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

HIS HONOUR JUDGE MOLE: Mr Thompson applies under section 288 of the Town and Country Planning Act and section 63 of the Planning Listed Buildings and Conversation Areas Act 1990, against a decision dated 23rd November of an Inspector appointed by the Secretary of State. The Inspector dismissed two appeals, one for planning permission, one for listed building consent, in respect of a linking extension to two gatehouses standing in the open countryside at what was once the entrance to Canon Hall Estate. Both those buildings are listed Grade II.

I think it is worth saying something by way of description of the buildings at this stage. The photographs shown to me by Mr Thompson helped to understand what the Inspector and others mean by some of the comments that they have made. The building to the north was a square gatehouse with a pyramidal roof, but it has been extended, certainly before the inception of planning control in 1948. That is a dwelling house and Mr Thompson and his family live in that building. The building to the south is a gatehouse in its original form: square, small, I am told the interior dimensions are 12-foot by 12-foot. Both buildings were built largely of stone with slate roofs. They were probably built in the 18th century, or perhaps the early 19th century.

Between the two buildings runs a wall in the middle of which is a large wooden double gate, which I shall describe in perhaps a bit more detail. The doors of the two buildings face each other either side of what was once the entrance, and a feature is made of this. The entrances have pilaster jambs topped by triangular pediments over the doors. The two gateways are joined by a stone wall, as I said, with a gate in it. The walls, making a rough estimation from the photographs, arise to about the mid-way point of the entrances. The pillars that support the gate are then a couple of feet or so higher, topped with ball finials. There is a solid boarded wooden gate between them. The height of that reaches roughly to the base of the finials.

The broad proportions of the lodges are such that the base of the pediment of the entrances (in other words, up to the top of the doors) seems to be about halfway between ground level at the entrances and the eaves of the lodges. To put it another way, about halfway up the wall. The gate walls, in turn, come about halfway up the lower half of the building (in other words, about quarter of the way up the wall I have just been referring to) and the tops of the ball finials are also at a height that is about half that of the walls of the lodges themselves. This rather full explanation of the proportions of the building is necessary to understand what is said on both sides about a reference to "eaves level" in the Inspector's decision letter; a reference that Mr Thompson criticises.

The history of this matter also bears setting out in a little detail, as Mr Thompson makes a number of points that arise from that. In March 1981 planning permission was granted for the use of the southern gatehouse to use as a craft shop. It was personal to the then owner and limited to "homemade craft goods", although nobody suggested whose home the planners had in mind in granting this permission. The use was implemented. Some works appear to have been required to both the walls and the gatehouse, but the use ceased well before Mr Thompson came on the scene.

Mr Thompson bought the site in 1999. It was all used -- and this is according to Mr Townsend's additional statement -- for residential purposes with the larger building the dwelling house, and the smaller used as what Mr Townsend described as incidental storage, although from what Mr Thompson has told me, so far as there was storage it was not of any great degree nor did it last for any great length of time. A survey of the South Lodge at the time, in 1999, said it was in some disrepair and needed substantial work but by no means derelict.

On 4th December 2002 Mr and Mrs Thompson applied for planning permission and listed building consent for an extension that linked the two gatehouses. Eventually they had reason to think that the application was likely to be favourably treated. It appears that on 18th March 2003 the planning sub-committee endorsed, at least at that stage, the recommendation of the Planning Officer that planning permission should be granted, and it appears that it was contemplated that it should be granted by the Planning Officer under his delegated powers. On the strength of that understanding, Mr Thompson had put in train several works of repair and maintenance to the South Lodge. He repaired the roof, he dealt with the damp, he did some plastering and redecoration, and the clearing out of a fireplace. He provided what sounds like a rather precarious electrical supply. In fact, unknown to Mr Thompson, and apparently unknown to the Planning Officer, there had been an objection from Cawthorne Parish Council but due to some muddle the Planning Officer did not seem to know of it. As a result, the decision could not be taken by him. It had to be taken by the Planning Committee.

Mr Thompson was told, I am not quite sure when but I do not think it matters, that his planning permission could not be regarded as certain and sensibly he stopped work on South Lodge. The Planning Committee then duly inspected the site and they refused permission on 15th April 2003. Their reason was that the development would form an inappropriate addition to the listed building by reason of its design and the linking of the two gatehouses which mark a former entrance to the Canon Hall Estate. The development would therefore be materially detrimental to both the appearance and historic integrity of the listed buildings, contrary to national policy and policy BE2A of the Unitary Development Plan.

