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

J U D G M E N T

Tuesday 4 August 2009

THE DEPUTY JUDGE:

Introduction

1. 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] renewal of outline consent RR/98/2292/P for the erection of 15 fishermen's cabins, facilities building, workshop/store, new dwelling and conversion of two existing dwellings into one, also re-siting of access,"

on land at the Wylands International Angling Centre, Powdermill Lane, Catsfield East Sussex.

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

Factual background

3. 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.

4. 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:

"1. 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.

2. 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.

3. 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."

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

"6. 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.

7. 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."

6. 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's decision

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

"whether the proposed development in the High Weald Area of Outstanding Natural Beauty (AONB) is justified, having regard to the countryside protection objectives of national and local development plan policies."

One can see therefore that this was a case in which the Inspector had to form an opinion on what were essentially visual matters: an opinion of a kind in which a significant element of subjective judgment will always play its part, though judgment will be guided by the relevant provisions of planning policy applying to the case in hand.

8. 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.

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

"I conclude that the overall effect of provision of 15 cabins combined with the removal of caravans on the ridge, a new facilities building and workshop/store, combining two dwellings into one and providing a new dwelling would be to significantly improve the appearance of the existing site in the AONB and enhance 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 contained in PPS7."

10. 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:

"I allow the appeal and grant outline planning permission for the erection of 15 fishermen cabins, facilities building, workshop/store, new dwelling and conversion of two existing dwellings into one, also re-siting of access at Wyland International Angling Centre, Powdermill Lane, Catsfield, East Sussex TN33 OSU in accordance with the terms of the application, Ref RR/2006/3470/P, dated 4 January 2007, and the plans submitted with it together with information on the scale of development submitted on 21 October 2008, subject to the conditions set out in the schedule at the end of this decision."

Thus the formal grant of permission explicitly incorporated the information on the scale of the development submitted to the inquiry on its first day (21 October 2008). This was the "information on the scale parameters of all the proposed buildings ... submitted on a table (Document 4) during the Inquiry" referred to by the Inspector in paragraph 2 of the decision letter.

11. 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 issues in the claim

12. 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.

13. 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.

14. 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:

"Was the claimant deprived of an opportunity to present material by an approach on the part of the Inspector which he did not and could not reasonably have been expected to have anticipated? Or is he trying to improve his case subsequently, having been substantially aware of, or alert to, the key issues at the inquiry?"

(see Castleford Homes Ltd v Secretary of State for the Environment[2001] EWHC (Admin) 77).

Issue (i): the definition of the proposed development

The statutory and policy framework for outline applications

15. Section 62(1) of the 1990 Act provides:

"Applications for planning permission

A development order may make provision as to applications for planning permission made to a local planning authority."

Subsection (5) of section 62 provides:

"A development order must require that an application for planning permission of such description as is specified in the order must be accompanied by such of the following as is so specified --

(a) a statement about the design principles and concepts that have been applied to the development;

(b)a statement about how issues relating to access to the development have been dealt with."

Subsection (6) provides:

"The form and content of a statement mentioned in subsection (5) is such as is required by the development order."

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

"(1) Where an application is made to the local planning authority for outline planning permission, the authority may grant permission subject to a condition specifying reserved matters for the authority's subsequent approval.

....

(3) Where layout is a reserved matter the application for outline planning permission shall state the approximate location of buildings, routes and open spaces included in the development proposed.

(4) Where scale is a reserved matter the application for outline planning permission shall state the upper and lower limit for the height, width and length of each building included in the development proposed.

(5) Where access is a reserved matter the application for outline planning permission shall state the area or areas where access points to the development proposed will be situated."

17. 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:

"(2) An application for planning permission to which this article applies shall be accompanied by a statement ('a design and access statement') about --

(a)the design principles and concepts that have been applied to the development; and

(b)how issues relating to access to the development have been dealt with.

(3) A design and access statement shall --

(a)explain the design principles and concepts that have been applied to the following aspects of the development --

(i)amount;

(ii)layout;

(iii)scale;

(iv)landscaping; and

(v)appearance; and

(b)demonstrate the steps taken to appraise the context of the development and how the design of the development takes that context into account in relation to its proposed use and each of the aspects specified in sub-paragraph (a).

(4) A design and access statement shall also --

(a)explain the policy adopted as to access, and how policies relating to access in relevant local development documents have been taken into account;

...."

18. 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.

19. 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:

"If, before or during the determination of such an appeal in respect of an application for planning permission to develop land, the Secretary of State forms the opinion that, having regard to the provisions of sections 70 and 72(1), the development order and any directions given under that order, planning permission for that development --

(a)could not have been granted by the local planning authority; or

(b)could not have been granted otherwise than subject to the conditions imposed,

he may decline to determine the appeal or to proceed with the determination."

20. 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.

21. 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

22. 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:

"With an application for outline planning permission detailed consideration will always be required on the use and amount of development. In addition, even if layout, scale and access are reserved, an application will still require a basic level of information on these issues in the application. As a minimum, therefore, applications should always include information on:

Use -- the use or uses proposed for the development and any distinct development zones within the site identified.

Amount of development -- the amount of development proposed for each use.

Indicative layout -- an indicative layout with separate development zones proposed within the site boundary where appropriate.

Scale parameters -- an indication of the upper and lower limits for height, width and length within the site boundary.

Indicative access points -- an area or areas in which the access point or points to the site will be situated."

