Ludlam, R (on the application of) v First Secretary of State & Anor

MR JUSTICE RICHARDS: This is an application under section 288 of the Town and Country Planning Act 1990, challenging a decision of an inspector appointed by the First Secretary of State, Miss Katie Peerless. The inspector considered and dismissed an appeal under section 78 of the Act against a refusal by Derbyshire Dales District Council to grant planning permission for the conversion of stables to a dwelling at the rear of Montgomery House, Somersal Herbert, Ashbourne, Derbyshire. It is the decision to dismiss the appeal and, therefore, to uphold the refusal to grant planning permission that is challenged in these proceedings. The decision is contained in a decision letter dated 26 August 2003.

The challenge has been presented by the claimant, Mr Ludlam, in person, and can I thank him for the very clear and sensible way in which he has made his submissions in support of his claim. Counsel has appeared on behalf of the Secretary of State. I have had the benefit of a full skeleton argument from him and have found it necessary in the circumstances to hear only very briefly from him by way of oral submissions. The District Council has played no part in the proceedings. The correspondence indicates that the District Council is aware of the proceedings although apparently the claim form was not served upon it. I proceed on the basis that it does not wish to participate in the hearing.

Let me turn at once to the contents of the decision letter. In paragraph 2, the inspector identified two main issues: (1) the effect of the proposed development on the character and appearance of the building and its setting within the curtilage of a listed building in the Somersal Herbert conservation area; (2) whether the proposed development represented a sustainable form of development, with particular reference to its location in relation to local services.

The complaint made by the claimant relates not to the inspector's identification of those issues, but to the conclusion she reached in relation to each of them. In paragraphs 3 to 7 of the decision letter, the inspector dealt with the planning policy framework. It is unnecessary to set that out since nothing turns on the wording of the individual policies. In paragraphs 8 and 9, she described the site and proposed development as follows:

She proceeded to deal with the first main issue. I think it necessary to read paragraphs 10 to 14 of the decision which set out her reasoning and her conclusion with regard to the adverse effect on the character and appearance of the conservation area:

In paragraph 15 she found that there would be no adverse effect on the setting of the listed building itself. That, therefore, is an aspect of the matter that falls away.

The inspector then turned to the second main issue, sustainability, reasoning her conclusion as follows in paragraphs 16 to 19:

The claimant, this morning, has taken me through some of the material in the bundle, all of which I have previously read, and has focused, in particular, on certain points made in his witness statement which made detailed grounds of criticism of individual passages in the parts of the decision that I have just read. Looking at the grounds of application and the short skeleton argument also submitted by the claimant, it seems to me that what has been raised can and should be examined by reference, in turn, to each of the main issues identified and considered by the inspector.

The first main issue, as I have said, concerned the effect of the proposed development on the character and appearance of the conservation area in particular. As to that, I discern two strands in the matters put forward by the claimant. One is a complaint about the adequacy of the information upon which the inspector's assessment was based; the other is a complaint that she did not understand the nature of the settlement, including the immediate surroundings of the proposed development, and that she got things wrong such as to make her findings and, indeed, her overall assessment unreasonable.

As to adequacy of information, the claimant has explained to me that at the hearing, which took place on 12 August, the same day as the inspector's site visit, he got the impression from the inspector that she had had a good look around the settlement. He explained to me that that was not a difficult job having regard to the size of the settlement: one can get the total picture in an hour. He was disappointed, however, that, on the day, the inspector did not seem to have a proper grip of the facts and that this manifested itself by errors in the decision. The inspector mentioned in paragraph 10 of the decision letter that there was no conservation area appraisal carried out by the local planning authority, but that there was an assessment submitted by the claimant. I am told that what happened in relation to that was that when the inspector asked for a conservation area appraisal, and it turned out that the Council did not have one, the claimant himself offered to provide, and did provide in the course of the day, a copy of a summary of an appraisal carried out for him by an environmental consultant. I have seen the summary that was given to the inspector and also the full document which, as explained to me by the claimant, contains, in fact, the same text but in addition has photographs which help to illustrate the points made in the text.

So the inspector had before her that summary, which extends to several pages and, on the face of it, gives a fair flavour of the character of the area. In addition, of course, she had the benefit of her own site visit and, though I regard this as subsidiary, she knew what was said about the area in the relevant policies of the development plan. I am satisfied that the totality of the information available to her was sufficient upon which to form the judgments that she needed to form for the purposes of her decision. It cannot, in my view, be said that she acted unreasonably in proceeding to a decision without obtaining further information.

