Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE MOLE QC
SITTING AS A DEPUTY HIGH COURT JUDGE
Between:
THE QUEEN ON THE APPLICATION OF PETER BROWN
Claimant
v
(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) SUFFOLK COASTAL DISTRICT COUNCIL
Defendant
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Mr P Shadarevian (instructed by Coates Broughton Attwell, Ipswich IP1 5PB) appeared on behalf of the Claimant
Mr P Brown (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
J U D G M E N T
THE DEPUTY JUDGE: This is an application under section 288 of the Town and Country Planning Act 1990 to quash the decision of an Inspector appointed by the Secretary of State for Communities and Local Government. The decision in question was given by a decision letter, dated 15 June 2006, whereby the Inspector dismissed two appeals in relation to land at Foxburrow Farm, Heath Road, Brightwell, Suffolk.
Both appeals had been made by Mr Peter Brown against the non-determination by Suffolk Coastal District Council of applications. The terms of the application in respect of appeal (b), which is the only appeal against which there is a challenge before me, was in these terms: the development proposed is:
"change of use to static holiday caravan park (log cabins) with ancillary recreation area and nature reserve, formation of access and retention and alteration of existing barns to provide ancillary storage."
The Inspector describes the site in his decision letter. At paragraph 22 he records that the sites, which are next to each other, are:
"in the open countryside some 10km east of the centre of Ipswich and 6km south of Woodbridge on the peninsula between the estuaries of the Rivers Orwell and Deben. They lie outside, but close to the Suffolk Coast and Heaths Area of Outstanding Natural Beauty (AONB) and some 2km west of the village of Waldringfield on the Deben estuary. Nearby to the north-west is the large BT facility at Adastral Park, Martlesham Heath".
He goes into a little bit more detail about the sites at paragraphs 43 and 44:
"43.Site A comprises a roughly rectangular field separated from the road by a belt of trees and heathland remnants some 35-60m deep on the south side of Heath Lane. Most of the field area would be taken up with cabins and roadways, but there would be provision for open space and landscaping within it.
Site B comprises two fields immediately to the south and west of site A together with, as I have indicated, a track running southwards from the south-eastern corner to part of a field adjacent to Newbourne Stream that would be developed as a nature reserve. The intervening area, which is owned by the appellant though outside the application site, is currently an arable field but it is indicated that it would be converted to grazing. The cabins would be in the westernmost of the 2 fields with the eastern field being used as a recreation area including a lake towards the north-eastern corner where there is an existing shallow depression. It is intended that the lake would serve recreational and wildlife functions as well as balancing surface water flows."
He then describes topography and screening in a little bit more detail.
I have been shown an illustrative layout, which shows some 64 log cabins on the western-most of the two fields in site B. I stress that it is illustrative and that therefore it can be no more than an indication of the sort of numbers that the applicant would wish to see on that site.
It is worth briefly recording the grounds for challenge as a matter of law on an application under section 288 of the Act. These grounds are two. The first is that the decision of the Inspector is not within the powers of the Act. In other words, that the Inspector has gone wrong in law. That includes being irrational in the sense of either giving a decision that defies reason and comprehension, or proceeding by way of flawed logic, usually, in a planning context, by allowing the intrusion of irrelevant matter, or the exclusion of relevant matter.
I was referred in Mr Shadarevian's skeleton to some words of Lord Wolfe MR in the R v North East Devon Health Authority, ex-parte Coughlan and Others [2003] 3 All ER 850, at paragraph 55, where there is a reference to a decision based on flawed logic. I simply say, having reminded myself of that case, that this is something of a special case which is rather different from the usual planning case, as Lord Woolf made plain at paragraph 66 of that decision. However, the general principle is accurately stated, as I have stated it.
The claimant's first point, in particular is based under this head when they say that the Inspector's decision shows that he has failed to take into account matters he should have by misunderstanding the policy, or if he has understood it he has gone wrong in law by misapplying it.