Paragraph 53 of the circular states:

"Design and access statements play a particular role in linking general development principles to final detailed designs. A statement accompanying an outline application must explain how the applicant has considered the proposal, and understands what is appropriate and feasible for the site in its context. It should clearly explain and justify the design and access principles that will be used to develop future details of the scheme. Such information will help community involvement and informed decision making. The design and access statement will form a link between the outline permission and the consideration of reserved matters. Further information on the use of design and access statements in the planning application process is set out in the following sections of this Circular."

23. 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:

"For local planning authorities, design and access statements will enable them to better understand the analysis which has underpinned the design and how it has led to the development of the scheme. This will help negotiations and decision-making and lead to an improvement in the quality, sustainability and inclusiveness of the development."

Paragraph 66 states that a design and access statement "will enable the design rationale for the proposal to be more transparent to stakeholders and the local planning authority". Paragraph 67 refers to design and access statements being "a communication tool". Paragraph 72 states that design and access statements "will explain and justify proposals already set in the planning application" but that they will also set out "the principles and concepts that will be used when that proposal is developed in the future". Paragraph 73 states:

"Fixing the principles contained within the statement to future decisions will be particularly relevant in the case of outline planning applications. Here, the local authority should ensure that the development approved by an outline planning permission is constrained to the parameters described in the design and access statement submitted with the application and that any future decisions relating to that outline permission are consistent with the statement."

Articles 3 (4) and 4C of the GDPO

24. 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.

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

Scale -- the fishing cabins

40. 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.

32. 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.

33. 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.

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

Scale -- the facilities building

35. 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.

36. 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:

"9.7 Facilities building barn design (option 2) offers the most feasible proposal. The barn design is suitable within the context, while visually it is a great improvement on the existing Dutch barn, offering a reduced ridge profile and sympathetic materials."

This was confirmed in closing by Mr Stoker:

"The new building (option 2, barn design) will be smaller (256 square metres) than the existing footprint (277 square metres) and will be at 5.4 metres, some 2 metres lower than the existing Dutch barn. The design (see Mr Huskisson's photomontage) .... will look appropriate and harmonious next to the Sussex barn office. It will provide a traditional style building within the footprint of the existing building, as it is seen as the correct approach by ESEC."

Each of the three options for the building had a different height. The heights were indicated in Document 4. The refurbishment option, Option 1, would not have increased or reduced the height of the existing building. Option 2 would be 2.1 metres lower than the existing building; Option 3 some 4 metres lower.

37. 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.

38. 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

"a low pitched timber clad building with a clay tile roof would be sympathetic to this protected rural location and would not appear out of place .... Many agricultural buildings used for livestock or general storage are similar in scale and appearance. Its function would be obvious close by but hard to distinguish in longer views. It would be significantly smaller in floor area than the building rejected at appeal in 2007 .... The building now proposed would not detract from the quality of the landscape and would support a rural enterprise in what I consider would be a proportionate way."

I do not see how it can be said that the judgment the Inspector reached on this matter, or his conclusion that the detailed design of the facilities could properly be left within the discretion of the Council on a submission for reserved matters approval, were in any respect wrong in law.

"Engineering works"

39. 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.

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

41. 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:

"It was suggested at the inquiry that an outline application is inappropriate in view of the engineering works proposed, but the illustrative drawings suggest to me that the changes to the landform would involve minor earthworks as opposed to more substantial engineering operations."

Plainly, therefore, the Inspector appreciated the distinction between "engineering operations", properly so described, and minor earthworks which fell short of being such an operation. I do not see any error in his approach, or in the finding he made. The context, it should be remembered, was a scheme extending across a substantial area within a site of 62 hectares of lakes, grassland and woods in what the Inspector described as "gently undulating landscape". In paragraph 19 of the decision letter the Inspector observed that although the contours of the land would be altered to facilitate access to the cabins, "this would be unlikely to involve more than cut and fill earthworks" and that there "would not be such a significant alteration to the slope that the form of the landscape would be substantially changed". Those findings are, in my view, entirely justified. One can see this by looking at the layout drawing DH1 and section B-B on the sections drawing DH3 produced by Mr Huskisson. Those drawings show the regrading of the land beside the middle lake, to create more even ground on which all of the 15 cabins would sit at levels within approximately one metre of the existing contours. This supports the Inspector's conclusion that the works envisaged were not such as to metamorphose an outline scheme into one which included operations for which a grant of full planning permission would be required. Was this an unreasonable judgment? I think not. It was a conclusion the Inspector could quite properly draw from the information he was given. This part of the challenge therefore fails.

The red line drawing

42. 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.

43. 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

"location plan with the appeal site outlined in red and the rest of [Mr Bull's] land outlined in blue has not been submitted with the current appeal, as the requirement ...is that the original plans accompanying the application be submitted. However if required by the Inspector, an accurate plan can of course be drawn up and submitted immediately."

Further correspondence took place between the Council and HLL Humberts Leisure, the Council inviting the submission of a red line plan and HLL Humberts Leisure saying they were "getting such a plan produced in advance of the inquiry".

44. 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:

"I remember the opening day of the Inquiry ... The Inspector located a red line plan in his file of papers, and I circulated copies of a red line plan to the Inquiry. I understand that this is in the same form as it had been lodged at the two previous Inquiries, although I was not at either of those Inquiries. In any event, the plan was familiar to us all, and I am surprised it was now raised as an issue as at the time all parties appeared to be satisfied. ..."

and in paragraph 12:

"... there is now shown to me marked "DM2" the Red Line Plan, copies of which were handed out and discussed on the opening morning of the Public Inquiry."

45. 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.

Issue (ii): the interpretation and application of relevant policy

The approach to the renewal of planning permission

46. 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.

47. 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:

"50. .... The courts must be wary of an approach whereby decision makers can live in the planning world of Humpty Dumpty, making a particular planning policy mean whatever the decision maker decides that it should mean. I make the following observations."

