Blackburn v First Secretary of State

MR JUSTICE SULLIVAN: There are two applications before the court. The first is an application for permission to appeal under section 289 of the Town and Country Planning Act 1990 (the Act) against an inspector's decision upholding an enforcement notice served upon the claimant, Mr Blackburn, by the South Holland District Council, the second defendant. The second is an application under section 288 of the Act to quash the same inspector's decision dismissing Mr Blackburn's appeal against a refusal by the South Holland District Council to grant planning permission.

Both the appeal against the enforcement notice and the appeal against the refusal of planning permission were considered by the inspector at a hearing held on 26 November 2002. The inspector set out his decision in respect of both appeals in one decision letter dated 3 December 2002.

The background is as follows. In February 2002, Mr Blackburn became the registered proprietor of land known as The Paddock, Raven's Bank, Whaplode St Catherine in Lincolnshire.

On 23 March he applied to the South Holland District Council, which is the local planning authority for the area, for outline planning permission to build a dwelling on the land. The application referred to a rural and environmental low cost housing project. A letter accompanying the application explained that Mr Blackburn had bought the land with the intention of finding a piece of land to build a home for his family. The letter said:

On 2 April the council refused planning permission on two grounds. Firstly the erection of a dwelling here would conflict with the policies of restraint which were applicable to development in the open countryside. Secondly, the site was at risk of flooding and no flood risk assessment had been submitted with the application for planning permission.

Mr Blackburn appealed against that refusal of planning permission on 10 July, but prior to that, on 31 May, the planning authority had served Mr Blackburn with an enforcement notice. The notice alleged a change of use of the land to use as a caravan site without planning permission and required Mr Blackburn to stop using the land as a caravan site, to remove the caravan from the land, and to remove certain other materials which were being used as a footpath to the caravan.

Mr Blackburn appealed against the enforcement notice on ground (c) only. Ground (c) contends that the matters alleged in the enforcement notice, if they have occurred, do not constitute a breach of planning control. There was no appeal on ground (a). As the inspector pointed out in his decision letter:

The inspector dealt first with the appeal against the enforcement notice under ground (c). I will read out the three paragraphs because the inspector's decision in respect of the enforcement notice is very brief.

In his application for permission to appeal against that decision, Mr Blackburn in his grounds said:

Considering those matters, it is plain that they do not provide any arguable basis for saying that the inspector erred in dismissing the appeal on ground (c). The proposition that planning permission was not required, as the activities carried out on the land were agricultural, is belied by the fact that in the applicant's own application for planning permission, he made the point that he was living in a caravan on the site. As I understand Mr Blackburn's submissions before me today, his point is that he had ceased living in the caravan prior to the service of the enforcement notice, and was simply using the caravan for agricultural after service of the enforcement notice for agricultural purposes; for example to store compost for the trees.

That is no answer to the council's allegation that there had been a change of use to a use for residential purposes, because Mr Blackburn had been living in the caravan as his home. The fact that he had ceased to do so prior to service of the enforcement notice is of no consequence. It might have persuaded the council that as a matter of discretion there was no longer any issue to an enforcement notice, but since at the time Mr Blackburn was still contending that he should be able to establish a residential presence on the land, it is readily understandable that the council thought it expedient to serve the enforcement notice.

Although Mr Blackburn says that he appealed the decision under ground (b), it is plain from looking at the appeal form that he did not. He appealed under ground (c). He says that he mentioned during the course of the hearing, that perhaps he should have appealed on ground (b). That was a matter that the inspector considered and remarked upon. (see the final sentence of paragraph 2 of the decision letter), but as he rightly pointed out, in the circumstances nothing turned on that. The inescapable fact was that there had indeed been a change of use of the land to residential use as a caravan site. Thus the inspector correctly dismissed the appeal against the enforcement notice.

So far as the allegations relating to violation of the claimant's human rights are concerned, they were not relevant for the purposes of the enforcement notice appeal, which was simply concerned with the legal ground, ground (c). The inspector gave full consideration to Mr Blackburn's rights under the Convention when he came to consider the merits of Mr Blackburn's planning appeal.

I turn, therefore, to Mr Blackburn's application under section 288. The thrust of his argument before me today was that there was a shortage of low cost housing in the area which outweighed any planning objection identified by the inspector. So far as flooding was concerned, much of East Anglia was subject to flooding constraints and details could have been provided in due course. So far as the visual appearance of a house on the land was concerned, he said that the inspector looked at the site on a foggy day, and could not possibly have concluded that it would affect the character of the area.

In essence, Mr Blackburn simply invites me to disagree with the inspector's planning judgment. The grounds in his claim form say that the statements made by the inspector were untrue and unreasonable. He failed to realise that the dwelling would be eco-friendly. Some issues were not disucssed at the hearing and Mr Blackburn does not understand some of the Inspector's statements.

The inspector began his consideration of the planning appeal by considering the applicable planning policies. He said that the development plan observes the established national planning principle, of seeking to keep the countryside free from unnecessary buildings and land uses. He then gave particulars of the relevant policies to that effect. Against that policy background, he said that he mainly had to decide whether the effect of the scheme would represent an incursion of development into the countryside and detract from the prevailing rural policies, and, if that was the case, he would then have to go on to assess whether any such harm would be outweighed by the factors advanced by the appellant in favour of the development. They would, of course, include any local need for low cost housing.