However, the work that Mr Thompson had done had, of course, substantially improved the building. It had a solid roof, it looked better inside, indeed perhaps it was better inside. It is not surprising that Mr Thompson had stored some carpeting and some furniture inside it. Whether or not Mr Thompson would have done the work if he had not expected to get permission and listed building consent, and indeed I accept perhaps he would not, nonetheless the fact is that the listed building is now better and more secure for the work that he did do.

Mr Thompson appealed against that refusal and on 9th December 2003 Mr Dannie Onn, an Inspector appointed by the First Secretary of State, held a hearing. A month later on 9th January 2004 he issued his decision and Mr Thompson applied to the High Court on several grounds. He was heard by Collins J on Wednesday 16th June 2004. One of the points that Mr Thompson made found favour with Collins J. It was this: Mr Onn had found that the buildings and the gateway, as the formal entrance to the estate, were significant for the architectural interest and historic relationship of the group, and he found that there was harm to the listed buildings. That is by way of preliminaries to his findings. He went on in paragraph 8 of his decision to say this:

Mr Thompson had said that the building was not used. The Inspector in paragraph 8 appeared to conclude that it was, at least relatively recently. What Mr Thompson said in front of Collins J was this: he said it was really unfair that he had not been given the chance to explain how that had come about. He had not been given the chance to explain why it was wrong to infer that it was actually used. Collins J held that the question of whether or not a listed building can be put to active use, and whether any such use could make the support of the building economically viable cannot depend upon the intentions of the owner at the particular time. An objective assessment clearly has to be made. The fact, if it be a fact, that an owner appears to have thought that it was worthwhile to do work to a building and then apparently to put it to some use on the other hand, is quite telling evidence that the owner does not think that the use of the building is really all that worthless to him. But, said Mr Thompson, he could have explained that inference away but he was not given the chance. It was on that basis that Collins J quashed the decision, so it had to be taken again.

On 15th July 2004 the Planning Inspectorate wrote to Mr Thompson, and Mr Thompson rather criticises the tenor of this letter. The letter started by recording that the court had ordered that the appeal should be decided again, and saying: "this does not necessarily mean that our original decision will be reversed". That is one of the matters that Mr Thompson feels is a straw in the wind indicating that the Planning Inspectorate had made up its mind to do him down again. I do not read it that way. For a start, re-deciding the appeal does not necessarily mean that the original decision would be reversed and it is probably a necessary warning.

The letter says that the Inspectorate would, under Rule 17, wish to deal with the matter by written representations but then goes on to invite Mr Thompson to indicate whether or not he wants a reopening of the hearing. Again, there is nothing wrong with the Inspectorate wishing to deal with the matter in writing first of all. It is a standard approach. The letter leaves open, and indeed invites, applications to rehear the matter. Mr Thompson indicated that he did want a hearing, and indeed he got one. He was also invited to comment on the Inspectorate's proposal to reappoint the original inspector, Mr Dannie Onn. Mr Thompson did indeed comment on that in blunt terms; blunt, but not impolite. He objected, saying that he felt that the hearing was far too informal, that Mr Onn failed to address all the facts and his conclusions were severely flawed, and that he felt he would have to ask himself whether the reappointment of that inspector would prejudice the new hearing.

The reason I read that out is because I want to point out that Mr Thompson expresses himself in the forceful but moderate and restrained manner that he has made his submissions to me. He later says that he is concerned that another Inspector, reading that, would feel that the first Inspector was being severly criticised, perhaps, and would feel that he had to back him up. I have to say that bearing in mind the way that Mr Thompson expresses himself, I think it would have been impossible for any subsequent Inspector to take offence on behalf of the person who was being criticised as a result of what was said by Mr Thompson.

