IN THE HIGH COURT OF JUSTICE
BIRMINGHAM CIVIL JUSTICE CENTRE
ADMINISTRATIVE COURT
Sitting at:
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
B4 6DS
Before:
THE HONOURABLE MR JUSTICE BEATSON
Between:
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The Queen on the Application of DAVID SIDNEY MURRELL CHRISTINE RUTH MURRELL |
Claimants |
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- and - |
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(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (2) BROADLAND DISTRICT COUNCIL |
First Defendant
Second Defendant |
(DAR Transcript of
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Mr Blackie (instructed by FBC Manby Bowdler LLP) appeared on behalf of the Claimant.
Mr Kolinsky (instructed by the Treasury Solicitor)appeared on behalf of the Defendant.
Judgment
MR JUSTICE BEATSON:
The proceedings before me are an appeal pursuant to section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) against the decision of a Planning Inspector and an application for permission to apply for the judicial review of the decision of a Planning Inspector in respect of the costs of that appeal. The order which is to be judicially reviewed is the decision of the Inspector not to order the second defendant, Broadland District Council, to pay the claimant’s costs of the appeal to the Inspector. The proceedings are brought together pursuant to the order of HHJ Oliver-Jones, who on 11 December 2009 ordered the judicial review application to be heard as a rolled-up application and to be listed together with the statutory appeal.
The appeal is in respect of a decision by the second defendant in respect of a prior notification in relation to an agricultural building the claimants required at their holding in Norfolk. The building that they notified that they required was a cattle shelter. The initial communication and application for determination as to the need for prior approval of this agricultural development was furnished to the second defendant in a document dated 28 November 2008, which is stamped received by the second defendant on 1 December. On 1 December the second defendant wrote to the claimants stating that the application did not comply with the statutory requirements and was invalid. It listed four reasons. These related to copies of proposed elevations required to a specified scale; copies of a block plan to a specified scale showing the size and position of the proposed development; and the fact that the application was not made on a new standard planning application form, which was the only form the council stated it could accept. The letter includes as the fourth bullet point under “Reasons”:
“Please supply a further three copies of the location plan.”
It is not at all clear what location plan was provided with the original application. The one in the bundle is stamped 9 December 2008, which was the date on which the second defendant validated the application. It is not clear whether additional copies of this were supplied, and that it had been supplied earlier. The fact that there is no 1 December stamp on the document, as there is on all the other documents received then, puts that into question. At any rate, the letter stated:
“The statutory period for determination of your application cannot commence until these requirements have been fulfilled and a formal letter of acknowledgment giving details of the statutory period for the determination of the application will then be sent to you.”
The writer of the letter states that, should the claimants wish to discuss the matter further, they should not hesitate to contact him.
The claimants then resubmitted an application for prior notification on the specified form. That form is signed and dated 4 December 2008. On 9 December 2008, as I have stated, the second defendant acknowledged receipt of the application, stated that it was validated on 9 December, and that every effort would be made to reach a decision within the statutory 28-day period, which expired on 5 January 2009. The second defendant reached its decision on 31 December 2008. That is within the period specified in the letter dated 9 December, but outwith the period of the initial submission, which is dated 28 November, and stamped received as 1 December. Taking the latter date, the time would have expired on 28 December. I have set this out in considerable detail because it forms one of the grounds of challenge.
As far as the second defendant’s decision was concerned, it stated that prior approval was needed for this development. The letter refers to a previous application which was refused because of impact on the character of the countryside. It lists a number of policies relevant to the area, including ENV7 of the East of England plan, GS1, GS1, ENV1, ENV2, ENV8, ENV21, ENP 20, ENP 8 of the Broadland District local plan, Planning Policy Statement 7. It describes the site and states that the application follows the previous applications for a cattle shelter in a similar location to that proposed by the current application. It concludes that there was no detailed landscaping scheme; that, given the open-sided nature of the cattle shelter and its size and the steadily inclining levels throughout the site, it would take some time for the landscaping to establish and to provide effective screening. The letter also states that:
“…the surrounding landscape is relatively open and when considering the steady incline of levels throughout the site and the open nature of the eastern and southern boundaries of the agricultural holding, it is considered that the cattle shelter will be an unduly prominent form of development that represents an unacceptable visual intrusion in the countryside and does not maintain or improve the appearance of the locality, or enhance or respect the surrounding Area of Landscape Value.”
The conclusion is that prior approval is required, but that approval was refused because the application did not comply with the policies to which I have referred.
