Kingsley Ventures Ltd., R (on the application of) v Secretary of State for Transport, Local Government and the Regions & Anor

MR JUSTICE COLLINS: This is an application pursuant to section 288 of the Town and Country Planning Act 1990 by Kingsley Ventures Limited, who seek to challenge the decision of an inspector given on 18th November 2002, whereby she dismissed an appeal by the claimants against the failure by the Kerrier District Council to determine a planning application in time.

The application was an outline application for a residential development on a site in Redruth. The site itself has an area of some 1.5 hectares and is at present an open space, which lies on the east side of a road called Coach Lane and behind properties fronting on to a road called West End, which leads to the Redruth town centre. It is known locally as Fairfield, the reason for that being that it was purchased about 100 years ago to provide a permanent site for a Whitsun fair. It seems that the fair has been held on that site annually for approximately that length of time. The fair itself lasts for some five days and the operators remain on site for about nine days in total. The land is at other times of the year used to accommodate occasional temporary parking of caravans and storage of fairground equipment. There are regular car boot sales and Guy Fawkes Night bonfires, and on occasion circuses have made use of the site. Apparently, members of the public walk dogs over it. It appears that the storage of equipment, the parking of caravans, and the walking of dogs, is not expressly permitted but is tolerated by the owners. The site is private land and there is no public right of access to it but, as I have indicated, over the period the public have used it by permission of the owners, whether express or implied. There is a building on the site which is described as a small toilet block in one corner -- I have no evidence as to the actual extent of it -- and some of the site is surfaced with compacted rubble, no doubt to enable the fairground entertainments to be stationed on the site.

The relevant plans which were material within the meaning of section 54(A) of the 1990 Act were the Structure Plan of Cornwall County Council, which was dated December 1997, and the Local Plan of Kerrier District Council, which was dated June 1985. The District Council were in the process of promoting a new Local Plan. There had been a draft prepared in 1999 but there was a fresh draft prepared in 2000, described in the inspector's decision and in this case as the RDD. The significance of the new proposals were these. In the 1985 Local Plan this particular site was earmarked for housing development. The same applied in the draft which had been prepared in 1999. It was there stated that the proposal for this site was:

What had led to the change of approach to this site was a combination of the new approach in PPG3, which is the planning policy guidance which deals with housing, and a document known as the UFP prepared by consultants for the District Council, for the Cornwall County Council, for the South-west of England Regional Development Agency, and for the Prince of Wales' Foundation. This document was prepared following public consultation and with a considerable degree of community participation. Its policies have been fed into the Local Plan process and that has identified the Camborne, Poole, Redruth area as a key strategic location for investment, and a significant amount of public investment is likely to take place.

In the UFP, it is proposed that the acquisition of this site should be sought to formalise its use as public open space for Redruth. It notes that the site requires improvement and substantial landscaping, and it suggests that there should be some small-scale infill housing. The inspector refers to this perfectly properly because it is accepted that it is a material consideration, but states that she doubts whether the success of the UFP strategy as a whole would be seriously threatened if the appeal were to be allowed. Undoubtedly the provision of quality open space was an important component of the regeneration strategy.

The approach in PPG3, paragraph 30, is that there should be:

This particular site, in the view of the inspector, did not qualify within that definition as previously-developed land, although it is right to say that in the RDD it was presented as a site which was partially brownfield, that is to say partially developed, and partially greenfield, that is to say partially undeveloped. The inspector reached her conclusions in relation to that in paragraphs 10 and 11 of her decision letter. She summarises the definition, which I have already read, in Annex C. She then makes the point that there was no evidence that the site had ever been occupied by buildings, apart from the toilet block which was constructed to provide facilities for people attending or working at the annual Whitsun fair. She states that the hard standing was not associated directly with the toilet block and could not be regarded as forming the curtilage of it. In those circumstances, she formed the opinion that:

The claimant raises a number of different grounds upon which the decision of the inspector is attacked. I shall deal with them in the order in which they were put in the submissions to me, which is not the order that is set out in the claim form. There was before the inspector the usual Rule 6 statement and the proofs of evidence of the various witnesses who were called. So far as the Rule 6 statements were concerned, they were not, certainly from the point of view of the Council, perhaps as helpful as they might have been because this was, of course, an appeal against deemed refusal on the basis of no determination. It is to be noted that the Council does not specifically refer to any particular policy in either the Structure or the Local Plan, or indeed the emerging plan. However, what it does say is that the appeal will be assessed against the sustainable development and housing, transport infrastructure, mining, recreation, and environment policies in the development plan, which comprised the Cornwall Structure Plan and additional policies of the Cornwall Structure Plan First Alteration, and Camborne-Redruth Local Plan. It is a little difficult to follow quite what relevance mining, for example, would have had. All possibly relevant policies were no doubt intended to be referred to but it was a somewhat unhelpful approach in as much as it was general rather than particular.

They also went on to say that the appeal would be assessed against equivalent policies in the emerging Local Plan and that it was anticipated that the RDD would be published, and its consultation period would have expired before the public inquiry, so that that version of the emerging Local Plan would constitute a material consideration deserving weight in the determination of the appeal. In fact, as I understand it, the consultation period did not expire until a day after the conclusion of the public inquiry; although, of course, by the time the inspector reached her decision it had expired. There has as yet, as I understand it, been no inquiry in relation to the emerging plan and there are objections to the relevant policy to which I have already referred which affects this particular site. Not surprisingly, an objection has been lodged by the claimants.

There is also reference to a Local Housing Capacity Study of 2001, which had contributed to the emerging Local Plan and to the UFP which I have already noted. It also sought to rely, so far as material, on statements in PPG1, 3, 13, 14, 17, and 23. Essentially, the council's approach according to Rule 6 was that the government's policy was based on rigorous urban housing capacity studies. The residential proposal on brownfield sites meant that there was a supply of housing land to meet the target in excess of the 5 years' supply specified in PPG3. There was no current need for the appeal site and there were no other benefits in the proposal. Also there was considerable public objection to the proposal; it should be kept as a public open space, and that should carry overriding weight. So that was the issue which was raised by the Council.

What was not contained in any of the council's evidence was an indication whether this particular site could be acquired for the purpose of public open space, assuming that the owners were not willing to donate it for such use. It was private land; it would have to be somehow acquired and that would mean paying for it. The value would have to be the residential value which would undoubtedly be expensive. The only reference to that issue was contained in the evidence put forward by Mr David Stewart on behalf of the claimants. In paragraph 3.7.5.5 of that statement, Mr Stewart commented:

The evidence on behalf of the Council in Appendix 6 set out what is described as a "Preliminary Cost Estimation for the Creation and Maintenance of Fairfield as an Urban Public Park", amounting to a total of just under £300,000, with annual costs for maintenance of something in the order of £45,000. But it was noted that those figures did not include land acquisition costs, and those were likely to be high. I am told that in the course of the inquiry, the council's witnesses were asked whether any discussion had taken place about the question of acquisition costs. The answer given by the witnesses was that none had.

When Mr Horrocks, one of the council's witnesses, was at the end of giving his evidence, the inspector decided that she should ask a question because no one else had on that issue. She asked him about the effect of having to acquire the site at residential land value. She deposes in a statement which is before me that in answer to her question, Mr Horrocks said words to the effect that it would be more difficult but not the end of the project. That was as far as it went.

The solicitor who was appearing on behalf of the claimants did not pursue that matter. He was not given any specific opportunity to do so, in the sense that the inspector asked him whether he wished to pursue any questions in relation to that issue, but that, in my judgment, was not necessary. He could, if he had felt it to be important, have asked to be able to deal with the matter further. The reality is he did not appreciate that it was a matter which was likely to be of any great importance in the ultimate determination by the inspector. There was no particular reason why he should have considered it to be important save, as Mr Coppel submits, that anything asked by an inspector should be regarded as potentially important unless it is obvious that it is a side issue.

