Holding, R (on the application of) v First Secretary of State

MR JUSTICE OWEN: The appellants, Mr and Mrs Holding, who appear in person, challenge the decision of a Planning Inspector dated 24 July 2003 dismissing their appeal against a decision of the Horsham District Council refusing planning permission for the change of use of an annex at Birchwood House, Shaws Lane, Southwater, West Sussex to a dwelling house in separate occupation. The annex, Birchwood Lodge, is a single- storey building within part of the garden of Birchwood House, which is a large detached dwelling in extensive landscaped grounds. The annex was constructed under permitted development rights as an annex in July 2001. It was granted a certificate of lawful use for purposes incidental to the enjoyment of the existing dwelling house and was occupied by the mother of one of appellants until her death.

The challenge to the decision was directed at the findings made by the Inspector with regard to the effects of the proposed development on the character and appearance of the area, and in particular, the finding in paragraph 17 of the decision that:

In their supplementary skeleton argument the appellants sought to rely upon a further ground of appeal, namely that the Inspector misdirected himself as to the tests that he had to apply in determining the appeal. It is submitted that although a clear distinction is made in the Horsham District local plan between development and change of use, the Inspector used the term "development" to apply to an application for a change of use and, as a result, misdirected himself by giving weight to HS10 of the local development plan when the policy contained in that clause of the plan applied only to development or redevelopment and not to change of use.

Mr Palmer, who appeared for the respondents, did not object to the appellants raising the further ground of appeal save in so far as it relied upon further evidence to which the respondent had had no opportunity to respond. In the event, the issues raised by the further ground can be resolved without resort to such evidence.

The Inspector identified and addressed two issues in the decision letter, namely:

No challenge to his conclusion with regard to the first ground was raised by the original ground of appeal. In the additional ground the appellants argued that the Inspector misapplied both G5 and HS10 in arriving at his conclusion. The argument is that such policies refer to development but that the Inspector was wrong to pay regard to them in the context of this appeal as "change of use" is to be distinguished from "development", properly so called.

There are two points to be made in relation to that argument. First, the term "development" has a specialised meaning in planning and is defined by section 55(1) of the Town and County Planning Act 1990. It means not only building operations, but also the making of any material change of use of any buildings or other land. Secondly, it is quite clear from the terms of the decision that the Inspector was in no doubt as to the nature of the application. Thus, by way of example at paragraph 12 of his decision, he said:

In those circumstances, I am not persuaded that the Inspector misled himself by the use of the term "development" in the context of his appeal or in the application of the relevant policies. Accordingly, the supplementary challenge to the decision is, in my judgment, unsustainable.

The Inspector was bound by section 54A of the Town and County Planning Act 1990 to determine the appeal in accordance with the development plan unless material considerations dictated otherwise. In paragraph 16 of the decision letter he specifically found that there were no material considerations sufficient to outweigh the presumption against such development. It follows that he was bound to dismiss the appeal irrespective of his decision as to the second issue. Given that there is no challenge to that finding, it also follows that the appeal must fail on this ground alone.

It is convenient at this point to deal with a further argument raised by Mr Holding, namely that the contents of paragraphs 13 and 18 of the decision letter are contradictory. In paragraph 13 the Inspector found:

It is understandable that Mr Holding should advance the argument: but, in my judgment, it is based on a misconception as to the relevant planning concepts. In planning terms there is a clear distinction between an annex, whose use is ancillary to that of the main dwelling, and a separate dwelling. Whether permission should be granted for use as a dwelling fell to be considered on the basis of whether a dwelling would be permitted in such a location. The answer to that question was resolved by the Inspector upon the material available to him and reviewed in paragraphs 12 to 16 of the decision letter.

In deference to the careful submissions made by Mr Holding on behalf of himself and his wife, I also propose shortly to address the challenge to the decision on the second issue.

The appellants contend in essence (1) that the hearing was procedurally unfair as they had no notice of, and thus no opportunity to respond to, the case that the proposed development would be out of keeping with the pattern of surrounding development, in particular, in terms of the scale of the plot; and (2) there was no, or no adequate, evidence upon which the Inspector could rationally conclude that the proposed development would be out of keeping with the pattern of surrounding development in terms of the scale of the plot.

As Mr Holding said in his submissions to me, "We feel that we were ambushed" because that issue was not raised at the hearing. It is right that the Inspector did not have detailed information as to the precise size of the properties or plots in question, and that he could, under the rules, have either sought further information from the parties or adjourned the hearing for such information to be obtained. But it has to be borne in mind that at paragraph 5.1 of its appeal statement under the heading "The Case for the Local Planning Authority", the council identified as one of the two main issues in the appeal:

At paragraph 5.8 of the appeal statement, the council specifically contended that the proposed development would result in a plot or building that would not be in keeping with the surrounding area. Accordingly, I am satisfied that the claimants knew in broad terms the case that had to be met.

As to the challenge to the finding itself, the passage in question:

Secondly, and in any event, I am satisfied that the conclusion at which the Inspector arrived was open to him on the evidence before him, in particular the plans and his own observations at the view. His assessment of the appeal site in relation to its neighbours did not depend on detailed evidence as to the dimensions of the neighbouring properties or plots.

I am therefore driven to the conclusion that, even if it had been necessary for me to do so, I would also have found against the appellants on this issue. I regret that that means that this appeal must be dismissed.

MR PALMER: My application is for costs. Your Lordship has a statement of costs. May I hand one up. (Handed) The application is for costs to be assessed in the sum of £3,084. There is one observation to be made that that sum does not include any further time spent at court today beyond that which was estimated, nor does it include the cost of producing a supplementary skeleton argument in response to the supplementary argument served on Wednesday. We make no further claim in that respect and submit that the sum claimed here is a reasonable sum taken in the whole.

MR JUSTICE OWEN: Mr Palmer, the section "work done on documents", totals 8 hours. Did this take 8 hours?

MR PALMER: May I take instructions on specific points? (Pause) My Lord, there are a number of components. That specified at (c) under that paragraph, which is 3.7 hours, is composed of the original minute of advice to the Planning Inspectorate when the appeal was first received so the documents were read at that point and advice given. In relation to (b), that relates to the seeking and preparation of evidence from the inspector and that at (d) relates to the consideration of the further evidence which was filed in response to the Inspector's evidence and consideration of the question about whether any further evidence was needed to be sought in response. (c) included that last point, (d) is the para- legal work.

MR JUSTICE OWEN: Mr Holding have you had a copy?

MR HOLDING: Yes.

MR JUSTICE OWEN: Do you want to make any points about it?

MR HOLDING: I do not think so, my Lord.

MR JUSTICE OWEN: Or about the order for costs sought against you in general?

MR HOLDING: With respect, I do feel we were ambushed by the Inspector who brought in new material. If it is within your discretion perhaps you might decide that we should not have to pay 100 per cent of the Treasury Solicitor's costs.

MR JUSTICE OWEN: Mr Holding, there is always discretion in the court, but the general principle is that the losing party must pay the costs. There will therefore be an order that you pay the defendant's costs which I shall assess in the figure of £2,800.