Whiteknights Consultants Ltd, R (on the application of) v First Secretary Of State & Anor

MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ('the Act') to quash a decision of an inspector appointed by the first defendant, dismissing the claimants' appeal against the second defendant's refusal to grant planning permission for the erection of a dwelling house and garage on land at 36 Castle Terrace, Berwick-upon-Tweed in Northumberland. The appeal was dealt with by way of written representations.

The inspector made a site visit on 10th September 2003 and his decision letter is dated 25th September 2003. Number 36 Castle Terrace is the home of the two directors of the appellant company, Mr & Mrs Edelsten. Mrs Edelsten's witness statement explains that they purchased number 36 in 1988. The house stands in very large grounds; nearly one and a half acres. In 1994, it was decided that the company should invest in the appeal site as part of the pension arrangements for its directors. Mr & Mrs Edelsten had noted that other plots in Castle Terrace had been divided, so in 1991 or 1992 they divided their garden by planting trees and shrubs along the boundary between the retained part of number 36 and the rest of the garden, which was in due course to form the appeal site. In 1994, the new plot was sold to the company and registered in its name. A planning application to build a house on the new plot was submitted in October 2002 and refused on 20th December 2002. The reasons for refusal were twofold.

First of all, the planning authority said that the proposal would be contrary to a policy in the Local Plan; policy S30. That policy is as follows:

The justification for that policy is explained in paragraph 4.10.9 in these terms:

The council's second reason for refusal was that the proposed development would be unacceptably cramped.

The claimants submitted a further application at the beginning of 2003 which they considered met the points raised by the council. They provided documentation showing that the application site had been sold in 1994 and was not in the same ownership as 36 Castle Terrace. Adjustments were also made to the relationship between the proposed new dwelling and adjacent properties. This revised application was refused on 8th April 2003 on the same grounds as before. The council's reasons for refusal were:

The claimants appealed to the first defendant. Their grounds of appeal contended that policy S30 should not be applied because the plot had been split from number 36 prior to the policy coming into effect. They also argued that the proposed development complied with the objectives of policy S30 and a precedent would not be set because other plots which had been sub-divided had been permitted prior to policy S30 coming into effect. In response to the council's second ground of refusal, they contended that the proposed development would not be cramped, nor would it be out of character.

In his decision letter the inspector identified the relevant planning policies in paragraphs 2 to 4. Paragraph 2 referred to policy S30, the inspector saying:

At paragraph 4 of the decision letter he said:

Having summarised the relevant planning policies, the inspector set out the reasons for his decision. They are fairly brief, so I will read them all:

On behalf of the company, Mr Edelsten challenged the inspector's decision on four grounds. The first, and it is fair to say the principal, ground of challenge was a contention that the inspector failed to take a material consideration into account, namely the fact that sub-division of the garden ground had taken place prior to the adoption of Local Plan policy S30. The inspector had merely noted that the Local Plan had been adopted in April 1999 and the site had been sub-divided in 1994.

This ground of challenge relies upon the claimants' interpretation of policy S30. They particularly stress the fact that the policy refers to the sub-division of garden ground; it does not expressly deal with development of sub-divided garden ground. They submit that what is not permitted by the policy is sub-division of garden ground, and this occurred in 1994 long before the policy was adopted in 1999. Therefore, they contend, the policy simply did not bite on their case. Their principal complaint in these proceedings is that the inspector either failed to deal with this point, or did not explain in his decision letter why policy S30 bit upon their proposals. They submit that their interpretation of the policy is how the ordinary man or woman on the street would understand the clear wording of the policy.