The claimants appealed on 28 May 2009. Their grounds of appeal can be summarised as follows. The second defendant did not make a decision regarding prior approval by the requisite date and therefore permission was granted within the terms of the Development Order, which I shall set out. Secondly, the claimants had no opportunity to submit further details because the second defendant had combined the decision that permission was needed with a refusal. Thirdly it is contended that, because of the General Planning and Development Order, the development is permitted. Statements of case were produced in June 2009. In July 2009 the claimants made a costs application, submitting that the second defendant had refused the application unreasonably.
The matter came before an Inspector, Janet Cheesley. The matter was determined by written submissions. She promulgated her decision on 29 September 2009. There was a site visit on 21 September. The Inspector dismissed the appeal. In summary form she first held that the second defendant was entitled to ask for further information about the design and siting matters concerning the application. Secondly, she stated that there was no material suggesting that the second defendant could not combine the two decisions, i.e. to require prior approval and to determine the matter. Thirdly, she agreed that the development was unduly prominent in an open location; that the landscaping details would take many years to be effective and screened. In relation to costs, she rejected the application.
Having summarised her decision, I will now set out the material parts of the decision letter. At the beginning of the document the Inspector states that the appeal was made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant approval required under a Development Order. She names the appellants and she states the date the application was refused and the proposed development. The material and substantive parts of her decision letter are, under the heading “Procedural Matters”:
“2. An application for prior approval was made on 1 December 2008. The Council requested further information before it was prepared to validate the application. For whatever reason, the Council required more information to assess the proposal and requested elevation plans, block plans showing the size and position of the building, further copies of the location plan and requested that the application needed to be on a new set of standard application forms. The Council made it clear that the prior approval application would not be valid until these documents were produced. Whilst it is clear in Circular 02/2008: Standard Application Form and Validation that use of the standard form is not required for prior approval applications, I consider that the Council needed sufficient details to judge the design, siting and appearance of the proposed building. Therefore, in my view, the Council acted reasonably in requesting this information and I consider that the correct procedure was followed.
3. The appellants provided the information requested and the application was validated on 9 December 2008. The Council issued its decision on 31 December stating that prior approval was required and, for the reasons given, was refused. I have seen no evidence to persuade me that the combination of the two matters in one decision is not permissible.
4. The appellants have stated that the procedure followed did not allow for the submission of landscaping details. However, it is clear that there was nothing to prevent the details being submitted at any time before the council made its decision.
5. For the reasons stated above, I consider that the Council followed the correct procedure and therefore the refusal notice dated 31 December 2008 is valid.”
As for as the main issue, in paragraphs 8 and 9 the Inspector sets out the national policy in Planning Policy Statement 7. In relation to new building development in the open countryside away from existing areas, the policy is that such development:
“… should be strictly controlled. The Government’s overall aim is to protect the countryside for the sake of its intrinsic character and beauty, the diversity of its landscapes, heritage and wildlife, the wealth of its natural resources and so it may be enjoyed by all.”
Paragraph 9 sets out other policies. The policies the Inspector considered most relevant to the appeal were policy GS1, restricting development outside settlement limits; GS3, protecting the character and appearance of the surrounding area; ENV1, protecting the character and appearance of the countryside; ENV2, seeking a high standard of layout and design, respecting the wider area; and ENV8, protecting the inherent visual qualities and distinctive character of areas of landscape value. The Inspector also refers to policy EMP8, which permits agricultural development if it meets a list of criteria, including that the buildings are designed to help them maintain and improve the appearance of the locality and integrates with existing features and respects the character of the area. It is not submitted that the reference to these policies was improper; indeed, both parties in their written submissions referred to the policies.
The reasons for the decision are contained in paragraphs 10 to 15. Paragraph 10 describes the appeal site, which, the Inspector states:
“…lies within open countryside characterised by large open fields with small woodland areas.”
She states:
“…the essential characteristic and appearance of the area is one of an open rural working landscape within which are farm complexes.
11. The appeal site is situated on open rising land. The proposal includes a cattle shed within a new woodland landscape setting. Whilst being designed as an agricultural building, due to its size and prominent position, I consider that it would appear as an unduly prominent form of development, which would have an unacceptably adverse visual impact on this part of the Area of Landscape Value. Therefore, I conclude that the proposal will have an adverse effect on the open character and appearance of the surrounding countryside. This would not be in accordance with the objectives of PPS7 and Local Plan Policies GS1, GS3, ENV1, ENV2, ENV8 and EMP8.
