Parker v Secretary of State for Communities & Local Government & Ors

This is an application made by the claimant, Mr Michael Parker, under section 288 of the Town and Country Planning Act 1990, for an order to quash the decision of the Secretary of State's Inspector, Mr Paul Jackson, issued by him in a letter dated 11 December 2008, allowing the appeal of the third defendant, Mr Peter Bull, against the refusal by the second defendant, Rother District Council ("the Council"), as local planning authority, of his application for planning permission for development described in the decision letter as:

The Council has played no active part in the present proceedings.

The Inspector held an inquiry into Mr Bull's appeal, which opened on 21 October 2008 and continued for five days. He made his site inspection on 3 November 2008.

The application for planning permission was submitted in outline. The layout of the development, its scale, appearance, landscaping and access were reserved for subsequent approval. The Inspector explained his understanding of the status and scope of the outline application in paragraphs 1, 2 and 3 of his decision letter in this way:

On 10 August 2006, the Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2006 gave effect to provisions in the Planning and Compulsory Purchase Act 2004. These require design and access statements for most types of applications and implement changes to the application process for outline planning permission including the redefinition of reserved matters and in particular, a greater level of minimum information to allow the impact to be understood and evaluated. The appellant confirmed at the start of the Inquiry that in accordance with these changes, the application was submitted with layout, scale, appearance, landscaping and access reserved for subsequent approval.

The appellant submitted further illustrative drawings before the start of the Inquiry which provided information on the internal layout and location of the cabins and internal layouts and three design options for the facilities building (plans A2-A11). Information on the scale parameters of all the proposed buildings was submitted on a table (Document 4) during the Inquiry. It was also confirmed that site layout drawing No. 339/97/10/B remains correct from the previous application. Having regard to all this information together with the supporting statement supplied to the Council by Humberts Leisure on 6 March 2007, I did not consider that there was insufficient information for the inquiry to proceed or that anyone's interests would be prejudiced.

The re-siting of the access has since been carried out under a different permission (ref RR/2000/121/P). As a result, the previous outline consent expired on 27 August 2006."

A description of the appeal site and its surroundings is to be found in paragraphs 6 and 7 of the decision letter:

Wylands International Angling Centre (WIAC) comprises a diversified former mixed farm located in gently undulating landscape north of Bexhill-on-Sea. It comprises around 62 hectares of lakes, grassland and woods. The fishery use has gradually developed over more than twenty years and is supported by the Council as an appropriate leisure use in the AONB. A group of loosely sited buildings, mobile homes and containers of varying appearance near the centre of the holding comprises the former farmstead from which the business is managed. A public footpath (No 15A) runs through the centre of the holding past the edge of the farmstead. The fishery as a whole is also visible in glimpses and at times as part of a broader vista from a ridge and other footpaths to the south. Trees hide some of the buildings and many of the lakes from this direction but much of the central farmstead is clearly visible where it lies on the Wyland Farm Ridge.

Outline planning permission ref RR/98/2292/P was granted in 2003 following a long period of negotiation leading to the signing of a Section 106 (S106) Agreement. There is no dispute that the leisure activity of fishing as a form of farm diversification remains acceptable in principle."

The site has a long planning history. According to Mr Stoker, some 24 planning permissions had been granted between 1951 and 2006, establishing Wylands as a commercial fishery. Three decisions in particular ought to be mentioned. The first is the certificate of lawfulness granted on 20 July 2000 for the siting of a specified number of caravans on several defined portions of land. The second decision was the grant of planning permission, on 27 August 2003 (98/2292/P), which Mr Bull's present application and appeal sought to renew. No approval of reserved matters having been obtained within three years of the grant, that permission had lapsed on 27 August 2006. Thirdly, an application for the resiting of the access to the site (RR/2000/121) was approved by the Council. This permission was implemented.

The Inspector defined the main issue in the appeal in paragraph 5 of his decision letter, in this way:

In paragraphs 8 to 12 of his decision letter the Inspector referred to the main components of the relevant policy framework, including national policy for Sustainable Development in Rural Areas in PPS7, the relevant policies of regional planning guidance in RPG9, the relevant policies in the East Sussex and Brighton and Hove Structure Plan 1991-2011, and policies GD1(v) and EM10 of the local plan.

The Inspector reached a firm and positive judgment on the main issue. He set out his conclusion in paragraph 35 of his decision letter:

The Inspector allowed the appeal and granted planning permission, subject to 15 conditions. In its formal terms the grant of permission is contained in paragraph 4 of the Inspector's letter:

At the end of the inquiry an application for costs was made for Mr Bull. The Inspector dealt with this in a separate letter. He rejected Mr Bull's application.

The claimant has challenged the Inspector's decision on twenty separate grounds, which relate to four main issues: (i) the definition of the proposed development; (ii) the interpretation and application of relevant policy; (iii) the Inspector's consideration of the evidence; and (iv) the Inspector's approach to conditions and obligations.

No novel or controversial propositions of law arise. The application to the court lies not on the planning merits but only on grounds of law. The principles of this exercise are well-established, as has been emphasized by the courts on many occasions, including, for example, by Sullivan J (as he then was) in R(Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC (Admin) 74.

Five further propositions, referred to by Mr Warren, are relevant in the present case. First, the weight to be given to any particular material consideration in the making of a planning judgment is for the decision-maker, not the court (see Tesco Stores Ltd v Secretary of State for the Environment [1995] 2 All ER 636, per Lord Hoffmann (p. 657f-h)). Secondly, the reasons given for planning decisions must be capable of being understood by the parties to whom they are principally addressed and should enable the reader to know what conclusions the decision-maker has reached on the principal controversial issues in dispute (see South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, per Lord Brown of Eaton-under-Heywood (at p. 1964C-G)). Thirdly, when weighing the evidence in making a planning decision, the Secretary of State is not obliged to accept even uncontested evidence (see Burwoods (Caterers) Ltd v Secretary of State for the Environment (1972) 224 EG 202); or the evidence of expert witnesses (see Kentucky Fried Chicken (GB) v Secretary of State for the Environment (1977) 245 EG 332). Nor is he obliged to accept something that has been agreed between the main parties to the appeal (see Lewis Thirkwell Ltd v Secretary of State for the Environment [1978] JPL 844). Fourthly, the meaning given to a planning policy is a matter for the decision-maker, provided the meaning is one which can reasonably be given to the policy: see Cranage Parish Council v First Secretary of State [2004] EWHC 2949 (Admin). And fifthly, where an allegation of procedural unfairness is made, the questions that arise are these:

Section 62(1) of the 1990 Act provides:

Article 3 of the GDPO provides for the making of an application for outline planning permission. It provides:

Under the heading "Design and Access Statements", article 4C of the GDPO provides that for outline applications a "design and access statement" is to be provided. Paragraphs (2) and (3) of article 4C state:

Section 327A of the 1990 Act provides that where the Act or any provision made under it imposes a requirement as to the form or manner in which the application must be made, or the form or content of any document of other matter which accompanies the application, the local planning authority must not entertain such an application if it fails to comply with the requirement.