If that would have been the understanding of the man or woman in the street, then that man or woman would have been sadly mistaken. Any planning policy has to be construed in the light of the statutory framework contained in the Act. A local planning authority has no power to prevent the sub-division of garden land as such. The local planning authority, and the policies it sets out in the Local Plan, is concerned with the control of development, the making of a material change of use, or the carrying out of operational development such as the construction of new dwellings. A landowner may choose to sell off part of his or her garden to, for example, a company controlled by some other person, or by himself and/or his spouse, but so long as the land continues to be used as a garden, or as long as no use is made of it and the landowner simply allows the grass to grow tall, no material change of use will have taken place. Therefore, there will have been no development which could sensibly be the subject of any policy in a local plan.

In summary, Local Plan policies are concerned with the use and development of land, not with the ownership of land. A Local Plan policy could not properly seek to prevent a landowner from sub-dividing and selling his or her land. It can, however, prevent the new landowner from constructing buildings on the sub-divided land and/or from changing the use of the sub-divided land. That is the statutory context in which policy S30 has to be understood.

The claimants' approach to policy S30 falls into error in two ways. Firstly, it adopts an over-literal rather than a purposive interpretation of a policy in a local plan. Secondly, in so doing, it ignores the reasoned justification for the policy, which is set out in the Plan and which explains the underlying purpose which the policy seeks to achieve. As soon as policy S30 is read together with the justification in paragraph 4.10.9, it is plain that the policy is concerned not with the sub-division of garden ground per se, but with the sub-division of garden ground to allow the construction of a new dwelling, ie, it focuses upon the construction of a new dwelling, not upon the act of sub-division in itself.

It follows that the inspector, having noted that the garden was sub-divided in 1994 and sold off in that year, was correct in treating that fact as being of no consequence in policy terms. I accept that the inspector did not, in express terms, reject the claimants' approach to the interpretation of section 30, but it is plain from his decision letter how he interpreted the policy. In my judgement, that interpretation was not merely open to him, it was the only reasonable interpretation of policy S30 bearing in mind not merely the terms of paragraph 4.10.9 in the explanatory justification, but also the underlying statutory framework. Policies in Local Plans apply to development as defined in the Act. Policy S30 makes it plain that a particular type of new development, that is to say the construction of a new dwelling where garden ground has been sub-divided in the Castle Terrace policy area, will not be permitted.

The claimants' second ground of challenge was that the inspector failed to take another material consideration into account, namely that the development would not set a precedent as the plot was sub-divided prior to policy S30 coming into effect and the development of several other sub-divided plots was permitted prior to policy S30 coming into effect. This ground of challenge is largely parasitic on the previous ground: that is to say the claimants' contention that policy S30 bites upon the act of sub-division of the garden ground rather than upon the proposal to construct a new dwelling upon land that has been sub-divided. To that extent, the inspector was right to reject it for the same reasons as set out under ground one above.

To the extent that precedent was a relevant matter, the inspector did consider it in paragraph 8. The claimants had provided a list of other developments that had been permitted in Castle Terrace. The inspector observed that several of the approvals had been granted many years ago and well before the current policy would have been effective. He noted the one possible exception, the Lebanon Bible College, and said that it appeared to have been excluded from the policy area. Thus the inspector plainly did have regard to precedent insofar as it was being contended that there had been other examples of the sub-division of garden grounds in Castle Terrace.

The third ground of challenge was that the inspector failed to weigh up other material considerations as he was required to do under section 54A of the Act, namely factors which, the claimants contended, would justify what they described as a relaxation of policy S30.

It is plain that the inspector had section 54A well in mind, because in paragraph 5 he introduced his reasons for the decision by saying that policy S30 was an adopted policy and he was required to determine the appeal in accordance with the policy, unless there were material considerations that justified going against it.

The considerations that had been urged by the claimants were: that what would be provided on the appeal side would be high quality accommodation, which would therefore accord with the objectives of policy S30; and that the proposal accorded with another policy in the Local Plan, S27, which was broadly supportive of the provision of new housing on sites within the town, subject to compliance with certain criteria which included compliance with other policies in the Local Plan, including policy S30. To much the same effect as policy S27 at the local level was the national guidance in PPG3; to make the best use of urban land for housing.