12. Whilst the landscaping details were not submitted with the application, I have been provided with details, which I consider appropriate to take into consideration in my determination of this appeal […] Due to the scale and position of the proposed building, it would be many years before an appropriate substantially significant screen could be established. I consider it unacceptable, due to the adverse visual impact of the proposed building, to allow such development in such an open location, which would be open to public views for a considerable time.
13. I note the presence of large modern farm buildings in the surrounding area, but these are characteristically generally within established farm complexes, rather than isolated buildings.
[…]
15. In reaching my conclusion, I have had regard to all other matters raised but I have not specifically commented including the need to relocate an existing family beef cattle business. Whilst I recognise the operational needs of the agricultural business, it is necessary to weigh this consideration against the harm I have identified with regard to impact on the character and appearance of the area. In the light of the significant harm I have identified above, I do not consider this matter justifies allowing the appeal.”
These proceedings were launched on 30 October 2009, as was the application for judicial review of the costs decision. That was challenged in the judicial review was the subject of a separate decision by the Inspector, also dated 29 September. The Inspector noted that costs may only be awarded against a party who has behaved unreasonably and has caused another party to incur or waste expense unnecessarily. She substantially repeated what she said in the main decision about the details the Council needed to judge the design, siting and appearance of the proposed building. She stated that she considered the Council acted reasonably in requiring the information and that the correct procedure was followed. For those reasons, having regard to what was stated about unreasonable behaviour in Circular 03/2009, she dismissed the application for costs.
The statutory framework is set out in particular in the Town and Country Planning General Planning Development Order 1995. Before turning to that, however, I set out the framework within which those regulations operate. Planning permission may be obtained in a number of ways under the Town and Country Planning Act 1990. There may be an express application for planning permission. There may be a Development Order which itself grants planning permission for development specified in the order, or development of a class. There may also be provision for the grant of planning permission for specified development by the local planning authority: see sections 57 and 58 of the 1990 Act. Section 60(1) of the 1990 Act provides:
“Planning permission granted by a Development Order may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order.”
Subsection (2) provides that:
“Without prejudice to the generality of subsection (1), where planning permission is granted by a Development Order for the erection, extension or alteration of any buildings, the order may require the approval of the planning authority to be obtained with respect to the design or external appearance of the buildings.”
I turn to the regulations. The material part of the regulations is Part 6 of Schedule 2 (at page 194 of the bundle), which deals with permitted agricultural development. Class A is:
“The carrying out on agricultural land comprised of an agriculture unit of 5 hectares or more in area of –
(a) works for the erection […] of a building […] which are reasonably necessary for the purposes of agriculture within that unit.”
Paragraph A1 and subsequent paragraphs deal with development that is not permitted and conditions. Paragraph A1 provides that no building should exceed 465 square metres, and paragraph A1(h) provides that a development is not permitted if the erection or construction would be within 400 metres of the curtilage of a protected building. There are other prohibitions.
As far as conditions are concerned, A2(2) provides that a development consisting of the erection of a building is permitted by Class A, subject to the following conditions:
“(i) the developer shall, before beginning the development, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the siting, design and external appearance of a building
[…]
(iii) the development shall not be begun before the occurrence of one of the following --
(aa) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(bb) where the local planning authority gives the applicant notice within 28 days following the date of receiving his application of their determination that such prior approval is required, the giving of such approval; or
(cc) the expiry of 28 days following the date on which the application was received by the local planning authority without the local planning authority making any determination as to whether such approval is required or notifying the applicant of their determination”
There is no issue that the land in question is agricultural land in a qualifying agricultural unit, and the proposed cattle shelter is within, although near the maximum permitted size. It is not within 400 metres of the curtilage of a protected building. Indeed, the reasons for the second defendant and the Inspector taking the view that they did in part flow from its isolated position.
The submissions before me largely turned around Annex 3 to PPG 7, Permitted Development Rights for Agriculture and Forestry -- the only part of this Minister’s Guidance still extant. The relevant paragraphs are:
“E12. In certain cases, the permitted development rights for development on agricultural units of 5 hectares or more and for forestry cannot be exercised unless the farmer or other developer has applied to the local planning authority for a determination as to whether their prior approval will be required for certain details (General Permitted Development Order, Part 6, A.2(2) and (3)). The local planning authority have 28 days for initial consideration of the proposed development. Within this period they may decide whether or not it is necessary for them to give their prior approval to these details of development involving new agricultural and forestry buildings, significant extensions and alterations,
agricultural and forestry roads, certain excavations or waste deposits, and the placing or assembly of fish tanks in any waters. In National Parks and certain adjoining areas ('Article 1(6) land'), all extensions and alterations to buildings are subject to this procedure and the placing or assembly of fish tanks in any waters requires a specific planning application to be made to the local planning authority.
