Exmouth Marina Ltd., R (on the application of) v First Secretary of State

JUDGE RICH: This is an unfortunate case. By its own admission, the East Devon County Council made a mistake in granting planning permission on 19th December 2001 for the development of the Sail Loft Camperdown Terrace Exmouth which was described as "change of use to Antiques Centre and Works to Adjacent Yard". The proposed works were shown on four approved plans, which described the adjacent yard as "proposed boat store", as "the erection of two steel framed boat storage racks" with a height which has been scaled at 6.8 metres. These are so related to a listed building and adjoining residential buildings as to be regarded by two inspectors who have considered the proposals to be unacceptable. This is a view which it appears the Council now accepts, and I have been told that the Ombudsman, who investigated a complaint as to the circumstances of the grant of permission, has recommended that the permission should be made the subject of a Revocation Order.

The appellants did not erect the storage racks in accordance with the permission. They erected two racks differently positioned within the Yard with a height of 8.3 metres, within which they proposed to store boats on each of the three levels with a fourth tier stored on the top. The Council served an enforcement notice on 14th May 2002. The appellants appealed on grounds (a) and (f) of section 174(2) of the Act, that permission should be granted or that the requirement for the removal of the whole racking system should be modified. The Inspector appointed to determine that appeal, following written representations, recorded in his Decision Letter dated 20th November 2002 that the appellant did not defend the structures as built but contended that a modified scheme, which reduced the height of the structure to 6.8 metres, would be acceptable when compared with those for which planning permission had been granted. The Inspector made some criticism of the positioning of the racks as erected when compared with their permitted position, but primarily he regarded the modified version as unacceptable because the revised drawings showed boats stored on the stop of the structures, whereas he took the view that the planning permission did not permit storage on the top of the structures thereby permitted. He, nonetheless, expressed "some sympathy with the approach of utilising those parts of the present structure that are acceptable as compared with the planning permission." He accepted in paragraph 22 of his decision that "there may well be an 'under-enforcement' solution by modifying the present structure", but he refused the appeal under ground (f) because the modifications as proposed were, in his view, inadequate as they stood.

The inadequacy arose, at least primarily, from his view that the permitted structures could not be used to store a fourth tier of boats on the top of the structure, so that what was described as "the fall-back position" would involve storage to a significantly lower height than that proposed in the modified scheme. The appellants appealed to the High Court under section 289 of the Town and Country Planning Act 1990, on the ground that in so construing the permission of 19th December 2001 the Inspector had made an error of law. Sullivan J held that there was nothing in the permission which could be construed as prohibiting the storage of boats on top of the permitted structure. Accordingly, by order dated 3rd June 2003, the decision of the first Inspector was remitted for the further consideration of the First Secretary, with the opinion of the court as to the true construction of the planning permission.

The First Secretary appointed a second Inspector to determine the appeal by way of a hearing. The advocate who appeared for the appellant at such hearing expressed surprise when it appeared that the Inspector was, as he put it, intending to probe the "fall-back" position. He had come to the hearing expecting merely to address how far the structures as erected needed to be modified in order that their impact should be no greater than that of the structures as permitted, if they had been erected. Modifications were proposed which, by accepting a further reduction of height below 6.8 metres, where the structures had been erected closer to the listed building or adjoining houses than had been permitted, sought to avoid the need, in order to meet the first Inspector's secondary criticism of the modified scheme, to reposition the structures to their originally permitted positions.

The second Inspector in a Decision Letter dated 16th December 2003, dismissed the remitted appeal on the ground, which was accepted by the appellants, that the structures had been erected without planning permission and that, as erected, they should not be permitted. The appellants' case, however, was still that a modified scheme should be permitted, either by allowing the appeal under paragraph (a) of section 174(2) of the Act and granting a conditional planning permission under section 177(1)(a), or by allowing the appeal under paragraph (f), in each case in respect only of those parts of the structures as erected which were deemed acceptable as compared to the "fall-back" position. The Inspector, whilst holding in paragraph 49 of his decision that the fall-back position was a material consideration, decided for reasons which the appellant criticises, that the prospect of the fall-back actually occurring was "more theoretical than real" and to accord it little weight. He accordingly dismissed the appeal, notwithstanding those submissions. Thus, the appellants have been deprived of the expected fruits of their victory on their first appeal to this court.

