Wheelform Properties Ltd, R (on the application of) v Secretary of State for Communities & Local Government

MR JUSTICE CRANSTON: This hearing involves an application for permission to appeal against an enforcement notice and an application to quash under Section 288 of the Town & Country Planning Act 1990. The first application is brought under Section 289 of that Act. There was also an applicantion to seek an extension of time for the lodging of proceedings, but no point is taken by the Secretary of State for Communities and Local Government. Therefore there is no need for me to address that aspect of the matter.

The appellant, and applicant in this hearing, has been represented by Mr Hare. I allowed him to advance arguments in the ordinary way which he did - I do not attempt to flatter him - in a thorough manner. It seems to me that he has raised all the points that would otherwise have been raised by counsel.

The appeal concerns a farm which is owned by the company, Wheelform Properties Ltd ("Wheelform"). It is known as Etonbury Farm although the farmhouse was sold off a number of years ago. The farm is near the village of Arlesey in Bedfordshire. As I understand it from the planning inspector's report, it occupies some 22 hectares. It is a pig farm. As I also understand it from the inspector's report, there are two pig sheds and a connected manure shed. The business, as was explained to me today, involves the taking in of pigs from the age of some six weeks. Then at some 24 weeks, as I understand it, the pigs are removed from the farm.

On the other side of the farm - and if need be I can attach the map to this judgment - is the area which I shall call the Lake House area. That land is not owned by the company Wheelform but by the principals of the company, Mr and Mrs Beatham. The Lake House is a new house. If I may say so, it is a spectacular house built on the edge of the lake. It is on the site of an old brick works and the ownership is, from the point of view of the law, separate from the ownership of the pig farm.

The appellant in this case sought planning permission so as to construct a house for a farm worker to look after the pigs on Etonbury Farm. As was explained today, there had been - and still is - a mobile home on the property where the pig farmer had lived for some 13 years. But that farm worker left in 2004 because the mobile home was getting delapidated. He wanted a farm dwelling.

The application for planning permission to construct the new darm house was refused in 2006. The local planning authority issued an enforcement notice later in that year. The matter then went to an inspector. It is the inspector's decision which is before me today.

Let me briefly recapitulate some of the legal principles which I need to have regard to. The first is that under Section 79 of the Town & Country Planning Act 1990 the inspector dealt with the matter de novo; in other words, as if it had been before him in the first instance. It is unnecessary to underline that point but the result is that we are not concerned with matters that preceded the planning inspector's report inasmuch as they do not bear on that report.

The second point, and again this is clear, is that it is not possible to canvass the merits of the planning application in this hearing. The merits were for the inspector to decide. It is not possible for me to re-open the matters which were before him.

The third point - and this is related to the second point about merits - is that the planning inspector is given considerable leeway in exercising his judgment. That judgment will be based on the evidence he heard, on the written representations and on the site visit. In R (Newsmith Stainless Ltd) v Secretary of State for Environment Transport and the Regions [2001] EWHC Admin 74, paragraph 8, Mr Justice Sullivan emphasised that a challenge to a decision by an inspector alleging that the inspector has been Wednesbury unreasonable, in terms of matters of planning judgment, faces a particularly daunting task:

The next legal principle relates to the issue of weight. It is accepted on both sides that it is up to the inspector to decide what weight to put on particular matters before him. He is entitled to attach the weight he pleases to the various arguments and contentions of the parties. That principle comes from the well known decision in Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P&CR 26.

The final important legal principle has to do with mistakes of fact. Mr Hare's submissions concentrated very much on what he said were the mistakes made by the inspector and how that flawed his decision. In E v Secretary of State for the Home Department [2004] QB 1044, the Court of Appeal recognised that mistake of fact was a separate head of challenge on appeal on a point of law but that mistake of fact could only be raised in fairly narrow circumstances. There were a number of factors that were identified at paragraph 63 of the judgment, but in particular - and it is necessary for the claimant to demonstrate this - that the mistake had played a material though not necessarily decisive part in the tribunal's reasoning.

Those are the legal principles which I need to apply. It is obvious that they very much confine the extent to which I can find that the inspector was flawed in reaching his decision.

