Winter v First Secretary of State & Anor

Martin Winter makes this application under s.288 of the Town and Country Planning Act 1990 (‘the 1990 Act’). He wishes to quash a decision of the First Secretary of State contained in the decision of Elizabeth Fieldhouse, a Planning Inspector, dated 27th May 2005. The Inspector had had to consider an appeal by Mr Winter under s.78(2) of the 1990 Act following the failure of Wealden District Council (‘the Council’) to take a decision on his planning application within the prescribed time. The Inspector dismissed Mr Winter’s appeal and refused to grant him planning permission.

An application under s.288 must be made within 6 weeks (s.288(3)). On consideration of the papers, George Bartlett QC, sitting as a Deputy High Court Judge, concluded that the application had been made in time. There has been no challenge to that decision. The substantive application which I have heard was opposed by the First Secretary of State. The Council did not appear.

The planning application made by Mr Winter was for an extension of an existing woodland track so as to create an exit from that track on to a road called Bell Farm Lane, Laughton. The track ran through Shortgate Wood, which is owned by Mr Winter. The track connected with a cleared area of the Wood for which Mr Winter had been granted planning permission to develop for horticultural purposes. This area was also adjacent to another part of the property owned by Mr Winter called Marlie Farm. The name is misleading since it is no longer used as a farm but has various industrial uses including steel fabrication and the storing of fireworks. Currently, access to the proposed horticultural site is possible through Marlie Farm, though Mr Winter considers this route somewhat inconvenient because of the activities which take place there and the security measures associated with them. Access by that means gives out on to the B2192 (known as ‘The Broyle’) which runs from the South West to North East. Bell Farm Lane joins the Broyle from the South East. The two roads thus form an apex. The boundary between the area of Wealden District Council and Lewes District Council runs in an approximately straight line between the Broyle and Bell Farm Lane and (again very approximately) equidistant from the two roads up to the apex where the roads meet. Thus Marlie Farm is to the North West of this boundary (and is in Lewes District Council’s area). Shortgate Wood and the proposed horticultural area is to the South East of the boundary and is in the area of Wealden District Council. A public footpath runs along (or very close to) the boundary. The footpath therefore runs next to the North Western edge of Shortgate Wood. The existing woodland track passes just inside the wood. It is parallel to, and visible from, the footpath. The proposed extension would not continue the existing track in a straight line. There would be a turn of about 45 degrees. The extension would then continue for about 25 metres to a lay by at the edge of Bell Farm Lane close to the apex. The total area of the site immediately affected by the proposed track extension is about 80 square metres.

Shortgate Wood as a whole covers an area of about 2 hectares when allowance is made for the cleared area at its Southern end and the existing track. It has been designated by English Nature as a Plantation on Ancient Woodland site. This is one of two sub-categories of the generic term ‘Ancient Woodlands’. The other sub-category is Ancient Semi-Natural Woodland. The original broadleaved trees in Shortgate Wood were substantially cleared some years ago except for belts of broadleaved trees along the margins of the wood adjacent to Bell Farm Lane and the footpath. The felled trees were replaced with a larch plantation, although over the years there has been some natural regeneration of the broadleaved trees in the planted areas.

In 1993 the Council made a Tree Preservation Order over parts of Shortgate Wood. It included a band of trees on the edge of Bell Farm Lane and another band of trees along the edge of the footpath that I have mentioned. The two joined to form an arrow head shape and the proposed track extension was within its area. In 2004 the Council made a second Tree Preservation Order. This included all of the area covered by the 1993 Order, but also took in all (or almost all) of the remainder of Shortgate Wood, apart from the area where horticultural development was to take place. This Order was made in August 2004 and, despite objections by Mr Winter, was confirmed or became final in February 2005. Although the Order had not been made at the time of the original planning application to the Council, it was common ground between the parties that the Inspector was required to take it into account since she had to reach a decision on matters as they stood at the time of her decision.