Complaint is made that the inspector appears to have relied substantially upon that answer in reaching a key conclusion in her decision. In paragraph 31 of her decision she states:

It seems to me that the single answer which was given by Mr Horrocks is at best a singularly flimsy basis for reaching a conclusion that there was every likelihood of the scheme proceeding. In that context the inspector accepted that it was not clear that the SWRDA would be prepared to pay residential land value for the site. The complaint, though, is not so much that, but that it was unfair for the inspector to place such reliance upon that answer when the solicitor for the claimants had not been given the opportunity to deal with the matter. There was no evidence, although there might well have been if it was appreciated that this was a matter of importance, as to the actual likely cost of acquiring this land. It might be that the cost was shown to be such that it really was unrealistic to believe that the Council would be prepared to spend the necessary money in order to achieve the desired result that this site remain open space. There was, after all, evidence before the inspector that the trustees who own this land were prepared to sell to the claimants and had reached a decision to do so. Thus it was their intention that the land should cease to be able to be used by the public either for the Whitsun fair or as open space more generally. It was in those circumstances at least on the cards that such a sale might in any event take place, even if planning permission were initially refused on the basis that in those circumstances in reality there was a reasonable prospect that the open space would be achieved. In any event, all this depended in the end upon the proposals in the RDD being approved and this site not being regarded as one where housing development should take place.

Mr Coppel submits that there was no question of unfairness. The inspector had raised the question; if, as they should, the claimants had appreciated that it might be of some materiality, it was open to them to ask for an adjournment in order to obtain any necessary evidence, or alternatively to pursue the matter further with Mr Horrocks, or indeed with any witness that they wished to call on their own account, for example perhaps Mr Stewart.

In those circumstances, Mr Coppel submits that it cannot be said that the inspector's conduct has deprived the claimants of a fair hearing in that regard. It is, it seems to me, very difficult for a representative to appreciate that a particular point may be of importance when it has not been raised by an opposing party in the appeal. If the inspector was going to rely upon it to a great extent, as indeed she clearly did, it seems to me that she ought to have made that plain in circumstances such as these. It would be different, of course, if the issue had been raised as a real issue. It is said it was raised because it was referred to by Mr Stewart and, of course, that to an extent is true, but only to an extent because no evidence had been presented by the Council to rebut the observations made by Mr Stewart in his statement, and of course that could have been done.

That, coupled with what I have described as the flimsiness of it as a basis for reaching the conclusion that the inspector did, persuades me that she has in that regard erred in reaching her decision. Whether that by itself would have persuaded me that this decision could not stand, I do not need to consider in depth because that is not the only error in this decision letter.

I come to what I regard as the most important error. The Structure Plan contained a policy as one would expect in relation to housing. That had been referred to in the questionnaire by the District Council. The relevant policy H2 provides:

It is to be noted that there is a subsequent policy which was regarded as material in the questionnaire. SR4 relating specifically to sport and recreation states:

The Structure Plan contains general proposals. The details will normally be in the Local Plan. It seems to me that when one reads the policy H2 in its context, being a housing policy, the five requirements are in part concerned with where the development should take place, and in part the nature of any such development. So far as requirement 3) is concerned, because of course it relates to "location, scale and phasing", it provides that when there is such development there should be open spaces retained within that development. Indeed, that is precisely what this application provides for because it is for 48 dwellings with open space to be retained, albeit in a much smaller area than the present total of the site, which is of course open space in the sense that it is space which is not built on.

So far as retention of existing open spaces which are used for recreational purposes or which are regarded as environmental amenities is concerned, that is covered by policy SR4. However, the inspector clearly took the view that HR2 was concerned with retention of open space in the sense that there should not be development on open spaces. In paragraph 3, she refers to policy H2 and states that:

She discusses in the course of the determination whether the land in question should be regarded as open space within the meaning of the PPGs and of policy H2. She makes the point that the reference in policy H2 is to be regarded as, on the face of it, much wider than the definition contained in the Town and Country Planning Act 1990. She deals with this in paragraph 18:

As I have already indicated in construing H2 in my judgment, that is an error. Policy H2 has nothing to do with the retention of existing open spaces. It is concerned with the provision of open spaces within housing development. Accordingly, the inspector was wrong to regard H2 as being in conflict with this proposed development. In her conclusion, paragraph 33, she states:

Mr Coppel submits that this is a simple matter to substitute SR4 for H2, and if she had done so, she would have reached the same conclusion. So that error, if it be an error, is not one which would have had any material bearing on the final conclusion. I do not accept that. SR4 is on its face narrow. It refers to open spaces that contribute to "the recreational amenity or environmental quality of the area". The inspector herself recognised that the visual amenity was limited because it was only really visible from one side, that is from the lane, the others being either a railway or built-up. When considering recreational amenity, although I accept that the fact that it is in private ownership and not public is by no means fatal in the sense that it takes it out of the category of open space that contributes to recreational amenity, it is an important factor to take into account. If the recreational use can be brought to an end at the desire of the owner, then that is a factor that must be taken into account.

Mr Coppel submits there was no evidence that that might happen. There was equally no specific evidence that it would not and the fact, as I have said, that the trustees were prepared to sell for the purpose of development suggested that that might indeed be the case. In that context, the question of whether there were likely to be the funds available for either compulsory or agreed acquisition was a material consideration. All that would have had to be gone into, in my view, in much greater detail than was the case if policy SR4 were to be regarded as an important and perhaps determining feature.

Accordingly on that ground alone, in my view this decision cannot stand. But that is not the end of the attack. It is submitted that the inspector misinterpreted the standard definition of open space in PPG17 and therefore took account of an immaterial consideration. PPG17 is specifically concerned with planning for open space sport and recreation. In Annex 1, it makes it clear that it goes beyond the definition in the Town and Country Planning Act, which is "land laid out as a public garden, or used for the purposes of public recreation, or land which is a disused burial ground." The examples given include,

The other claim concerns the attachment by the inspector of significant weight to the aims of proposal RL668 in the RDD. As I have already indicated, the RDD consultation period was due to end after the inquiry. The inspector says this about it in paragraph 28:

Mr Edwards particularly relies on PPG1 in this context which is the general policy and principles. PPG1 makes plain that the heart of the framework of planning lies within the development plans, which aims to give a measured certainty and predicability to the system. That is undoubtedly correct because one has section 54(A) of the Act which equally says that. He notes paragraph 40 which states:

Against that Mr Coppel submits that the Local Plan of 1985 was of considerable antiquity. Furthermore, PPG3 represented a sea-change of approach in relation to housing. That was only in March 2000 and it is that change that has been reflected in the approach in the RDD. It is true, as Mr Coppel of course has to accept, that in 1999 the proposal in the emerging Local Plan was the same as in the 1985 plan; namely, that the site should be retained for housing development purposes. So although in one sense it is of considerable antiquity, the proposal for this particular site is not of great antiquity. The only question is whether the change created by PPG3 should make all the difference.

The fact is that this is regarded as a not wholly greenfield site. It qualifies in all respects other than that for housing. It fulfils all the relevant conditions and criteria set out for housing development. The only question is whether the fact that it is not wholly brownfield is likely to make such a substantial change.

It seems to me that it could not be assumed that, despite the public support for the UFP policies, the RDD proposal had reached a stage when it was appropriate to attach what the inspector regards as significant weight to it. Weight is, of course, a matter for the inspector. It is not normally a matter which can be taken into account by this court as a basis for finding against a decision of a planning inspector. But it is important that the guidance in the PPGs is correctly applied and if guidance is incorrectly applied, that is a matter which can result in a decision being upset.

The guidance is that where a plan is at the consultation stage, refusal would seldom be justified. Although it does not talk about weight, it is implicit that it would usually be wrong to regard such a developing plan as being something which could be properly relied on as a basis for refusing a planning permission which accords with the policy in the existing plan. It seems to me that the inspector has misapplied the advice given in PPG1. She has, of course, relied on PPG17 and PPG3 but it is the cumulative effect of the various matters that have led her to the decision which she has reached. In my view, in that respect too she has erred.

That, I think, essentially covers the points which have been pursued before me. In all those circumstances this decision, in my view, cannot stand. Accordingly, this claim succeeds and the matter will be remitted for a fresh consideration.

That is the only course I can adopt, is it not, Mr Edwards?