Section 79(1) of the 1990 Act provides that, on an appeal under section 78 of the Act, the Secretary of State may allow or dismiss the appeal, or reverse or vary any part of the decision of the local planning authority and may deal with the application as if it had been made to him in the first instance. Subsection (6) of section 79 provides:

As Mr Warren submitted, the position in the present case was this. An application was made by Mr Bull for outline planning permission, with all matters reserved. Article 3(4) of the GDPO required the parameters of the scale of the development to be stated in the application, and article 4C required there to be a design and access statement. However, the Secretary of State, once seized of the appeal, had the power to deal with the application even if the Council as local planning authority would have had to refuse to determine it by virtue of the provisions of the GDPO. I do not accept Mr Hill's counter-submission, that the discretion given to the Secretary of State in section 79(6) is intended merely to allow the Secretary of State to deal with an appeal that is bound to fail. The statutory discretion is not conferred in that limited way, nor is it necessary to construe it so narrowly.

Mr Warren also submitted that even an application which failed the procedural requirements of articles 3 and 4C of the GDPO is not necessarily void. In the case of all such procedural defaults, even those relating to mandatory requirements, the question for the court is whether their being enforced would cause prejudice: (see Main v Swansea City Council and Others (1985) 49 P&CR 26; R(McKay) v First Secretary of State (2006) 1 P&CR 19; and R v Secretary of State for the Home Department, ex parte Jayeanthan [2000] 1 WLR 354). As a simple statement of principle I accept that submission.

DCLG Circular 01/2006 "Guidance on Changes to the Development Control System" contains, in section 2, guidance on the changes to the outline planning process which came into force on 10 August 2006, and, in section 3, guidance on the requirement for design and access statements to accompany certain types of application for permission and consent. Paragraph 52, in section 2, states:

Paragraphs 56 to 74, in section 3 of the circular, explain the role of design and access statements in the design and decision-making processes. Paragraph 65 states:

Mr Hill submitted that neither article 3 nor article 4C was complied with when the application for planning permission was submitted. The document entitled "Supporting Statement Incorporating Design and Access Statement" did not provide the information required. Section 7, entitled "Scale Parameters", provided some information about the "function building" and stated a maximum height above ground level of 3.5 metres, apparently for all the buildings in the development. In August 2007 the Council had asked for the "scale parameters" of the buildings to be provided. In their letter of 10 August 2007 Mr Bull’s agents, HLL Humberts Leisure, emphasizing that the application sought the renewal of permission, declined to provide the parameters of scale. They said the Council's request for that information was, in the circumstances, "unreasonable". The Council's refusal of planning permission was, in part, framed in terms of it not having been demonstrated to the Council's satisfaction that "the scale of the development" would not harm the landscape quality and character of the AONB. In the evidence of Mr Fifield for the Council, the Council's case was clearly put on the basis that, in the absence of "an indication of the scale of the proposed development the Council [could not] be certain that the development will not have an adverse effect on the [AONB]". The supporting statement, though it claimed also to function as a design and access statement, was said to be "completely uninformative" in its coverage of "such issues as amount, layout and scale of development". It indicated a "maximum height for buildings above ground level of 3.5 metres". When the inquiry opened the claimant raised the issue of the failure of the application to comply with the statutory requirements. On the same day Mr Bull's consultants produced a document entitled "Dimensions of Proposed Buildings" setting out the dimensions. This gave a height for the function building of up to 7.5 metres. The other alleged deficiencies were not dealt with at all, said Mr Hill. These alleged shortcomings in the application were noted in closing submissions for the Council and for the claimant. It was submitted to the Inspector that the proposed store and new dwelling were wholly unsupported by the material the law required to enable their impacts to be assessed. This was particularly significant, submitted Mr Hill, because the site was in an AONB. Mr Hill said the decision letter is "entirely silent" on this issue.

I cannot accept those submissions of Mr Hill. It seems to me that the Inspector had well in mind the complaints made about the content of the application and its detail, and that he weighed those concerns in full knowledge of the statutory regime now governing the submission of applications for outline permission. This is plain, in my view, from paragraphs 1 and 2 of the decision letter. In those paragraphs the Inspector showed he was well aware of the changes to the procedure for outline applications brought about by the Planning and Compulsory Purchase Act 2004 and the GDPO. He referred in paragraph 1 to the requirements of the new statutory regime. In paragraph 2 he specifically asked himself, and answered in the negative, two questions: whether there had been insufficient information for the inquiry to proceed and whether anyone's interests would be prejudiced if it did. I do not accept that the Inspector misdirected himself about the provisions of the GDPO. As Mr Warren pointed out, he had had the benefit of submissions made to him on this matter at the inquiry. And Mr Hill explained the sense of his own submissions to the Inspector as having been a request for a "split decision" in which the most damaging elements of the proposals as the third party objectors saw them, namely the facilities building and the cabins, could be separated from the rest of the development and rejected.

The Inspector's conclusion - stated unequivocally in the final sentence of paragraph 2 of his decision letter - that there was sufficient information on the proposals before him cannot, in my judgment, be stigmatized as unlawful.

The "Supporting Statement Incorporating Design and Access Statement" dealt specifically with the "Amount of development" (in section 5), the "Indicative layout" (in section 6), "Scale parameters" (in section 7), and "Indicative Access Points" (in section 8). In substance, therefore, it covered the matters which a design and access statement has to embrace. It was supplemented by a large amount of additional information in the evidence provided to the Inspector at the inquiry. This included the parameters for the proposed buildings given in Document 4. It extended to all the constituent parts of the total scheme: the new dwelling, the “workshop/ store”, the “café/facilities building” and the cabins. Document 4 provides a height for the buildings proposed. It also sets out, under the heading "Footprint", a width and a length for each of the buildings, save for the cabins, for which ranges of floor areas are given. It refers to the submitted Plan 339/97/10/B, which indicates access to the site, the amount of development proposed and a layout. In paragraph 2 of his letter the Inspector referred to plans A2 to A11, the illustrative drawings produced on behalf of Mr Bull before the start of the inquiry, in which information was given on the location and internal layout of the cabins and three design options and internal layouts for the facilities building. These ten drawings, as the list at the end of the decision letter records, were contained in the appendices of Mr Huskisson and Mr Goodchild. Mr Huskisson’s proof of evidence extended to 41 pages and was supplemented by various documents, plans, photographs and photomantages. Mr Goodchild was the architect of the scheme. His proof had appended to it several drawings and sketches. From these two witnesses the Inspector had a layout drawing showing the relationship of the building to the topography of the site, and the proposed landscaping works; a drawing showing sections through the site and the potential lines of sight; three drawings illustrating different internal layouts of the “café/facilities building”; three drawings illustrating the options for the “café/facilities building”; and two drawings illustrating the cabins. Dimensions for the “workshop/store” and the new dwelling were given in Document 4. The Inspector also received evidence about the size and layout of those buildings. For example, he had from Mr Huskisson evidence about the new dwelling, indicating that it would be of a single storey; and about the store building's footprint and dimensions, indicating the intention that it would occupy the same footprint as the existing long, low, single storey building about 26 metres by 6 metres wide and about 4 metres high with a shallow pitched roof, which used to be a calf-rearing shed.

