Qaadria Jilaani Trust, R (on the application of) v First Secretary of State

MR JUSTICE COLLINS: This is a claim under section 288 of the Town and Country Planning Act 1990 against the refusal by an Inspector on appeal of planning permission to the claimants. The claimants are a charitable trust which applied for permission to develop domestic premises at 5 Millfields Road, Wellington, Telford, in Shropshire, to become a community training centre. There was to be a certain amount of structural work to the building, but essentially it was an application for change of use from residential to the training centre use.

The proposal was that the premises should become a learning centre for adults and those over the age of 14 from the local community and it would encourage the attendance of women and unemployed. It was planned to run English as a Second Language courses, IT, craft classes, to develop a UK online centre, and to run seminars and advice sessions on various topics that would be useful to those who wished to attend. As its name perhaps suggests, it was to be for the benefit of the local Muslim community which is substantial, as I understand it, in the relevant part of the town.

The Council refused permission. Its refusal was based on two grounds. First, it was said that given that the location was within a wholly residential area, the formation of car parking spaces and an access drive within the garden area and the numbers of people likely to be attracted to the property at regular intervals, the use as a community training facility would create unacceptable noise, nuisance, disturbance and traffic generation to the detriment of the amenities of local residents in the vicinity, and to the detriment of the character and appearance of the area as a whole, and it was accordingly contrary to Policy EH4 of the Adopted Wrekin Local Plan.

Secondly, it was considered that the construction of the proposed car parking spaces and driveway would have an adverse effect on the root system of trees on site covered by Tree Preservation Orders, and was thus contrary to Policy OL11 of the Adopted Local Plan.

When the matter came before the Inspector he regarded the main issues as being two, and he records that they were (a) the effect of the proposal on the living conditions of neighbouring occupiers, with particular reference to noise and disturbance from vehicular and pedestrian traffic, and (b) the effect of the proposed access and parking areas on trees.

Since the Policy EH4 is relied on both by the Inspector and by the Local Planning Authority as one of the justifications for refusal, I should indicate what it says. It is in a part of the Local Plan which is given the general heading of "Environment", and the subheading of EH4 is "Noise Pollution". It reads:

The notes which explain what the policy is all about indicate in paragraph 2.4.17:

Further on it is indicated that to achieve the broader aims of the Plan, such as encouraging mixed use development, the Council would take a flexible approach where possible. The example is given that where the predicted noise emission from the proposed development was acceptable during normal working hours but not at other times, the Council might give permission subject to a condition restricting operations to certainly specified hours.

It goes on at 2.4.21:

It is thus clear that Policy EH4 is concerned with, and only with, problems arising from noise, whether noise emitted from the premises during their normal use or noise created by traffic moving to or from, or within, the relevant development. I should say, because this is a matter which is material in this case, that it also would include noise generated by pedestrian movement as well as by vehicular movement.

I draw attention to that because it is clear that the objections raised by the Council, which purport to be under EH4, go far beyond anything that is covered by EH4, because reference is made not only to noise but to nuisance, disturbance, and traffic generation to the detriment of the amenities of local residents. Traffic generation may well amount to a separate head of objection on the basis that it may cause traffic problems, but that is not something which was relied on by the Inspector, although it was relied on by the Local Planning Authority in this case.

The Inspector, as I have said, posed two main questions, and he answered both of them against the claimants. It is convenient to deal first with the trees issue because, as it seems to me, it is clear that the Inspector's reasons for finding against the claimants simply will not bear any examination.

