ENV1". If Mr Plenderleith was correct then the planning authority would have lost the benefit of that cross reference to policy ENV1, upon which it relied in its reason for refusal.

27. Policy GCS1 has to be construed in the light of the explanatory material contained in the plan. That includes paragraph 7.21, which says this:

"This policy sets out the Council's approach when dealing with proposals included within Class C2 of the Town and Country Planning (Use Classes) Order 1987 - i.e. provision of residential accommodation and care for people in need of care."

Even if policy GCS1 was not intended to apply to each and every use within Class C but only to those providing accommodation and care for people in need of care, psychiatric patients are plainly persons in need of care, whether those words are given their ordinary and natural meaning, or whether reference is made to the definition of "care" in article 2 of the Use Classes Order. Thus, the Inspector was entitled to conclude in paragraph 36 that policy GCS1 did set out the Council's approach for dealing with proposals falling within Class C2, including the appeal proposal.

28. In any event, the Inspector was using his own planning judgment when he said in paragraph 29: "Acute psychiatric units are almost always located in residential locations. Abbeydale Court is therefore not unusual in this regard". It is against that background that he considered policy GCS1 and said:

"Furthermore, Policy GCS1 accepts care homes in residential areas in general terms. If residents' unsubstantiated fears were to prevail then it would not be possible for acute psychiatric units to operate in residential areas."

He then said:

"Apart from not fulfilling the thrust of development plan policy there would be a great difficulty in meeting this specialist need."

29. These were all questions upon which the Inspector was entitled to form his own planning judgment, and by way of reasoning they were a perfectly adequate response to the bald assertion that had been made by Mr Plenderleith that policy GCS1 was not intended to apply to the appeal proposal.

30. Moving on from policy GCS1 to policy GCS5, the third ground of challenge is that the Inspector erroneously relied upon the proposition that the proposed development was within policy GCS5. The short answer to that submission is that the Inspector did no such thing. Policy GCS5 had been mentioned in the statement of issues agreed between the local planning authority and the appellant, and so it is understandable that the Inspector noted its existence in the last sentence of paragraph 9 of his decision letter. Apart from that reference, there is thereafter no mention of policy GCS5 in the decision letter, much less any conclusion that the proposal is consistent with it. Certainly the Inspector does not appear to have placed any reliance upon compliance with policy GCS5 as a reason for granting planning permission. The Inspector explained why he considered that the proposal was consistent with policy GCS1. It is significant that there is no comparable reference to policy GCS5.

31. Fourthly, it is submitted that the Inspector erred in law in his approach to the current exclusion policy adopted at the unit, as described in paragraph 14 of the decision letter. As I understand the submission, it is said that the Inspector erred in that he failed to appreciate that the exclusion policy could change so that, for example, patients who required placement in a medium secure unit might be admitted and/or the Inspector failed to impose a condition or conditions to ensure that such a change of admission policy could not take place.

32. Again, in my judgment, that criticism is entirely misconceived. The Inspector correctly set out the present exclusion criteria in paragraph 14 of his decision letter. The objectors had relied on past incidents as justifying their fears and apprehension and so the Inspector, understandably, dealt with those past incidents and formed a view about their significance (see, for example, paragraph 24). But looking to the future, it is plain that the Inspector relied not upon the maintenance of the existing exclusion criteria, but upon the regulatory role of the NCSC. Thus in paragraph 20 he said:

"In the future the NCSC will be responsible for ensuring that the physical design, equipment, layout and management of the premises and the nature of the assessment and treatment processes are satisfactory to meet patient needs ...

21. Consequently if the proposed unit were not physically or organisationally capable of securing the safe and reliable detention and treatment of its intended patients it would not be registered for that purpose."

And in paragraph 26, having looked at all the relevant circumstances including the past incidents, he judged "that none of these occurrences outweigh the reliance that can be played on the statutory regulatory regime dedicated to the proper functioning of the premises".

33. Thus it is simply wrong to say that the Inspector relied upon the maintenance of the existing admissions policy. He was perfectly entitled to set it out as a matter of record and to consider what had happened under the aegis of that admissions policy, but for the future he relied upon the controls that would be imposed by the NCSC.