E14. The determination procedure provides local planning authorities with a means of regulating, where necessary, important aspects of agricultural and forestry development for which full planning permission is not required by virtue of the General Permitted Development Order. They should also use it to verify that the intended development does benefit from permitted development rights, and does not require a planning application (see paragraphs 3.5 and 3.6 above). There is no scope to extend the 28 day determination procedure, nor should the discretionary second stage concerning the approval of certain details be triggered for irrelevant reasons. A local planning authority will therefore need to take a view during the initial stage as to whether Part 6 rights apply.
E15. Provided all the General Permitted Development Order requirements are met, the principle of whether the development should be permitted is not for consideration, and only in cases where the local planning authority considers that a specific proposal is likely to have a significant impact on its surroundings would the Secretary of State consider it necessary for the authority to require the formal submission of details for approval. By no means all the development proposals notified under the Order will have such an impact.
E16. In operating these controls as they relate to genuine permitted development, local authorities should always have full regard to the operational needs of the agricultural and forestry industries; to the need to avoid imposing any unnecessary or excessively costly requirements; and to the normal considerations of reasonableness. However, they will also need to consider the effect of the development on the landscape in terms of visual amenity and the desirability of preserving ancient monuments and their settings, and sites of recognised nature conservation value. They should weigh these two sets of considerations. Long term conservation objectives will often be served best by ensuring that economic activity, including farming and forestry which are prominent in the rural landscape, is able to function successfully.
E22. The arrangements do not impose full planning controls over the developments to which they apply -- those developments remain "permitted development" under the General Permitted Development Order. The principle of development will not be relevant providing the Order conditions of the Order, the objective should be to consider the effect of the development upon the landscape in terms of visual amenity, as well as the desirability of preserving ancient monuments and their settings, known archaeological sites, listed buildings and their settings, and sites of recognised nature conservation value (i.e. Sites of Special Scientific Interest and Local Nature Reserves). Details should be regarded in much the same light as applications for approval of reserved matters following the grant of outline planning permission. Subject to the normal criteria governing the use of conditions in planning permission, conditions may be imposed when approval is given. (DOE Circular 11/95 gives further advice in this respect.) Developers required to submit details for approval will have the right of appeal to the Secretary of State if approval is refused or is granted subject to conditions with which they disagree, or if notice of a decision on the details submitted is not given within the period for a decision (normally eight weeks). There is no right of appeal against the decision of a local planning authority to require approval of details. No compensation is payable under Section 108 of the Town and Country Planning Act 1990 if approval of submitted details is withheld by the planning authority.
E24. Local planning authorities may concern themselves with:
-- the siting, design and external appearance of a proposed new agricultural or forestry building and its relationship to its surroundings;
-- the siting and means of construction of roads;
-- the siting of those excavations or waste deposits which individually or collectively exceed 0.5 hectare within the unit; and
-- the siting and appearance of fish tanks (cages).
E27. The siting of a new agricultural or forestry building, road, excavation or waste deposit, or fish tank can have a considerable impact on the site and the surrounding landscape. Developments should be assimilated into the landscape without compromising the functions they are intended to serve. New buildings should normally form part of a group rather than stand in isolation, and relate to existing buildings in size and colour. (New buildings of modern design may sometimes best be separated from a group of traditional buildings to avoid visual conflict.) Sites on skylines should be avoided if possible. To reduce their visual impact buildings should be blended into the landscape or, on sloping sites, set into the slope if that can be achieved without disproportionate cost.
E31. The choice of design and materials, and the relationships of texture and colour to existing development, local traditions, and the landscape, can be important considerations for both agricultural and forestry buildings and roads. For example, a single large building may have a greater impact on the countryside than one or more smaller buildings, which can be more easily incorporated into an existing group and provide greater flexibility, although the function of the building will be material to shaping its form. Roof overhang reduces apparent scale, as does the use of different materials for roof and walls. Well-designed features such as rainwater downpipes and gutters, ventilators, eaves and gable overhang emphasise the shape of a building.”