He deals with the issue in paragraphs 15, 16 and 17 of his decision, but before coming to them I should refer to the evidence that was before him in relation to the problem of damage to trees. That evidence was contained in an arboricultural report which was prepared by an expert and submitted on behalf of the claimants. It dealt briefly with the condition of, and a description of, the trees which were the subject of the Preservation Order. There were in fact some seven trees involved and the construction of the driveway and the car parking spaces would, if constructed in, as the expert put it, "the typical manner, involving excavating out a base and then compacting stone and surfacing with tarmac" cause root severance and damage which would be detrimental to the long-term health and life expectancy of the trees. But the expert went on, in paragraph 6.3 of his report, to indicate as follows:

I say that that was the only evidence before the Inspector advisedly because the Council produced no evidence at all to support its contention that it was not satisfied that the suggestion made by the expert would indeed safeguard the health and longevity of the trees. What the Inspector records in paragraph 15 is this:

It follows therefore that the evidence was all one way and consisted only of the expert's report. Mr Warren has submitted that a fair reading of paragraph 15 indicates that the Inspector was accepting the conclusions reached in that report. Unfortunately, what he then goes on to say throws considerable doubt on that because paragraph 16, which is the important paragraph, reads as follows:

I do not need to read that. As perhaps is obvious, it indicates that trees the subject of Tree Preservation Orders must be protected.

Mr Warren has manfully sought to persuade me that there is a reasonable explanation to be given of what the Inspector is saying in paragraph 16. The first sentence, dealing with his own experience, refers to a zone within which there should be no digging in order to protect the roots of trees. That is the starting point of his reasoning in paragraph 16. It is difficult to follow the relevance of that since it accords entirely with what the expert had been saying but totally disregards, on the face of it, the expert's conclusion that the damage could be avoided by a "no dig" form of construction. It is somewhat difficult to follow why the Inspector relies on his experience based on digging to determine a case where there is to be no digging.

Mr Warren seeks to persuade me that when the Inspector says that the manoeuvring area and parking spaces would be significantly in excess of 4 metres wide, and would be likely to compromise the health and longevity of the trees, he is going beyond his digging point and is expressing a view that the form of construction suggested by the expert would have that effect.

If he is doing that, he is giving no reasons whatever for reaching that conclusion, and it is a little difficult to follow why he should refer to his experience based on digging when, as I say, the whole approach by the claimants was on the basis of no digging.

I confess too to some difficulty in understanding what he is talking about when he is defining the zone and talks of it being subject to a maximum width of construction of 4 metres. Mr Warren suggests that what he means is that there is a maximum distance from a relevant tree of 4 metres, despite what otherwise might be indicated by the height of the tree or the branch spread.

If that is really what he meant it would have been easy for him to say so, and I confess that the reference to the width of construction is one which I find difficult to follow. Overall I am entirely persuaded that this reasoning is unintelligible and cannot justify the conclusion which is reached based upon it.

Mr Engelman has submitted that the Inspector was also in error in relying on his own experience in the way that he did without enabling the claimant to deal with the point. He did not raise it, it is said, in the course of the hearing. He ought to have done because it was a new point which he was relying on of his own accord.

The point itself is a perfectly reasonable one and indeed it accords with the expert's view. The reality is, as I have said, that it was an irrelevant point in the light of the material which was before the Inspector. Accordingly, I do not think that in the circumstances the failure to raise it was in any way determinative. Indeed, it is an unnecessary refinement on the inadequacies of this particular part of the Inspector's decision. It follows that the second main point upon which the Inspector relies simply will not do, and clearly if that was the only point this decision could not conceivably stand.

However the two points are said to be independent and Mr Warren submits that if the other point, that is the noise and disturbance resulting from the vehicular and pedestrian traffic, is one which cannot properly be challenged, then the decision ought to stand.

I therefore turn to the Inspector's reasoning in relation to that. First, it is to be noted that the Local Planning Authority's objections went beyond noise arising from the traffic, whether pedestrian or vehicular, and extended to noise created from the use of the premises themselves and further, to traffic problems which would be created by the absence of sufficient parking spaces.

The Inspector deals with that between paragraphs 9 and 14 of his decision. In paragraph 9 he notes that:

The Inspector then goes on to note that those matters would be appropriate for conditions save for the last, that is the restriction of numbers, because it would be impossible to police. Nonetheless, it was indicated that it was proposed to restrict the use to some 40 people and that in any event it was highly unlikely that 40 would attend at the same time. Apart from anything else, the size of the building itself would be such as would inevitably restrict the numbers that could use it. It seems to me that must be self-evident from the nature of the application. Indeed, the Inspector noted that, because he recognised that there was a practical limit to the number of people who could be seated in the proposed meeting rooms at any one time. But he observed that that was not directly related to the maximum number of people who might be on the site.