34. The fifth criticism is an aspect of the previous criticism. It is said that the Inspector erred in his consideration of the previous incidents, in particular the roof climbing incident, in not appreciating that there might be a three- fold increase in the type of patient who was involved in that kind of incident. Criticism is particularly directed at a passage in paragraph 23 of the decision letter when the Inspector said:

"... I consider it is relevant that the patient was from the York Suite which is for higher- risk patients and which will remain whether or not I allow this appeal."

35. The Inspector was perfectly well aware of the nature of the proposal. He took some care to explain that the 11 bed intensive psychiatric care unit, the York Suite, would remain and what was proposed was an increase in the numbers in the acute psychiatric care unit. In effect, the Skipton Suite would replicate the level of care that was being provided in the Ripon Suite. The Inspector's condition 5 ensured that there would not be an increase in the number of beds that could be used for intensive care and that the increase would be from 13 to 35 beds for acute care.

36. Against this background, the Inspector's observation was eminently reasonable. He dealt with the past incidents because they had been raised by the local planning authority and the local residents. In doing so he was perfectly entitled to observe that the particular incident in question had involved one of the higher risk patients, who would remain in any event. Moreover, he was entitled to set that incident into context. As he said, 630 patients had been admitted to Abbeydale Court without any harm being caused to the public by attacks, bad language or nuisance. As a result the Inspector concluded that it was unlikely that the proposal would disrupt the lives of those residing nearby or endanger day- to- day living. That was a conclusion that was reasonably open to him given the fact that by imposing condition 5 he had ensured that there would be no increase in the number of beds provided for those who required intensive, as opposed to acute, psychiatric care.

37. The next point of criticism was an alleged error of law by the Inspector in his approach to condition 5. I have set out the terms of the condition above. I confess I found this criticism of the decision letter very difficult to understand, notwithstanding Mr Jones' best endeavours. It was submitted that in some way the Inspector, in failing to impose an appropriate condition, permitted a development that was wider than the application that had come before him. I fail to see how that could be the case. The Inspector limited the number of beds and the type of psychiatric care that could be provided precisely in the terms of the proposal before him. Although Mr Jones submitted that he had not restricted, for example, the number of patients that could be suitably accommodated on any particular floor, the Inspector clearly considered whether there was any planning purpose in so doing and concluded in paragraph 59 that he could see no planning purpose in defining which floor the acute or intensive care beds could be on. Plainly that was a conclusion that he was entitled to reach. Indeed, it would be most unusual for a planning decision to prescribe which floors could be used for what type of patient.

38. It would appear that this criticism is, in essence, a reflection of the complaint that the Inspector had relied upon the continuance of the existing exclusion criteria but had failed to impose a condition requiring that they should continue. For the reasons that I have already given above, there was no need for such a condition, in view of the Inspector's approach to the role that would be played by the NCSC. Given the existence of that regulatory body with a particular statutory role, it would surely be most unusual for a planning condition to descend into the area of clinical psychiatric judgment.

39. I turn to the remaining criticisms. Firstly, it is said that the Inspector erred in law in his approach to outdoor amenity space. The alleged error is two- fold, as I understand it: firstly, the Inspector gave no reasons for rejecting the expert evidence of Ms McLaren, the nurse called on behalf of the claimant; secondly, the Inspector erred in relying upon the conclusions of the Inspector in the 1997 planning appeals.

40. The Inspector clearly mentioned the objection. As he said at paragraph 39, "Local residents thought that the amount of amenity space would be inadequate for the proposed number of patients". There had been a contention to that effect in Ms McLaren's proof of evidence. In her conclusions she had said:

"The area around the home is insufficient to meet the varying needs of this number of patients and do [sic] not afford enough protection for the patients from external influences."

There had early been reference to amenity space, together with many other matters, in paragraph 6 of her proof of evidence, which contained a number of conclusions. These conclusions related to such matters as noise, light pollution, access for fire tenders, ambulances and, amongst many others, lack of garden space.