All of this material, as Mr Warren submitted, needs to be seen against the background of the practical guidance given on the "basic level of information" required to be submitted with an outline application, in paragraph 52 of Circular 01/2006 and the subsequent paragraphs of the circular to which I have referred. And it will be recalled that the Inspector framed his grant of outline planning permission in terms referring to the application itself and the plans submitted with it, and the information on the scale of development submitted to the inquiry on its first day.

The Inspector's reasoning in paragraphs 1 and 2 of his decision letter is, I believe, clear, adequate and intelligible, and thus consistent with the principle stressed by Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No 2). He began by summarizing what the statutory requirements were. He then identified the illustrative material he had. And finally he expressed his view that the material he had enabled him to determine the application before him on appeal.

After sitting through five days of evidence and advocates' submissions, in the course of which the proposals were thoroughly scrutinized, the Inspector can hardly be faulted for concluding that he was well equipped to make the decision it was his duty to make. He had before him the information he required to discharge the task of considering the physical and visual characteristics of all the elements of the proposed development, in their context. He was able to follow, in substance, the guidance in sections 2 and 3 of Circular 01/2006. He had all the information he needed to be able to consider the design principles and concepts applied to the development, which is the defined purpose of a design and access statement under paragraph (2)(a) of article 4C. He could be -- and plainly was -- satisfied on the question underlying paragraphs (2)(b) and 4 of article 4C, namely how issues relating to access to the development have been dealt with. He had had explained to him through the application documents and materials, amply elucidated by evidence and submissions, the matters required of a design and access statement in paragraph (3)(a) of article 4C, namely the specific principles and concepts applied to the amount, layout, scale, landscaping and appearance of the development, and in paragraph 3(b), namely the steps taken to appraise the context of the development and how the design of the development took that into account in relation to the proposed use and each of the aspects specified. Thus, in my view, the Inspector was manifestly able to judge the principle of the outline proposals before him and the likely effects of the development on its surroundings.

I therefore accept Mr Warren's submissions on this part of the claimant's challenge. The Inspector was not in breach of any statutory or procedural requirements applying to him. He did not misapprehend the requirements of the GDPO. The application for outline permission before him was not invalid. He dealt with it properly, in accordance with the law. Section 79 of the 1990 Act empowered him to conduct himself as he did. And I see nothing in the submission made by Mr Hill that the Inspector never formed the opinion that the Council as local planning authority could not have granted planning permission. As Mr Warren submitted, once the proposals were in the hands of the Inspector he was not bound by any provision dictating how he was to deal with the GDPO and the proposals' compliance with it. As paragraphs 1 and 2 of the decision letter show, the Inspector was satisfied that he had an application and an appeal before him which he could determine lawfully in accordance with the statutory scheme. And that is what he did. This ground of the claimant's application therefore fails.

Mr Hill submitted that the Inspector failed to specify the scale of the cabin development he approved -- a failure the more serious, said Mr Hill, because the material the Inspector had before him on this part of the proposals was inconsistent, there being a range of possible footprints for each cabin from 12 square metres to 42 square metres. Mr Hill submitted that Mr Bull's failure to supply the Inspector with reliable information about the length and width of the cabins, as opposed merely to the range of their footprints (according to Document 4, a total range of 15 to 30 square metres), was a failure more acute than the deficiency in the information on the “café/ facilities building”. The difficulty was exacerbated, said Mr Hill, by the inconsistencies between the drawing 339/97/10B and Mr Huskisson's drawing DH2. These inconsistencies had found their way into the Inspector's decision letter in paragraph 2, where he referred both to the "further illustrative drawings" submitted before the start of the inquiry, which must have included drawing DH2, and "the site layout drawing No 339/97/10B". On drawing DH2 Mr Hill said the footprints of all the cabins were within the range of 33 to 42 square metres, whereas on the application plan (drawing number 339/97/10/B), which the Inspector said "remains correct", the cabins had footprints of up to 20 square metres.

It is to be noted that the Council did not argue at the inquiry that the application was deficient in this respect. As I have said, the Inspector had illustrative drawings of the cabins in Mr Goodchild's evidence. Two different sizes of cabin were proposed: the smaller, 25 square metres in area; the larger, 30 square metres. In paragraph 16 of his decision letter, the Inspector recorded the fact that the cabins shown in the illustrative drawings would be somewhat larger than those shown on the previously approved indicative layout drawing (339/97/10/B). This appears to be right. At any rate I cannot see any basis for concluding that the Inspector misunderstood what he was being told in the evidence given for Mr Bull. In my view he clearly had in mind not only the drawings he referred to in paragraph 16 of his letter but also the more detailed material in Mr Goodchild's evidence.

Therefore I cannot accept that the Inspector fell into error in any of the respects argued by Mr Hill. In my judgment he clearly understood what was proposed. His decision letter does not betray any confusion about it. In paragraph 16 he clearly explained what he understood the proposal for the cabins to be. He went on, in paragraphs 17 to 21, to assess the likely effects of this part of the development on the landscape in the light of the illustrative material he had. He concluded, in paragraph 21, that, because of the removal of the touring caravans from the Wyland Farm ridge, "the overall visual impact of the new cabins and the whole enterprise on the landscape would be significantly improved". Reading the careful assessment leading to that judgment I can see no force in the criticism that the Inspector failed to understand the significance of the GDPO in this respect or to give proper reasons for concluding as he did.

I agree with Mr Warren's submission that this part of the claimant's challenge is not well founded.

Mr Hill submitted that the Inspector failed to have regard to the evidence he had before him on the proposed height of the three options for the facilities building; that he failed to state the height of the building he was considering in reaching his decision; and that he failed to provide adequate reasons for his treatment of this matter.

Once again, I think the position taken by the Council at the inquiry is instructive. It did not argue that the height of the facilities building gave rise to a procedural difficulty. The facilities building was proposed for the site of the existing "tall Dutch barn", which the Inspector described, in paragraph 22 of his decision letter, as being "the most obvious building in the farmstead in longer views", though he found that it resembled "many other similar barns with an accepted agricultural use that do not detract from the character of the AONB". Of the three options for this building put forward at the inquiry the first was the retention and refurbishment of the barn. However, as was made plain in the evidence and submissions for Mr Bull, this idea was not going to be taken forward. In his proof Mr Goodchild said:

In paragraph 24 of his decision letter the Inspector referred to the heights of the three options. "All the design options for the new facilities building", he said, "would be very similar in floor area to the existing buildings, but of much reduced height". This, as Mr Warren and Mr Stoker conceded, was not correct. The building in Option 1, at 7.5 metres high, would not have been "much reduced" in height. It would have been the same building, of the same height.