The second broad head of challenge is that the relevant requirements are not complied with. The most important relevant requirement is that the decision-maker should give intelligible reasons for his decision.
There is a useful and authoritative summary, following a careful analysis of all the case law, given by Lord Brown in the case of South Bucks DC v Porter (No 2). The reference that Mr Shadarevian has helpfully given me in his skeleton is [2004] UKHL 33. It is also to be found at [2004] 4 All ER 775. At paragraph 36 Lord Brown said this:
"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 'principle 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."
I recall Lord Hoffman saying in a case, which I think was Somerset District Council, that the courts must remember that the Inspector is not writing an exam paper. I also recall him saying in the case of Tesco [1995] 1 WLR 759 at page 780 that:
"If there is one principle of planning law more firmly settled than any other it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."
I turn with that introduction to the decision letter. At paragraph 27 the Inspector turned to considerations of policy. He addressed general Structure Plan policies ECON12, ECON14 and Local Plan policy AP66. He went through their requirements remarking, accurately, that those general policies need to be read with more specific policies. In paragraph 31 he remarked that:
"LP policy AP112 is the most specifically relevant as it relates to sites for new, extended and intensified sites for static holiday caravans, cabins and chalets."
With that first mention of policy AP112, the time is probably appropriate to note what that policy, and its explanatory text, says. Policy AP112 is to be found in the Suffolk Coastal Local Plan First Alteration of 2001. At page 144 paragraph 7.43 says this:
"Although careful siting and screening can reduce the impact of static caravans, chalets or cabins, they inevitably detract from the landscape and the establishment of new sites will not be permitted in the sensitive areas, particularly the AONB and the Special Landscape Areas."
Then I continue with the policy:
"POLICY AP112
Sites for Static Holiday Caravans, Cabins and Chalets
Proposals for new sites for static caravans, cabins and chalets, and for the extension to, and intensification of use (by infilling) of, existing sites will be permitted only where they comply with the following criteria:
They shall not materially harm:
•the character and appearance of the surrounding area or the landscape;
•the living conditions of nearby residents."
I shall not set out the remaining bullet points nor (b), (c) or (d), because those are not relevant to this case.
The concluding words of the policy are of interest. They are:
"New sites will not be permitted in the Heritage Coast or adjoining the estuaries of the Suffolk Coast and Heaths AONB. Elsewhere in the AONB, new sites should be small in size, not exceeding 12 units of accommodation (including any extensions to existing sites). The cumulative impact of a number of small sites will be a material consideration."
Then there is a footnote and the footnote says:
"'Living Conditions' relate to such matters as noise, vibration, dust and highway safety."
It is worth taking a moment to reflect upon the words of paragraph 7.43 and AP112 in order to foreshadow one of Mr Shadarevian's points. It is possible to read the words in paragraph 7.43 that such sites "inevitably detract from the landscape", as meaning that when one turns to the policy and finds that it is a requirement that sites should not materially harm, amongst other things, the landscape, that one finds oneself driven to the conclusion that the combination is intended to say that permission is never going to be forthcoming. It must always be the case that such a site will materially harm the landscape, since paragraph 7.43 has just announced that they must inevitably detract from the landscape.
My view about this is that this is clearly not what the policy means or can mean. Mr Brown made the point, which I entirely accept, that it is the policy that is important and that must be concentrated on. Mr Shadarevian did not suggest to the contrary, for one moment. Indeed, it is noteworthy that paragraph 7.43 does not accurately reflect the policy that immediately follows it in other respects as well. It says, for example, that the establishment of new sites will not be permitted in the sensitive areas, particularly the AONB, whereas the policy itself clearly contemplates that in parts of the AONB a small new site may be accommodated. I note that simply to reflect that it seems to me that too much weight should not be put on paragraph 7.43, indeed no weight at all, where it conflicts with policy AP112.