That then leads me to the second issue, which is the use that she made of the information available to her, and whether the assessments that she made were unreasonable. I can illustrate the concerns advanced by the claimant from his witness statement and some of the matters in it highlighted this morning. He points out that the inspector referred to the access to the stable block as a track or a field track. That, he says, is a plain misdescription. The access is, in fact, a relatively wide metal road.

He submits that the inspector was wrong to describe the stable block as an outbuilding or as subservient to the main house. He points out that the stable block is some 80 metres away from the nearest part of the main house, that is to say the part which has recently had the benefit of planning permission -- indeed, 100 metres from the main part of Montgomery House itself. It is also 40 metres from the nearest outbuilding, properly so-called. So what is said is that the inspector simply got it wrong or formed an unreasonable judgment in using descriptive language of this sort.

The claimant picks up the statement in paragraph 9 of the decision, that landscaping and paving would be installed. It has already been done, he says -- a minor point, but a further illustration of the factually erroneous approach adopted by the inspector.

He submits that the inspector "over-egged", as he puts it, the sylvan nature of the settlement when she referred in paragraph 10 to the hamlet being "characterised by individual properties set in mature, sylvan surroundings". When one looks at the summary conservation area analysis provided to her, one sees that that was historically the position, but that more recent development in the course of the 20th century has materially altered the character of the settlement. It is, submits the claimant, as if the inspector has homed in on a part of the analysis without taking in the overall picture, though it is right to note that it is clear from the end of paragraph 10 that she also was fully aware of what she describes as the "modern infill development".

Another illustration of the concerns expressed by the claimant is that in paragraph 11 of the decision it is said that the introduction of large areas of new glazing would alter the appearance of the stable block unacceptably. It is submitted, and supported by reference to photographs in the bundle, that other buildings in the settlement have had extensive glazed areas added to them, and that what is proposed in relation to the stable block is insignificant when one compares it with what has happened elsewhere within the settlement.

A further point made is that in paragraph 13 of the decision the inspector says that the track would be likely to change if it were to be used as an access for residential property. The claimant makes the point that there are many more journeys across that track at the moment while the block is used actively as a stable block than there would be if it were converted to residential use.

Those are the kinds of complaint made by the claimant. I do not say that I have covered every point he makes and I am going to come back to traffic questions, but they sufficiently illustrate the nature of his concerns. They are concerns with which I have a degree of sympathy, but it is important to approach the case advanced by reference to the relevant legal principles.

First, it is well established that the court will adopt a degree of benevolence in considering the language used by an inspector. Mr Kolinsky, in his skeleton argument, has cited, for example, South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR at page 80, where Hoffmann LJ at page 83 emphasised that an inspector is not writing an examination paper on current and draft development plans and that one must not subject the letter to undue textual scrutiny. What is said in relation to the description of development plans is equally true more generally in relation to one's assessment of a decision letter of this kind.

Secondly, and even more importantly, the matters raised by the claimant are to a very large extent matters of planning judgment. Assessment of the relationship between one property and another, the effect that a proposed development will have on the character and appearance of an area and so on, are classic matters of planning judgment which are very much matters for the inspector. The court will not interfere with the assessments made or the conclusions reached in relation to such matters unless they are unreasonable, that is to say irrational conclusions -- conclusions that simply are not open to any reasonable decision-maker in the circumstances. I can refer, but without extensive citation, to Tesco v Secretary of State for the Environment [1995] 1 WLR 759, and Newsmith Stainless Limited v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74.

In the latter case Sullivan J observed in paragraph 8 that:

In the present case, I am prepared to accept that there may have been a degree of misdescription, even of factual error by the inspector, but in my judgment those matters do not go to the core of the inspector's assessment or cast doubt upon the reasonableness or the rationality of the assessment as a whole. Having considered the specific points stressed by the claimant and having looked at the material as a whole, I am nowhere near satisfied that the inspector went off the rails to an extent that her conclusions can be said to have been unreasonable and, therefore, open to successful challenge. The claimant, having had his attention drawn to the relevant authorities by Mr Kolinsky's skeleton argument, was realistic about the hurdle that he had to get over. He must understand that it is not for this court to seek to reassess the planning merits of the case. It is only in fairly extreme circumstances that a challenge of the kind that he seeks to mount in relation to this aspect of the case can succeed. Those circumstances do not exist here.