The Inspector's mistake is obvious. It is unfortunate. But does it matter? It seems to me that it does not. The Inspector had before him the relevant information about the range of heights of the proposed facilities building. In my judgment, it cannot be said that this information was inadequate. As the application was in outline, the Inspector's task was to consider whether planning permission could properly be granted, leaving to be resolved at the reserved matters stage such matters as the height of the buildings permitted. Height would fall with the scope of "scale" as a reserved matter. In concluding that outline approval ought to be granted, the Inspector came to the view, which he stated in paragraph 24 of his decision letter, that

The essential allegation here was that the Inspector failed to address the consequences of Mr Bull's application being, in effect, an application for outline planning permission partly for engineering works, a form of application not sanctioned by the planning code, being outside the restricted scope of outline applications provided for by article 1(2) of the GDPO.

Mr Warren submitted that this contention is misconceived. I agree.

The Inspector granted planning permission for the development he described in paragraph 4 of the decision letter. None of the components of the development included in his description falls outside the ambit of that which may be authorized under the statutory procedure for grants of outline planning permission. I accept Mr Warren's submission that, in view of the description of development in the application the Inspector had to determine, it was for him to consider whether the proposals comprised, in part, an "engineering operation". This was, said Mr Warren, a matter of fact and degree for the Inspector. I believe this is correct. And the Inspector did not avoid the question. He dealt with it explicitly in paragraph 41 of his letter, where he said this:

Mr Hill submitted that the Inspector failed to have regard to the absence of a red line drawing for the site of the proposed development as a fundamental defect in the application for planning permission.

Before the inquiry into Mr Bull's appeal there was correspondence between the Planning Inspectorate and Mr Bull's agents about the absence of a red line on the submitted location plan. HLL Humberts Leisure, in their letter to the Inspectorate dated 11 August 2008, said there was a "plan of Wylands at 1:5000 that was submitted with the original submission location plan" and that a

I cannot accept the contention that Mr Bull's application suffered from a "fundamental defect" because of the alleged absence of a plan delineating with a red line the boundaries of the site. It remains unclear whether the Inspector did have a drawing with a red line on it. Mr Stoker said he thought a red line drawing had been circulated on the first morning. Mr Hill's recollection was different. The doubt is not dispelled by the list of plans at the end of the Inspector's decision letter, which simply refers to "A1 Application plan" as well as "A2-A11 supplementary illustrative drawings (contained in the appendices of Mr Huskisson and Mr Goodchild)". The court has no evidence from the Inspector about this. However, the application plan, whatever it is, must be a drawing which is not one of the ten supplementary illustrative drawings. Mr Warren said the application plan is the drawing provided as "DH1" by Mr Bull's landscape witness, Mr Huskisson, which is entitled "Site location and context" and has a red line on it, showing, according to the key, "Land in the Appellant's Ownership". This line seems to correspond to the red line drawn on a map produced as an exhibit, to the witness statement of Mr Bull's agent, Mrs Marriage, dated 7 July 2009. The map has an Ordnance Survey base, is stamped as having been registered by the Council on 13 March 2007, and bears the reference number RR/2006/3470. Mrs Marriage, who was at the inquiry assisting Mr Taylor, Mr Bull’s planning witness, states in paragraph 4 of her witness statement:

If I had to resolve this apparent dispute of fact, which may in the end be nothing more than the result of a misunderstanding about what happened on the first day of the inquiry, I would accept what Mrs Marriage has said in her witness statement. But I do not think I need to go as far as that. One surely has to look at the practical realities here. The Council had registered, considered and determined Mr Bull's application. The Planning Inspectorate had entertained the appeal. An inquiry duly took place. Throughout the inquiry, the Inspector had before him Mr Huskisson's drawing "DH1". He clearly had no difficulty in understanding the location and extent of the land on which Mr Bull's development was proposed. The inquiry was able to proceed without anyone being disadvantaged by ignorance of what was intended and where. And the formal grant of permission in paragraph 4 of the decision letter was in my judgment sufficiently precise in this respect. I therefore conclude that this ground of the claimant’s application does not disclose any illegality in the Inspector's decision.

The thrust of this part of Mr Hill's submissions was that the Inspector failed to grapple with the conflicting arguments on the correct approach to an application seeking a renewal of a planning permission previously granted; failed to have regard to the current government guidance on this question in paragraph 31 of Circular 08/05; wrongly had regard to the advice in Circular 8/93 relating to the applications for the award of costs; and misdirected himself on the weight to the previous permission as a material consideration. As Mr Hill pointed out, the Council emphasized at the inquiry the fact that the presumption in favour of the renewal of a planning permission, previously enshrined in paragraph 60 of Circular 11/95, had been expressly cancelled in Circular 08/05. The Council's advocate submitted in closing that it was inconceivable that the government would have gone to the trouble of doing this if it had intended the position to remain the same by virtue of Circular 08/93. But, said Mr Hill, the Inspector had given the impression in his decision on the application for costs that he regarded the previous planning permission as a factor of considerable weight.

Mr Warren depended on the overarching proposition that the interpretation of planning policies and the manner in which they are applied is for the decision-maker, provided he does not stray outside the bounds of reasonableness or fairness. Mr Warren relied on the judgment of Davis J in Cranage Parish Council v First Secretary of State [2004] EWCH 2949 (Admin), at paragraph 50, where, having referred to the judgment of Brooke LJ in R v Derbyshire County Council, ex parte Woods [1997] JPL 958, he stated this caution:

I do not accept the submission made by Mr Hill that the Inspector erred in the way he dealt with government policy bearing on the renewal of planning permissions. As Mr Warren said, the main issue in the appeal, identified by the Inspector in paragraph 5 of his decision letter, was not predicated on any assumption, or presumption, that the previous grant of planning permission for the same development entitled Mr Bull to a renewal of that consent. The issue was one calling for a judgment to be exercised on the justification for the development in the AONB, having regard to relevant current policies for the protection of the countryside. In my view, the Inspector was clearly alert to the need to consider the proposals on their intrinsic merits. This was the right approach. There is nothing in the Inspector's formulation of the issue he set himself to consider, or anywhere in his assessment of the proposals in his decision letter, that could be taken as indicating otherwise.