The key paragraph in his reasons is paragraph 11, which reads as follows:

I will come back to paragraphs 12 and 13, but his conclusion in 14 is this:

Mr Warren has suggested that the Inspector's observations show that he was not restricting his view of the effect of the development to noise only. Disturbance is a word which suggests something wider than noise. The difficulty with that submission is that the Inspector says at the end of his conclusions that he was relying on a conflict with EH4. It is not suggested that there was a conflict with any other planning policy. Although I have not seen the plan as a whole, I cannot believe that there is not some condition which deals with the effect on the amenity of the area generally in relation to proposed developments and deals with the need to preserve the amenities of areas independently of noise on its own.

Reference to "noise and disturbance" does not, as I read it, necessarily indicate that disturbance is intended to mean that there is something beyond noise. What it implies, I would have thought, was that there was disturbance created by the noise and that is what the Inspector was having in mind.

If it were otherwise it seems to me that it is strange that he should have limited, as he does, his reliance on a breach of the planning policy to EH4, and the use of the word "consequently" in paragraph 14 is surely inconsistent with any other construction. Of course, I recognise that one does not construe Inspectors' decision letters as if they were statutes; an approach that dissects the language is not a proper approach in all the circumstances.

Nonetheless, one must try to understand what the Inspector is relying on, and the appellants and respondents in an appeal to an Inspector must know what in reality the Inspector has relied on in either allowing or dismissing an appeal. It seems to me that the only natural reading of the Inspector's reasons in this regard is that he is limiting his reasons for dismissing the appeal on this ground to noise resulting from increased vehicular and pedestrian traffic.

That of course is somewhat narrower than the way in which the Local Planning Authority approached the matter, and it follows that the Inspector appears to be accepting that there is no problem from internal noise from the centre.

However the Inspector relied, as he was entitled to, on what he says was the evidence given at the hearing that significant numbers of people could come from outside the immediate area, and his view that the result would be, in a quiet residential area as this was, an unacceptable raising of noise levels to the detriment of the local residents. It is perhaps, having regard to the likely numbers, a conclusion which might be regarded as somewhat surprising if all other objections fell away, but nonetheless it is one which the Inspector was entitled in the exercise his judgment to reach.

I should now go back to the two missing paragraphs, 12 and 13, because they have given rise to some of the specific objections raised by Mr Engelman.

In paragraph 12 he deals with comparisons made with uses of 44-46 Regent Street. The significance of that is as follows. That was a development of a very similar nature to what was being proposed in the circumstances of this case. There is a mosque just adjacent to 44-46 Regent Street and what was proposed was that the dwelling houses there should be converted in very much the same way, and for the same purpose, as in the application before me.

The Council had approved that development and one of the points that was being made by the claimants was that it would be inconsistent, having approved that, to disapprove this. There was an objection from those responsible for the development at Regent Street, perhaps not altogether surprisingly, but the Inspector did not regard that as being a reason for any refusal. That is to say, it was not accepted that two such centres within a relatively short distance of each other -- I am told that it is something in the order of 150 yards -- would be a reason for rejecting.

It seems that it is accepted that it cannot be said that there is not a need for both these developments. It seems that there is what has been described as some degree of rivalry in the sense that they would cater for members of the community who had slightly different approaches to their religion or in their way of life. I do not have any evidence before me which enables me to go any further than that.

As I have said, the Local Planning Authority had approved the Regent Street development. It is to be noted that at the time it was approved there were only some seven car parking spaces to be provided, although it appears that subsequently, according to the Inspector's report, and one assumes that that must have been based on evidence given before him, arrangements for parking were going to be provided at an adjoining college. In fact the adjoining college had written a letter supporting the proposal by these claimants, but it seems that they had also supported the other development in Regent Street, the point being that there was a need for community centres such as these in the area.