However, it seems to me that Mr Shadarevian does have a fair point in saying that when one tries to read the two together as best one can, and as fairly as one can, it would seem reasonable to understand the two together as meaning that there may be an element of inevitable detraction from the landscape. That does not amount to material harm to it, otherwise the whole thing would become completely unworkable. Hence, in the context of the application of this policy, it must be, says Mr Shadarevian, important for a decision-maker to make it plain that he has grasped this point and that he is treating the harm as material, or immaterial, depending upon his view. In other words, it is not enough to find harm, he must make himself clear about its materiality.
I return to paragraph 32. This, it seems to me, was something that was dealt with in the context of general policies. I will recite what paragraph 32 says:
"The Council questioned whether this development has to be located in the countryside. To the extent that it is necessary at all, I incline toward the view of the appellant that it is unlikely to be located in a built-up area satisfactorily for both visitors and local residents though it might be located adjacent to a built-up area. It was claimed for the appellant that the need for development of this type is demonstrated by the support for it in policy AP112. However, I do not read the policy as offering unconditional support. It is more cautiously worded, being expressed in terms of 'will be permitted only where they comply with the following criteria' and subject to locational constraints. Even the demand (as opposed to need) for accommodation in this form does not seem to be compelling with, as the Council pointed out, unimplemented planning permissions for a further 120 static caravans at the Moon and Sixpence site (though I saw on my site visit that work had commenced on an extension to the site) and for around a thousand static caravans/cabins in the general area."
A word about that paragraph because Mr Shadarevian in his skeleton pursued a point to the effect that the Inspector had unnecessarily, in terms of Policy AP112 introduced a concept of need and that this was a misunderstanding of AP112. I think it is fair to say that this was not a point that Mr Shadarevian pursued in argument. I say immediately that is not how I read paragraph 32. It seems to me to be referring to policies that do require a demonstration of some overriding need. In that context the Council questioned the need. The appellant riposted in a way that is recorded and the Inspector dealt with that riposte in the way that he sets out. That is what is happening in paragraph 32. No more than that, it seems to me.
In paragraph 33 I note that the Inspector says this:
"The criteria in policy AP112 seek, amongst other things, to avoid material harm to the landscape, living conditions (defined in a note to the policy as relating to such matters as noise, vibration, dust and highway safety) and botanical and wildlife habitats, to secure good access and not compromise highway safety or the free flow of traffic."
He says he will address those matters below.
Issue (i) that the Inspector turned to, and has become the focus of the first issue in this application, is countryside and landscape. Again after an introduction setting out the relevant landscape policies, at paragraph 39 the Inspector proceeded thus:
"Many of the policies have referred to in this section and previously require consideration of the impact of proposed development on the character and appearance of the surrounding area of landscape, and I turn to these matters now. In respect of site A I assess initially the original scheme then consider the two bund options.
The sites lie within the Suffolk coast and Heaths character area as defined by the Countryside Agency. As the name suggests, much of this area is former heathland. Remnants of this remain, but much of the area as a whole has been enclosed and cultivated for agriculture and horticulture on the light sandy soils. In the area of the sites, other uses have in turn largely supplanted agriculture north of Heath Road. These include sand and gravel extraction, the extensive BT facilities including the test range of which more later, the built-up areas of Martlesham and Martlesham Heath beyond, a golf course, the Moon and Sixpence caravan park and various small industrial uses.
However, in the area south of Heath Road, including the appeal sites, agriculture and horticultural uses remain predominant. Around Newbourne to the south there are extensive glasshouses and polytunnels, but this area is largely open and undeveloped. It seems to me that the introduction into such an area of one or both of the proposed static holiday caravan parks with large numbers of large cabins and the associated ancillary development, activity and traffic would, irrespective of their visibility, markedly change the character of the area.