What ultimately happened was that the Planning Inspectorate decided to hold a rehearing and they appointed a senior and well-qualified Inspector, Mr Anthony Davison. He held an informal hearing on 9th November 2004. Mr Thompson has a number of criticisms of that hearing which I shall return to later. The decision letter was dated 23rd November 2004. After recording the construction of the buildings and setting out a careful but brief description of them, and also recording the relevant national and local policy, at paragraph 5 the Inspector appraised, effectively, the appeals, because the same principal applied for both, in this way:

The law that I must briefly set out is that, of course, the courts may quash a decision under either section 288 or section 63 if the court is satisfied that the decision is not within the powers of the Act; that is to say that the first Secretary of State has actually made an error of law, or that the relevant requirements have not been complied with and the claimant's interests have thereby been prejudiced. That is my rendition of the effects of these two Acts which have slightly different wording, but wording to the same effect.

The second point, that is failure to comply with the relevant requirements, certainly has not been pleaded but on one possible analysis it might be relevant. The claimant, Mr Thompson, does criticise the procedures but his points seem to me to be more accurately classed as being a claim that he has not been treated in accordance with natural justice, he has not had a fair crack of the whip.

The claimant must point to an error of law. The court cannot interfere in matters of disputed fact or planning judgment. Again, as is well known, on the basis of ancient authorities, an error of law may arise in several ways. I will summarise them briefly thus. The Secretary of State will go wrong if he fails to take account of a relevant factor, or takes account of an irrelevant factor, or if he acts perversely in the sense that he reaches a decision that no reasonable tribunal or Secretary of State, properly directed on the relevant material, could reach. Those ancient principles come, amongst other places, from Ashbridge Investments [1965] 1 WLR 1320. Mr Thompson recognises that when Mr Thompson says, as he does in the last sentence of his submissions, that the Inspector's decision was contrary to the evidence that was before him, he has to go as far as to say no reasonable Inspector could reach such a conclusion on that evidence.

The third way in which the court may intervene is if the Secretary of State's decision-making process is unfair to the claimant in a way or ways that amount to a breach of natural justice. For example, ways that mean he has not had a proper opportunity to put his case. One highly relevant matter that the Inspector must take into account and apply accurately is planning policy, in particular, but not exclusively, the planning policy that is to be found in PPG 15 in relation to listed buildings. It is not the only policy, of course. There is relevant policy in both Barnsley Unitary Development Plan 2000 and others, but PPG 15 is the document upon which a lot of discussion has focussed. I shall turn briefly to that.

The starting point must be paragraph 3.3 which sets out the importance the government attaches to the protection of the historic environment. It goes on to say that there should be a general presumption in favour of the preservation of listed buildings, except where a convincing case can be made out against the criteria set out in this section for alteration or demolition. It goes on to record that while the listing of a building should not be seen as a bar to all future change, the starting point for the exercise of listed building control is the statutory requirement on the local planning authorities to have special regard to the desirability of preserving the building or its setting, or any features of special architectural or historic interest which it possesses. That is from section 16 of the Listed Buildings Act.

A number of issues against which listed building applications are tested, commonly, are set out in paragraph 3.5. I do not think it is necessary for me to do more than note that they are there and move on to paragraph 3.8 which considers the use of historic buildings in these terms:

Before I leave matters of law, I will perhaps say this in very general terms about the role of the Inspector. Inspectors are chosen and appointed because of their particular expertise and experience, and ability to judge matters in the light of those things. They are experts. They are perfectly entitled, as a matter of law, to say: "In my expert knowledge and experience, I judge -- for example, relevant to this case -- this listed building likely to be able to be put to an active use". I also add this about their reports. They do not have to set out every detail that has been raised in front of them. They have to set out enough to show that they have looked at what is important and that they looked at it in the right way.

Mr Thompson makes a number of points. It is only fair to say at this stage that he makes them well, in a balanced and intelligent way. I propose to take his points one by one. I will then recall what Mr Auburn says about those points and then I will set out my conclusions.

The first area that Mr Thompson concentrates on is the question of an economically viable use. He focuses on PPG 15, paragraph 3.8, and the imprecision, as he sees it, of the phrases that I have just read out: "active use" and "economically viable use". He particularly challenges the Inspector's conclusions in paragraphs 9, 10 and 11 which I have also read out. In particular, of course, he points to the passage in paragraph 10 where the Inspector says that he thinks the building has the potential to be converted into a number of different things ancillary to the residential use of North Lodge. What he says about that is that the Inspector is effectively speculating about the use. He is guessing about it, because, says Mr Thompson, such evidence as there actually is is the evidence that comes from the ineffective and short-lived use as a craft shop. Mr Thompson's own short use for domestic storage and his own view that he sees no use to the building during his occupational ownership of it, and from the evidence of what was seen on the site visit, all that, says Mr Thompson, is evidence that suggests the contrary to what the Inspector set out which is no more than his guess, in effect.