48. 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.

49. 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:

".... That is set out in paragraph 19 of Circular 08/93 which although fifteen years old, has not been superseded. At the very least, the previous permission must be a material consideration."

Mr Hill said this betrayed a wrong understanding of the significance of the advice in Circular 08/93 continuing. The previous permission had only the status of being a material consideration, and nothing more.

50. 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.

51. 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.

Development plan policy

Policy EM10 of the Rother District Local Plan

52. 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?

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

"In Rother District more than half of all tourist accommodation is provided by static caravans, which adds to the economic vitality of the District. Nevertheless the Council considers that, normally, new holiday centres and static caravan sites are inappropriate in the countryside by reason of their visual impact and demand on services and facilities. There is more scope for touring caravans and camping pitches that can be more visually contained in the summer months."

54. 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:

"In the countryside, proposals for 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 and otherwise meets the policies of the Plan."

55. 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.

Mr Hill also submitted that if the Inspector had understood policy EM10 correctly he had nevertheless failed to apply it properly to the facts of the case. A conclusion that the site was an existing caravan or chalet site would have had to be expressed and very clearly justified. The presence of four units of accommodation converted from a small cow-shed and occasionally referred to as “chalets” was wholly insufficient to bring a site of more than 60 hectares within the definition of an "existing chalet site". And the presence in another part of the site of three static caravans, used only for storage did not bring the site within the definition of an "existing static caravan site". As a matter of fact, therefore, submitted Mr Hill, the appeal site could not reasonably be regarded as an existing site for the purposes of policy EM10. For all of those reasons, submitted Mr Hill, policy EM10 was not satisfied and it ought to have counted against the development. The Inspector's error in thinking that the first limb could apply was a fatal one, disentitling him from the conclusion that the appearance of the existing site in the AONB would be significantly improved. Whilst Mr Hill accepted this was not an irrational conclusion in itself, the route by which it had been reached was, he said, irrational. He urged the basic point, acknowledged by Woolf J (as he then was) in Gransden & Co Ltd v Secretary of State for the Environment (1987) 54 P&CR 86, at page 94:

".... it is essential that the policy is properly understood by the determining body. If the body making the decision fails to properly understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy."

57. 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:

"6.9 .... No information has been submitted with the application to indicate how the development would result in a significant improvement in the appearance of the existing site. The only information regarding this is contained in the statement that accompanied the planning application which indicated that the nine touring caravans the subject of the Lawful Development Certificate .... would be replaced. In my view that would not be a 'significant improvement'. .... The replacement of nine touring caravans with 15 permanent units of holiday accommodation does not appear to be a significant improvement. Indeed, a greater number of units is proposed than is currently permitted. Moreover, as the Lawful Development Certificate site is a touring caravan site not a static one, the first part of Policy EM10 does not apply. ....

6.10 The other issue to be addressed by Policy EM10 is the question of the development needing to be 'essential' in association with a rural enterprise. No evidence has been submitted to indicate how the chalets are essential to the operation of the angling centre. ..."

For Mr Bull, however, Mr Taylor had said this in his proof of evidence:

"4.7.10... I consider that all aspects of the proposal, including the cabins and the café building would result in a 'significant improvement in the appearance of an existing site' as required by new Local Plan policy EM10. It has been demonstrated through the production of drawings showing the detailed design of the various buildings and a very thorough landscape impact assessment that the development would improve the assessment of the site. ...."

57. 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.

58. 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.

59. 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.

60. 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.

Policy S11(b) of the East Sussex and Brighton & Hove Structure Plan

61. 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".

61. Policy S11 to the structure plan stated:

"To help the rural economy, some alternative uses of agricultural land and countryside may be permitted, where the use is appropriate to the area in terms of scale, type and impact on it surroundings (including traffic impact). These uses will be mainly for employment, recreation and tourist accommodation and facilities. Any such development must, where applicable --

(a)meet the requirements of policy S1;

(b)make use of suitable existing buildings that could be converted or demonstrate for any new development that a countryside location is necessary;

(c)be part of a whole farm or enterprise plan so that the ultimate extent of the new venture may be seen in its entirety and in relation to its setting; and

(d)include positive or compensatory measures for environmental enhancement and/or management of the whole site.

Proposals will be judged by the local planning authority in relation to other activities and developments in the wider area, to ensure the cumulative impact will not give rise to adverse impacts on the character of the area on infrastructure and on the vitality of towns and villagers."

62. 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.

63. 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.

64. 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.

Policy for the AONB

65. 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.

66. 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.

67. 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.

68. 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:

"The conservation of the natural beauty of the landscape and countryside should therefore be given great weight in planning policies and development decisions in these areas."

The Inspector was, I believe, demonstrably well aware of this proposition. It is encapsulated in the counterpart policies at strategic and local level. The Inspector knew this. In the opening sentences of paragraphs 10 and 11 of the decision letter he said:

"10. The main thrust of relevant policies of the East Sussex and Brighton and Hove Structure Plan 1991-2011 .... is to conserve and enhance landscape quality and character in AONBs by careful control of development, whist supporting the viability of the local economy. ....

11. 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. ...."

Subsequent passages in the decision letter, in which the Inspector comes to grips with the likely effects of the development on the AONB, culminate in the unequivocal judgment, in paragraph 35, that the development would conform with the objectives of national guidance in PPS7. One would look in vain here for any failure to apply the principles governing such development in the AONB. In my view the Inspector went about this analysis conscientiously and correctly.

69. 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.

70. 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.

Issue (iii): the Inspector's consideration of the evidence

Accommodation rates

71. 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.