41. Having recognised that there was an objection to the proposed development on this ground, the Inspector dealt with it in paragraphs 40 and 41 of the decision letter. In paragraph 40 the Inspector referred to the views of his predecessor that there would be sufficient space for elderly residents and psychiatric patients to relax and enjoy themselves, and said that he saw no reason to depart from his view on planning grounds:

"... as the proposal would involve a reduction of 12 persons compared to the 1997 appeals. Furthermore, there is no evidence that a lack of amenity space has led to difficulties with existing patients or from those using the footpath to the Forest. There is no indication that suitable treatments could not be devised".

Pausing there, Mr Jones submitted that it was illogical for the Inspector to rely on the view of his predecessor since he was then concerned with a mix of elderly residents and psychiatric patients. The Inspector clearly realised that. He was simply observing that, on the face of it, a reduction of 12 persons should make the position somewhat easier. He did not lose sight of the fact that psychiatric patients might have particular needs because he said in paragraph 41:

"... in terms of the specific needs of patients a key point is that the NCSC would not allow registration if amenity space were an issue. This means that the area available would need to satisfy the separate regulatory regime that exists for the project to proceed."

It is important also to note the Inspector's overall conclusion on this issue:

"Nevertheless, from the evidence before me, I consider that the outdoor environment would be acceptable in planning terms."

That was a conclusion that the Inspector was entitled to reach, and it is a perfectly adequate answer to the generalised points made by Ms McLaren.

42. The next criticism relates to the Inspector's approach to the NCSC. It is submitted that he "erred in law in his approach to the operation of the control by the NCSC". As with the remaining criticisms, the criticism is rather more a complaint that the Inspector gave undue weight to the controls that would be exercised by the NCSC.

43. In paragraph 20 of his decision letter the Inspector had said in the final sentence:

"All parties at the inquiry accepted that the planning system should operate on the basis that other statutory control regimes will operate in an effective manner".

The Inspector was not alone in forming the impression that that had indeed been accepted by all parties at the inquiry because the submissions of leading counsel on behalf of the appellant said:

"There is consensus at this inquiry as to how the issue of fear and apprehension should be approached. The planning system should operate on the basis that other statutory control regimes will be operated in an efficient manner."

44. No criticism was made of the final sentence of paragraph 20 of the Inspector's decision letter in the original grounds of challenge. However, by a late amendment in October, which effectively replaced the original grounds of challenge with entirely fresh grounds, this issue was raised, and in the claimant's skeleton it was said that the Inspector had erred in law in finding that this was a matter of common law between the parties at the inquiry. The Inspector responded to these late grounds in a witness statement. He said, first of all, that in re- examination Ms McLaren said that the NCSC would not allow registration if amenity space was an issue, and so far as the broad proposition is concerned, he said this:

"I believe the first sentence of Paragraph 20 of my Decision Letter to be an accurate reflection of the evidence I heard at the inquiry. In particular, Mr Plenderleith accepted this proposition during the course of his cross- examination. Mr Murdoch also agreed to it. I cannot recall that any other witness representing the local residents gave evidence to the contrary."

Mr Plenderleith and Ms McLaren take issue with that. In a witness statement Mr Plenderleith says:

"I note from the Inspector's Decision that the Inspector states: 'All parties at this inquiry accepted that the planning system should operate on the basis that other statutory control regimes will operate in an effective manner.' Although I note how Counsel for the Appellant put it in his Closing Submission, (paragraph 17(i)): to the best of my knowledge and belief it was never agreed by me or anyone else who represented the Claimant that reliance could be placed on any other regulatory regime. Certainly, to the best of my knowledge and belief neither I nor anyone who represented the Claimant at the Public Inquiry accepted that any other regulatory regime would operate effectively to ensure that what we saw as important standards were met and/or to ensure that future incidents would not occur."

In a witness statement Ms McLaren says that she does not recall saying in re- examination that if the NCSC thought the amenity space was inadequate they would not grant registration. She says that is not the position:

"I was specifically asked by Counsel for the Claimant in re- examination whether, having been cross- examined on paragraph 6, I had adhered to what I set out in that paragraph. I responded that I most certainly did continue to maintain the conclusions set out in paragraph 6 of Proof of Evidence."