National policy in PPS 7 seeks strict control of new building development in the open countryside away from existing settlements or areas allocated for development. The cabins would not strictly be buildings, but their effect on the character of the countryside would be much the same. As the PPS makes clear, the Government's overall claim is to protect the countryside for the sake, amongst other things, of its intrinsic character. The proposed developments, individually or together, would conflict with that aim and thus be harmful. I recognise that some of the development plan policies envisage development such as this in the countryside, and note that the appellant's contention that such impact is therefore accepted. However, these sites are not allocated for the purpose, and the policies referred to are subject to clear caveats that aim to protect the character and appearance of the countryside and do not amount to a blanket acceptance of harm to the area."
He then describes site A in paragraph 43 and he describes site B in paragraph 44. I have read both of those out. He considers views and screening in the next few paragraphs and turns, in paragraph 48, to the methodology for assessment of landscape impact. He does so in these words:
"The methodology for assessment of the landscape impact of these proposals is agreed between the appellant and the Council and, as this follows well-established Landscape Institute guidance I concur with this. There is also broad agreement between the appellant and the Council as to the key viewpoints for assessment of the visual impact of the proposed developments, that the impacts are almost all adverse, and that if the impacts could be successfully mitigated there would be no harm in this respect. There are, however, differences in the assessment of the magnitude of the impacts, the ability of the landscape to accommodate them and the prospects for successful mitigation.
A major difference between the parties is the nature of the area around the appeal sites. The appellant suggests that the whole area is characterised by non-agricultural land uses and built development. However, as I have indicated above, I consider that there is a marked difference between the areas north and south of Heath Road, with the latter - including the appeal sites and most of their zone of visual influence - remaining largely agricultural and retaining a more unspoilt open countryside character and appearance. This is the view also taken by the Council. In this context I agree with the Council that the visual impacts would be more severe than the most 'slight' or 'negligible' magnitudes".
He then turns to the AONB noting that unlike other positions the sites would be seen in the context of built development to the north. He, therefore, accepted the appellant's assessment on that. He considers the effect upon his consideration of the fact that the applications are accompanied by illustrative plans, and that there is scope for quite a range of possibilities. I will not read paragraph 51. He considers in paragraphs 52 and 53 the landscaping proposed and the various assumptions that were made for its maintenance and rate of growth. In paragraph 54 I note that the Inspector did acknowledge that site B is "already more self-contained visually by existing vegetation and the landform" than site A. He goes on in that paragraph to say that mitigation would be likely to be achieved, but rather later than was suggested by the appellant in the appellant's evidence. He then dealt with the bunds on scheme A, for reasons that it is not necessary to this decision to explain.
For the reasons indicated above, I conclude on this issue that either or both of the proposals would be harmful to the character of the countryside south of Heath Road. I am satisfied that mitigation of the visual impact of the original schemes, through landscaping and other measures that could be secured through conditions, would largely overcome any harm to the appearance of the landscape, albeit that it might take longer to become effective than the appellant suggests. However, the bunds that would be introduced in scheme A options 1 and 2 would in themselves be harmful to the landscape as would the additional planting proposed between them and Heath Road."
[The Inspector is drawing the careful distinction that between the proposals being harmful to the character of the countryside south of Heath Road and the proposals being harmful to the appearance of the landscape, but having the ability for the visual impact of the schemes through landscaping and other measures to overcome the harm to the appearance of the landscape, given sufficient time.]
At paragraph 61 he goes on to say:
"Accordingly I further conclude that either or both of the proposals (and, in the case of scheme A, as originally submitted or with either of the options) would be contrary to national policy regarding protection of the countryside, to SP policy ENV4 and to LP policies AP8 and, in these respects, AP112. I do not consider that there would be significant conflict with SP policy ENV7 or LP policy AP12.
The sites are around 2.5km from Waldringfield, which is already popular with visitors especially on summer weekends and bank holidays. Although the village itself has its attractions, most people go through it to the River Deben as this is one of the few places in the area where there is fairly easy access by car to the water. The river here offers opportunities for boating, including a sailing club, boatyard and slipway, river trips, walking, a small beach though this largely disappears at high tide, and fine views across the water and of the AONB. There is also popular public house and restaurant, the Maybush, by the river.