I move to the second main issue considered by the inspector, that of sustainability. In broad terms, the nature of the case advanced is the same and, of course, the same principles apply to the court's evaluation of the case put forward. The main complaint concerning the inspector's findings on sustainability concerns what she said about traffic, which was the principal part of her reasoning on sustainability. The inspector found, in short, in the passage that I have read, that conversion of the stable block to residential use would be liable to give rise to an increase in car journeys to the settlement and that this was objectionable. The claimant did, in his written material, put forward certain figures about car usage, but he recognises that that material was not before the inspector and he cannot rely upon it in this court. But in his witness statement he raises a number of points. For example, he says that there are currently 62 cars in the settlement, of which a third are attributable to recent barn conversion approvals. The precise figure does not matter and was not before the inspector, but the broad point made is that it is a nonsense to find objectionable the traffic that would be associated with the conversion of the stable block when that traffic is considered against the background of what has happened within the village as a whole.

Complaint is also made about that aspect of the inspector's reasoning where she says, in effect, that there would still be activity associated with the stables, albeit that the activity would be transferred elsewhere within the village. She says in paragraph 17 of the decision that she was given no indication that there was an intention to cease the activity, rather that it seemed that there was an intention to transfer it elsewhere so, presumably, the vehicle journeys connected with that activity would continue. The claimant has explained to me the reasons why it has proved necessary to move the existing activities out of the stable block, and why certain equestrian activities would be carried on elsewhere rather than at that block. The inspector plainly had in mind the explanation given to her in relation to this matter. Although the language of "it seems" and "presumably" is the subject of complaint, it seems to me that these are points that it was reasonably open to the inspector to make on the limited material before her.

A further complaint concerns her observation in paragraph 19 of the decision letter, that the conversion of Montgomery House into two separate dwellings for which planning permission had already been granted would not necessarily give rise to increased car usage. The claimant says, and I see the force of it, that there is clearly going to be an increase in the number of car owning residents in circumstances where two separate dwellings have been created out of one and in a settlement where access realistically has to be by car.

When one looks overall at what the inspector says about sustainability, it lacks, in my view, the same force as the conclusions and the reasoning adopted in relation to the effect on the conservation area. The proposed development would give rise, at most, to a very small increase in overall car usage and it is not entirely clear to me that it would actually give rise to any such increase. The inspector's reasoning seems to me to be thin, although I note the point made in paragraph 16, that any increase would appear to run counter to policies and policy guidelines.

At the end of the day, I have reached the conclusion that, even in relation to the sustainability finding, the challenge does not succeed, that is to say it has not been established that the inspector's reasoning or conclusion were irrational. But even if I took the view that the challenge had been sustained in relation to this limb of the case, and I confess to having hesitated somewhat more in relation to this than in relation to the effect on the conservation area, it would not be sufficient to get the claimant home overall. That is because, for the reasons I have already given, the inspector's conclusion on the effect on the character and appearance of the conservation area was lawful. She was entitled to find a conflict with the development plan in relation to that matter. It seems to me that that is a sufficient basis for the inspector's decision. There is a presumption against development that is in conflict with the development plan. There was in this case nothing to put in the scales by way of material considerations that might be capable of outweighing that conflict with the development plan. Accordingly, the conclusions reached by the inspector on sustainability were not necessary for the purposes of her decision to dismiss the appeal.

In those circumstances, even if I had taken a different view with regard to what was said on sustainability, I would still reach the same final conclusion myself, which is that the claim must fail. No error of law has been identified. The matters raised are simply insufficient to get over that high hurdle facing a claimant who seeks to contend that a decision reached essentially in the exercise of planning judgment fails to meet the test of rationality. The claim is therefore dismissed.

MR KOLINSKY: I am grateful to your Lordship. My Lord, I do make an application on behalf of the First Secretary of State for the First Secretary of State's costs of defending this claim. My Lord, it is, in my submission, appropriate for summary assessment and those instructing me have served in good time upon Mr Ludlam a schedule of costs which I hope has also reached the court.

MR JUSTICE RICHARDS: Yes, I have seen a schedule of costs. £4,384?