They now appeal again under section 289 of the Act, with the permission of Leveson J, against the decision of the second Inspector, on five grounds with which I will deal sequentially. Although I feel compelled to reject these grounds, I hope that, in my explanation of the circumstances of this appeal, I have said sufficient to show that I well understand the sense of grievance which the appellants clearly feel as to the result of the proceedings which they have so far pursued.

The first ground on which the appellant relies is that an issue estoppel arose to prevent the second Inspector finding other than that there was, as Mr Fookes on behalf of the appellants put it in his skeleton argument:

Mr Fookes relied on a decision of Sullivan J in R v Caradon District Council ex p. Knott [2000] 80 P&CR 154, in which at page 164 he applied the test propounded by Sir Graham Eyre QC, sitting as a Deputy High Court Judge, as to the circumstances in which such estoppel might arise. I accept that it is a convenient summary of the law. Sir Graham Eyre QC said in Watts v The Secretary of State for the Environment [1991] JPL 718 at page 726:

It is true that following the decision of the first Inspector, the parties to the appellants' appeal which was heard by Sullivan J in the present proceedings must have thought that the true construction of the permission of 19th December 2001 was, at least, highly material to the determination of the enforcement notice appeal. It cannot, however, be said that the High Court was determining the factual question of the likelihood of the implementation of that planning permission, or the planning judgment of the degree of materiality of its existence as a fall-back position. There is, in my judgment, no basis upon which Sullivan J can be treated as having decided a question which was not before him and was not essential to his decision as to whether or not the first Inspector had made an error of law in construing the planning permission.

Mr Warren, on behalf of the Secretary of State, raises the question whether in the light of the decision of the House of Lords R v East Sussex County Council ex p. Reprotech (Pebsham) Limited [2002] A11ER 58, there is any room for the concept of res judicata in public law issues. In light of my understanding of the effect of the judgment of Sullivan J in this case, the question does not arise. I do not think, however, that the Reprotech case casts any doubt upon the decision of the House in Thrasyvoulou v Secretary of State for the Environment [1999] PLCR 72 in which it was held that the doctrine did apply to enforcement notice proceedings. I think that Sullivan J was right in his decision in R (on the application of) Wandsworth LBC v The Secretary of State for Transport Local Government and the Regions and 02 UK Ltd [2004] 1 P&CR32 at page 516 to distinguish between res judicata properly so called, in which case, as he said, "there is no need for an estoppel" and estoppels akin to res judicata for which "there is no longer any scope." There was discussion before this court as to whether Mr Fookes' real complaint was not that the Council should, at the time when the appeal was considered by the first Inspector upon written representations, have raised the question of whether there was a real likelihood of the fall-back permission being implemented. That would raise an estoppel akin to res judicata in accordance with the well-known dictum of Wigram VC in Henderson v Henderson [1848] 3 Hare 114. If that had been the way that Mr Fookes had put his case then I would not accept that the second Inspector, who was under a statutory duty to decide the case in accordance with section 54 of the Act, having regard to material circumstances, was bound by that doctrine to exclude consideration of that question.

In my judgment the second Inspector was right in paragraph 60 of his decision letter when he said:

I have been given a copy of a letter dated 28th July 2003 which was written to the parties, following the decision of Sullivan J, by the Inspectorate. It gave notice of the intention to arrange a re-hearing to redetermine the appeal. It also gave notice of the particular points the parties would be invited to address at the hearing. Those points did indicate a need to identify what, if any, additional provision beyond that shown on the approved plans, would be needed in order to store a fourth tier of boats on the permitted structures. It did not otherwise give notice of the intention to probe the likelihood of the appellants' implementing the fall-back position. I have no doubt that such guidance on issues to be addressed may often be helpful to the parties. No appeal to this court has been based on its having misled the appellants so as to make the hearing procedurally unfair. It would seem to me, however, that if a letter of this sort is to be sent to the parties, it would be a sensible precaution for the Inspectorate to make clear what the Inspector himself explained at the outset of the hearing, namely that such letter was not intended to exclude any other matters.

Mr Fookes' second ground of appeal was if, for the reasons I have given I hold to be the case, the Inspector was entitled to make his own determination of whether or not there was a realistic fall-back position, the second Inspector erred in law in taking into account immaterial and/or erroneous consideration in his assessment of the likelihood of a fall-back position in fact occurring.