Much of the road between the site and the village is narrow with a poor alignment and footways, so it is not a safe or attractive route for pedestrians or cyclists. There is a public bridleway to the village across fields from the crossroads just east of the site, but there are local concerns about footpath erosion. In any event, it seems to me that most people would travel to the village by car. To reach the river or the Maybush it is necessary to pass right through the village to a dead end at the river. The only permitted through route, via School Road and Cliff Road, is in parts barely wide enough for two cars to pass and is mostly without footways. Traffic calming measures in the form of a 20 mph speed limit and road humps have been installed on Cliff Road. An alternative route via Fish Pond Road and Sandy Lane is single track and vehicles are prohibited except for access, though local residents report frequent abuse of this restriction.
A Mayor problem is the lack of a public car park in the village. Use of the Maybush car park by non-patrons seems to be tolerated but this is full at busy times and such use could be stopped at any time. The narrowness of the roads means on-street parking is very limited and likely to cause obstructions. There is also very limited scope for vehicles to turn at the end of the road. This poses particular difficulties with large vehicles and those towing trailers. These factors are compounded by the number of boat trailers passing to and from the slipway and the sailing club. The Waldringfield Parish Plan (October 2004) proposes provision of the public car park, but I have seen nothing to indicate that this is likely to come to fruition in the foreseeable future.
Residents report severe congestion problems as a result of all this, affecting visitors, residents, businesses and emergency services alike. This in itself diminishes the quality of life for residents along the roads, but also increases vehicle noise and pollution. Residents also express strong concern about safety for vehicle occupants and, particularly, pedestrians. I have seen no evidence of actual accidents, but recognise that the natural fears expressed are a material consideration. They also report considerable pressure on the limited beach (especially at high tide) and waterfront area, on boat launching facilities and on the water itself, including conflicts between incompatible uses of the river.
The above are existing situations, and would presumably continue irrespective of my decisions on these appeals, but it is necessary to consider the increased effects of the proposed developments. There are differences between the appellant and the Council as to the likely additional number of vehicle trips into the village. Evidence for the appellant suggests that the increase would be insignificant. The Council and local residents and groups question whether the predictions based on surveys undertaken for the appellant of traffic from the Moon and Sixpence site going to Waldringfield underestimate the likely generation from these sites. The Council put forward predictions based on TRICS data, but the appellant challenges the applicability of these. Either way, it is not seriously suggested that there would be no additional traffic in the village and it seems to me that on busy days, when it is undisputed that the village roads are already at or near capacity, even a minimal increase would have a disproportionate impact on traffic conditions there.
As was pointed out for the appellant, anyone can visit Waldringfield at any time and indeed the sailing club encourages visitors by organising events at weekends and is open to new members. However, all that would still apply if the proposed schemes were implemented. Evidence for the appellant predicts that customers for the cabins would be drawn principally from the London area. Some might come to Waldringfield anyway, but I consider it much more likely that they would come, or at least that they would do so more often, if they were staying locally than if they were making day trips from home."
In paragraph 68 the Inspector discussed the appellant's Green Travel Plan and the maintenance of a minibus. The inspector shared the Council's doubts about its long-term feasibility and any way noted that visitors would remain free to use their own cars and expected that many would choose to do so.
In paragraph 69 the Inspector noted that part of the travel plan that would encourage cycling, but again he felt that this would be unlikely to have a major impact. He continued in paragraph 70:
"Recreational and leisure facilities on the sites, particularly in scheme B, might as the appellant suggests reduce the need for off-site travel. However, it is stressed that these facilities would be low-key and it is made clear that it is not intended that the site would be a self-contained holiday centre. It seems to me that, having chosen to come to a location close to the river, most people would wish to enjoy what it has to offer.
I conclude on this issue that the proposed developments, individually or in combination, would be harmful to the living conditions of residents in the area, particularly in Waldringfield, by virtue of visitor pressure and additional traffic. They would, therefore, be contrary in this respect to LP policy AP112."