The Inspector said in paragraph 9 of his decision letter on the application for costs that there had been no intention in Circular 08/05 to alter the principle that where no material change in planning circumstances had occurred, a refusal to renew a planning permission might be unreasonable:

I think one ought not to read more into the Inspector's comments than is actually there. As Mr Warren submitted, what the Inspector was saying in his costs decision letter was, in effect, that he was not impressed by Mr Bull's argument that the Council had unreasonably refused planning permission without there being any material change in planning circumstances, such as a change in relevant policy, since the previous grant. It is important not to take the Inspector's comments about the still extant advice in the 1983 circular out of their proper context. If one reads on in the costs decision letter one can see (in paragraphs 10 to 14) that the Inspector was well aware of the true nature of the task he faced. This was not simply to bless a repeat of the 2003 proposals. It was to consider the merits of the scheme before him, with the greater and different detail now supplied and the new section 106 planning obligation, against the policy background as it now was, having regard to the subsequent events in the site's planning history, including the most recent decisions of inspectors. Indeed, one of Mr Bull's main complaints in pursuing his application for costs was, apparently, that he had been made to justify his proposals fully all over again, despite having had them approved in 2003.

All of this, in my view, goes to support the conclusion that the Inspector did not misconceive what he had to do in determining the application for renewal. He was not misled into an erroneous approach to the planning history of the appeal site. And he did not misconstrue or misapply the guidance in Circular 08/05. Neither in his decision on the appeal nor in his decision on the application for costs did he go wrong in any of those respects. This part of the claimant's challenge therefore fails.

Mr Hill submitted that the Inspector wrongly applied to the appeal proposals the part of policy EM10 of the local plan relating to existing static caravan or chalet sites despite it being clear that the site did not have such a use. He also submitted that in paragraph 14 of the costs decision letter the Inspector treated the proposals as being for a static caravan development. Mr Hill said there were essentially two questions here. First, did the Inspector understand the policy correctly? Secondly, if so, did he apply it correctly to the facts of the case?

Policy EM10 is introduced by paragraph 9.30 of the local plan, which states:

The policy itself is in two parts. The first relates to proposals in the countryside for "additional static caravan and chalet accommodation for holiday purposes", the second to the provision of "additional touring caravan and tented camping facilities". It is the former category of development that is relevant here. This part of the policy itself has two limbs. It states:

Mr Hill said the first limb of the first part of policy EM10 can only apply to an existing static caravan or chalet site, with, as he put it, "the rationale that it will allow for the rearrangement (with an overall lessening of impact) of existing caravans or chalets". Nowhere in the Inspector's decision letter said Mr Hill, did one see a finding by him that the appeal site was an existing caravan or chalet site. The Inspector referred simply to an "existing site" or "the existing site in the AONB". This, said Mr Hill, revealed the Inspector's incorrect understanding that the first limb of this part of the policy could apply to any "existing site" of any sort. Mr Hill said that at the inquiry all the submissions had focused on the second limb, as had the evidence. Only the second limb was of potential relevance in this case. But nowhere in the Inspector's decision can one find the judgment that the development was "essential in association with a rural enterprise". This stood in stark contrast, said Mr Hill, to the approach of another inspector, in an appeal in 2007 relating to a proposed change of use of the site to use as a caravan site. The issue of essential need had gone wholly unexplored in the decision in the present case. The Inspector, he said, did not reach any conclusion on it.

I do not accept that the Inspector misread or misapplied policy EM10. He accurately summarized the terms of the relevant part of the policy in paragraph 11 of his decision letter, noting that it "advises that in the countryside additional static caravan and chalet accommodation for holiday purposes will not be permitted unless it would result in a significant improvement in the appearance of an existing site or is essential in association with a rural enterprise". As he remarked in paragraph 5 of his decision letter on the application for costs, the Council, in resisting the application for costs, had acknowledged that policy EM10 was directly relevant to the appeal proposals. The policy was cited in the Council's decision notice. It was referred to by the Council's witness at the inquiry, Mr Fifield, who in his proof of evidence said this:

It seems always to have been common ground, and I accept, that the concept of an "existing site" obviously cannot mean any site, but must mean one on which static caravan or chalet accommodation is already present. Policy EM10 does not define how much accommodation would be required for a site to qualify as an "existing site". This is left to the judgment of the decision-maker. So too are the question of "significant improvement in the appearance" of the site and the issue of need in the second limb of this part of the policy. These are, quintessentially, matters of judgment for the decision-maker.

In paragraph 33 of his decision letter the Inspector observed that on the appeal site there was accommodation in the form of 16 units, four of them in "small chalets converted from agricultural use", and nine "in a variety of cramped touring caravans with no toilet facilities". The three other units of accommodation were provided by static caravans sited to the south of the former farmhouse cottages. This was, in truth, far from being a virgin site. It has a long history of incremental development and a well-established mix of activities, now dominated by the commercial activity embodied in the fishery business, with some development of the kind to which policy EM10 relates upon it. When one reads the relevant passages of the decision letter one cannot fail to appreciate that the Inspector did find that the appeal site was an "existing site" for the purposes of policy EM10. Indeed, it was precisely in these terms that he expressed his overall conclusion in paragraph 35.

I do not think the Inspector adopted an unreasonable or an incorrect understanding of the concept of an "existing site" in policy EM10, or that he misapplied the policy. In paragraph 21 of his decision letter he concluded that as a result of the removal of the touring caravans on Wyland Farm ridge, to which Mr Bull was committed by his section 106 undertaking, the overall visual impact of the whole enterprise on the landscape would be improved. He also accepted, in paragraph 33 of his letter, that the need for accommodation on the site, for anglers, was apparent. He concluded that the total of 22 units of accommodation which would result from the appeal proposals would be only a modest increase. Together with the other elements of the proposals, he held that these parts of the scheme would contribute to a significant improvement to "the appearance of the existing site" as well as enhancing the economic and social wellbeing of the area "in accordance with the aims of relevant regional guidance, SP policies and LP policies GD1(v) and EM10; and would conform with the objectives of national guidance in PPS7". No criticism is -- or could be -- made of those conclusions. They are not, in my view, remotely capable of being described as irrational. The only question therefore is whether they are somehow vitiated by a failure on the part of the Inspector to understand or properly to apply policy EM10. I do not accept that they were.

In my judgment, the Inspector was entitled to find, on the facts, that the appeal site was an "existing site" for the purposes of the policy. His conclusion on the likely impact of the development on the appearance of the site and its surroundings in the AONB was one he could quite properly make within the scope of the policy, not outside or in spite of it. In simple terms, he concluded that the site would look better with the development than it would without it. I believe therefore that this part of the claimant's challenge is not well-founded.

Mr Hill submitted that the Inspector failed to apply policy S11 of the structure plan to the appeal proposals; that he thus failed to engage the "sequential approach" which the policy requires; that he misdirected himself by assuming that "new build" developments and conversions were to be treated equally in locations in the countryside; that he ought to have inspected the Sussex barn on the appeal site to assess its potential for accommodating some of the facilities proposed; and that he failed to provide adequate reasons for rejecting the sequentially preferable alternative of such facilities being provided in the Sussex barn. Mr Hill said that the approach adopted by the Inspector in paragraph 30 of his decision letter, that "a balance between commercial aspirations and the quality of the landscape has to be struck", has no foundation in policy. In policy for the AONB, submitted Mr Hill, a clear priority is given to the protection of the designated area. Latitude is given for essential development, but not merely for "commercial aspirations". The Inspector went wrong in applying this softer criterion; no policy supports the erosion of the quality of an AONB landscape in the cause of meeting "commercial aspirations".