72. 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:

"10.5 In respect of the fisherman's accommodation, the current occupancy rate at Wyland for the chalets is 12% and static caravans 15%, giving a combined average occupancy of 13.5%. This is significantly below the national average for holiday accommodation which is in the region of 35-40%. On some fisheries where there is good quality accommodation, in particular log cabins, occupancy rates .... between 50% and 80% are not uncommon.

10.6 It is clear that the poor occupancy rates reflect to a large extent the quality of the accommodation at Wyland".

The figure for the proportion of anglers using overnight accommodation, as a national average came from, Mr Taylor, who in his proof of evidence said:

"4.4.24 In my Statement of Case I alluded to research showing an increasing number of fishing leisure trips involving an overnight stay away from home. This research .... indicated that 18% (146,000) of anglers stayed overnight on a fishing trip in England and Wales in 2000-2001. This data is referred to in the Environment Agency's publication 'Our Nation's Fisheries', ...."

73. 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:

"... Improved accommodation in terms of floor area, numbers and quality would raise this figure and improve overall turnover. Whilst I accept that fishermen visiting WIAC would be able to use local inns and hotels rather than stay at the centre, that may not be satisfactory for night fishing and is not a strong argument against a limited amount of additional simple accommodation on the site, if it complies with the relevant development plan policies. In any event, the total of 22 units now proposed would only be a modest increase."

In the light of this analysis and the cautious judgment to which it led, I cannot accept that the Inspector's erroneous comparison of the two percentage figures made any difference, let alone any material difference, to the outcome of the appeal. To suggest otherwise is, I think, unrealistic. As Mr Warren submitted, when one reads all of the relevant part of the Inspector's letter, one can see that the influence of the false comparison between the two percentage figures was, if anything, minuscule. Certainly, in my view, it was not such as would justify, in the exercise of the court's discretion, a quashing of the Inspector's decision. Nor do I consider that the Inspector's essential reasoning on this aspect of the case leaves its audience in any real doubt as to the basis for his conclusions. Read in its totality it is, I think, perfectly clear. This ground therefore fails.

The facilities building

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

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

"With regard to the scale of the proposed replacement building, the floor area of the multi-function room, kitchen, toilets, showers and small shop would not in my opinion be unreasonably generous. Whilst greater in area than other similar buildings at some other angling centres, WIAC is one of the largest in the country in terms of lake area and number of pegs, even taking into account the competition lake which has a high ratio of pegs to water area. I do not consider the proposed main café area of 72 covers to be unreasonable; between 250 and 350 anglers may visit WIAC at weekends, many of whom start the day with breakfast. It would also provide a reasonable amount of undercover space suitable for a range of other activities such as tuition and prize giving which currently take place out of doors."

On these matters the Inspector had evidence both from Mr Freeman and Mr Taylor. In his proof of evidence, Mr Taylor said:

"2.3.4 The peak four months for fishing on the site are June to September. The site is open on a 24 hour basis for 365 days a year. Currently, the fishery sells between 250 to 350 tickets a weekend and between 40 to 50 day tickets the rest of the week."

Mr Freeman and Mr Taylor were available to be cross-examined at the inquiry. Having heard their evidence the Inspector clearly found reliable the figures he had been given on Mr Bull's behalf. This is not a finding one could conceivably describe as irrational. It was open to the Inspector to make it on the evidence he had. And I can see no deficiency in the reasons he gave for his conclusion in paragraph 23 of his letter, which, basically, was that the proposed facilities building was not too big. He made no error of law.

76. 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.

The “workshop/store”

77. 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.

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

"13.3 In 2006, the appellant secured permission under RR/2006/1808/P for the rebuilding of an open store to provide a storage building 4.5m tall with a footprint of 120 sq m.

Two years later, the open store remains unaltered ....

Given the appellant has not implemented the permission for 120 sq m store, need for an additional 261 sq m new storage building for general or secure stores is evidently lacking."

In fact, the footprint of the workshop as indicated in Document 4 was slightly smaller than this, at 252 square metres.

79. 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.

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

"This would replace an existing simple similarly sized agricultural building that is in poor condition. There would be no harmful impact on the AONB providing its appearance is similar. That can be controlled at the submission of details stage. I accept that the indicative height of 3.5 metres would be insufficient to accommodate much modern agricultural equipment but it would be adequate for quad-bikes, small tractors, nets and storage of many other items associated with a fishery. Larger items such as excavators and balers would be kept in an existing open 'Atcost' type barn which is being retained."

Although the Inspector did not refer to the 2006 permission, I do not accept that he was obliged to do so. He was obviously persuaded by the justification he was given for the larger building now proposed, which was about twice the size of the one permitted in 2006. Again, I see no error of law in the Inspector's decision. This ground of the claimant's challenge therefore fails.

The existing dwelling

81. 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):

"14.1 Following permission RR/93/2145/P approved in 1994, one of the joint owners moved to a residence in Powdermill Lane and the cottages at Wylands were converted into one dwelling for the current fishery manager and former joint owner. As the permission was implemented, planning permission would be required to separate the dwellings."

In its letter of 6 August 2008 to HLL Humberts Leisure the Council had asked for:

".... evidence of the need for a second dwelling for use in association with the permitted uses on the site bearing in mind the period of time that has now elapsed since the conversion of the two former cottages to a single dwelling."

Mr Hill said that at the inquiry Mr Taylor had acknowledged, and the Council had asserted, that the conversion of the former farmhouse back to a single dwelling had already occurred. Yet the Inspector had failed to explain how he had addressed the evidence on this matter, and to give proper reasons for his approach to it.

