Shinh & Anor v First Secretary of State

J U D G M E N T

1. MR JUSTICE RICHARDS: This is an application under section 288 of the Town and Country Planning Act 1990, challenging the decision of an inspector appointed by the First Secretary of State on a planning appeal.

2. The claimants own a house in Hinckley, Leicestershire, which is used as a day nursery. Planning permission was granted in 1995 for the use or continued use of the ground floor of the house for that purpose. Conditions attached to the permission limited the hours of operation and also limited the maximum number of children on the site at any one time to 15.

3. As a result of a successful appeal in 1997, the maximum number of children was increased from 15 to 24. Unsuccessful applications were made in 2001 to use the first floor as well as the ground floor of the house and to increase the maximum number of children to 35. A further application involving a similar proposal was made in October 2003, but was refused by the local planning authority, which is Hinckley and Bosworth Borough Council, in January 2004. The claimants appealed under section 78 of the 1990 Act. The appeal was determined by the written representations procedure. It was dismissed by letter dated 18th August 2004. That is the decision under challenge.

The decision

4. The nature of the proposal is described in paragraph 3 of the Inspector's decision, where he states that the proposal would cater for pre-school children from babies to pre-first school rising five year olds. It would operate between 0800 and 1800 hours from Mondays to Fridays with two sessions, while children staying all day would be provided with lunch.

5. The main issues, as identified in paragraph 5 of the decision, were said to be the effect of the proposed development, firstly, on the living conditions of occupiers of neighbouring properties by reason of noise and disturbance and, secondly, on the free flow of traffic and highway safety along Hurst Road, where the house is situated.

6. The Inspector referred to the development plan, which includes the Hinckley and Bosworth Local Plan, adopted in 2001. Policy RES6 sets out a number of criteria for considering applications in residential areas for non-residential development, which would include day nurseries. The criteria require it to be demonstrated that there will be no detrimental effects on the amenities of neighbours and the general character of the locality or on the local traffic situation and the provision of satisfactory off-street parking and servicing.

7. In his reasons, the Inspector dealt first under the heading of " Living Conditions " with the effects on the amenities of neighbours. He indicated in paragraph 7 that there was no problem of noise nuisance from internal activities related to the day nursery use within the house. In paragraph 8 he stated that he had seen no evidence to suggest that the comings and goings of parents would cause undue nuisance.

8. The next few paragraphs are at the centre of the case and I will read them out in full:

"9. The rear garden of the appeal site is both long and wide with screening to both sides. The rear boundary lies close to the side of a house at 17 Thornfield Way. I saw various play and other equipment laid out or available around the large garden, and at the time of my visit around 8 children were playing under supervision. Subject to weather, supervised play in the garden appears to take place on most days and for a period of up to 1 hour. As the Appellants point out, such outside play is not subject to any planning control at present, and could involve up to the maximum number of children permitted at any time.

10. I have noted the concerns raised by local residents in this aspect and also that one occupier of a nearby property works a shift pattern and would be unduly disturbed in the day by noise from children playing in the garden on the appeal site. Despite the particular objection in that case, I consider that those occupying the residential properties around the site should expect a reasonable amount of peace, quiet and enjoyment from their gardens especially during periods of warm weather. I do not believe that they should be subjected to excessive noise from the day nursery use, and it would seem that the present numbers of children are at about the limit of tolerance in terms of noise and disturbance.

11. Whilst the children appeared relatively quiet at the time of my visit, I did note some occasional noise of a child shouting, when I was standing on the footway at the front of the premises. Neither the appellants nor the Council have been able to demonstrate the extent of any detrimental effects of numbers of children playing outside. In my experience it would be very difficult to devise a precise technical measure in any case. Much would depend on such matters as the numbers of children outside at any one time, the behaviour or character of individual children, and the activity being undertaken. Certainly I would regard a period of 1 hour in the morning or afternoon session as being the maximum that might be acceptable. However, that would seem to me to be an unreasonably short period in which to cater for up to 35 children of differing ages in acceptable small groups and offering them an appropriate level of stimulating play. With the best will of those supervising, I find it hard to believe that those numbers of children could be so managed as to achieve a suitable 'shift pattern' in that period. It would be wrong too to deny some children the opportunity to play outside especially in warm weather.