Policy S11 to the structure plan stated:

Criterion (b) in policy S11 was said by Mr Warren to require "the re-use of existing buildings in a sequential manner". In fact, criterion (b) embraced two alternatives, which may be read as being placed on an equal footing, because the word linking them is not "and" but "or". However, on the less literal and more onerous reading favoured, as I understand it, by all parties to the appeal, the two parts of criterion (b) may sensibly be read in their context as being cumulative. Hence it was necessary for the decision-maker to consider both whether a countryside location is necessary for the development and whether there are existing buildings suitable for the use proposed.

I do not accept that the Inspector failed to address the issues to which policy S11 gave rise, or that he failed to consider and weigh the suggestion made on the claimant's side that the Sussex barn might, in part, be used as a café.

Again, the context should not be forgotten. The appeal site was no longer the mixed farm it once had been. Diversification away from purely agricultural activity had already taken place. In principle, as he made clear in paragraph 7 of his decision letter, the Inspector accepted the appropriateness on this land of "the leisure activity of fishing as a form of farm diversification". Indeed, this seems not to have been in dispute. Evidence was presented to the Inspector on behalf of the claimant with the aim of persuading him that some of the floor space in the barn could be devoted to one or more of the uses proposed. The barn was already occupied by administrative staff. The claimant had contended that most of these people did not need to be at Wylands. Drawings and analysis were presented, showing how the building might be used. The Inspector noted, in paragraph 13 of his decision letter, that the Sussex barn had been "converted to office and storage use for the angling centre and also provides administrative space for a local tourist retail outlet in Battle". Thus both the site itself and the buildings on it, including the Sussex barn, had already assumed what policy S11 refers to as an "alternative uses". As was envisaged in the policy, these uses were connected in one way or another with employment, recreation and tourism. Submissions were made encouraging the Inspector to conclude that the Sussex barn could be used as an office or shop or café. However, he was not convinced. In paragraph 37 of his decision letter he acknowledged the possibility of some of the existing buildings being re-used in a different way and other permutations of the proposed improvements being taken up "to alter the impact on the AONB". However, he concluded that none of the options presented by objectors had "any significant advantages over the appeal proposal". This, I believe, can only sensibly be understood as including the suggested use of part of the Sussex barn as a café. So the point the claimant wanted to be considered has, in substance, been considered. The Inspector, it is true, did not mention policy S11. But this does not signify a failure to tackle the considerations to which the policy gives rise. In fact, the Inspector focused, explicitly, on the substance of criterion (b) of the policy: the making use of "suitable existing buildings" for the purposes of the development proposed. He did not, in my view, apply a wrong test. In considering whether there were any significant advantages in the alternatives put forward, he was addressing the practical question posed by criterion (b): whether any existing buildings were suitable for the uses proposed. He found they were not. There is no legal flaw in this. The Inspector did not misunderstand or fail properly to apply policy S11. His reasons are not deficient. Nor, in my judgment, is his conclusion negated by his not having gone inside the barn on his site visit. Knowing what he did about the barn and its occupation he did not need to do so. I therefore reject this ground of the application.

Mr Hill submitted that the Inspector erred in having regard to a principle that finds no place in policy for development in an AONB, and in failing to refer to the duty of decision-makers to conserve and enhance the AONB. He said that paragraph 30 of the Inspector's decision letter betrays a wrong approach to the control of development in an AONB in its reference to the need to strike "a balance between commercial aspirations and the quality of the landscape", which is to be contrasted with the principle of permitting only essential development in the protected area.

Yet again, I think one has to be careful not to take statements of this kind out of their proper context. A fair and complete reading of the Inspector's decision letter is called for. The starting point is the Inspector's identification of the main issue in paragraph 5 of his letter. Casting the issue in terms of the need for this development in the AONB to be justified "having regard to the countryside protection objectives of national and local development plan policies" is to recognize the onus on an applicant, and the care expected of a decision-maker, in a case such as this. The degree of care required is spelt out in national policy in PPS7, to which the Inspector referred in paragraph 8 of his letter.

Did the Inspector tackle the main issue with less than a clear understanding of this policy? I think not. The Inspector noted that the government policy in PPS7 affords to AONBs "the highest status of protection in relation to landscape and scenic beauty". This is an accurate reflection of what is said about AONBs in the first sentence of paragraph 21 of PPS7. The Inspector went on to note that PPS7 "recognises that tourism and leisure are vital to many rural economies and supports well conceived farm diversification where consistent with the rural location". This reflects advice given in the first sentence of paragraph 34 of PPS7. The Inspector stated next that the "replacement of buildings is supported where this would result in a more acceptable and sustainable development and where it would bring about an environmental improvement in terms of the impact on its surroundings and the landscape". This accords with advice set out in paragraph 19 of PPS7. None of this part of the decision letter has attracted any complaint from the claimant.

Mr Warren referred to the final sentence of paragraph 21 of PPS7, which encourages plan-makers at regional and local level to include in their plans policies supporting "suitably located and designed development necessary to facilitate the economic and social wellbeing of these [nationally] designated areas and their communities". Keeping this principle in mind, Mr Warren submitted, the only fair understanding of the relevant parts of the Inspector's decision is that he did not depart from the high level of protection given to AONBs in paragraph 21 of PPS7. I agree. The second sentence of paragraph 21 is, as I see it, the corollary of the first. It states:

Amongst other aims, policy GD1(v) of the Rother Local Plan of 2006 .... indicates that all development should be compatible with the conservation of the natural beauty of the AONB. ...."

Mr Warren added a comment on paragraph 22 of PPS7, which concerns "major developments" in nationally designated areas, which, it says, should not take place there "except in exceptional circumstances". Neither in the evidence of Ms Reynolds (the claimant's landscape witness) or of Mr Frall (his planning witness), nor in the submissions made for the claimant at the inquiry was it suggested that this was a case in which the exceptional circumstances test applied. Had this been the claimant's case it would surely have been made plain at the inquiry, said Mr Warren. In my view this is right.

In any event I am in no doubt that the Inspector properly understood and applied policy for development in the AONB. There is nothing unlawful in this aspect of his decision. This ground of the application therefore fails.

Mr Hill submitted that in dealing with the evidence on accommodation rates the Inspector failed to have regard to relevant matters; that he had regard to irrelevant matters, and that he failed to give adequate reasons for his approach to this issue. In simple terms, the allegation here is that the Inspector misunderstood the relevant evidence.