The inspector prepared a report. The inquiry was held on 26-27 June 2007. The report focussed, as it needed to, on national planning policy and in particular on Planning Policy Statement 7: Sustainable Development in Rural Areas ("PPS7") which has been incorporated into the planning policies adapted by the relevant local planning authority. In particular paragraph 10 of that PPS states:

Annex A, amongst other things, refers to the fact that it will often be convenient and more sustainable for farm workers to live in nearby towns and villages or in suitable existing dwellings. However Annex A goes on to state that there will be some cases when the nature and demands of the work concerned make it essential for one or more people engaged in farm work to live at or very close to the site of their work. That turns on the needs of the enterprise, not on the personal preferences and circumstances of an individual involved.

Annex A goes on to lay down three broad factors: first, functional need for one or more employees to be readily available at most times, and related to that the need for a full time worker; second, financial viability; and thirdly - a negative factor - that functional need cannot be fulfilled by an existing dwelling on site or in the nearby area. It goes without saying the reason for this approach to planning policy is to avoid new and potentially intrusive development in the countryside.

Mr Hare, as well as raising the issue of Wednesbury unreasonableness, concentrated his attack on the inspector's decision on two main bases. First, he said that there was much that was factually wrong. The assumptions used by the inspector were sometimes tenuous and, at worst, baseless. That meant that his reasoning was flawed. In addition, he said, in some cases relevant considerations were not taken into account and conversely irrelevant considerations were brought into account. For example, in relation to the report by Bruton Knowles ("BK"), he pointed to errors, in particular factually incorrect information. I will return to that in a moment. In his closing submissions he said that although earlier in the piece the issue of natural justice was raised he was no longer pursuing it.

Let me divide the challenges which Mr Hare raised under various heads. First, planning history: Mr Hare said that there were a range of considerations - going back, for example, to the consideration by the council of this planning application - which were wrong. On that basis the inspector's decision was flawed. He took me to the matter of the section 106 agreement which it was impossible for the appellant to complete. Apparently the finance house or the bank - HBOS as I understand it - was not prepared to enter into a section 106 agreement given that there was already an agreement in relation to the Lake House site.

Mr Hare also took me to the history of the way the council, as the local planning authority, had dealt with the matter. In his submission, if one went back to the history it would be seen that the planning authority was prepared at one point to give planning authority. That also relates to a point that for many years planning permission had been given for the siting of a mobile home on the property. In Mr Hare's submissions the circumstances were no different as between then and now. However, that is the planning history and - as I explained at the outset in relation to the legal principles which are applicable - I cannot have regard to it. The inspector treated this matter de novo and it is to his report, not what was done in the past, that this appeal must be directed. Inasmuch as the planning inspector made reference to that history and may have made factual errors in relation to it, nothing I have heard convinces me to regard those factual mistakes as material in terms of the authority of E to which I referred earlier.

The second line of attack was in relation to the nature of the farming enterprise. The inspector, it was said, had not taken into account sufficiently the need for 24/7 care of the pigs. The nature of the farming involved, young pigs, required constant vigilance. It required regular attendance. It was explained to me - and I heard a short presentation from Mr Beatham about this - that the intensity of care is great. I was taken to a report by Acorus Rural Property Services which reinforced this point.

I accept for the purposes of today's hearing that this type of farming does require considerable care. These young pigs come from different farms; they come from different sows and they can be involved in fights; there are attempts among them to establish pecking orders; one pig will bite another pig's tail; and pigs become trapped. In other words, there is a requirement of constant attention because these emergencies can arise. Mr Beatham, when he addressed me, told me that four or five times over the past couple of months he had been woken up during the night when he could hear the pigs in distress. He said that one had to have a knowledge of looking after pigs. Although he said that a considerable part of the work was 9 to 5 - it was routine work - there was a need for on-site emergency attention. As I say, I accept all that.

The legal issue is whether the inspector made an error of law in relation to his treatment of this matter. It was said that the inspector was wrong in saying that pigs could not be heard above 60 metres away. I am prepared to accept what I was told today that sound is a vital element in the care of young pigs, as put to me by Mr Hare. I am prepared to accept that it is possible for the trained ear to hear a pig in distress some 190 metres away. Of course it would not be possible for someone living in the village of Arlesey to hear that. I will return to the matter of distances in a moment. But in relation to what I will call the animal welfare aspect, the need for constant vigilance and 24/7 attention, I am not persuaded that the inspector did not have this in his mind. For example, he mentioned the various animal welfare matters at paragraph 12 where he referred to the requirement of Freedom Foods and of the RSPCA, and at paragraph 15 he mentioned that he has been given examples of animals being trapped and distressed. He said:

There is then the issue of distance. The inspector said that it was possible - if a farm manager or a worker were living in the village of Arlesey - to get by vehicle to the pig unit within two to five minutes. It was explained to me that here the inspector had gone wrong, that the distances were inaccurate, that the reference to access via a tunnel under the main road was wide of the mark. I am prepared to accept all that. But the difficulty from my point of view as a reviewing judge is that in the inspector's report it is recorded at paragraph 19 that it was agreed at the inquiry that travel time by motor vehicle from Arlesey to the pig unit would be in the region of two to five minutes. That error, if it be an error, was not raised until I received Mr Hare's supplementary submissions this morning. Given that no criticism has been raised until now about that statement by the inspector and his recording of an agreement between all parties that it would take only two to five minutes to get from Arlesey to the pig unit, it is impossible for me to go behind it. It may be an error but given the recording of an agreement that that was the fact, it is not possible to re-open the matter today.

The next matter raised by Mr Hare related to the non-availability of premises for a farm worker elsewhere. In his contention it is difficult, given the price of housing and availability of housing in this area, to obtain ready accommodation in a village like Arlesey. But I again cannot go behind the finding of the inspector in that regard. As I understand it, the matter was well canvassed before the inspector. In any event, it was a matter of judgment for the inspector and is really trespassing on the merits of his findings.

The issue of the ownership of Lake House is one which during the course of the hearing concerned me. This relates to a number of matters which are canvassed in the inspector's report. It arises, for example, in relation to the possibility that the occupants of Lake House can provide the emergency 24/7 cover which is necessary given the animal welfare problems that can arise in relation to these young pigs.

The way the inspector addressed the issue was to say that the creation of the separate entities in law was artificial and that in fact the farm and Lake House both remained within the actual control of the Beatham family. In his conclusion that there was no existing functional need for this new dwelling, that particular matter did have a bearing. That was supplemented by the point that if the Beathams should sell Lake House the emergency cover would certainly not be provided by any new owners unless they also bought the farm.

The answer is provided by Miss Thornton in her submissions to me that should there be a separation of ownership and occupation, in that the Beathams sell Lake House it will be possible for the owners of the farm to apply on a new factual basis for planning permission. In any event, again I doubt whether, even though in law the ownership and occupation of the farm and Lake House are separate, I can go behind the findings of the inspector about the reality of control of the farm on the one hand and Lake House on the other. In reality the Beathams control both.

Finally I come to the issue of finance. Here I was taken to a number of reports. In Mr Hare's submission the BK 2 report, as it was called, was said to have ignored information from a chartered accountant. I was shown profit made in the last financial year of some £7,337 which in his submission refutes the argument that the farm had not made profits in some of the previous three years. I was also told - although this was information subsequent to the inspector's hearing - that the profit of Wheelform in 2007-2008 was some £71,385. I was also referred to various agricultural experts' reports in relation of the financial viability of the farm. The difficulty from my point of view is that all these matters, save for the profit for 2007-2008, were before the inspector. It was a matter for him to come to a judgment about financial information. It is not possible in this type of appeal to go behind his conclusion.

The fact that the financial test is accepted as being met by the majority - I think six out of seven agricultural assessments; the fact that the inspector is said to have incorrectly examined the profit made by the appellant, as opposed to the holding company; the fact that last year there was a very healthy profit; and the fact that the farm's financial viability appeared to be accepted by earlier decisions of the local planning authority are all matters which it is not possible at this stage to canvass again. They were matters for the inspector and for the inspector's judgment.

I am not persuaded that there were any public law errors in the way the inspector went about the matter of financial viability. I should say that I was taken to an enterprise budget that was before the inspector where Mr Beatham re-worked the figures and showed that there was a profit but again that was a matter for the inspector, and it is not possible to re-open it here. I cannot find a public law error in the way the inspector went about that particular matter. The inspector considered the financial aspects and all that is before me is a disagreement about his conclusions.

There was one other point raised which I ought briefly to address: the fact that the mobile home had been approved on previous occasions. The argument was that on this occasion there was no difference between the factual circumstances then, when as seems to be the case the local authority was prepared to approve the dwelling. It is not possible for me to take that matter into account given that I have to address the way the inspector has gone about the matter. What had happened in previous planning applications is simply not relevant.