The planning application was made on 24th May 2004 by Martin Clarke, a planning agent, on Mr Winter’s behalf. It was necessary at about the same time for Mr Winter to apply for a renewal of the planning application to allow the horticultural development to take place. Planning permission for that purpose had been granted by the Council in 1999 and the area had been cleared (or largely cleared) of trees in preparation, but the construction of polytunnels, a barn and various other matters had not taken place within the time permitted by the 1999 permission and thus a further application for these purposes was necessary. Mr Clarke explained that the extension to the track would allow the track as a whole to be used as a point of access to the proposed horticultural site and would also facilitate the extraction to the roadside of the timber felled from the woodland.

The application was accompanied by a woodland management plan dated April 2004 and prepared by Colin Reader. This proposed compensating for the loss of trees and underwood that would be caused by the track extension. It suggested strip additional planting at the track entrance and alongside the track extension and also some coppicing alongside the extension. For the rest of the wood it proposed clearance of rhododendrons and some selective coppicing or thinning, but otherwise suggested that non-intervention would be the best policy for the next 5 years.

Although the Council had not reached a decision on the application for the track extension within the prescribed time period, it did consider the matter subsequently. On 9th December 2004 the Council’s Development Control South Sub-Committee resolved that the Council would have been minded to refuse permission. It gave two reasons, but since the second was subsequently withdrawn, I need only be concerned with the first. This said:

In taking this course, the Council followed the recommendation of its officer who had prepared a report for the Committee and which had in turn attached a report from the Council Arboriculture Officer who had strongly objected to the proposal. He had said The woodland subject to the access road development proposals has already been impacted upon, due to land clearance in connection with a previous planning application approval, a short made-up road within the woodland, on site burning and dumping of various types of spoil. The proposed access road would further erode this woodland, damaging ground and field layers and would require the removal of trees. In particular, it would impact on the amenity provided by the woodland edge at the east and north of the woodland. It should also be noted that access to the proposed horticultural business already exists through the adjacent industrial site to the west and that it may be possible to consider another access point to the west, to the north of the current access. Both of these access points would be far less damaging than the proposal. The Tree Preservation Order on the site is to be extended to include the whole woodland (excluding the planning permission area), in order to attempt to prevent further damage and to ensure that the Council are in a position to prosecute in the future if necessary. The applicant’s woodland management plan the broad principles of which, with regard to the woodland’s long term management are welcomed. Whether this woodland was subject to a Tree Preservation Order or not, management of it would be encouraged. There are many Ancient Woodland indicators on site and this will be further investigated. Relevant Local Plan Policy; The application does not accord with EN12(1),(4) & (6), EN14(1) & (4) and EN27(2).

Although the Council said that it would have refused the planning application for the track extension, on 13th December 2004 it did approve the application to renew permission for the horticultural development.

Planning appeals can be dealt with in one of three ways: a formal inquiry; a more informal ‘hearing’; or a decision on the basis of written representations. Appellants are invited to indicate on the appeal notice which they would prefer. Mr Clarke on behalf of Mr Winter said that he would wish to have an informal hearing. On 25th November 2004 the Planning Inspectorate notified Mr Clarke that they considered the written representation procedure would be appropriate. Mr Clarke agreed to this course on 15th December 2004. In the Questionnaire returned by the Council on 21st December 2004, it, too, agreed to the matter being dealt with by written representations.

Both Mr Winter and the Council made written representations to the Planning Inspectorate. Mr Winter’s submissions included a report from another rboriculturalist, Mr Yarrow, who recommended a woodland management plan which, in some respects, adopted a more interventionist approach than had Mr Reader. Mr Winter argued that by attaching a condition to the planning permission on the lines of Mr Yarrow’s woodland management plan, the Council had the opportunity to enhance the conservation and amenity value and biodiversity of Shortgate Wood as whole. Mr Yarrow also referred to another Planning Inspector’s decision which he said dealt with an analogous situation to the present one. The Council’s statement included an assessment from Chris Hannington, the Council’s Landscape and Biodiversity Officer. His view was that the small length of additional track would affect four ancient woodland indicator species either directly by removal for the construction of the track or through indirect effects such as soil compaction caused by vehicle movements. He also thought that the proposal would be likely to have an adverse effect on a number of protected species.