On that decision letter Mr Shadarevian made the following submissions on behalf of the applicant. He said that the Inspector's reasoning process is inadequate and flawed. The Inspector has either misunderstood, or, if he has understood, he has misapplied Policy AP112. The reasons he gives are also flawed and he puts the matter in the well-known, recognised and perfectly logical way of saying, "If the Inspector got it right he did not make it plain in his decisions". If his decisions are taken at face value, says Mr Shadarevian, it suggests that he got it wrong. Mr Shadarevian's submission was not that he was saying that the landscape impact of the scheme would be not material, but he was making the point that it was a permissive policy. The fact of its materiality was something that had to be defined by the Inspector in that he had to indicate where the threshold of impact lay in the context of the policy. The Inspector did not look at the impact with that point in mind and he needed to do so. He needed to identify where in his judgment the threshold of materiality lay and indicate in his judgment whether or not the development had cleared that threshold. That is to be derived from the words of AP112, which I have already read out and is emphasised, if anything, by the slightly confusing terms of paragraph 7.43, which immediately precedes it.
Mr Shadarevian points out that this is against a background where the Inspector had been given a very careful analysis by the appellant's landscape witness employing the methodology of the Landscape Institute's guidance guidelines. It was incumbent upon the Inspector, he said, to explain why the landscape impact of the proposals was unacceptable. Had policy AP112 not been in place, the Inspector might well have been entitled to treat any impact at all as determinative, but that was not the case here. AP112 meant that the Inspector had to focus upon the materiality of the impact and that is something that, said Mr Shadarevian, you cannot see clearly, or at least not sufficiently clearly, that he has done from his decision.
On Issue (ii) the appellants had called Mr Bullard, an expert traffic witness, who had undertaken a traffic survey using the Moon and Sixpence site as a proxy. His conclusions, he pointed out, were in relation to sites A and B, not just B, and had a number of other built-in reasons which meant they were, if anything, rather strict if site B were taken on its own. The overall conclusion was that the traffic generation would be of the order of one car per hour. His conclusion and advice to the Inspector was that this would be insignificant.
Having put that formal evidence before the Inspector, Mr Shadarevian says that it is not possible to say what the Inspector did with it. Whether or not he agreed with it and accepted it or whether or not he rejected it cannot be spelt out from his decision letter. He does not grapple with the point that such a low level (as low as, after all, one can logically get without there being none whatsoever) is insignificant. That is something that needs addressing if it is accepted. If it is not accepted the appellant is entitled to know why it is not accepted. The Inspector did not do this or his reasons do not give the impression that he has done it, says Mr Shadarevian. His reasons are inadequate.
Mr Brown in reply on Issue (i), in effect, tests what the Inspector did against Lord Brown's points. He says that although the Inspector may not have used the words "material harm" more than once, it is perfectly plain that he is focusing upon what he needs to focus upon. The decision letter needs to be read as a whole and needs to be read reasonably generously. He drew my attention to a number of passages beginning with paragraph 33, and then particularly focusing upon paragraphs 41 and 42, where the Inspector analyses the special character of the area south of Heath Road, around and including the appeal sites, and describes it as being "largely open and undeveloped". He goes on to describe the development as markedly changing the character of the area. In the next paragraph he goes on to discuss intrinsic character and this is in the context of PPS7, and concludes in the middle of paragraph 42 by saying:
"The proposed developments, individually or together, would conflict with that aim and thus be harmful."
While acknowledging that this is a passage that Mr Shadarevian points to as being inadequate because 'harmful', says Mr Shadarevian, is not enough; is it so materially harmful that it passes the threshold laid down by AP112? Mr Brown's response is that when the passages are read as a whole it is plain that this is what the Inspector is saying, albeit that he does not spell it out in the way that Mr Shadarevian (?) would wish that he had.