It seems to me that an important underlying difference between Mr Thompson and the Inspector is that the Inspector approaches the matter on the basis that the use and economics must be judged on the basis that South Lodge is to be taken with North Lodge, the dwelling house, and may be ancillary to the domestic use of that building. The Inspector regards it as all part of the same residential planning unit. Therefore, he concludes that there are a number of ancillary subservient uses that South Lodge can perform. South Lodge can be put to those uses, if not in the hands of Mr Thompson, then they can be potential uses in the hands of another owner. Whereas the argument of Mr Thompson is that South Lodge is to be judged on its own as if it was a separated building standing in its own curtilage. It is not to be taken, on what would be as he recognised, the rather lower standard of what might usefully be combined with the dwelling house.

I think Mr Thompson is right to this extent, at least. It is clear that the Inspector only considered the list of uses that he set out in his decision letter as unproblematic on the basis that South Lodge was connected in use with the main dwelling. It would, I suppose, follow that if the Inspector ought to have confined himself to uses for a separated dwelling then he was approaching the matter on a false basis.

Mr Auburn, for the First Secretary of State, in his submissions, reminded me that the question is whether or not there were uses that mean that the building is not going to be lost. That question does not require that there has to be an independent economic use. It is sufficient that the use would be on the basis that the use of South Lodge would all be part of one residential use. Anyway, he says, economic use in the context of the PPG does not have to mean income-producing, still less does it mean that if it is taken as part of a domestic use.

In my judgment, what may be an active or economically viable use of South Lodge (and I say of course that active use and economically viable use are not the same thing) must be judged on the basis that South Lodge is to be used with the dwelling house in North Lodge and may serve, or be ancillary to it. That means that a number of uses that would otherwise be of little use on the market, and indeed perhaps very unlikely to get independent planning permission, for example, an independent office use, are, it seems to me, capable of being looked upon as the sort of potential use that might appeal, if not to Mr Thompson then to another owner of the two lodges. It seems to me that judged that way, the Inspector was perfectly entitled to take the view that there were potential uses that therefore could mean that South Lodge could be put to active and beneficial use as ancillary to the overall residential use.

There are a couple of subsidiary points that flow from that I should just briefly deal with. Mr Thompson has, of course, stressed to me that the use that he made of South Lodge for furniture storage was but a short period of time, for four months or so, and was not capable of being reasonably regarded in itself as a beneficial use. I have heard his explanation about that. The fact of the matter is, as I said, that the space is now, thanks to his work, capable of being used for storage. It follows that it must be reasonably open to the Inspector so to conclude, as indeed he does conclude.

Another point that Mr Thompson makes by asking the rhetorical question whether or not the Inspector was able to rely on matters of "speculation contrary to the evidence". Perhaps a better way of putting it would be to ask whether or not the Inspector is entitled to rely upon his own knowledge and experience and to give that more weight than the evidence about the craft use and Mr Thompson's intentions that he received in the enquiry. The answer to that is, in my judgment, "Yes". The weight that the Inspector attributes to these factors is a matter for him, and he is entitled to put more weight on his observation, judgment and experience than such things as the failure of the enterprise as a craft shop, or Mr Thompson's current lack of intention to do anything with the building, even if extended over a long period.

I now turn to Mr Thompson's second ground which is the one that we can classify as the right to a fair hearing. Mr Thompson makes a number of criticisms. He urges me, and very sensibly, to consider them in the round, saying to me that each one on its own may not sound terribly significant but, put together, all these strokes paint a picture that suggests that he did not get and was not going to get a fair hearing. Indeed, Mr Auburn also says to me that the matter must be looked at in the round. He adds that it is very important that public authorities be seen to be acting properly. In that context, I should record that I have a statement before me from Mr Davison, the second Inspector. Some reference was made to this. I have to say that in terms of the genuineness of what is expressed in it, I have no doubt that what is said there is Mr Davison's own view, as he says it is in his declaration, and he is not having words put into his mouth. It may be that somebody else did the typing, and not perfectly either.