12. The appellants say that they would be prepared to enter into a Section 106 agreement to include some form of outside play regime that might control periods and numbers when children would be allowed to play outside. I note that the Council's Head of Environmental Services considers that the appellants' proposals for restrictions would go 'a long way' to reduce the impact from that part of the operation. While no planning obligation has been presented to me, it seems to me in any case that such 'play management' would remain difficult both for the Council to enforce, and the appellants to administer within the short period likely. I am not convinced by arguments that there is any other reasonable mechanism to minimise the effect of this use than by an overall control of numbers, nor that the present numbers should be increased.

13. I have concluded that the proposed development would materially harm the living conditions of occupants of neighbouring residents by reason of noise and disturbance from outside play in the rear garden and would thus conflict with Local Plan policy RES6."

9. The Inspector went on to deal with highways and traffic, in relation to which he was satisfied that adequate provision had now been made for parking and that the proposed development would not prejudice the free flow of traffic or highway safety.

10. As regards other considerations, the Inspector stated in paragraphs 17 and 18:

"17. The appellants have cited the Government's National Childcare Strategy, which emphasises the need for good quality childcare. I have no reason to doubt that the nursery presently offers such a standard or that it would also achieve the necessary standards with an increase in number of children. Childcare nurseries such as this are not inappropriate in residential areas where they can serve the needs of the local community. However each case has to be considered on its individual merits having regard to the context of the specific site, intensity of numbers and likely activities.

18. The appellants refer to other childcare nurseries where the Council has granted planning permission either for their establishment or for an increase in the number of children. I do not know the full circumstances involved in those cases, and in any event each has to be considered in the context of the particular site concerned, amongst other matters. I do not consider that those decisions have a material bearing on my consideration of the merits of the proposals in this case."

11. For the reasons given, in particular the material harm to the living conditions of occupants of neighbouring properties, the Inspector dismissed the appeal.

12. There are three grounds of challenge to that decision.

Ground 1

13. This ground alleges a failure to deal adequately with the possibility of imposing conditions to prevent unacceptable harm to the living conditions of occupants of neighbouring properties and to an alleged deficiency of reasons.

14. The policy background is that PPG1 paragraph 37 refers generally to the circumstances where conditions can be imposed on planning permissions and states that they should be used in preference to planning obligations and in a way which is clearly seen to be fair, reasonable and practicable. It refers to further advice given in Circulars 11/95 and 1/97.

15. Circular 11/95 states in paragraph 12 that it may be possible to overcome a planning objection equally well by imposing a condition or by entering into a planning obligation under section 106, but that the Secretaries of State consider that in those circumstances a condition should be imposed, rather than seeking to deal with the matter by means of a planning obligation. A similar point is made in Annex B to Circular 1/97.

16. Paragraph 14 of Circular 11/95 states that on a number of occasions the courts have laid down the general criteria for the validity of planning conditions. In addition to satisfying those criteria, the Secretaries of State take the view that:

"... conditions should not be imposed unless they are both necessary and effective, and do not place unjustifiable burdens on applicants. As a matter of policy, conditions should only be imposed where they satisfy all of the tests described in paragraphs 14-42. In brief, these explain that conditions should be:

(1) necessary;

(2) relevant to planning;

(3) relevant to the development to be permitted;

(4) enforceable;

(5) precise;

(6) and reasonable in all other respects".

17. In the present case the representations made to the Inspector in the claimant's statement of case referred to other properties in relation to which conditions had been imposed so as to render acceptable an increase in the number of children at nurseries. It was submitted that the appropriate course would be the imposition of conditions restricting numbers of children and hours of use. Reference was made to examples that had been given in the course of submissions to the local planning authority, namely conditions that:

"1. The use of the rear garden area by children for supervised play should be for no longer than one hour during the morning session and one hour during the afternoon session unless otherwise agreed in writing with the Local Planning Authority;

2. Not more than eight children shall use the rear garden area for supervised play during the hours denoted in condition 1 to this permission".