82. 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:

"A pair of semi-detached single storey farm cottages lies on the west side of the farmstead, of 2 and 3 bedrooms. These are currently unoccupied due to their poor condition, the manager residing in a nearby mobile home. I saw that the layout of the dwellings is not ideal. Combined together and upgraded as desired they would make a reasonably large family dwelling. In my view there would be little need to make any significant alterations to the external envelope of the building to achieve this and the proposal would not conflict with policies that seek to protect the AONB."

83. 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.

The new dwelling

84. 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.

85. In his proof of evidence, Mr Taylor had said:

"4.4.35 The functional test for new permanent dwellings in the countryside for essential workers contained in Annex A of PPS7 is met in the case of Wylands. Essential care for the fish is occasionally required at short notice .... Similarly, the theft of fish and equipment is a real threat, as evinced by recent attempted thefts at Wylands.

4.4.36 Annex A of PPS7 goes on to advise that once the functional requirement is established, the number of workers to meet it should be calculated. Both a manager and deputy manager are required in order to oversee the angling centre on a 24/7, 365 days per year basis. This job cannot continue to be satisfactorily carried out by one person as at the present time, as demonstrated by the fact that Mr Harding is undoubtedly over-stretched and unable to take time off from the running of the centre. The managerial workload will only increase if the building is allowed to develop to its permitted fishing capacity through the provision of a replacement facilities building and improved visitor accommodation.

4.4.37 Wylands is an established angling centre, with a regular income, which can sustain employing two full-time managers. Therefore the financial test (Annex A, paragraph 8) is also met."

There was thus before the Inspector evidence for Mr Bull on the Annex A tests. In paragraphs 27 and 28 of his decision letter the Inspector said:

"27. I accept there is an essential need to prevent theft of valuable stock, to provide security for the buildings and equipment and to monitor water quality. There would be clear advantages in staff residing on the unit, particularly in dealing with de-oxygenation of the water, which, if not rectified quickly, can lead to the death of many fish. Angling also takes place during the night which is likely to necessitate some administrative and supervisory functions outside normal hours. The Council accepted the need in 2002 for two dwellings to service the unit and no significant changes have occurred in relevant policy or in the nature of the business since then.

28. 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."

In paragraph 31 of his letter, dealing with other aspects of need, the Inspector said:

"Very little information has been provided in respect of the trading accounts of the existing business or a business plan. However, I am satisfied that the angling centre has been in existence for more than 20 years and has a loyal customer base. There are understandable reasons why the owner might not wish to reveal precise levels of profit or loss but I do not consider the failure to provide detailed figures has a material bearing on the planning matters in this case: the improvements sought would be modest and would support an established leisure and tourism business as well as bring[ing] about environmental improvements in the AONB; and these are policy objectives."

The Inspector's analysis in these paragraphs seems to me to be unimpeachable. I therefore reject the allegation that he failed properly to apply the Annex A tests.

86. 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:

"It is noted that your predecessor Inspectors have refused a dwelling of precisely this location with far more information in support than you have (see G Frall's Appendix 6)."

It was, said Mr Hill, well-established that, in the interests of consistency in decision-making, an inspector is obliged to acknowledge the existence of previous decisions on similar proposals and to distinguish them if he chooses to take a different view from his colleagues. Mr Hill relied on what Glidewell LJ had said in R v Secretary of State for the Environment and others, ex parte David Baber and Others[1996] JPL 1034 (at pages 1037 and 1038):

".... [North Wiltshire DC v Secretary of State for the Environment[1992] JPL 955] was authority for the proposition that since an inspector, when making a determination, is obliged to have regard to other material considerations if he had placed before him a previous decision of the Secretary of State or a delegated inspector which was similar to the decision with which he was dealing, either because it deal with the same site or because it dealt with a nearby site which raised in effect precisely the same issues, then he ought to treat it as a material consideration. If he was treating it as a material consideration he of course was not obliged to follow the previous decisions, but he then had to have some reason for differentiating it and he had to explain, at least in brief terms, what that reason was. The requirement that he should give reasons was now of course trite law, although it invariably resulted in a number of differences between judges as to whether the reasons are adequate or not. ...."

Glidewell LJ went on (at page 1040) to say that the test the Inspector ought to have posed to himself was this:

".... a previous decision having been drawn to my attention, do I take the view that it may well be sufficiently closely related to the matters in issue in my appeal that I ought to have regard to it and follow it or distinguish it?"

Mr Hill submitted that in the present case the Inspector had completely ignored the existence of the earlier decisions. The dwelling proposed here was on the same site, in virtually the same location and for exactly the same purposes. The 1995 appeal inspector, had he wished to do so, could have tied the dwelling to the holding by condition, even though the then appellant had resisted such a restriction. There was no sensible basis, said Mr Hill, for distinguishing the two cases. The previous inspector had found that the proposed dwelling would "consolidate and intensify existing development and be contrary to local policies of restraint in the countryside" and that there was no need for more than one unit of accommodation on the site. It was, said Mr Hill, impossible to know whether or how the Inspector in the present case took those conclusions into account, or how, if at all, he distinguished them.

87. 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.

88. 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.

89. 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):

"To state that like cases should be decided alike presupposed that the earlier case was alike and was not distinguishable in some relevant respect. If it was distinguishable then it usually would lack materiality by reference to consistency although it might be material in some other way. Where it was indistinguishable then ordinarily it had to be a material consideration. A practical test for the Inspector was to ask himself whether if he .... decided this case in a particular way was he necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement could not be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there was disagreement then the Inspector had to weigh the previous decision and give his reasons for departure from it. These could on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they might have to be elaborate." [emphasis added]

As Mann LJ went on to say (at page 960), an inspector was under no obligation to manifest his disagreement with other decisions which were distinguishable. That, said Mann LJ, "would be a gratuitous and pointless exercise".