As for Issue (ii), again I think Mr Brown's point can be encapsulated by saying that his submission is that it was a matter that was open to the Inspector. He is not obliged to accept Mr Bullard's evidence, and in the passage where he deals with it it is quite apparent that what he is doing is not coming down strictly on one side or the other. The passage in question is paragraph 66, which I have read out already. The Inspector records that there are differences between the appellant and the Council as to the likely additional number of vehicle trips into the village. The Inspector records that the appellant says the increase would be insignificant. He goes on to say that others question that. He cuts the Gordian Knot by saying:
"... it is not suggested that there would be no additional traffic in the village and it seems to me that on busy days, when it is undisputed that the village roads are already at or near capacity, even a minimal increase would have a disproportionate impact on traffic conditions there."
What Mr Brown says is that that cannot be stigmatised as Wednesbury irrational. That is a perfectly rational conclusion to reach in the right circumstances, and whether or not the circumstances are right is a matter for the Inspector and his planning judgment. That is, he says, a complete answer to that point.
My view on these two issues are as follows: I very much have in mind Lord Brown's points and I have in mind the need to let the appellant know what the Inspector has done, while at the same time remembering that the decision letter must be read in context and must be taken to be being read by an intelligent and informed reader. I note that the Inspector starts off by stressing the importance of AP112. He accurately recites in paragraph 33 that the criteria seek to avoid "material" harm to the landscape and living conditions, and so on. He then goes on to consider the matter of impact on character and appearance and analyse the character of the various parts of the area in the way that I have already recited and referred to.
It seems to me that when he comes to paragraph 41 and talks about the introduction into the area that he finds to be "largely open and undeveloped ... of one or both of the proposed static holiday caravan parks with [as he says] large numbers of large cabins and the associated ancillary development, activity and traffic..." and when he says that would "markedly change the character of the area", adding the words, "irrespective of their visibility", that any reasonable reader of the decision letter, who is doing his reading in a reasonably generous frame of mind, but certainly alive to the points that have been made in which the Inspector is considering, would read "markedly" as a clear indication that the Inspector thinks that it is material. I accept that he does not say that the harm is material, but the tenor of those paragraphs and the use of that word 'markedly' change the character of the area seems to me to make it quite sufficiently clear.
Having made that clear, it is evident that the Inspector has not erred. He has understood policy AP112 and has accurately applied it. It is possible to say that with the benefit of hindsight it might have been spelt out more, but that is not the test. I am quite clear that the Inspector has not gone wrong in law. He had not forgotten that materiality was important, as he had said, but a few paragraphs earlier. The words he chose were simply a way of expressing the essential point in rather different language.
With that I turn to Issue (ii). I am not at all without sympathy for the appellant's argument here, their point being that if it be right that there would only be one car per hour, how could that be of any significance? However, I think it is correct that the Inspector does not have to find whether that assessment is wrong or right, as long as he uses it as one end of the range of his deliberations, which is what he did do. He is entitled to say, "Even if the appellants are right, given the stress upon the existing situation, the addition of that one extra would be disproportionate."
It is evident from the decision letter that the Inspector had considered all the circumstances of Waldringfield, had taken on board what had been said to him by local people and the Council as to the activities in that village, and was well aware of the road layout, the attractions and the constraints of it. He was entitled to take a common sense and pragmatic view, having been around the area. (Although I note that his site inspection could not have been at peak times, but perhaps that may make the point stronger rather than weaker.) He is entitled to reflect upon the number of log cabins. There must be circumstances in which an Inspector, or a professional planner, is entitled to say that if there is any more development generating any more traffic in these circumstances, that would materially harm living conditions of residents. That is not an inconceivable notion and that is what the Inspector is clearly saying. Whether or not this court would have taken the same view is completely irrelevant. It is a matter for planning judgment.
In my judgment it is entirely open to the Inspector to reach that conclusion in the circumstances, as set out in his decision letter, so it is not an irrational decision and he expresses it perfectly clearly. It is perfectly easy to understand what it is that he has done. So, for those reasons, I reject the claimant's arguments on Issue (ii).