That was, in essence, the position for which the claimants were contending. The local planning authority did not accept that those conditions would be appropriate. It stated in its submissions:

"It is considered that a condition relating to the management of outside play would be unreasonable and unenforceable. The same view was taken by the Council on the previous application and, subsequently, also by the previous appeal inspector ... Whilst it is acknowledged that such conditions have, exceptionally, been imposed by the Council on other schemes within the Borough, each application remains to be considered on its own individual merits and does not necessarily set a precedent for all other proposals. The individual [merits] in such cases relate to the size and location of the property, its relationship and proximity to neighbouring dwellings, the number of children involved and the parking provision. It is to be noted that in the two cases referred to by the appellant, the number of children is only up to 18 and 20. The uses in these particular cases, therefore, involve a much smaller number of children than the appellants' proposal and the Council considers that similar restrictions here would not be a practical solution. Whilst a condition relating to outside play might help to ameliorate the use if the overall numbers were considered acceptable, it is not considered that it would, in itself, overcome concerns if the total number of children was considered unacceptable, as is the case here."

18. It appears that at some stage, in addition to the possibility of conditions being imposed, reference was made to the possibility of a section 106 agreement, as referred to in the Inspector's decision. I am told that what was suggested here was to similar effect as the proposed condition, but that nothing specific was put forward to the Inspector.

19. Against that background, it is submitted by Mr Goatley on behalf of the claimants that the Inspector erred in a number of respects in relation to the question of conditions. Three, to some extent linked, points are advanced: one, that he failed to address his mind so as properly to consider the potential for the imposition of conditions so as to overcome the harm that he had identified; two, that he failed to address his mind so as to consider properly the application of the policy guidance to which I have referred; and, three, that he failed to provide any, or any adequate, explanation as to why, if at all, the imposition of conditions would fail to satisfy any of the tests contained in Circular 11/95, in particular he failed to deal with the question whether enforceable, precise and reasonable conditions could be imposed so as to overcome the harm that he identified. It is said that the claimants have been prejudiced by the failure to explain why no satisfactory condition could be imposed. This means that the claimants cannot see what they have to do in order to overcome the problem for the future and put forward a proposal based on a workable condition.

20. So the case, in essence, is that the Inspector either failed to consider the question of conditions or failed to explain why conditions would not be a satisfactory means of dealing with the adverse effects identified.

21. In my judgment, it is plain that the Inspector did have regard to the question of conditions. What he says in the passage from the decision that I have quoted at length, paragraphs 9 to 13, must be read against the background of the material before him, including specifically the proposal put forward by way of possible planning obligation or conditions for limiting the impact of children playing in the garden. The very reason why he was considering the question of length of play periods and size of groups to be allowed in the garden during each play period was to assess whether limitations of the kind suggested could be imposed so as to avoid material harm to the living conditions of neighbours; and in paragraph 12 of the decision, although he refers first to the question of a planning obligation, he also states that he is not convinced that there is any other reasonable mechanism to minimise the effects other than overall control of numbers. By that reference he must have intended to refer, amongst other things at least, to the imposition of conditions.

22. Further, in relation to conditions I reject the submission that he failed to have regard to the policy statements in PPG1 and the Circulars. In making findings on the enforceability and reasonable workability of a limitation on numbers in the garden at any one time, he was engaged in the very process that the policy guidance requires. I would, in any event, need a lot of persuasion that an inspector did not have such basic policy guidance in mind when considering whether planning permission should or should not be granted.

23. As to reasons, an extremely useful summary of relevant principles is to be found in the speech of Lord Brown in South Buckinghamshire District Council v Porter [2004] UKHL 33, [2004] 1 WLR 1953. That statement of principles was common ground before me. He said in paragraph 36:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

24. In my judgment, the reasoning of the Inspector in the present case was both adequate and intelligible. It is clear that he regarded a one hour period in the morning and a one hour period in the afternoon as the maximum that might be acceptable. It is equally clear that he considered small groups to be the maximum acceptable. Looking at the decision letter as a whole and in the light of the material before the Inspector, what he was saying, in my view, was that groups of eight were the maximum acceptable. That is the size of group he saw on his visit. That is the size of group that the claimants were proposing by way of condition or planning obligation, even though under the existing planning permission it was theoretically open to the claimants to have up to 24 children in the garden at any one time.