Going back to the Inspector's letter, what he says in paragraph 12 is this:

It seems to me that the Inspector was entitled to regard the circumstances at Regent Street as sufficiently different in character to justify a decision which was not the same.

Finally, in paragraph 13 he deals with another point. He says:

Mr Engelman has submitted that the Inspector was wrong in his approach to paragraph 93 of Circular 11/95 and that he ought to have considered the possibility of permission granted to the Trust. Paragraph 93 of Circular 11/95 reads as follows:

It seems to me that the Inspector was entitled to regard that as being inappropriate for a situation such as that before him. Compassionate or personal grounds do not relate to a situation where permission is supported by or is regarded as beneficial to the neighbourhood. What is inherent in paragraph 93 is that there will be some development which a particular individual needs for his or her benefit, for example, some sort of extension to his house which otherwise would not be permitted which is intended to deal with a physical illness from which he suffers. One can think of other examples but the reference to personal grounds, and the use of the word compassionate, makes it clear that this is something which is for the benefit of the individual who is applying. In my view it is not appropriate, as I have said, for a development such as this, however beneficial to the community it may be regarded as being.

That is of course not to say that a temporary trial period would not necessarily be appropriate, and indeed if there was any doubt about whether the noise or the disturbance, if there was any difference between the two, created by the traffic was likely to be unacceptable, then that would be the sort of case where a temporary permission could be granted. Permission would be on the basis: "I have my doubts as to whether this will produce unacceptable results, but I am not prepared to find positively that it will and therefore I am prepared to allow it to set up if it wishes to and we will look again when we have experience of how it actually is working in practice".

That would have been undoubtedly a possibility, and it was a matter that was put before the Inspector, but his reasons for rejecting it, provided they are made out, are sound. If he was indeed persuaded that he was in no doubt that there would be unacceptable harm, then obviously it is not appropriate to grant any permission, and equally not appropriate to grant a temporary permission. It certainly cannot be said that he did not consider whether a temporary permission would be appropriate. It was before him and, for the reasons that he gives, he rejects it.

It is further submitted that the Inspector was not right to apply Policy EH4 at all. Mr Engelman draws attention to the opening words of E4 which talk about proposals for industrial, commercial and transport developments. He submits that this is not such a development, being a development by a charity to provide a centre for charitable use. He accepted in argument that the office part of the development (because there are to be offices in it to enable the centre to be run properly) could be regarded as commercial, but the balance he submits clearly is not, and it is not within what is intended to be covered by E4.

There, I am afraid, I cannot agree with him. It seems to me that it is clear that what E4 in context was intended to cover was developments which were not residential in residential areas. It is not limited to residential because it is concerned with existing noise-sensitive development. A hospital would be an obvious example which fell into that category, but no doubt it would most often be residential development in which a different sort of development, which would be likely to create noise, was to be made.

It seems to me that if one looks at the notes and reads the policy in the context of the notes it is perfectly plain that this sort of development was one which was indeed intended to be covered by E4, and in my view the Inspector cannot be said to have been wrong to regard E4 as an appropriate policy to consider. My attention has been drawn to authorities set out in the skeleton arguments on this point. I do not need to refer to them explicitly because I am satisfied that what I have said is in conformity with those authorities. Accordingly, there is nothing in that point.

It is submitted, further, that the Inspector should have dealt more explicitly with the possibility of conditions. One condition was the limitation of time during with the centre would be used. It was in fact to be from 9.00 am to 8.00 pm on Mondays to Fridays, and from 9.00 am until noon on Saturdays and to be closed on Sundays, as I understand it. There was to be a quarter of an hour's leeway at either end to allow people to arrive and to leave.

Those were the opening times that the Inspector was considering. It is suggested, as I understand it, that more restrictive conditions might have been put forward in relation to opening hours, but the general rule is that it is not for an Inspector to think up his own conditions in that sort of situation; it is for the claimant to put forward any suggestions, or indeed the Local Planning Authority to put forward any limitations that are considered appropriate.