The appeal is pursuant to section 288 of the 1990 Act. The nature of an appeal under section 288 is conveniently summarised by Sullivan J as he then was in Newsmith Stainless Limited v Secretary of State for the Environment, Transport and the Regions[2001] EWHC Admin 74. He stated at paragraph 5:
“A challenge under section 288 to the validity of an Inspector’s decision on an appeal under section 78 may be made only upon the grounds that the Inspector’s decision (1) is not within the powers of the Act or (2) that any of the relevant requirements had not been complied with in relation to the decision.”
And then at paragraph 6:
“6. An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.”
His Lordship stated that in any case where an expert tribunal is the fact-finding body, the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount, and that that difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact but reaching a series of planning judgments.
The grounds of appeal are as follows. First, that the Inspector did not weigh the fact that this development was in principle within the General Planning Development Order in respect of agricultural development, but approached the matter by taking account of policies as if the application was one for planning permission rather than for approval under the GPDO. Secondly, the Inspector gave inadequate reasons for her decision. Thirdly, she erred in not finding that there was deemed planning permission because the second defendant had not responded within 28 days of the receipt of the original application.
Mr Blackie’s written submissions maintained that the request for any further details should have been treated as an amendment to the application. He submitted that the application met the requirements of the regulation; and that the second defendant had not acted in an appropriate way to stop the 28-day clock running, a clock which Annex E, paragraph E14 states there is no scope for extending. It was agreed during the course of the hearing, in effect, that the challenge to the decision on costs largely follows the challenge to the Inspector’s decision; although Mr Kolinsky, who appeared on behalf of the Secretary of State, submitted that, in view of the remarks about this by Sullivan J in the Ealing case, it would be a very strong thing to interfere with a decision on costs which is highly discretionary. This was particularly so in respect of a procedure where costs are only awarded if the party has acted unreasonably. He also contended that the thrust of the submissions before the Inspector concerned what might be called the timetabling matters, ie it was argued that the second defendant had not completed the process within the specified period.
I will return to costs but I accept Mr Kolinsky’s submission that the position in relation to costs is not on all fours with the position under the section 288 appeal. The question in relation to costs is whether the Inspector erred in her conclusion that the second defendant had not acted unreasonably. I can return to this after reaching a decision on the section 288 appeal.
Mr Blackie justifiably placed considerable reliance on the fact that the Inspector’s decision letter makes no reference whatsoever to Annex E. Indeed, the only indication that the decision was an appeal against a refusal to grant approval under a Development Order is in the heading at the beginning of the decision. Mr Blackie submitted that the decision refers to general planning policy which weighed against the development which the claimant’s wished to pursue, and there is no reference to the policies in favour of that development, by virtue of the General Planning Development Order and the relevant part of the regulations which I have set out. His submission essentially is that the decision letter does not show a balancing of the impact of the development against what he described as the nature of development within an Order. He described this in the following way (see paragraph 7 of his written submissions):
“The permitted development right is a planning permission, and as such cannot be cut down or taken away (save by the means of a direction under Article 4 of the GPDO). The effect of the GPDO is to grant a planning permission that is similar in effect to an outline planning permission granted under section 92 of the 1990 Act.”
I have concluded that Mr Blackie places too much weight on the analogy with outline planning permission. First, I have referred to section 60(1) of the 1990 Act, which states that planning permission granted by a Development Order may be granted such subject to conditions. One of those conditions is the need for prior approval. Secondly, although this was not accepted by Mr Blackie, the consequence of requiring prior approval is that there is no planning permission which exists in what Mr Kolinsky described as a practical sense.
The nature of the prior approval process was discussed in a different context but against a similar regulatory background in R (Orange PCS Ltd v Islington LBC[2006] EWCA Civ 157. In that case, Laws LJ said at 28:
“In a prior approval case the planning permission accrues or crystallises upon the developers' receipt of a favourable response from the planning authority to his application.”
Mr Blackie submitted that case and Laws LJ were primarily concerned with the exercise of rights, not the prior stage of determination.
I reject that submission. I consider that on a fair reading of Laws LJ’s judgment, while the context of that case concerned the exercise of rights and changes of mind by the planning authority, the analysis was of the nature of the rights. The nature of the rights does not change depending on whether they are exercised or not. The statement that the rights accrue or crystallise on the receipt of a favourable response is of relevance both where the developer has started to exercise the right and where he has not. Thirdly, outline planning permission is an express permission concerning a particular site. It is not a deemed statutory position in relation to an agricultural unit and not a particular site within the unit. As Mr Kolinsky observed, the grant of outline planning permission involves an assessment of the suitability of the site and its constraints. A planning authority faced with an application under a Development Order has not had the opportunity to assess the suitability of the sites. This is an important difference and justifies a different approach as to what the planning authority can do.