The Inspector explained his position at paragraphs 31 to 35 of his Decision Letter which I will read:

In regard to the points which he makes as to the need for bearers in order to support the boats on the racks, I think it probable that if such provision could not have been made without the need for further planning permission, it would have been difficult for the local planning authority to refuse such planning permission to make what they had already permitted workable, unless the difference in amenity terms was clearly material. The Inspector, however, expressed the view that bearers, which appeared to him to be necessary "add considerably to the visual impact of the development". I cannot say that he was not entitled to come to that conclusion and also to the conclusion that the need for such bearers does not properly contribute to his doubt as to the prospect of the fall-back actually occurring.

Mr Fookes says that the Inspector should not have taken into account any doubts as to the manoeuvrability in the lesser space that would be available between the racks as permitted and as erected, without asking the appellants about it. Clearly he did ask something. At paragraph 41 of his Decision Letter he records:

Mr Fookes makes the point that the threat of revocation would make the implementation of the planning permission more, not less, likely. I am doubtful this is necessarily so because surely the Council, if they revoke the planning permission, would seek to make the order before expenditure was incurred in carrying out permitted work. But in any case, I think Mr Fookes misses the point which I think the Inspector was making and was entitled to make. It is merely that there may be no fall-back because the planning permission is revoked. It may be that revocation would attract compensation, but it would mean that the acceptance of the unattractive development which it permits is not the alternative to the permitting of some other equally unattractive development. It is the choice between two unattractive developments which is the basis of the materiality of the fall-back position, as the Inspector identified in paragraph 30 and the first sentence of paragraph 31 which is his introduction to this aspect of the decision. I will read those:

I am persuaded by Mr Fookes' submission that the risk of other breaches of planning control to which the Inspector refers is, at best, speculative; but then I do not think the Inspector is doing more in paragraphs 44 to 46 than raising further possibilities to put into the scale in determining the likelihood of the 2001 permission being implemented. He is aware that he is raising speculative problems. I myself can see no serious risk that use of the site would involve the carrying out of any development on the private access to the site, and I accept that the Inspector fails to make clear what, if anything, he had in mind in this regard. I think, however, that he was entitled to have regard to a breach of planning control and the possibility that planning permission would be needed to provide a stop for the fork lift truck which was essential to the operation of the boat store. I cannot therefore say that he made an error of law in that he had no evidence upon which to conclude, as he did, that doubt was cast on the future of the launch point at the marina.

Thus it was, in my judgment, a matter for the Inspector as decision-maker whether he concluded as he did in the first sentence of the paragraph 49 which I have already read. There are no grounds upon which this court can impugn that judgment.

In paragraphs 47 and 48 of his Decision Letter the Inspector raises an issue as to the approval of the pavement in accordance with a condition on the planning permission. I agree that that would go to the timing of the implementation of planning permission. The Inspector does not rely upon the need for such approval for anything more. It is not one of his four points leading to his conclusion as to the likelihood of implementation. The appellants sought, by evidence to this court, to contradict what it is said they had argued at the hearing, namely that approval had not been given. I would have received evidence that the Inspector had misrecorded their evidence. That, however, is not what the appellants now wish to say. Rather, they seek to correct the evidence which they in fact gave. That is not, in my judgment, admissible in this court, except possibly in the most exceptional circumstances.

The Inspector, having decided to give little weight to the fall-back in considering the acceptability of what had been built, turned to the modified racking scheme at paragraph 54 of his Decision Letter onwards. He made some observations as to the two different ways in which a modified scheme might be permitted, by allowing the appeal under paragraph (a) or by reducing the requirements of the enforcement notice under paragraph (f) of section 174(2). He made observations also as to the possibility of imposing conditions. I will return to those matters. Mr Fookes, however, complains that what he fails to do is to compare the scheme as proposed to be modified with that which had been permitted.

Mr Fookes must be right that the comparison of the scheme as erected will not stand as a comparison with that as it is now proposed to be modified. At paragraph 30 the Inspector describes the 2001 permission as "potentially . . . about as bad as that enforced against". Since the permitted scheme would clearly be, at any rate, 1.5 metres lower that it may not be better must, in the context, be because there would be a possibility of imposing some ameliorating conditions on the granting of permission for the unauthorised structures. Such an understanding is consistent with the Inspector's conclusion at paragraph 56 when he compares the structures as erected with the proposed modifications and says:

This analysis is, in my judgment, the proper context for the consideration of Mr Fookes' submission that the Inspector has failed to make the comparison between the modified scheme and the permitted scheme, which is essential to a proper judgment on the appeal which must favour the modified scheme. What the Inspector does say is in the last sentence of paragraph 56 which I will now read:

The comments on conditions which he makes are found first at paragraph 29 where he says:

On that basis, does the reference back to his previous comments on the fall-back position (i) show that he has made the necessary comparison between the modified scheme and permitted scheme, and (ii) give sufficient reason for his conclusion that he should not permit the modified scheme? I remind myself, firstly, that the Decision Letter is addressed to an informed audience, and secondly, that although a list of changes to the unauthorised structures was provided in the course of the hearing, and reproduced at paragraph 55 of the Decision Letter, no proposed conditions, revised drawings, or suggested amendment of the enforcement notice had been produced by or on behalf of the appellants. The previous comment on the fall-back position to which reference is made is paragraph 49, which I therefore think it necessary to read again:

I do not think that there is room for doubt that in referring back to this in the context of the modified scheme, the Inspector is undertaking the necessary comparison. That comparison cannot be as detailed as that made with the unauthorised structures because of some uncertainty as to the full extent of the proposed modifications, he is nonetheless noting his having made it. What the Inspector said as a result of that comparison was that he accords what must be assumed to be the advantage of the modified scheme little weight because he does not judge the prospect of the worse alternative, the permitted scheme, as being more than theoretical.

The Inspector has been most careful and detailed in his reasons as to why he so evaluates the prospect. He has slipped from that high standard in explaining how he has balanced the prospect of the permitted development against the benefit of substituting for that prospect an alternative somewhat less unsatisfactory scheme. The thinking, however, is obvious enough. Children were enjoined by Hilaire Belloc to keep a tight hold of nurse for fear of meeting something worse. If, as the Inspector concluded, the prospect of the something worse, the permitted scheme, was sufficiently remote, it becomes sensible to slip the proffered hand of nurse, in the shape of the modified scheme, if itself is unpleasant enough. I have therefore concluded that the somewhat summary reference to this essential comparison is not so far inadequate as to justify the court's interference.

Mr Fookes developed, in a number of different ways, his further challenge to paragraph 49 of the Decision Letter that it is not clear in the explanation that the prospect is more theoretical than real, whether the Inspector was indeed finding that the fall-back had such likelihood as even to amount to a material consideration. His argument, as I followed it, was this:

I have tried to do this submission justice, but if I have succeeded in understanding it correctly, it is clearly wrong. The weight to be given to the material consideration is always a matter for the decision-maker and not the court, and I could not interfere with the Inspector's decision on that ground.

Mr Fookes, however, puts it as a "reasons" challenge. He does not know, he says, what "more theoretical than real" means in the context of Mr Lockhart-Mummery's "not a mere theoretical possibility". I am surprised to learn that those words should have been relied upon as erecting a single test so that either, on the balance of probability, it is to be assumed that what might happen will happen or that it will not, and no allowance can be made for likelihood. I cannot think that that is what Mr Lockhart-Mummery intended, but in case anyone should so misconstrue his words, I entirely agree with the gloss put on them by Mr George Bartlett QC in South Buckinghamshire District Council v The Secretary of State for the Environment [1999] PLCR 72 when he said at page 79F:

I wholly agree with that judgment of Mr Bartlett. In my judgment, the Inspector was entitled both to conclude that the prospect of the fall-back was more theoretical than real, but nonetheless should not be totally ignored as immaterial, and to give it the little weight that the degree of probability made appropriate in his judgment, and the judgment was for him. This court would not interfere.

The Inspector, at the outset of the hearing, noted that the appellants were not seeking to defend the unauthorised structures. He therefore asked whether the appeal was being pursued under paragraph (a). He expressed the following view at paragraph 10 of his decision letter:

These paragraphs raise the following questions:

Since the Inspector has given a decision in case he is wrong in respect of the first question, on the assumption that he could both grant permission and impose conditions, there is no more favourable result that the appellant could achieve if the Inspector is wrong on either or both those questions. It follows, in a sense, that this ground of appeal raised by the appellants is purely academic. Since, however, these questions may, in other cases, be important, and since they have been raised in this case, I thought that I should invite submissions in regard to them. Neither counsel had, I think I can say without unfairness, fully researched the question before the hearing before me. I am, however, indebted to both counsel for further submissions made in writing.