MR KOLINSKY: My Lord, yes. In my respectful submission, that is an appropriate overall figure bearing in mind that, in this particular case, there was additional preparation work because of the nature of the matters raised by the claimant. It was necessary to prepare a short witness statement on behalf of the inspector appropriately limited simply to the clarification of the matters which were before her and those which were additional which, plainly, has assisted your Lordship. So I would respectively ask for an order in the total of the schedule of £4,384.

MR JUSTICE RICHARDS: Thank you very much. Mr Ludlam, you must have been aware that you were going to be facing an application for costs if you lost this claim of yours. The general principle is that if you bring an application and lose it you do pay the costs of the successful party. Is there any reason why I should depart from that general principle in this case?

CLAIMANT: Not from the general principle, my Lord, because I suspect even if I said you should, you would not.

MR JUSTICE RICHARDS: This is quite genuine. I give you an opportunity to raise anything that might be important: for example, if you had been misled by the Secretary of State into bringing a claim at some point, anything of that sort.

CLAIMANT: I am afraid I cannot hang my hat on anything. What I would say is the quantum of the costs claim astonishes me. The one area that I would object to is page 2, item 2 because I know how long it took me to produce what I produced. I have no argument with the fee for the barrister or for the hearing because that is the rate for the job, but I do not see how it could possibly take 12 hours to work on documents. That is a photocopying job and I do not see where that comes from because there are three people involved in this, all earning different rates per hour -- and I can understand attendance on counsel, I can understand the attendance on client; not on the opponent, of course. I do not understand how you can spend 12 hours, which is a day and a half working flat out on documents. I do not see where it can come from.

MR JUSTICE RICHARDS: Of course, that will include the preparation of the inspector's witness statement, but you would say: well, that is a three-page statement with two short exhibits.

CLAIMANT: Frankly, my Lord, I could have written that on the train between breakfast and coffee. I do not mean to be trivial about this, but 12 hours is a long, long time. We have talked a long time here this morning. We have been going 90 minutes. Just think what we could have achieved, all of us together. I just do not see where 12 hours comes from at all. I have seen the skeleton argument, which is fine because that is produced by counsel. I have seen authorities. That should be produced by counsel and his photocopying clerk. What else have I seen, other than a small statement from the inspector who, actually, should surely have knocked it out herself. It should he her statement which is then sent to the solicitor who then signs it. I honestly, my Lord, cannot see 12 hours. That is my submission.

MR JUSTICE RICHARDS: Mr Kolinsky, what do you say about that? It does look a rather high figure for preparation of a very short witness statement and considering the documents generally.

MR KOLINSKY: My Lord, were it only due to the preparation of the witness statement it certainly would be a high figure. I would respectfully submit it is an appropriate figure in terms of the overall preparation. As my Lord will appreciate, the work of preparing the documents includes those instructing me getting up to speed, it also includes a process of preparing an internal note of advice within my instructing solicitors, liaising with the planning inspector in relation to the points made, and then the result of that liaison, of course, the additional work of the overall preparation and collation of the witness statement. My Lord, so it is perhaps that additional unseen element that one might reasonably expect a Government department to take stock of the claim, to seek advice from the inspector and indeed to act accordingly. My Lord, I would therefore submit that the global figure is appropriate. Of course, I am in my Lord's hands as to what my Lord does with those submissions.

MR JUSTICE RICHARDS: Of course, I well recognise that that figure involves work properly done in addition to preparing the witness statement and you have identified the categories of work that are, in my view, in themselves perfectly proper categories, but it is a short case and a short decision letter, and I think that the point raised by Mr Ludlam is actually a valid one. In general, the fees charged by the Treasury Solicitor are eminently reasonable and tend to be well below those charged by those who are not within the public sector, but I think that that figure in the circumstances of this case is too high. I am going to disallow 6 hours of that work, that is to say, £900 worth. There is not a VAT consequence of that, is there?

MR KOLINSKY: My Lord, no.

MR JUSTICE RICHARDS: So that will reduce to £3,484 the amount that I will allow by way of summary assessment, but I do order that the claimant pay the First Secretary of State's costs summarily assessed in that amount -- £3,484.

MR KOLINSKY: Thank you, My Lord.

MR JUSTICE RICHARDS: Thank you Mr Ludlam and thank you Mr Kolinsky for the very helpful skeleton argument.