25. The crux of the Inspector's reasoning, as it seems to me, is to be found in the second part of paragraph 11 of his decision, where he finds, in effect, that it would not be reasonably workable to operate a play regime that would accommodate up to 35 children in small enough groups during periods as short as one hour. In the next paragraph, paragraph 12, he refers to such play management as being not only difficult to administer, but also difficult to enforce. Thus, he was, in my judgment, accepting the submission made by the Council that the proposed regime would be unreasonable and unenforceable and, as I have indicated, he reached that conclusion as much in relation to control by way of conditions as in relation to control by way of a planning obligation. I regard his reasoning as sufficient and sufficiently clear. True it is that his main focus was on reasonable workability, rather than on the question of enforcement, and that he does not spell out why enforcement would be difficult, but in my view he said enough to indicate the conclusions he had reached on the main issues arising. Nor do I accept that the claimants were in some way substantially prejudiced by some absence of reasoning such that they would be unable to assess their prospects of success in future applications. The fact is that it is plain that in the Inspector's view 35 children is too large a number to accommodate for reasonable play periods in this garden.

26. So the Inspector did consider the question of conditions and issues relevant to the imposition of conditions and he reached a conclusion for which he gave adequate reasons that the problem of noise could not be solved by conditions or any other reasonable mechanism.

27. There were moments in the course of his submissions when Mr Goatley seemed to be taking issue with the rationality of the conclusions reached by the Inspector on this issue, but, subject to one point on ground 3 to which I will come, there is no irrationality challenge in this case and I do not need to consider the point further. For the reasons I have given, the challenge on ground 1 fails.

Ground 2

28. This is in one way closely related to the matter that I have already covered because the submission is based on what the Inspector says in paragraph 11 of the decision to the effect that one hour would be an unreasonably short period in which to cater for up to 35 children of different ages in acceptable small groups and offering them an appropriate level of stimulating play, that he found it hard to believe that those numbers of children could be managed so as to achieve a suitable shift pattern in that period, and that he considered that it would be wrong to deny some children the opportunity to play outside, especially in warm weather. Mr Goatley submits that in that passage one sees a finding by the Inspector that the proposed regime would not or might not represent an appropriate form of childcare. It is that which leads to the ground of challenge here made.

29. Mr Goatley's oral submissions strayed into the area of contending that this was an irrelevant consideration for the Inspector: what is acceptable by way of childcare is an educational issue, not a land planning issue, and it is a matter for the operators of the nursery, subject to control by those responsible for educational matters and standards, namely OFSTED and the local authority.

30. That is not, however, how the case is pleaded in the claim form, or indeed how it is presented in Mr Goatley's skeleton argument, and there was no application to amend. The way the case is put in the claim form and in the skeleton argument is that the Inspector had received no evidence to indicate that the proposed method of operation was unacceptable as a means of providing childcare and that, if he was concerned about this, he should have made that concern known to the claimants and given them an opportunity to answer it and to submit relevant information. So the case is put on the basis of a procedural failing rather than a substantive one.

31. A late witness statement on behalf of the claimants, for which I gave leave, exhibits the kind of information that the claimants say they would have put forward had the matter been raised with them by the Inspector. Reference is made to an OFSTED guide entitled "National Standards for Under 8's Day Care and Childminding". The paragraph of particular relevance in that guide is paragraph 4.11 under the heading "Outdoor play area". It states:

"Normally, outdoor play space adjoining the premises is provided. It is safe, secure and well maintained. Exceptionally, where outdoor play space cannot be provided, children are safely escorted to local parks, playgrounds or the equivalent on a regular basis."

32. What is submitted is that concerns about childcare could have been met by pointing out here that no particular level of outdoor play is prescribed or put forward as a standard. The guidance contemplates indeed that use of a local park or playground may be an alternative to an outdoor play space at the nursery itself.

33. For my part, I do not accept that the Inspector was intending to reach any view in paragraph 11 on the acceptability of any particular regime in terms of childcare standards. He dealt separately with childcare at paragraph 17, which I have already quoted, making clear that, even with an increase in numbers, he considered that the nursery would meet the necessary standards. What was said in paragraph 11, in the context of the effect on living conditions of neighbours, was not intended to contradict or qualify that in any way.