It was accepted on all sides that the Inspector's comparison in paragraph 33 of his decision letter between the figure of 18% as the proportion "nationally" of anglers staying overnight, and 13.5% as the "average at WIAC" was not appropriate. It was a false comparison. Mr Hill said it was to compare "apples and oranges". The figure of 13.5% for the appeal site was not the proportion of fishermen using the site who were staying overnight; it was the average nightly rate of occupancy of the accommodation provided on the site. This statistic was provided to the Inspector by Mr Freeman, who gave evidence for Mr Bull, in his proof of evidence:

Mr Warren submitted, and I accept, that although the two figures referred to by the Inspector were not directly to be compared in the way in which he did compare them, they were nevertheless not "conceptually unrelated". In fact, the Inspector could have made a comparison perhaps more helpful to Mr Bull's case, which was the one drawn by Mr Freeman in paragraph 10.5 of his proof. Anyway, the mistake he made did not, in my opinion, affect the reasonableness of the conclusions to which he came. These appear in the last three sentences of paragraph 33 of the decision letter:

Mr Hill submitted that the Inspector went wrong in preferring the evidence given for Mr Bull on visitation figures at weekends.

In paragraph 23 of his decision letter the Inspector said this:

The Inspector went on in paragraph 24 of his decision letter to consider the likely impact of the facilities building on the landscape. His assessment seems to me to be legally impeccable. It follows that I reject this ground of the application.

Mr Hill submitted that the Inspector failed to have regard to the fact that an extant planning permission for a store had not been implemented and that it was therefore unnecessary to provide the “workshop/store” proposed.

At the inquiry the claimant himself gave the relevant evidence. In his proof of evidence he said this:

According to Mr Stoker, Mr Taylor told the Inspector that the 2006 permission had not been implemented because, at 120 square metres, the building would have been too small; and neither Mr Frall in his evidence nor Mr Hill in his closing submissions had seemed to attach significance to the unimplemented permission. Mr Freeman, in his proof of evidence, had said that it was "essential to provide secure storage on a fishery" and that most fisheries have maintenance machinery and equipment, including a tractor, a mower, a quad bike, a pick-up truck, a mini-digger, trailers, nets and various other kit.

The Inspector found the scale of the proposed "workshop/store" acceptable. In paragraph 25 of his decision letter he said:

Mr Hill submitted that the Inspector ignored the implementation of the permission for conversion of the semi-detached dwellings on the site to use as a singe dwelling-house; and that, contrary to the Inspector's finding in paragraph 28 of his decision letter that the "number of dwellings on the site would remain the same as at present", there was now only one lawful dwelling on the site and the development would increase this to two. The claimant had told the Inspector (in his proof of evidence):

It seems to me that, in fact, Mr Bull had disputed the contention that the 1994 permission had been fully implemented. In any event, having had the opportunity to see the building for himself, the Inspector resolved this issue in Mr Bull's favour. This can be seen in paragraph 26 of his decision letter, where he said this:

I cannot see any legal flaw in the findings expressed and the conclusion reached in this part of the Inspector's letter. In any event, as Mr Warren submitted, it is difficult to see how the implementation of a planning permission to create a single dwelling would run contrary in principle to permission now being granted for exactly the same thing. I therefore reject this ground of the claim.

Mr Hill submitted that the tests contained in Annex A of PPS7 were clearly material to the decision in the present case. One of these is the financial test. But, said Mr Hill, as the Inspector had noted in paragraph 31 of his decision letter, no financial information of any sort was produced in Mr Bull's case. The claimant had produced an analysis to show that the financial test would not be passed, but the Inspector made no attempt to deal with this evidence.

In his proof of evidence, Mr Taylor had said:

The new dwelling would be for an assistant manager and would be of very modest size, single storey and sited within the general area of the central group of buildings. ... PPS7 resists new house building in the countryside but development associated with a rural enterprise that demands a rural location is encouraged. Providing the occupation of both dwellings is tied to the angling centre or agricultural employment, I consider that the new dwelling would be acceptable in the AONB and would satisfy the requirements of policy."

Mr Hill also argued that the Inspector failed to grapple with the fact that, if he granted planning permission for the proposals, the appeal site would become only the second such site in the country to have two dwellings on it; that the Inspector failed to provide proper reasons for his conclusion on this point; and that he failed to deal with the contrary conclusions on the same issue reached by several other inspectors whose decisions were produced in evidence by Mr Frall, in particular the decision of the inspector, Mr Newington, who dismissed an appeal for proposed development on the site in 1995. In closing the case for the claimant at the inquiry, Mr Hill had submitted:

Those submissions of Mr Hill seem to me to lack any real force. As one sees in paragraphs 27 and 28 of his decision letter, the Inspector considered the proposed new dwelling- in this development, for this commercial operation and having regard to the planning history of the site - to be acceptable.

I do not believe the Inspector's analysis could have been expected to lead to any other conclusion had he attempted a comparison with another site and another operation in another part of the country, to which different considerations might very well apply. I am not persuaded that the Inspector needed to mention the other site. That he did not do so is no proof of his having ignored the evidence he heard about it. No specific aspect of any other site and operation which could realistically have made a difference to the analysis the Inspector undertook in paragraphs 27 and 28 of his letter was mentioned to me.

I also reject the submission that the Inspector ought to have referred to his fellow inspector's decision dismissing the 1995 appeal. As Mann LJ said in the North Wiltshire case (at page 959):

Mr Warren submitted that the Inspector was under no obligation to deal with his colleague's decision in 1995. It was taken 13 years before the decision in the present case, in circumstances markedly different from those of Mr Bull's appeal, in particular the condition tying the occupation of the new dwelling to the angling centre or those in agricultural employment: a control which this Inspector imposed to give effect to his conclusion in paragraph 28 of the decision letter. As Mr Warren said, there is no legal requirement to set out and distinguish previous planning decisions which are materially different in one respect or another from the decision now being taken. The recent decision of His Honour Judge Pelling QC (sitting as a deputy High Court judge) in South Gloucestershire Council v SSCLG [2008] EWHC 269 (Admin) illustrates the importance of looking at the factual matrix to ascertain whether the principles referred to by Mann LJ in the North Wiltshire case are truly engaged.

The 1995 appeal inspector had noted that the Council would have been prepared to grant planning permission "subject to a section 106 Agreement linking the proposal with the recent permission for the conversion of two cottages on a nearby site into one unit" and "tying the new dwelling to the holding so that it cannot be sold separate from the land". But the appellant in that case was not prepared to accept that the new dwelling should be tied to the holding.