90. 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.

91. 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.

92. 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

"therefore the Council refused the permission. However, when application RR/98/2292/P was being considered the applicant did enter such an agreement and therefore the permission was granted ...."

In his report on application RR/98/2292/P the Council's planning officer had stated:

".... It has been accepted in the past that two dwellings on the land would be acceptable if tied to the land and I remain of this view."

93. 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:

"... [The] dwellings should be occupied only by persons wholly or mainly employed in the recreational fishery business or (in accordance with the recommendations of paragraph 103 of Circular 11/95) in agriculture or forestry. This is to avoid it being occupied by persons unconnected with a rural enterprise in an unsustainable location away from established settlements."

The relevant condition is condition 15, which states:

"The occupation of the dwellings shall be limited to a person solely or mainly working, or last working, in the management and operation of the angling centre or in the locality in the agriculture or forestry, or a widow or widower of such a person, and to any resident dependants."

94. 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.

Other aspects of need

95. 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.

96. 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:

"There is no doubt that some competing angling centres are providing permanent café and facilities buildings and on-site accommodation. I also accept evidence from the objectors that some fisheries are able to prosper with very few facilities and little or no accommodation; and that the provision of accommodation or a facilities building does not necessarily prevent a fishery being popular. To my mind, the approval of the large match lake in 1991 set down a marker, in that it was accepted at that time that many more fishermen would be likely to visit WIAC and that this would support the expansion of a commercial business that is appropriate in the AONB. National and local development plan policies since then have continued to strongly support rural diversification for its social and economic benefits. That is not to say that unrestricted development can take place; a balance between commercial aspirations and the quality of the landscape has to be struck."

This paragraph is one of six in which the Inspector set out his reasoning on several aspects of need (paragraphs 29 to 34 of the decision letter). To understand why he accepted Mr Bull's case on the need for the development proposed, one has to read the whole of this part of the decision letter. Salient in the Inspector's analysis are the last two sentences in paragraph 32 of his letter. He noted that, despite the appeal site being "one of the largest angling centres in the country", the number of competitions held there was in decline and then said:

".... I accept that there may be many contributing factors that influence those that decide where competitions should be held and that the number of national competitions is limited, but the poor standard of refreshment facilities and most of the accommodation provided at the centre cannot be discounted as a contributory factor. The quality of the fishing is not in dispute."

When one reads the Inspector's assessment of the several factors leading to his conclusion on need, I do not believe one can discern any legal flaw in it. It was a rational and properly reasoned planning assessment. I do not accept that the Inspector had to explain why he was prepared to approve a building larger than any other of its type in fisheries in the United Kingdom. This, in itself, was of no particular consequence. As I have already said, the Inspector clearly grappled in paragraphs 23 and 24 of his decision letter with the issues of the need for the building and its likely effect on the landscape, and reached conclusions whose legal integrity I accept. I therefore reject this ground of the application.

The surveys

97. 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.

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

"I have given some weight to a survey of existing customers commissioned by the appellant. There is overall satisfaction with WIAC but the results bear out the drawbacks which the new facilities building and improved accommodation seek to address."

I see absolutely nothing wrong in this conclusion. As well as being on its face a perfectly sensible way of dealing with this matter, it has behind it the evidence given at the inquiry by Mr Taylor who, in his proof of evidence, had said this about the market research surveys undertaken for Mr Bull by BMG Research:

"4.4.10 This research was designed to elucidate customer opinions on both catering and accommodation facilities. When existing customers were questioned, 17% of respondents stated that they were dissatisfied with the snack bar/cafeteria (Table 3, page 14 of BMG Research Report, Appendix 21). When asked to give unprompted answers as to how Wylands could be improved the majority of respondents suggested improvements to the catering and other facilities that are proposed as part of the facilities building. When previous overnight customers were shown drawings [of] the proposed café facilities building, the vast majority (94%) thought that a new facilities building would improve Wylands (Q12, Appendix 22), with 76% stating that they thought the new facilities building would improve Wylands 'a lot'. Over half (54%) said that they would be 'very likely' to visit Wylands after the introduction of the new facilities building and 82% said they would be at least 'fairly likely' to re-visit under these circumstances.

4.4.11 What this shows is that Wylands Angling Centre is losing custom as a direct result of not having a proper facilities' building. It is clear that a new facilities building is essential to the needs of this rural enterprise ...."

Mr Taylor appended to his proof BMG's summary report of its survey of fishermen at the appeal site in September 2008. Mr Hill did not suggest that the inspector had misinterpreted this evidence, or that the brief conclusion he drew upon it in paragraph 34 of his decision letter was unreasonable. In my judgment the Inspector's conclusion on the survey evidence was entirely a lawful one. This ground therefore fails.

Issue (iv): the Inspector's approach to conditions and obligations

Fragmentation

99. 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.

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

".... I am not convinced that the sale of parts of the site should necessarily be prevented or that it would have any effect in respect of the planning benefits provided by the undertaking, as the covenants therein would also apply to subsequent owners. Nor would the dwellings need to be owned by a person with an interest in the business or the site, providing they are occupied by persons wholly or mainly employed in connection with the angling enterprise."

These were matters of judgment for the Inspector. His conclusions are in my view both clear and rational. He had to decide whether the development was less than adequately controlled by planning conditions and the obligation. As he said in paragraph 43 of his letter, he was content with the degree of control on the occupation of the dwellings achieved by condition 15. He also imposed three other conditions which went to the coherence and continuity of the whole fishing enterprise. Condition 4 requires that

"No fishermen's cabin hereby approved shall be occupied as a sole or main place of residence."