I recognise that this will be particularly disappointing to the Beathams. I will say this. In relation to possible defamatory statements being made about the Beathams on other occasions, I am sorry if these had been made. If that is the case they ought to take legal advice. Further, I was impressed with the approach to the welfare taken by Mr Beatham and with the obvious care that is given on the farm. But my role is very limited, as I hope they will understand. It is simply a matter of my identifying public law errors. It is not a matter for reargument before me of what was properly for the inspector. It is not a matter of identifying facts which the inspector may have got wrong unless those facts are material to the decision that has been made. That being the case, in the light of what I have said, I refuse permission in relation to the appeal under Section 289 (that is the enforcement notice appeal) and I dismiss the appeal in relation to the main matter.

MISS THORNTON: In the light of your judgment, I would ask for an order for the Secretary of State's costs in this matter to be summarily assessed.

MR JUSTICE CRANSTON: You had a schedule, did you not?

MISS THORNTON: Yes.

MR JUSTICE CRANSTON: Has Mr Hare seen that?

MISS THORNTON: Yes. I have another copy.

MR JUSTICE CRANSTON: Mr Hare?

MR HARE: I have the statement of costs in front of me. I must say, looking down at it, there seems to be quite an excessive amount of time spent particularly attending on counsel - 2.7 hours - which I thought was incredibly high. I do not know what other attendances - - Mr Drewett is the fee earner. Attendance on client, 1.9 hours. There is a further 2.4 hours spent on, presumably, letters.

MR JUSTICE CRANSTON: Which particular figures? We have the rate, £160, £200.

MR HARE: The second one down, attendances on counsel, 2.7 hours. In my view, that seems to be pretty high.

MR JUSTICE CRANSTON: What else?

MR HARE: The attendances on the appellant at 2.4 hours. I do not know what that is other than it could be letters, but we have only had about six letters from Mr Drewett and most of those are very short. The attendances on others can only presumably be with the Mid-Bedfordshire District Council. I do not think we are going to be arguing too much about 0.7 hours. Work done on documents: I cannot think what 9.6 hours have been spent on. We have had no documents from the Treasury Solicitor at all, other than possibly he would have spent sometime looking at the bundle of documents that we delivered to him; say again, I am talking about Mr Drewett. I certainly cannot believe that in excess of nearly 11 hours has been spent on documents. All of the documents produced were produced by the company. The only document we received has been the skeleton argument produced by counsel. Presumably that has been taken up with the fee at the bottom.

There is the further 1 hour travel and waiting at 160. Am I not right in saying that his office is just around the corner from this court? Even I, with my poor knees, could walk there in about five minutes.

MISS THORNTON: If I might say in response, this is two appeals. There is no filter in respect of Section 288 appeals so it was listed for a day. In the circumstances the Secretary of State would submit that the hours spent are reasonable.

MR JUSTICE CRANSTON: Attendance on counsel are the attendances today.

MISS THORNTON: Yes - the attendances on counsel are today?

MR JUSTICE CRANSTON: Yes.

MISS THORNTON: That is brief fee.

MR JUSTICE CRANSTON: Yes. That is 2.7. What about opponents? Mr Hare says that he is not too sure about that. What is that about?

MISS THORNTON: I presume that is drafting letters, receiving the bundle of documents. There were several amendments to the bundles that were coming in, there were then two skeleton arguments, all of which needed to be viewed and passed on to me. As regards the work done on documents - 9.6 hours and another 0.7 and 0.5 hours - you may recall that Mr Justice Forbes in Seddon Properties said that the usual amount of material before the court was an inspector's decision letter. The amount of material before the court today is voluminous for this sort of hearing in terms of all the planning committee reports that were placed in the bundle. They needed to be reviewed. In the circumstances it would be my submission that that is not unreasonable.

If I could take the liberty of making a reference to the amount - - I did receive a schedule of costs from the appellants in anticipation of their success. Their hours claimed for are 239 hours. In the circumstances I think the Secretary of State's hours spent on this - - - - -

MR JUSTICE CRANSTON: What was their total?

MISS THORNTON: 239 hours. I appreciate the Secretary of State is responding.

MR JUSTICE CRANSTON: The appellant has had more time. (To Mr Hare) I think that is probably the strongest argument against you, Mr Hare, the bill that you suggested - 239 hours.

MR HARE: We had been nine months on it. It is including travelling up here and including delivering our bundle direct personally to the Treasury Solicitor's office.

MR JUSTICE CRANSTON: It seems to me that in the terms of a full-day hearing, that amount is quite reasonable so I make the order. Is there anything more?

MR HARE: No.