Pausing there, it seems to me that there can be no possible criticism of the inspector's approach in principle to the issues before him. In considering whether the proposal would represent an incursion of development into the countryside, the inspector looked firstly at the settlement boundaries for St Catherine, as defined in the local plan. The Paddock is outside the settlement boundary. The inspector did not simply take the settlement boundary at face value. He considered whether or not it was sensibly drawn and concluded that the boundary as drawn reflected the position on the ground.

He concluded, therefore, that erecting a dwelling here would be materially harmful to the objectives of countryside policy. The containment of the settlement would be breached and more of the countryside would be lost. Whether or not the day of the site visit was so foggy that visibility was materially reduced is pre-eminently a matter of planning judgment for the inspector on site which is incapable of challenge in this court.

The inspector went on to consider the factors advanced by Mr Blackburn in support of his plans. First of all, he considered the extent of the potential agricultural production envisaged at the site, and concluded that it was not sufficient to justify a dwelling there. That conclusion is not challenged by Mr Blackburn. He has emphasised the point that he was not seeking permission for an agricultural dwelling.

The inspector then dealt with Mr Blackburn's principal contention that there was a need for affordable housing in the area. In summary, the inspector said that the advice in PPG3 was that there should be a plan led approach to rural housing provision. In the present case he had been given no evidence from the council as to need in the area. In my judgment, he accurately summarised the claimant's position:

Not surprisingly, the inspector concluded:

He went on to explain how it would be difficult to ensure that as a result of the grant of planning permission there would, in fact, be an enducring addition of the stock of affordable housing. He noted that the dwelling proposed to be erected by Mr Blackburn was described as eco-friendly, but concluded that the development caused significant harm to the character and appearance of its surroundings and to the objectives of the prevailing rural settlement policies, and that these objections outweighed the advantages identified by the claimant. He also made the point so far as flood risk is concerned that it might well be that suitable measures could be indicated at the detailed stage to combat the risk, but the interests of flood prevention and relief are served by the containment of development rather than permitting proliferation of building in vulnerable areas. (paragraph 20 of the decision letter).

Mr Blackburn complains that this was not a matter that was mentioned during the hearing, but it was plain that the council was raising a flooding objection. The observation of the inspector in paragraph 20 of the decision letter is really a glimpse of the obvious. Flood prevention is indeed served by containing development rather than permitting proliferation of building in vulnerable areas, even though detailed measures to protect particular properties can be undertaken in such areas.

Thus the inspector concluded that the appeal should be dismissed, subject to consideration of Mr Blackburn's claims under the Human Rights Act. Mr Blackburn referred to his right to respect for his private and family life and home in Article 8 of the Convention. The inspector pointed out that in relation to the enforcement notice, he was simply concerned with the ground (c) appeal, and so Article 8 had no application. But when dealing with the planning appeal, the inspector considered Article 8 and rightly observed that the balance had to be struck between the claimant's private interest and the wider public interest which included the preservation of the environment. When striking that balance the inspector said:

How that balance should be struck was pre-eminently a matter of judgment for the inspector. I can see no error of law in the way in which he approached that issue.

In summary, Mr Blackburn, I fear, is under the misapprehension that this court is simply a Court of Appeal on the merits from the planning inspector's decision. It is not. This court can consider applications for permission to appeal under section 289 and applications under sections 288, only if there is an identifiable error of law in the inspector's decision. There is no such error here. It follows that the application for permission to appeal under section 289 and the application under section 288 must both be refused.

MR MORSHEAD: My Lord, the question of costs arises. In principle I ask your Lordship to make an order for costs in favour of the first respondents in relation to both applications, it being one of those cases where the Secretary of State were invited to attend for the application at permission stage. I would invite your Lordship to assess the costs summarily.

MR JUSTICE SULLIVAN: I have a schedule. So far as section 289 is concerned, you would be here on the 288 anyway. Did the court order that they both be heard together to save costs? I imagine it did.

MR MORSHEAD: Lightman LJ's order was that the 289 application be adjourned to today and be heard with the 288 application.

MR JUSTICE SULLIVAN: Yes. I was given a summary of costs. Is it £4,810.75?

MR MORSHEAD: Yes, my Lord.

MR JUSTICE SULLIVAN: Has that been given to Mr Blackburn?

MR MORSHEAD: I understand it has been, but I do not know when. It was faxed yesterday and sent by special delivery yesterday evening.

MR JUSTICE SULLIVAN: Mr Blackburn, is there any reason, firstly, why you should not pay the Secretary of State's costs in principle? Secondly, do you have anything to say about the precise sum that is claimed?

MR BLACKBURN: Basically if I am charged this amount, it will bankrupt me. It will break my marriage up and ruin me. It is as simple as that. But it has done that anyway by failure to get this appeal, so it does not matter.

MR JUSTICE SULLIVAN: Yes. I have sympathy with you, but I am afraid those are not matters which would justify me not affording costs to the Secretary of State. I have seen correspondence where the Treasury solicitor did try to head off a hearing, but there we are.

The applications are dismissed. The claimant will pay the first defendant's costs. Those costs are to be summarily assessed. Should we knock down some of the costs of the hearing, Mr Morshead? Those instructing you have, understandably, put in an estimate for how long we would take. We were actually slightly less than we expected. I think we could knock off £300, on the basis that we have only been about an hour. I would have thought it may be those instructing you turned up a little earlier. What I intend to do is to round this down to £4,500. I think that fairly reflects the fact that we have not been quite as long as we might have anticipated.

MR MORSHEAD: I am grateful.

MR JUSTICE SULLIVAN: I summarily assess the costs in the sum of £4,500.