On a fair reading of the inspector's decision letter as a whole, he had these two matters very much in mind. He did not accept the local planning authority's view that the proposed development would be unacceptably cramped. In paragraph 6 he concluded that the proposed dwelling could be built without any adverse effect on the character or appearance of its immediate surroundings, and he expressly recognised that:

Thus, in effect, the inspector did not accept the council's second reason for refusal.

The inspector not merely mentioned PPG3, but said that it encouraged local planning authorities to make more efficient use of urban land for housing. In paragraph 5, he returned to the point saying:

Here, there was a specific Local Planning policy, policy S30, which applied to this particular policy area, Castle Terrace. It was for the inspector to decide what weight should be attributed to this policy. It is plain from paragraph 8 of the decision letter that the inspector considered that policy S30 established:

That was a planning judgement which the inspector was entitled to reach. Moreover, it is plain if one reads his decision letter as a whole and in a common sense way, that although he accepted that the particular dwelling proposed by the claimants could be built without any significant adverse effect on the character or appearance of its immediate surroundings, and although he further accepted that there were general policies nationwide to make the best use of land in urban areas for housing, he did not consider that those circumstances were sufficiently special to justify overriding this particular policy. He concluded that to override the policy in the present case:

It was for the inspector to assess the weight that should be attributed to the council's objection on the ground of precedent in its first reason for refusal.

The claimants' final ground of challenge contends that the inspector failed to give adequate reasons for his decision. Mr Edelsten referred to the well-known dicta of Lord Bridge in Save Britain's Heritage v No. 1 Poultry Limited (1991) IWLR IS3. He contended that the company simply did not know what conclusions the inspector had reached on the principal important issues that had been raised in the grounds of appeal:

While the inspector does have to provide clear and intelligible reasons for his decision, he does not have to set out all of the appellant's grounds of appeal and deal with them one by one. It is sufficient if the informed reader of his decision letter can see what are the inspector's answers to the principal matters raised by the appellant. The problem in this case was that the claimants started out on a false premise, namely their understanding of policy S30; that it was seeking to prevent the sub-division of garden ground. Based upon their false premises, they argued that the horse had bolted by the time the policy came into effect in 1999 because the plot had already been sub-divided back in 1994. Once that false premise was corrected, most, if not all, of the claimants' case simply fell away.

Whilst I accept that the inspector did not say, in terms, that the claimants were proceeding upon a false premise, it is plain when one reads his decision letter as a whole that he, for his part, did correctly construe policy S30. In doing so, the inspector construed policy S30 in the manner in which it would be understood by anyone with experience of the development control or local plan process. As soon as the ambit of policy S30 is appreciated the remainder of the decision letter is readily understandable. In summary, while the inspector did not agree with the council's second ground of refusal, he did agree with the first ground of refusal and considered that to grant permission in this case, in the absence of special circumstances, would set an undesirable precedent. The fact that the garden ground of number 36 had been sub-divided in 1994 was not a special circumstance once the policy was properly understood.

For these reasons this application must be refused.

MR KOLINSKY: I am grateful to your Lordship. I am instructed on behalf of the First Secretary of State to make an application for costs. A summary cost schedule has been served. I trust that it has reached the court.

MR JUSTICE SULLIVAN: It did reach the court. I think it reached the court before your skeleton argument for some reason.

MR KOLINSKY: I think it was subsequent in time and it was served in good time. I am told by my instructing solicitor it was faxed to the claimants on Thursday 4th March. I gather they may not actually have received it, but it was faxed to the number appearing on their paper and there is a valid fax receipt. So, if I can proceed on the basis that it has, in fact, been served and deal with any points they may make in relation to that if they are raised.

I would simply submit that the total of £3,905 is an appropriate total. It is appropriate in this case for the costs to be summarily assessed. I am happy to develop those submissions but it may be more convenient to deal with the points as they are raised.