These submissions were exchanged. Each party then had an opportunity to comment on the other’s statements. Mr Clarke did so on behalf of Mr Winter and, subsequent to his supplemental submissions, made a further additional point regarding protected species in his letter of 17th February 2005. The Council also did so through a further statement from Mr Hannington. He argued that the margins of broadleaved trees were Ancient Semi-Natural Woodland even though the replanted larch were a plantation. In any event there were indicator species of semi-natural woodland listed in the 2004 Tree Preservation Order. Alternatively, the new access road would ‘prejudice the ecology’ of nearby Ancient Semi-Natural Woodland, a factor which Local Plan policy EN 13 said should point against development.

The Inspector made an unaccompanied visit to the site. Because it was unaccompanied, she could not go on to private land, but she was able to view the proposed site and the existing track from vantage points to which the public did have access.

In her decision letter of 27th May 2005, she considered the purpose of the proposed extension to the track, the existing access to the horticultural site and the advantages put forward by Mr Winter from the proposal. She continued.

In order for Mr Winter to succeed I have to be satisfied that ‘the action in question is not within the powers of the Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it.’ – 1990 Act s.288(5)(b). It is agreed that Mr Winter must therefore establish that the Inspector erred in law in reaching her decision.

Mr Beard on the Claimant’s behalf argues that the Inspector did err in law by failing to take account of material considerations, by giving inadequate reasons and making an unaccompanied site visit. I shall take these points in turn.

There are four material matters which Mr Beard says the Inspector failed to take into account. He argues that individually and cumulatively, these were important considerations and, if they had been taken into account, might have led the Inspector to reach a different conclusion. Again, it is convenient to consider each point in turn.

Mr Beard argues that it was significant that planning permission had only very recently been granted by the Council for the horticultural development, that his decision had been taken notwithstanding objections from the same Arboricultural officer who objected to the track extension and this grant of planning permission undermined the Council’s case based on the harm from the much smaller intrusion on Shortgate Wood that the track represented.

I do not consider that there is anything in this objection. As Mr Beard recognizes, the Inspector expressly had regard to the proposed horticultural development. By the time that the Council considered the application for renewed approval for this, the relevant part of Shortgate Wood had already been cleared (or substantially cleared). Neither the 1993 nor the 2004 Tree Preservation Order extended to the site of the proposed horticultural development. There were simply different competing planning considerations in relation to that application and the proposed track extension. It is not clear that the Inspector did overlook the date on which horticultural development permission had been most recently given (her omission to mention the date is far from conclusive as to this), but even if she had I do not think that it was of such significance that her decision might have been different if she had had this in mind.

Mr Beard argues that the Claimant’s offer to submit to a condition of planning permission that he bind himself to a woodland management plan would not only have mitigated harm from the development itself, but would also have committed the Claimant to enhancing the amenity and ecological biodiversity of Shortgate Wood. The Inspector did consider (and reject) the mitigation aspect of the woodland management plan, but did not take account of the opportunity for planning gain to the Wood as a whole from a management plan that could have been given legal force by being made a condition of the

This objection is not sustainable. The expert reports put forward by the Claimant included proposals as to replanting and other measures to compensate for the loss of trees from the track extension. It is clear from her decision letter that the Inspector did have regard to these reports. As I have said above, her omission to mention a particular aspect of the representations or reports made to her is not to be taken as proof that she failed to take that matter into account. It is also consistent with her opinion that it was not necessary to mention the omitted parts in order to explain her decision. By inference, she did not consider that the planning gain that might be achieved by the enhancement aspects of the woodland management plan (or, more accurately, plans and/or prospective plans) outweighed the harm which she identified. Such a conclusion could hardly be attacked as irrational given that the remaining wood as a whole was covered by a Tree Preservation Order and that (as Mr Strachan on behalf of the First Secretary of State pointed out) at least one of the Claimant’s Arboriculturalists had suggested that, with some limited exceptions, the proper management of the wood was to leave nature to take its course. In any case, Mr Beard does not make an irrationality challenge.