34. I do accept that the Inspector's reasoning in paragraph 11 involved some basic assumptions of an educational nature, such as the need to offer an appropriate level of stimulating play and the unfairness of denying some children the opportunity to play outside at all. But all of this was in the context not of findings as to acceptable childcare standards, but of findings as to the workability of a play regime that would have to fit a large number of children into short play periods. He was considering the point, moreover, within the parameters provided by the material before him. In the claimant's evidence to the Inspector the existing play regime was described. It consisted of two periods of approximately 30 to 45 minutes each, one in the morning and the other in the afternoon, but with the children remaining outside for as long as an hour in mornings and afternoons in certain days in the summer. Supervision was said to be normally in the ratio of one staff to four children. Some of the children were said to be under two and therefore not likely to go out. As to the proposals for the future, I have referred already to the suggested periods of one hour in the morning and one hour in the afternoon, in each case with groups not exceeding eight children, that were put forward by way of condition or planning obligation.

35. So what the Inspector was considering was the extension of the existing regime to a larger overall number. There was no suggestion whatsoever in the material before him that play periods in the garden could be avoided altogether or that some different arrangements would be put in place in respect of play outside. In the circumstances, in my judgment, he was engaged in a common sense task of assessing the workability of the proposed limitations. This was not a novel issue concerning childcare or childcare standards in respect of which he needed to give the claimants the opportunity to make further representations. There was no procedural unfairness.

Ground 3

36. This ground picks up the statement in paragraph 12 of the decision that neither the claimants nor the Council had been able to "demonstrate the extent of any detrimental effects" of numbers of children playing outside.

37. Mr Goatley submits that, in the absence of direct evidence to demonstrate the presence of noise and disturbance, it was unreasonable for the Inspector to make adverse findings on that issue or to conclude that the proposed use could not be made acceptable by appropriate conditions.

38. I do not consider there to be anything in this point. All that the Inspector was saying was that the extent of the noise and disturbance had not been demonstrated. In the next sentence he made clear that in his own experience it would be very difficult to devise a precise technical measure in any case. So there was nothing by way of quantified measurements: there was no detailed noise analysis of the kind one sometimes gets in more complex cases. But none of that precluded the making of findings by the Inspector. It was for him to use his experience, his professional judgment and his common sense in the matter: see, for example, Westminster Renslade Ltd v Secretary of State for the Environment [1984] 48 P&CR 255, a case to which Miss Olley drew my attention in the course of her helpful submissions.

39. In the present case the Inspector had ample material in the form of written representations, including not only those of the claimants and the Council but also representations from neighbours, together with the results of his site visit, to which he could apply his normal professional skills and judgment. It was perfectly reasonable for him to form the view that an increase in numbers of children would be likely to result in increased noise and disturbance and to take noise and disturbance beyond acceptable limits. That was the basis upon which he went on to consider the question of limitation of numbers with which I have already dealt. There was nothing wrong with his approach.

40. Accordingly, I find against the claimants on the third ground as well. For the various reasons that I have given, the claim must be dismissed.

41. MISS OLLEY: I am grateful. I have an application for the Secretary of State's costs. Has a copy of that statement found its way to your Lordship?

42. MR JUSTICE RICHARDS: Yes, I think it has, at least I have seen one statement of costs, but I confess that I have not focused on it in any detail. This is the claim in the modest sum of £4,020, is that right?

43. MISS OLLEY: Yes, that is correct.

44. MR JUSTICE RICHARDS: So you are asking for your costs and you are asking for them to be summarily assessed in that sum?

45. MISS OLLEY: Yes, my Lord.

46. MR JUSTICE RICHARDS: What do you say about that?

47. MR GOATLEY: My Lord, I cannot resist the application for costs in the sums agreed.

48. MR JUSTICE RICHARDS: Thank you very much. In which case the claimants will pay the Secretary of State's costs, summarily assessed in the sum of £4,020.

49. Is there any other application?

50. MR GOATLEY: No, thank you, my Lord.

51. MR JUSTICE RICHARDS: Thank you very much.