To take the points that Mr Thompson made, he criticises the proposal to initially reappoint Dannie Onn. I have said what my view is of that point. He finds it strange that they contemplated that it was a possibility. All that needs to be said about that was that the Planning Inspectorate withdrew that suggestion pretty smartly and appointed a Senior Inspector as soon as they heard back from Mr Thompson. Mr Thompson protests that all the previous documents, just simply as a matter of course, without much thought, were put in front of the second Inspector, including all of his correspondence. He felt that this was embarrassing and would tend to influence the second Inspector against him. As I said, I do not think he need be concerned about that, partly because of the way his letter was expressed --in strong but certainly not offensive terms -- and secondly, because of what the Inspector himself says in his statement. He says he was determined to take his own independent decision, and indeed I have no difficulty, in accepting that. I would expect from the Inspectorate the maintenance of a high standard of independence. As I said to him in the course of my questions to him, my limited experience is that Inspectors are not at all afraid of disagreeing with each other, sometimes on what appear to be the same facts. Mr Thompson obviously feels that the Inspector was trying to justify a refusal. The Inspector, in his statement, says he was not. It seems to me that some significant weight must be given to that, as well as looking in the round at all the facts.

Mr Thompson in another point said that the fact that both Inspectors addressed the same points rather shows that the second Inspector was influenced by the first. Again, I think in practice it does not follow. There are issues that particular cases, planning enquiries or planning hearings require to be addressed and there are logical ways of addressing them. It is inevitable that decisions addressing the same matters are likely to look very much like each other and likely to proceed along the same logical paths. That is not surprising. It does not show, in my judgment, that the second Inspector was unduly influenced, or indeed influenced at all, by the first Inspector.

Mr Thompson says that the second Inspector had particular regard to what was said by Collins J. Again, it seems to me that it is entirely reasonable of him to wish to do so. Collins J was saying that the first Inspector had got something wrong, he had made a mistake. It is right that the second Inspector would wish to see what the mistake was and make sure that he did not fall into the same trap. It is sensible for him to see the whole decision and not merely a summary. In my judgment, there is no reasonable ground for supposing it is likely to dispose the second Inspector against Mr Thompson at all. Indeed, there are a number of things said in the course of the decision that might go the other way, but it seems to me that it is unnecessary to go into that. It is perfectly reasonable for the decision to be considered carefully.

Mr Thompson makes a number of comments about what he regards as the excessive informality of the hearing. For example, the Inspector's failure to have the file out, the introduction that he found to be a bit intimidating in the way that he explained to me. It is fair to say that Parliament's purpose in introducing informal hearings was the commendable one of achieving a tribunal that was less intimidating, perhaps brisker, and perhaps more friendly to non-professional applicants and objectors than the public enquiry procedure. But those advantages are bought at a price. The price is that the burden of leaving the appellant feeling that all has been fully explored is now on the shoulders of the Inspector. He is playing a very much more inquisitorial and less judicial role, and it leaves him exposed to the sort of criticisms that were made in this case.

Having said that, in this particular case I have to say that I think that Mr Thompson has, very understandably, got too close to the proceedings. I well understand how in mulling over these matters they achieve a significance that concerns him. All I would say is that judging the matter standing further back, there is nothing in what he says about what went on at this informal hearing that causes me to think that there was anything that meant that he did not get a fair hearing and a fair judgment.

There was one final matter that Mr Thompson pointed to which seems to me to deserve separate mention. That is, he says that it was notable that at the conclusion of the first hearing, the Inspector asked about what conditions would be imposed if he was minded to grant planning permission, and he was told. At the end of the second hearing there was no mention made of conditions. Mr Thompson says that he concludes from that that the Inspector had made his mind up. Mr Auburn says that if he had made his mind up by the end of the first hearing there is actually nothing wrong with that. He may well have come to a provisional view and he is entitled to do that. It does not mean that he did not fairly come to the provisional view, having considered every matter. There is force in that. In addition, it may also be added that one of the advantages of the second Inspector having the file that included the first Inspector's decision is that he would have known that the previous conditions were agreed. He would have known that they did not appear to be subject to any challenge. He had the file, and it is perfectly possible that he simply thought that it was just simply unnecessary to raise the matter again. However that may be, again, looking at that, it does not seem to me that it is at all possible to say on the basis of that that the Inspector had a closed mind and did not give Mr Thompson a fair hearing.