Mr Beard alleges that the Inspector failed to resolve various conflicts between the evidence relied on by the Claimant and by Council. He refers to the particular sub-category of Ancient Woodland which Shortgate Wood enjoyed, the value of wood, the exact nature of the loss involved by the development, what, if any, impact the development would have had on protected species, the positive contribution of open spaces, the frequency of vehicle movements along the track, the extent to which inadequate access was a disincentive to proper management of the wood and the extent to which a woodland management plan for the wood would conserve or enhance the biodiversity of the wood as a whole.

I do not accept that the Inspector was silent on all of these matters. Thus, in paragraph 3 of her decision letter she noted that the Wood had been characterized by English Nature as a Plantation on Ancient Woodland site. That said something of the value of the Wood as a whole, as did the Tree Preservation Orders which had been made in 1993 and 2004. She acknowledged that some of the trees which would be destroyed were not very mature, but took account of the effect on biodiversity and the opening up of the northeastern corner of the wood. She did find that ongoing use of the track with inherent ground compaction, disturbance and pollution would be harmful. It was not necessary to make precise findings as to the volume of traffic. It could hardly be insignificant since the whole point of the exercise was to allow the Claimant a more convenient means of access for vehicles connected with his horticultural development and with forestry. I have already addressed the question of the potential enhancement to the value of the wood as a whole from a woodland management plan. It is true that the Inspector made no specific findings as to the impact of the development on protected species, but she did find that overall the development was likely to have an adverse impact on the ecology and biodiversity of the wood. I do not think that it was incumbent on her to be more detailed than this.

Mr Beard also commented that the Inspector referred to Local Plan EN13 which relates to Ancient Semi-Natural Woodland, whereas Shortgate Wood is a Plantation on the Site of Ancient Woodland. I do not think that this is significant. She expressly noted the correct sub-category of Ancient Woodland into which Shortgate Wood came. Policy EN13 also embraces measures which ‘prejudice the ecology of Ancient Semi-Natural Ancient Woodland’ and it is possible that this is what the Inspector had in mind. In any case, other policies to which the Inspector referred, were directed at the protection of Ancient Woodlands (presumably of both sub-categories) – see Policy EN17 of the East Sussex and Brighton and Hove Structure Plan. Even if her inclusion of Local Policy EN 13 was in error, I do not think that there was a real likelihood that her decision would have been different if she had appreciated this.

The Claimant also argues that the Inspector failed to have regard to his argument that loss of the woodland on the appeal site would represent only 0.04% of Shortgate Wood and that this was so small as to be de minimis. In the other planning decision which had been included with the Claimant’s first round of submissions, the Inspector had accepted a similar argument.

The Inspector was obliged to take account of all material circumstances. The size of the site and (probably) its size relative to the wood as a whole were material circumstances. However, the Inspector, having seen the plans and visited the area could not fail to have appreciated the size of the site and must have understood that the site was relatively small when compared with the wood as a whole. However, she gave her reasons as to why she considered that the development was nonetheless harmful. The site was small but in her view it would still have adversely affected the character, visual amenities and biodiversity of the woodland. She noted, as she was entitled to do, that the adverse impact of the development would be felt not only on the immediate site but also from increased use of the track leading up to it. Nor was there any legal error in her treatment of the other planning decision. Rather than embark on a precise comparison of the two developments, she was entitled to focus on the planning judgment that she was required to make in relation to the proposed development before her. Even if the two proposals had been exactly comparable, the previous Inspector’s decision would not have been binding on her. She had to, and did, make her own judgment on the facts of the appeal which she was considering.

Mr Beard argued that the failures of the Inspector to take account of all of these matters were individually or collectively such that her decision was flawed. I have explained why I do not think that any one of them can be sustained. Collectively, the force of the complaint is no stronger.

Both parties referred me to the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No.2) [2004] UKHL 33; [2004] I WLR 1953 at para 36. He said:

Mr Beard argues that those principles were not observed by the Inspector in the present case. In part this is another way of presenting the argument that the Inspector did not take account of all relevant considerations. For the reasons that I have already given, I do not think that challenge succeeds and it fares no better when presented as a ‘reasons’ complaint.