Condition 6 requires that

"The operators shall maintain an up-to-date register, to be kept on site, of the names of all occupiers of individual holiday accommodation cabins on site, the dates of their occupation and of their main home addresses, and shall make this information available at all reasonable times to the local planning authority."

Condition 14 requires that

"The main café/facilities building shall be used only for purposes ancillary to the main use of the site as an angling centre."

The Inspector's thinking on these matters is apparent in paragraphs 38 and 42 of his letter:

"38. ... Restrictions on the occupation of the cabins are necessary to prevent them being used as a main residence and to limit the period for which they are occupied. The previous consent and the section 106 undertaking include a restriction on occupation up to 56 days in any year and in the interests of clarity I have included this in a condition using similar wording. To ensure that these are enforceable, the operators are required to maintain and up-to-date register of all occupiers for inspection by the local planning authority.

...

42. ... 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."

The Inspector was not, however, persuaded of the need to take the further step of placing some form of control on the ownership of the site constraining the ability of its owner to dispose of it or parts of it: matters with which the planning system would not normally interfere. He appreciated, as he made clear in paragraph 36 of his letter, that the section 106 obligation would run with the land and that its covenants would apply to subsequent owners, assuring the delivery of the planning benefits it had secured. This, in my judgment, was not an unreasonable conclusion for the Inspector to reach. I conclude, therefore, that this ground of the application is not made good.

Conditions to control the parameters of development

101. 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.

102. 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

"No development shall take place until full details of both hard and soft landscape works including access tracks have been submitted to and approved in writing by the local planning and these works shall be carried out as approved. These details shall include proposed finished levels or contours including the area previously occupied by the bund; car parking layouts; other vehicle and pedestrian access and circulation areas; hard surfacing materials; external lighting and proposed and existing functional services above and below ground."

The Inspector explained why he placed this stipulation on the development in paragraph 40 of his decision letter:

"Details of the re-profiling of the contours in the area of the new cabins, the access tracks, planting, general landscaping, parking and hard surfacing, utility services and external lighting are required to be submitted at this stage in order to reduce as far as possible the visual impact of the development. I do not consider that the bund needs to be reinstated but the land occupied by it needs to be regraded in a way that is sympathetic to the natural lie of the land. For the same reason, the finished floor levels of all the buildings need to be confirmed prior to the development taking place."

There the Inspector was focusing on the need for controls to moderate the impact of the development on the landscape. Entailed in the confirmation of contours and finished floor levels for the buildings would be a consideration of the acceptable profile of the buildings, their influence on the topography of the site and their compatibility with their surroundings.

103. 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.

104. 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:

"'reserved matters' in relation to an outline planning permission, or an application for such permission, means any of the following matters in respect of which details have not been given in the application --

access, appearance, landscaping, layout, and scale, within the upper and lower limit for the height, width and length of each building stated in the application for planning permission in accordance with article 3(4)."

The last of those five matters, "scale", is defined in this way:

"'scale' means the height, width and length of each building proposed within the development in relation to its surroundings."

In reserving "scale", therefore, the Inspector was leaving to the discretion of the Council as local planning authority the precise determination of those dimensions. He did not find it necessary to impose a condition prescribing either the upper or the lower limits on the height, width or length of each building in the development. He knew that any reserved matters submission including details of the scale of the buildings would have to specify those dimensions and that if the Council was not satisfied with the proposals as thus refined it would be able to turn them away. The context here was the grant of outline permission in the form described in paragraph 4 of the decision letter, incorporating the drawings referred to and the "information on the scale of development submitted on 21 October 2008". Having thus defined the outline approval he was giving, the Inspector was at liberty to leave decisions on the aspects of design of the development reserved by condition 1 to the Council. I do not believe it was unreasonable or otherwise unlawful for him to do so. This ground of the claimant's challenge therefore fails.

The obligation to carry out four hours of fishing a week

105. 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.

106. 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:

"Not to permit the Occupation of any Cabin or any part thereof for any purpose other than purposes associated with the use of the Property as an Angling Centre which for the avoidance of any doubt shall mean that at least one occupant of any Cabin must be in possession of an annual rod licence as issued by the Environment Agency or any successor agency and shall participate in angling on the Property for a minimum of four hours during each stay (unless prevented by sickness or force majeure)".

A further covenant, in paragraph 1.2 of the schedule is this:

"No one person shall Occupy the Cabins or any part thereof for more than 56 days in total in any calendar year."

This requirement was replicated in condition 5 imposed by the Inspector. Condition 4, precluding the occupation of any cabin "as a person's sole or main place of residence", and condition 6, requiring a register to be maintained of all occupiers of cabins on the site, also limit the use of the fishermen's accommodation in the development. In paragraph 38 of his decision letter, the Inspector considered the effectiveness of the controls on the occupation of the cabins having regard to all of those restrictions. His conclusion was not an unreasonable one. Mr Warren submitted, and I accept, that the principal control in paragraph 1.1 of Schedule 1 is enforceable, and would be so even in the absence of the requirement for a register of occupiers to be kept in condition 6. The other controls applying to the use and occupation of the cabins were not criticized as ineffective by Mr Hill. And I do not accept that the stipulation of the minimum period of fishing is practically unenforceable, dull as an officer's job might be in seeing it enforced. Even if I were wrong about this, however, I would not regard the enforceability of the four hour rule as critical to the effective policing of the occupation of the cabins. I also agree with Mr Warren's submission that the weight to be given to Mr Bull's unilateral undertaking was a matter for the Inspector. In my judgment, it cannot be said that the Inspector strayed into the realms of unreasonableness in giving it the weight he did. This ground of the application therefore fails.