In the present appeal the Council's position was made clear by Mr Fifield. In his proof of evidence he had acknowledged that before the granting of planning permission for the conversion of the two cottages into one dwelling "there had always been two dwellings on the site", and that although the application which came before the 1995 appeal inspector was dismissed, the Council would have been prepared to grant that permission subject to a legal agreement which would incorporate three measures: first, the tying of any rights to replace the dwelling lost by conversion of the existing pair of farm cottages to one dwelling; secondly, the tying of the new dwelling to the holding so it could not be sold separately from the land; and thirdly, the requirement that the new dwelling was not to be occupied unless the conversion which had been approved was carried out or the existing cottages were used and occupied as a single dwelling unit. Mr Fifield went on to say that the then applicant had not been prepared to enter into such an agreement and

Thus the planning history of the site had moved on in a significant way after the dismissal of the 1995 appeal. The owner of the land had acted in response to the 1995 appeal decision. Because of this, planning permission for a new building on the land had been granted. This was clearly a material change in circumstances. It was enough, in my judgment, to relieve the Inspector in the present appeal of the need to mention and distinguish the earlier decision. Differentiating the present case from a stage in the site's planning history already superseded by an intervening decision was not necessary. A pragmatic approach is called for here. One does not have to speculate about the reasons why the 1995 appeal inspector did not impose a condition to tie occupation of the second dwelling to the land. Some eight years later the Council had been satisfied that such a control, imposed by the planning obligation which had by then been provided to it, justified a different outcome from the 1995 appeal. The Inspector in the present case was also satisfied that the new dwelling in the scheme before him was justified by evidence of need, which the previous inspector clearly was not. He had well in mind the Council's acceptance of the need for two dwellings "to service the unit" and the relevance of the previous permission in this respect. On the evidence he received about the angling enterprise and its prospects he was satisfied that permitting an additional dwelling on the site would be appropriate as long as the occupancy of the residential accommodation on the site was suitably controlled. In paragraph 36 of the decision letter he rejected the notion of preventing the sale of parts of the site, and the concept of the dwellings needing to be owned by a person with an interest in the business or the site. In paragraph 43 he considered the appropriate measure to control the occupation of the dwellings on the site:

In my judgment, it was not incumbent on the Inspector to refer to the 1995 appeal or to refer to the different circumstances between it and the one he had to decide. And the same applies to the other previous decisions. In reality, this was not an instance of inconsistent decision-making; or of one inspector disagreeing with another. It was a further stage in the site's planning history, consistent with the preceding one (the August 2003 permission), which was itself a progression from the appeal decision of January 1995. The Inspector did not fall foul of the principle of consistency in planning decisions. He did not fail to take into account a consideration material to his decision. His reasoning was not deficient. I therefore reject this ground of the application.

Mr Hill contended that the Inspector failed to have regard to the evidence before him of successful fisheries with very limited catering facilities and no accommodation; and the fact that the building of 246 square metres proposed would be the largest in the United Kingdom, notwithstanding its sensitive location in the AONB next to a footpath.

I cannot accept this argument. It is plain from paragraph 30 of his decision letter that the Inspector took into account the other fisheries mentioned to him for comparison with the one on the appeal site. He accepted the objectors' evidence that some fisheries with fewer facilities were doing well. In paragraph 30 he said:

Mr Hill submitted that the Inspector erred in not taking into account the general picture of contentment with the existing facilities at Wylands which had emerged from surveys of customer interest.

In paragraph 34 of his decision letter the Inspector said this:

Mr Hill submitted that the Inspector failed to have regard to the potential consequences of not preventing the future breaking-up of the appeal site, and that he was wrong not to impose a requirement stipulating that no part of the development be sold separately from the rest. This, said Mr Hill, was a highly significant issue. The expired permission had been subject to covenants precluding the fragmentation of the site. Those covenants were nor replicated in the unilateral undertaking entered into by Mr Bull. The Inspector failed to address the prospect that the cabins could be sold off piecemeal, despite evidence that this had occurred elsewhere. If this happened the cabins would no longer contribute any supporting turnover to the fisheries business, a consideration to which the Inspector had regarded as important.

In fact, the Inspector faced the request for such a restriction in paragraph 36 of his decision letter, where he said this:

... A restriction on the use of the facilities building to activities connected with the angling centre is required to avoid harm to the natural beauty of the area that would occur if it was used for other purposes or became a destination for people with no interest in fishing, particularly if using cars. However, I am unconvinced that restricting the café element to self-service is necessary in addition. In itself, self-service would not necessarily prevent the provision of quality food or discourage visitors unconnected with angling; and would be difficult to enforce."

Mr Hill submitted that the Inspector erred in failing to address the need for conditions to establish the parameters sought through the design and access statement, or to control mezzanines. There was, he said, great uncertainty about those parameters. It could have been resolved, but it was not. The Inspector ought to have tied the development of the new buildings to the dimensions set out in the design and access statement or in the other material indicating their scale and height.

As I have said, in the application documents and drawings, and in the evidence placed before him at the inquiry, the Inspector had information and illustrative material which enabled him to make the planning judgments he had to make on the outline proposals before him. He made those judgments. He found the proposals not merely acceptable but likely to bring about significant benefit for the appearance of the appeal site and the AONB. He imposed, as condition 8 on the outline consent, the requirement that

It was of course open to the Inspector to impose conditions connecting the development to any of the dimensions or ranges of dimensions he was given. But he did not have to do so. No requirement of statute or policy compelled it. Whether it was necessary to do it lay within his discretion. As Mr Warren observed, the proposals were not for EIA development, calling for some formal nexus to be established through planning controls between the development permitted and the assessment of its likely significant effects on the environment in an environmental statement.

The Inspector imposed, as conditions 1 and 2, the usual controls attached to outline permissions, requiring, within three years of the grant, the submission as reserved matters for approval by the Council as local planning authority "details of the access, appearance, landscaping, layout and scale of the development"; and that these reserved matters were to be approved before any development begins. These conditions left with the Council the responsibility for determining all five of the matters reserved for subsequent approval. What is the scope of this exercise under the revised regime for outline planning permissions in the amended GDPO? In article 1(2) of the GDPO, as amended, "reserved matters" are defined in this way:

Mr Hill argued that the requirement that the occupants of the cabins in the development must carry out a minimum of four hours fishing a week was unenforceable.

The section 106 unilateral undertaking entered into by Mr Bull contains in paragraph 1.1 of Schedule 1, under the heading "Restriction on Occupation of Cabins", the following covenant by him as freehold owner of the site:

Mr Hill submitted that the provision in the planning obligation allowing demolition rubble to be left for five years in the AONB was perverse; that there was no provision to prevent demolition rubble being tipped in the ancient woodland, and there ought to have been; and that in these respects the Inspector's decision is inadequately reasoned and irrational.

Under the heading "Demolition of Buildings", paragraph 1.7 of Schedule 1 to the unilateral undertaking contains this covenant:

I have concluded that none of the claimant's challenge to the Inspector's decision in this case can succeed. In coming to this conclusion I have had regard to all of the points raised by Mr Hill on the claimant's behalf, not merely those he elaborated in oral argument but also those advanced only in the claim form itself and in his original and supplementary skeleton arguments. I have decided this case on well-established legal principles, applying those principles to the particular facts of the case.

In his skeleton argument Mr Warren reminded the court of the ever-important axiom reiterated by Sullivan J (as he then was) in R (Newsmith Stainless Ltd v Secretary of State for the Environment, Transport and the Regions [2001] EWHC (Admin) 74 (at paragraph 6):

This application is therefore dismissed.