MR JUSTICE SULLIVAN: Yes. Mr Edelsten, first of all, is there any reason why you should not pay the Secretary of State's costs in principle and then, secondly, we can get down to the detail of this detailed assessment.

MR EDELSTEN: We did receive these statements of cost and have had a chance to look at them. The level of costs is something of a surprise to us given that, as put forward by the solicitors, it is a very simple case with a very simple outcome and, from a conversation with the Treasury solicitors, we were led to believe this would be a half day case with costs of something like £2,000. So it is a little bit of a surprise that we see this level of fees. We would like to suggest making an offer in line with our expectations of £2,000.

MR JUSTICE SULLIVAN: Right. Thank you very much. Mr Kolinsky, the case has gone a little shorter than expected. Fours hours at the hearing. We should knock something off that. I generally find I am able to knock something off the Treasury solicitor's costs in these things if we go short.

MR KOLINSKY: My Lord, that would be a fair approach. Four hours claimed. We have actually dealt with this in under two and a half hours including a short adjournment.

MR JUSTICE SULLIVAN: In any event, I shall say two hours there. But ten hours -- it is a pretty short decision letter. Somebody has spent a lot of time scratching their head about it. They are not hugely novel or complicated grounds. I know the Treasury solicitors may consult the inspector and so on, and quite often there are cases where allegations are made: the inspector did not mention this bit of evidence and so they have to go ask the inspector and all that sort of thing. But ten hours is a long time to think about this.

MR KOLINSKY: My Lord, ultimately it is a matter for your judgment. I will say my instructing solicitor prepared, in accordance with Treasury solicitors' practice, an internal note of advice which was of assistance both to the inspectorate and also, obviously, assistance as part and parcel of his instructions to counsel. It happened to be a detailed and thorough note.

Also, he invites me to submit to you that he is of a relatively junior level of seniority and therefore the hourly rate is lower than would have been claimed were he to be a more senior solicitor. In fact, he produced an extremely thorough and helpful minute of advice and that is a practice which usually the Treasury solicitor writes. You can appreciate from the outset the merits of the points raised in the claim which, to be fair, were raised in some detail and thoroughly and professionally on behalf of the claimants. It is for you to take a view as to the appropriate amount.

MR JUSTICE SULLIVAN: Thank you very much. Do you want to say anything else, Mr Edelsten?

MR EDELSTEN: I just really need to know what has been decided on the cost.

MR JUSTICE SULLIVAN: I was just giving you the opportunity, that is all. The claimant must pay the first defendant's costs. It is appropriate that those costs should be summarily assessed. The claim put forward is for £3,905. Mr Edelsten has suggested that for a half day case £2,000 might be nearer the mark.

It does seem to me that there is some force in the argument that for a relatively simple case such as this £3,905 is somewhat high. I say that not in any critical sense, I well understand the advantage from the first defendant's point of view in a full and careful appraisal being carried out by the Treasury solicitor; but the question, really, is whether each individual claimant ought to have to bear the burden of that. In my judgement, the reasonable course, particularly bearing in mind that the case has gone somewhat short, is to summarily assess the costs in the round sum of £3,000.

MR EDELSTEN: My Lord, much as I respect the attention to detail yourself and the defendant have taken on this case, we still think there is some room for doubt on the interpretation of the policy and the consequence to our case. We would therefore seek leave to appeal in this matter.

MR JUSTICE SULLIVAN: Yes, thank you. I am going to refuse you permission to appeal on the basis that I do not think you have a real prospect of success. That is on the basis that your interpretation of policy S30, I am afraid, is quite untenable. I should explain to you that you have the right to go along and ask the Court of Appeal for permission to appeal, but you should think long and hard about the possible cost implications of that. Even if you have permission to go to the Court of Appeal, the costs certainly would not be any less than they have been today. That is something to think about.

I am refusing you permission. If you want permission, you must go to the Court of Appeal. I think you have to go there within 14 days unless the Court of Appeal extends the time, so that will give you time to think about it. Thank you very much.