Demolition rubble

107. 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.

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

"To demolish the buildings on the site of the proposed workshop/store (as identified in the Application) and remove the resultant debris from the Property within five years of the commencement of the development of either the café/facilities building (as identified in the Application) or the first of the Cabins whichever is the sooner."

This commitment was considered by the Inspector in paragraph 36 of his letter:

".... Insofar as the appellant would have a longer period, five years, in which to demolish the existing workshop/store and dispose of the debris, I do not consider that this would have a noticeable effect on the appearance of the farmstead in the AONB."

I see nothing irrational in this conclusion. It seems to me to be perfectly sensible and clear. Nor do I see anything in the other aspects of this ground, alleging that the Inspector ought to have insisted on different or additional controls on demolition and the disposal of waste arising from it. These, again, were matters for the Inspector in the exercise of his own planning judgment. This ground of the application therefore fails.

Conclusion

109. 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.

110. 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):

"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. ..."

In view of the way in which this challenge has been mounted to numerous aspects of the Inspector's decision-making -- though not, as I have noted, to his conclusion in substance on the main issue, which was essentially an aesthetic judgment for him to make in the light of all the evidence and submissions he received and based upon the impressions he was able to take from his site inspection -- it is, I think, apt to repeat that principle again. In any event, the claimant's application is not a stronger one for the multiplicity of the grounds advanced. None of those grounds, in my view, is cogent.

111. This application is therefore dismissed.

MISS WARD: My Lord, I appear this morning in place of Mr Warren, who is unfortunately unavailable.

THE DEPUTY JUDGE: Yes.

MISS WARD: My Lord, there is an application for the Secretary of State's costs.

THE DEPUTY JUDGE: Yes.

MISS WARD: I hope a schedule has reached you?

THE DEPUTY JUDGE: I have that, yes. That has a figure of £9,135.50. Is that right?

MISS WARD: £9,135.50, yes. My Lord, I am told that my instructing solicitor has somewhat under-budgeted for the time that we would be in court this morning, and there is a further sum of £480, which makes the figure of £9,6150.50. She only anticipated being here for two hours this morning, and it has been four. That is for her time and my time. My Lord, I am told that, subject to that small addition, the total is agreed.

THE DEPUTY JUDGE: I would not be minded to give you more than the figure that you have provided in the summary assessment, Miss Ward.

MISS WARD: So be it, my Lord.

THE DEPUTY JUDGE: Anyway, I will hear what Mr Hill has to say about that, both in principle and in its particular amount.

MR HILL: Thank you, my Lord. I cannot resist the application as it is made, my Lord --

THE DEPUTY JUDGE: No.

MR HILL: -- for obvious reasons. I just want to be sure I have understood what the precise figure is that will be the subject of the summary assessment. Did I write down correctly £9,615?

THE DEPUTY JUDGE: No, £9,135.50. Do you not have a copy of the schedule?

MR HILL: I do have that, but there was an oral amendment.

THE DEPUTY JUDGE: What I understood Miss Ward to be submitting was that there was an additional figure, which takes account of the time that it has taken me to give a judgment dealing with all the matters that you have required me to deal with.

MR HILL: Indeed so.

THE DEPUTY JUDGE: And I would not be minded to increase the amount in the summary assessment provided in the Statement of Costs, which I understood had taken into account, Miss Ward, the taking of judgment at the lower figure. Is that correct?

MISS WARD: My Lord, yes. It takes into account being in court for two hours this morning.

THE DEPUTY JUDGE: Which included the waiting time before I sat, as I understood what you said to me. No, I am not minded to increase the summary assessment, Mr Hill, beyond the figure given in the statement of costs, which is £9,135.50. I make it clear to help you both to understand my position on that, I have read out the judgment, rather than handing it down, because you will all have thus had my judgment sooner than you would have had it had it been a handed-down judgment.

MISS WARD: My Lord, there is absolutely no complaint about that. It is simply an underestimate of the time --

THE DEPUTY JUDGE: No, I appreciate that, but the time it has taken me to deliver judgment, of course, has been dictated by the format of the judgment as a read-out judgment, and it has been a long judgment for reasons which you will all understand because I have had to deal with so many points in it. Mr Hill, I am not penalizing you or your client for that in increasing the summary assessment in the statement of costs.

MR HILL: I am obliged. Can I just say that I am instructed to raise no points in respect of the figure of £9,135.

THE DEPUTY JUDGE: No. That is what I propose to award. The claim will be dismissed. The claimant will pay the costs of the Secretary of State, summarily assessed in the sum of £9,135.50. I assume there is no other application for costs?

MISS PARRY: No, my Lord.

MR HILL: My Lord, I was prepared to address you had there been one but for obvious reasons I did not expect that would detain the court for long.

THE DEPUTY JUDGE: No.

MR HILL: My Lord, I would like to apply to your Lordship for permission to appeal in respect of your decision. That is not an easy task in a situation such as this, to persuade the court that an appeal has a reasonable prospect of success --

THE DEPUTY JUDGE: No.

MR HILL: -- and, of course, I have the opportunity to go to the Court of Appeal and ask them --

THE DEPUTY JUDGE: Yes.

MR HILL: -- but I nonetheless ask your Lordship for permission, fairly confident in the answer that I will receive.

THE DEPUTY JUDGE: The answer is no, Mr Hill. I do not believe that you have any reasonable prospects of success with an appeal to the Court of Appeal.