It is also germane that this appeal was agreed by the parties to be suitable for determination by the written procedure. I have already noted that initially the Claimant asked for an informal hearing, but that the Planning Inspectorate asked him to reconsider bearing in mind its own view that the appeal seemed suitable for the written procedure. The letter in which this view was expressed was accompanied by a list of the indicative criteria which would help determine which method was most appropriate. For the written procedure these criteria include ‘the basis of the appeal is not complex…there is no evidence of disputed primary facts.’ On the Claimant’s behalf, Mr Clarke then agreed to the written procedure. Of course, even after a written procedure the Inspector must produce a decision whose reasoning is legally adequate, but as Lord Brown emphasized, what is adequate will be judged according to the context. In this case, part of the context is that this was a case which both parties thought was suitable for this method of disposal. Lord Brown agreed that legally adequate reasons may be brief. As Sullivan J. said in R (o.t.a. Newsmith Stainless Ltd. V Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 at [44] ‘The Inspector was obliged to give the reasons for her decision, she was not obliged to give detailed reasons for those reasons.’

A distinct complaint under the ‘Reasons’ heading is that the Claimant does not know as a result of the Inspector’s letter whether completing the track through the wood on some other alternative route would be acceptable. Mr Beard notes that Lord Brown specifically said that ‘[Reasons] should enable disappointed developers to assess their prospects of obtaining some alternative development permission.’ However, Mr Beard accepted that if a decision is exemplary in explaining to the developer why the appeal had been dismissed, it could not be attacked because it did not point the way to some alternative scheme which might be acceptable. Since decision makers must take into account all the relevant circumstances of the particular application, it will often be difficult to predict precisely what change to the mix will lead to a different outcome and, of course, additional features of an alternative scheme may bring in new planning implications. In this case, the Inspector gave adequate reasons for dismissing the appeal. In short, I do not think that this way of putting the reasons challenge has any better success.

I have noted already that the Inspector made an unaccompanied site visit. This meant that she could not enter private land (including land owned by the Claimant). The complaint here is that she could not have properly determined the appeal without access to Shortgate Wood. It is said that without this opportunity she could not have properly considered the extent to which the biodiversity and ecological value of the wood would have been affected by the proposed development or resolve disputes in the expert evidence.

The Appeal Form which Mr Clarke completed on the Claimant’s behalf noted in bold in relation to the written representation procedure:

In this case the visit of the Inspector was both unaccompanied and unannounced. In its letter of 7th June 2005, the Planning Inspectorate acknowledged that there had been a change of practice in this regard. Previously, notice had been given to the parties of the Inspector’s visit whether or not the Inspector was to be accompanied.

This change of practice took Mr Clarke by surprise, but I do not think that it gives a ground for legal challenge. When an Inspector carries out an accompanied visit, both parties must be present. While they may point out features of the site or its surroundings to the Inspector, they are not allowed to make any further representations or submissions. If the Inspector had carried out an unaccompanied visit, neither party could have said anything to the Inspector. Thus, even if the previous practice had been followed and Mr Clarke or Mr Winter had arranged to be present at the time of the Inspector’s unaccompanied visit, it would not have given them any further opportunity to advance their case. Thus, I do not consider that the change in practice caused the Claimant any prejudice, let alone serious prejudice.

The real complaint here seems to be that the Inspector did not conclude that an accompanied visit was necessary. However, as the appeal form makes clear, the starting position for an appeal which is being decided under the written representation procedure is that the site visit will be unaccompanied. In none of his submissions did the Claimant submit that an accompanied site visit was essential in order that the Inspector see the interior of Shortgate Wood or otherwise dispose of the appeal properly. The Inspector will have had a discretion to seek an accompanied visit, but subject to a rationality challenge, that is a matter for her to determine. Here, the appeal site itself joined a road.

In my judgment none of the grounds of challenge to the Inspector’s decision can be made out. Accordingly, the Claimant’s application is dismissed.