MR EDWARDS: That is correct, my Lord, and I would ask for an order in that regard. There is also an application for the claimant's costs.

MR JUSTICE COLLINS: Yes.

MR EDWARDS: I understand that there has been some discussion between those instructing me and the Treasury Solicitor. There is one matter on which I have not been able to take instructions.

MR JUSTICE COLLINS: I do not recall having seen a schedule. That does not mean that I have not; I have had a number of cases and I cannot remember which I have seen and which I have not.

MR EDWARDS: I have a copy from the Treasury Solicitor.

MR JUSTICE COLLINS: I find that the other way round, it is very rare for there to be any objection to the amount, but sometimes there is objection this way round.

MR EDWARDS: This is the only copy that I have. There is a slight objection on a certain matter.

MR JUSTICE COLLINS: Yes.

MR EDWARDS: Could we just look at the schedule. It is in relation to my solicitor's costs. Unfortunately, he is down in Cornwall and I have not been able to take instructions. It is a difference of about £1,200.

MR JUSTICE COLLINS: So it is quite a substantial difference.

MR EDWARDS: Yes, my Lord.

MR JUSTICE COLLINS: Well, I am really not sure from what you tell me that I would be able to reach a decision on this because you need instructions about it. It seems to me that the only sensible thing in those circumstances is to put it to be dealt with by a detailed determination, whatever the expression is, unless of course you can agree; agreed or specially determined.

MR EDWARDS: It may be possible we can agree outside. That would be a sensible way of doing it.

MR JUSTICE COLLINS: Well, that is a matter for you. I do not think it would be right for me to reach a decision without hearing what your explanation was, would it?

MR EDWARDS: No, my Lord, indeed. It is only in relation to solicitor's costs and I have not been able to take instruction.

MR JUSTICE COLLINS: If it was only a couple of hundred pounds then one might adopt a palm tree(?) approach but I think £1,200 is too substantial a sum.

MR COPPEL: My Lord, might I say something in relation to costs. The general approach that your Lordship has indicated is agreeable to the first defendant. But the position of the first defendant is that seven grounds in all were advanced and pursued by the claimant, seven were in the skeleton; some of them were abandoned, one or two fell by the wayside. Another way of putting it is that the first defendant has been successful and that ought to be reflected, even if in a small percentage -- your Lordship nods horizontally. The point about this is of course twofold; first of all, the first defendant has been put to the expense of dealing with this; secondly, the whole purpose of the new scheme is to impose a certain discipline on claimants.

MR JUSTICE COLLINS: I accept that but one has to look at the realities. The fact is that what he has either abandoned or not succeeded on is a tiny part. You cannot really contend that you(?) were involved much in dealing with the human rights ground, and the evidence, of course, was required on the ground on which he succeeded.

MR COPPEL: Well, that is correct, my Lord, but if I may say so it occupied or preoccupied, depending on how you look at it, pages of my learned friend's skeleton which had be read. One always enjoys reading the other side's skeletons, of course, but there it is. So, my Lord, I say --

MR JUSTICE COLLINS: Those should be reflected.

MR COPPEL: Even if modestly to impose a certain discipline on the claimant.

MR JUSTICE COLLINS: In principle I take your point; in practice in this case I do not think it has any merit. No, I do not propose to apportion costs at all. It would seem to me to be a case where it would be right for the claimants to have their full costs.

MR COPPEL: My Lord, that then leaves the issue of permission to appeal, and I do ask for permission to appeal and I do so on three bases; two relate to the fairness ground and one relates to the weight ground. In relation to the fairness ground, it is a matter of general importance to the inspectorate that its inspectors may be under a potential obligation to direct parties to a particular line of reasoning that an inspector is proposing to take --

MR JUSTICE COLLINS: Yes, I take your point but I did not intend to go as far as that. This all depends on whether an issue is one which has in any way been flagged up. If it is an issue which is clear then, as it seems to me, there is really no need for the inspector to indicate anything in particular because it is an issue which is there and the parties know it is there. But here that issue really was not properly flagged up and that is the only reason why I have taken the view that in the circumstances of this case, and I emphasise and if you like I will make it clearer when I correct the transcript, that it is so limited. This is a one-off in my view.