Other issues were raised in the grounds and were developed, to a degree, in the skeleton. They were not pursued in front of me expressly. Mention was made of them. Mr Brown treated those points in the same sensible way, namely he pointed out that he had answered them in his skeleton as well. I am going to treat them, following the lead of counsel, by saying that so far as those matters remain live, I prefer Mr Brown's arguments, as set out in his skeleton, to those of Mr Shadarevian. So, for those reasons, the application is dismissed.
MR BROWN: I am very grateful for that. There are two things, if I may? First, when you get a copy of the transcript back for correction can I just ask your Lordship to look at two things on the note? I do not think either of these makes any difference to your Lordship's judgment, but I think, as a matter of record, it would be preferrable for it to be correct. At one stage you referred--
MR JUSTICE MOLE: I am enthusiastic about that, Mr Brown, I am always horrified when I get the transcript back. Well not always.
MR BROWN: It is by way of assistance rather than criticism. In paragraph 59 of the decision letter your Lordship says:
"I therefore consider that either of the options would be harmful to the appearance of the landscape."
I think from the way your Lordship described that reference in your judgment you had assumed that that was a reference to options as in appeals A and B. It is a very easy mistake to make, but in fact I think the common ground between Mr Shadarevian and myself is that the reference in paragraph 59 is to the two options above.
MR JUSTICE MOLE: You are absolutely right. Of course it is.
MR BROWN: I do not think it has any bearing at all--
MR JUSTICE MOLE: You are quite right. Those two options are basically how high you let the gorse grow. Not quite, but nearly.
MR BROWN: Simply if I ask you to look at that when it comes back.
MR JUSTICE MOLE: That could easily have been omitted altogether.
MR SHADAREVIAN: It makes no difference.
MR BROWN: The second was that as your Lordship went through the decision letter originally you quoted and then stopped quoting at paragraph 61. You then went to set out the way on which the grounds had been argued, which meant that when your Lordship came to deal with Issue (ii) at one stage you said you had already quoted paragraph 66 of the decision letter. I may be wrong, but I think you will find that in setting out the background your Lordship did not in fact, at that stage, deal with the bits of the decision letter that dealt with living conditions. One can see what your Lordship was intending to do with it, issue by issue: to deal with part of the decision letter on landscape first and landscape arguments and then the living difference part. Again I do no think it makes the slightest difference to the decision as a whole, but just for the purpose of anybody reading it further down the road, if I am right, one will not find the relevant parts of the decision.
MR JUSTICE MOLE: You are right. What I propose to do is read those paragraphs so that they are going to be on the transcript. I then propose to move them into the appropriate position in my account of the Inspector's decision letter. I shall simply move them in. I will start at paragraphs 62 and it is right, I think, Mr Shadarevian you read all of those to me.
MR SHADAREVIAN: I did indeed.
MR JUSTICE MOLE:
That is the end of that.
MR BROWN: I apologise for having to raise that but I think it is easier to pick it up at this stage. My Lord, I said there were two things, the second is the formal order. Firstly, I ask for an order that the application be dismissed; secondly, I have an application for the Secretary of State's costs of these proceedings. Does your Lordship have a costs schedule?
MR JUSTICE MOLE: No, I have not been given a costs schedule.
MR BROWN: I can pass that up to your Lordship. (same handed) Your Lordship will see the total costs bill of £5,836. Bearing in mind that this is a one day case, it is appropriate for summary assessment I do ask for the Secretary of State's costs to be summarily assessed in that sum.
MR JUSTICE MOLE: Do you have anything to say?
MR SHADAREVIAN: I do not resist.
MR JUSTICE MOLE: That is very sensible. Very well the application is formally dismissed and I summarily assess the Secretary of State's costs at £5,836.
MR BROWN: I am grateful.
MR JUSTICE MOLE: Thank you to both counsel for your help today.
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