It seems to me that it was clearly the position that those were the hours which were regarded as the proper ones for opening and it is clear that the Inspector did have regard to those conditions. Whether in all the circumstances the opening hours really did justify his conclusion that there would be unacceptable noise is another matter. That, as I have said, was a question for him and his judgment and whether or not I would have agreed with it is nothing to the point. I can only interfere if persuaded that he was making an error of law.

It seems to me that in all the circumstances it is not possible for me to say that on the first issue the Inspector's decision is vitiated by errors of law. I am, I am bound to say, somewhat concerned about the reference to noise and disturbance and it is not entirely clear precisely what the Inspector was relying on. It does seem from his conclusions to have been the case that he was limiting his concerns to noise as opposed to any other sort of disturbance in traffic terms.

I should also have noted, when one has regard to pedestrian noise, that opposite the site there is a playing field which contains a playground for children. So one supposes that, certainly there, there is likely to be a considerable degree of noise from the children who are using the playground. But that is on the other side of the road and is not directly within the area.

It also is worth commenting perhaps that the proposed development is in a cul-de-sac leading to a housing estate and so it would seem to be somewhat improbable that a large number of pedestrians would come past the housing itself. They would surely come from the main road up to the site, or generally would be expected to do so. Of course, the same cannot be said of vehicular traffic because they might try to find somewhere to park, but it is perhaps to be noted that there does not appear to have been any very detailed analysis of whether there was likely to be any unacceptable noise to the inhabitants of the housing in the housing estate and in the surrounding roads.

However, that perhaps is a general criticism of the Inspector's approach which is not one which can found in error of law because, I repeat, the Inspector was there, it is his judgment which matters, and provided there is no error of law, it is not possible for this court to interfere.

However, that is not the end of this case. I have already indicated that in my view the Inspector was hopelessly wrong in the way that he dealt with the tree objection. It is submitted that the noise ground, if I may call it such, is free-standing, and it is right that the Inspector in paragraph 11 does indicate that he does not believe that the provision of eight parking spaces would be sufficient.

However, it is in my view difficult to say that there is not some connection between the two. It is obvious that if the parking places could not even amount to eight because of the tree objection, that would give greater force to the noise objection, and it is certainly impossible to be satisfied that the Inspector did not take that into account in reaching his final conclusion in dismissing the appeal. I do not regard it as possible in the circumstances of this case entirely to disassociate the two grounds from each other.

There are, as I think I have indicated, some somewhat unsatisfactory aspects of the Inspector's decision in relation to the noise ground, and although they would not of themselves, had that ground stood on its own, have enabled me to quash the decision, it seems to me that when one of the grounds upon which reliance is placed falls away and there is that concern about the others, coupled with the impossibility of disassociation, different considerations apply.

In those circumstances I am satisfied that this decision cannot stand. This claim is therefore allowed.

MR ENGELMAN: Thank you very much. May I ask for the costs before your Lordship?

MR WARREN: My Lord, I have not seen a costs schedule. I cannot object in principle.

MR JUSTICE COLLINS: I have not seen a costs schedule either. I do not think there is one, is there?

MR ENGELMAN: That makes three of us. In those circumstances I would ask for a detailed assessment.

MR WARREN: I cannot object to that.

MR JUSTICE COLLINS: Detailed assessment if not agreed.

MR WARREN: My instructing solicitor has popped out. In the circumstances, it being a 288, I need to apply to you, initially at least, for permission to appeal.

MR JUSTICE COLLINS: You will not get it because there is absolutely no point of general importance in this. It is purely based on its own facts and I have not, as I understand it, applied any law which is in any way novel.

MR WARREN: I am grateful.

MR JUSTICE COLLINS: You did not expect to get leave, did you?

MR WARREN: No, but I need to ask.

MR JUSTICE COLLINS: Thank you both.