Scope of permission granted on appeal under s.174(2)(a)

Section 174(2)(a) of the Act provides for an appeal against an enforcement notice on the ground that planning permission ought to be granted "in respect of any breach of planning control which may be constituted by the matters stated in the notice". Section 177(1), however, permits the Secretary of State on the determination of such an appeal to:

In my judgment, the Inspector's test of whether the smaller development to be permitted is substantially or materially different from that which is the subject matter of the enforcement notice, in order to determine the power to grant permission on an appeal under paragraph (a) is wrong. The question under section 177(1) is whether it is "the whole or any part" of the matters stated as constituting a breach. I think reference to paragraph 8 of the Decision Letter may indicate the source of the Inspector's error for he says:

Both counsel suggest that there may be a limitation to this power to grant permission on an appeal under paragraph (a), namely in respect of permitting any part of the unauthorised development, namely that it would not entitle the Secretary of State to cut down what was permitted so that it was, in substance, not the development applied for; they make reference to the well-known decision of Forbes J in Bernard Wheatcroft Ltd v Secretary of State for the Environment [1982] 43 P&CR 233. For myself, I see no reason why the principle in that case should have any relevance to the exercise of the specific power to grant planning permission for a part only of the unauthorised development. The likelihood is indeed that its exercise will often be most appropriate when it does result in a development which is in substance different from the subject matter of the enforcement notice, and therefore any deemed application for planning permission arising out of an appeal under paragraph (a).

Rather different considerations of course apply in respect of any conditions that might be imposed. I would agree with the Inspector's view at paragraph 52 of his Decision Letter that they cannot be so stringent as to be unreasonable and therefore invalid.

What I therefore found to be an error of law on the Inspector's part does not, as I have already pointed out, affect his decision because he has indicated that his decision would have been the same if he had assumed power to deal with the matter under paragraph (a) and to grant permission for the structures as proposed to be modified subject to conditions.

The ground of appeal under paragraph (f) does not merely duplicate the ground of appeal under paragraph (a). It does however, in its present form, overlap with it, in that it permits the allegation that the steps required exceed not only what is necessary in order to remedy any breach of planning control, but also what may be necessary in order to remedy any injury caused by such breach. As originally enacted, paragraphs (a) and (f) provided two distinct grounds of appeal. Paragraph (a) was concerned with permitting that which was unauthorised; paragraph (f) was concerned only with taking out of the enforcement notice that which was not a breach of planning control. The additional reference, however, to what is necessary to prevent an injury to amenity, provides, in effect, an area of overlap between the two grounds. The planning authority, before serving the enforcement notice is under a duty not merely to consider whether there has been a breach but also whether it is expedient to enforce against it: see section 172(1)(b). It is under the second head of paragraph (f) that an appeal is made against their failure properly to do so.

Upon an appeal under ground (f), s.176(2A) requires the Secretary of State to "give any directions necessary to give effect to his determination on the appeal". If he determines that "the steps required exceed what is necessary ... to remedy any injury to amenity which has been caused by the breach", he must direct that the steps required by the enforcement notice be amended accordingly. Such determination would not however entitle him to add to the steps required.

Section 173(11) provides:

By contrast section 177(3), from the reasons explained in paragraph 36 of this judgment, does make provision for the imposition of conditions on "the grant of permission", "on the determination of an appeal under section 174". For a grant of permission however, there has, in my judgment, to have been a successful appeal under s.174(2)(a) "that planning permission ought to be granted" or appropriate determination of the application which s.177(5) provides is deemed to have been made where an appeal is brought under s.174, provided that any fee required has been duly paid as provided by s.177(5A). Section 173(11) does not provide for an appeal under s.174(2)(f) to be treated as an application for permission, only for the enforcement notice to be treated as having granted permission in respect of the matters where it makes no requirement.

It is therefore, in my judgment, immaterial to the proper construction of s.173(11) that the effect of an enforcement notice which under-enforces is the same in terms of the resultant permission, as if an application had been made in accordance with s.73A and had been granted. The power to impose conditions under s.73A arises from the making of the application. No such application is involved in the making of an appeal under s.174(2)(f) unless there is an effective deemed application under s.177(5).

I am gratified to find that the conclusion at which I have arrived coincides with that which I assumed in Wyatt Bros (Oxford) Ltd v Secretary of State for the Environment [2001] PLCR 161, and at which Mr Nigel MacLeod QC arrived in Sparkes v Secretary of State for the Environment [2000] PLCR 279, apparently after argument, although he does not, in that case, fully state his reasoning.

For the reasons which I have now attempted to give, I think that the Inspector was right on this point. For the reasons which I have given otherwise, this appeal, however, must be dismissed.