Mr Thompson's third ground related to a number of what he described as "factual mistakes" but again he very fairly said that many of them, indeed perhaps most of them, were covered in the other points he has made and which I have already dealt with in a little detail. There is one point which remains that I have not covered. It is a point which has some weight in it. That is what the Inspector meant in paragraph 5 when he said about the proposed extension that the stone walls flanking the gate would be raised to eaves level, and the new rear wall of the extension would also be of stone. Mr Thompson says that sounds as if the Inspector thought that the stone walls flanking the gate would be raised to the eaves level of the lodges which, of course, would be to more than double their height. Of course, that would have a massive effect upon the relationship of the two buildings. A curtain wall between the two would, in effect, transform them into one building.

The Inspector, in his statement, says that that is not what he meant at all. He, of course, did have the application in front of him, as everybody else did. He had the plans in front of him, or had looked at them even if he did not have them in front of him. He knew what was proposed. Everybody else knew what was proposed. He said at paragraph 13:

It seems to me that this must be a matter of impression. If the inspector had written something that made it look as if he seriously thought that there was this massive construction, it seems to me that there would have been scope for serious concern about the decision. I explored with Mr Auburn how, as a matter of law, that concern might be expressed. But the matter is answered, it seems to me, by a fair reading of paragraph 5. The law requires that it not only should be a fair reading but it should be a fair reading bearing in mind that all the parties who read it, that is Mr Thompson and the Inspector, and anybody else connected with the appeal, are informed readers. Mr Thompson knew what the application was for and he knew the Inspector knew what the application was for. Read that way, it seems to me that paragraph 5 clear enough. It may be that with the addition of a couple of words it could be put completely beyond doubt, but it is clear enough that the reference to eaves level is a reference to the eaves level of the extension and not a reference to the eaves level of the lodges. It thereupon makes sense.

I believe that in that examination I have dealt with all the points that Mr Thompson has raised. I should say again that I commend Mr Thompson on the very moderate and intelligent and thoughtful way in which he has put the case. I realise that, in the end result, the decision is going to be a disappointment for him, but I am afraid that in this case I must say that the application is dismissed.

Mr Auburn?

MR AUBURN: We have an application for costs. We have a schedule of costs.

HIS HONOUR JUDGE MOLE: Has Mr Thompson had a chance to see it?

MR THOMPSON: I have, yes.

HIS HONOUR JUDGE MOLE: Is there anything you want to say to me about it, Mr Thompson? I have not seen it.

MR AUBURN: In that case I will hand one up. (Handed).

HIS HONOUR JUDGE MOLE: Thank you.

MR AUBURN: My Lord, the global sum you will see on the second page is £3,660 and, in relation to that, for a half day case in which there were a significant number of points made. That is no criticism of Mr Thompson himself at all, but there were a great number of points to deal with and they must be borne in mind. Overall the amount is a reasonable cost of what had to be prepared for.

HIS HONOUR JUDGE MOLE: Is there anything you want to say to me about that, Mr Thompson? I do not think there is a lot, I am afraid, you can say to me frankly. You won last time. You were encouraged by the judge to gain as much costs as you could. I am afraid that £3,600 seems to me to be not an unfair level of costs to seek to get in this case.

MR THOMPSON: I can understand that. The only thing I would really say there is that the heart of the matter was the preservation of the building. I actually only took it forward myself for no other reason than I would not have been able to afford representation. I am really trying to say that if I would be penalised for trying to argue the case and look for justice in the matter, then there would be a difficulty in people trying to pursue this sort of matter when they took into account that if they did lose, even though they had put a good case forward, they would be discouraged from trying to bring this matter before the court.

HIS HONOUR JUDGE MOLE: I do understand that, Mr Thompson, and you did put a good case forward, but I am afraid the principles are in these courts that if you lose you have to pay a reasonable level of costs. I am afraid this is a reasonable level of costs, so I must order that you a pay the costs of £3,660. Thank you, Mr Auburn and thank you, Mr Thompson for your submissions to me.