MR COPPEL: My Lord, without pushing at a barred door, the position is this. As your Lordship has found that the inspector raised by questioning a particular point, and the position of the inspectorate is that once the inspector does that and the parties are professionally represented that is a sufficient trigger to those professionally represented parties -- if in fact it is to be the case, your Lordship says, in exceptional circumstances that the inspector hearing the inquiry has to go further -- that is a matter of importance because the inspectors do have to be instructed. The circumstances in which they are to identify to professionally represented parties this is the ball --

MR JUSTICE COLLINS: The difficulty is that this is not the right case to take up because you have lost on other grounds, as you have perhaps from what you said accepted that you do not have much of a hope on the H2 point.

MR COPPEL: My Lord, that is what I say in relation to defence. May I deal with the other matter which is, in fact, a matter of considerable importance. I hear what your Lordship says in relation to H2. It is, of course, possible for (inaudible) to give permission to have these pseudo-hypothetical appeals even though it is, as it were, accepted that an appeal fails on other bases. That is the basis upon which I would make this application. The weight issue is a matter of considerable importance to the Secretary of State and --

MR JUSTICE COLLINS: Well, you could have appealed Austin.

MR COPPEL: Yes, my Lord, that is certainly -- I say nothing in relation to that. The position is this: PPG1 says that planning permission is to be "seldom refused" on the basis of what I will term early stage material. "Seldom refused", that phrase contemplates that there will be circumstances, albeit seldom, in which early stage material can be determinative. Your Lordship's ruling is tantamount to the fact that the word "seldom" is to be scribbled out and replaced with the word "never", I would submit.

MR JUSTICE COLLINS: No, just on the facts of this case to say that it should be attributed significant weight was an error because it failed to have proper regard to "seldom".

MR COPPEL: My Lord, the point is that that again goes round upon itself because that is a matter of weight, which is a matter for the inspector, and we say should be left with the inspector, and unless one can say logically --

MR JUSTICE COLLINS: I take your point but what you are really saying is that my approach in Austin v The First Secretary of State and Penwith District Council [2003] EWHC 229 Admin was wrong. That may be correct and that may be in due course a matter which you can take to the Court of Appeal. If you think I am wrong, the inspectors will no doubt disregard it.

MR COPPEL: Well, my Lord I have asked and I hear what your Lordship says.

MR JUSTICE COLLINS: No, this is not the right case, in my view, to justify it. I am bound to say that if I had thought there was anything in that, would I have power to give leave on the basis that you undertake to pay all the costs of the other side, win or lose?

MR COPPEL: My Lord, sometimes this question arises. I have to say I have difficulty with that because either your Lordship is of the view that the matter deserves to go upstairs, or does not.

MR JUSTICE COLLINS: Mm hmm.

MR COPPEL: My agreeing or not agreeing to pay the costs of the other side should not matter.

MR JUSTICE COLLINS: I take your point but the Court of Appeal does that from time to time, as you know, in relation to leave to appeal to the House of Lords.

MR COPPEL: My Lord, I do not always agree with the Court of Appeal.

MR JUSTICE COLLINS: Nor do I, but the fact is they do it, do they not?

MR COPPEL: Yes, my Lord, they do. As I say, I cannot see how one can get round the intellectual impasse of the fact that either it is worth going upstairs or it is not.

MR JUSTICE COLLINS: I entirely take your point. The reality is that they do it on the whole where the point is of desperate importance to the revenue(?) say, but for the unfortunate individual he is, as it were, the fall-guy for an important point. That, I think is the usual situation in which that is done. I do not think it is normally appropriate to be done where one considers that the matter ought to go to appeal for whatever reason, but you have sympathy with one side or the other. That I do not think is a proper use of it. Where it does not arise, because I am not going to give you leave to appeal, you will have to persuade the Court of Appeal if you think it appropriate to do so.

MR COPPEL: Thank you, my Lord.

MR JUSTICE COLLINS: I have to fill in a form. No reasonable prospect of success in any appeal. No reason to isolate particular findings. All right.

I am sorry, we could have finished a bit earlier as it turns out.