As I have mentioned, paragraph 6 covered a wide range of issues, not simply the approach of the NCSC towards the adequacy of amenity space. But whether or not Ms McLaren agreed that the NCSC would not allow registration if amenity space were an issue, and whether or not Mr Plenderleith agreed with the proposition (as leading counsel for the appellant before the Inspector thought he had) that the planning system should operate on the basis that other statutory control regimes would operate in an effective manner, the Inspector was entitled to conclude that the NCSC would do its job and, in particular, would not permit registration if it considered that the amenity space provided for patients was inadequate.

45. The Inspector was entitled to proceed, absent any evidence to the contrary, on the basis that other statutory control regimes would operate in an effective manner. That is not to say that with the operation of those control regimes there will be no incidents whatsoever. The Inspector clearly recognised this because he said in paragraph 23:

"I do not underestimate the potential seriousness of these events nor the concerns that would be likely to be engendered amongst those living close by. They occurred despite the security arrangements taken at the home and the separate system of regulation that was in place at the time."

Thus the Inspector realised that this is not a perfect world and even with the best managed control systems incidents may occur, but he correctly stated in paragraph 26 of his decision letter that:

"The planning system does not operate on the basis that development should proceed only if harm can be guaranteed never to occur. Bearing in mind that patients of the unit are mentally ill it is to be expected that their behaviour will at times be unpredictable."

46. He concluded, looking at the evidence overall, that none of the occurrences outweighed the reliance that could be placed on the statutory regulatory regime which was dedicated to the proper functioning of the premises. Absent any evidence that the statutory regulatory regime was falling down, that was a conclusion that he was entitled to reach.

47. The last complaint relates to the manner in which the Inspector dealt with crime levels in Waltham Forest. It will be recalled that the Inspector had said in paragraph 25, when responding to the residents' concerns that there would be an increase in crime, that there was no evidence linking crime to the unit. He went on to observe that the crime statistics showed a high number of violent attacks on people in the Walthamstow area and said that that did not imply that such unpleasant events were to be accepted at the appeal site. He then said this, which is the subject of criticism by Mr Jones:

"It does, however, suggest to me that on a rational basis the degree of apprehension arising from the proposed use should be very low compared to the existing conditions of law and order."

48. It is submitted that there the Inspector was effectively saying that people who live in a high crime area should have their fears given less weight than the fears of those who live in low crime areas. The Inspector was saying nothing of the kind. He was simply observing that there was no evidence linking crime to the unit, and if one looked at the matter rationally the amount of fear relating to the proposed use should be very low when compared with the fear brought about by existing conditions of law and order. That was a perfectly sensible observation, but in any event the Inspector acknowledged in paragraph 28 that fear could not be ignored merely because it was not rational.

49. If one stands back and looks at this decision letter overall, it is clear that although a plethora of issues were raised, the principal ground of objection was the fear and apprehension on the part of people living in the surrounding area. The Inspector dealt with that issue in great detail and with very great care. He reached a clear conclusion that the fears expressed did not justify refusing planning permission. Again, reading the decision letter as a whole, it is plain that no other issue was raised that in the Inspector's judgment justified refusing planning permission.

50. For all of these reasons it follows that this challenge to the Inspector's decision must be rejected.

51. MR WARD: My Lord, I ask for costs on behalf of the Secretary of State. Subject to your Lordship being minded to make an order, we have actually agreed a figure.

52. MR JUSTICE SULLIVAN: Yes. Can there be any objection, Mr Jones?

53. MR JONES: My Lord, no, and although it was not served on us until this morning we do not take any issue with the figures. We have looked at the figures, we agree it and think it would be an unnecessary waste of time for it to go off for assessment.

54. MR JUSTICE SULLIVAN: I am very glad to hear that. What is the figure?

55. MR WARD: £6,435.

56. MR JUSTICE SULLIVAN: £6,435. Does that include VAT?

57. MR WARD: Apparently not.

58. MR JUSTICE SULLIVAN: Right. The application is dismissed. The claimant is to pay the fist defendant's costs, those costs to be summarily assessed in the sum of £6,435.