Mr Blackie pointed me to the reference to outline planning permission in paragraph E22. That does provide that details about an application should be regarded in the same light as applications for approval of reserved matters following the grant of outline planning permission. But in view of the other provisions of Annex E and the importance attached to impact and visual amenity, to which I will come, the fact that there has not been a site-specific consideration is an important factor. In truth, under Annex E there are two stages to the process. The first is to verify whether the applicant benefits from development rights under the order (see E14). The second stage is a discretionary second stage which (paragraph E14) makes clear “provides local planning authorities with a means of regulating, where necessary, important aspects of agricultural … development for which full planning permission is not required”. It is clear that this goes beyond simply verifying that an application does benefit from permitted development rights. The approval process includes consideration of whether “a specific proposal is likely to have a significant impact on its surroundings” so that consideration is needed (see paragraph E15).
The second stage thus involves assessment of matters which depend on the merits of planning decisions. Mr Blackie’s submission that the failure in the decision letter to refer to Annex E shows that the Inspector did not weigh this is largely based on his premise that the position is fully analogous to outline planning permission, which for the reasons I have given it is not. The prior approval permission, for the reasons I have given, permits a discretionary judgment as to the impact to be made by development that is proposed. And having referred to the significant impact in E15, a number of paragraphs, in particular E16 and E22, show that a function of prior approval is to consider the effect of the development in terms of visual amenity. These include considerations of siting, design and appearance (see paragraph E26). In respect of siting (see E27) the Guidance states that new buildings should normally form part of a group rather than stand in isolation, and that sites on skylines should be avoided if possible.
I have concluded that while it is unfortunate that no explicit reference is made to Annex E, the decision letter, and in particular paragraph 15, which I have set out, weighs the adverse visual impact against the agricultural case put by the claimants. What the Inspector was doing was to weigh the effect of the development on the landscape in terms of visual amenity. Her reference to the planning policies reflected the cases put to her by the parties. It is significant that in the claimant’s case there is only reference to Annex E on one and a bit pages of a long submission. Mr Blackie fairly submits that brought Annex E to the notice of the Inspector, and he submits that she should therefore have grappled with that issue.
In the light of the approach to be taken to Inspector’s decisions, I consider that, having addressed the right questions identified in Annex E, and having balanced the factors that Annex E requires to be balanced, the reference to local policies in the decision without the reference to Annex E does not mean that the Inspector’s decision must be set aside. I have in mind what Hoffmann LJ, as he then was, said in South Somerset District Council v the Secretary of State for the Environment [1993] 1 PLR 80 at 83:
“A reference to a policy does not necessarily mean that it played a significant part in the reasoning: it may have been mentioned only because it was urged on the inspector by one of the representatives of the parties and he wanted to make it clear that he had not overlooked it. Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the relevant policy or proposed alteration to the policy.”
This passage appears immediately after his Lordship’s statement that the letter must be read in good faith and not as though one is marking an examination paper. He had cited a number of cases including Seddon Properties v Secretary of State for the Environment [1978] 42 P&CR 26 at 28 where Forbes J stated that:
“…it is no part of the court's duty to subject that decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute.”
In this case I accept Mr Kolinsky’s submission that the Inspector addressed the right questions. Her failure to refer to Annex E must be seen in the light of the fact that she addressed the criteria set out in it and balanced them. Her reference to the other policies must be seen in the light of the emphasis placed on those policies and their relevance in the submissions of both parties. Mr Blackie pointed me to the fact that the decision letter starts with PPS 7, the new building in open countryside policy, and shows that the Inspector is starting from a position of strict control rather than the true position in relation to development under a Development Order. That, however, depends on his analysis of the nature of an application, and the property owner’s right before the authority’s decision.
I turn to the submissions on reasons. Mr Blackie submitted that the reasons given do not enable one to deduce whether the Inspector understood the principal contentious issue correctly. He argued that there was a failure to indicate an understanding of the weight to be attached to the General Planning Development Order permission; and that the failure to note the paragraphs of Annex E, in particular E15 and E22, raised a substantial doubt as to whether the Inspector had misunderstood the policy or had made an error of law. Finally, he submitted that the absence of any reference to an alternative site gives the appearance that what the Inspector was concerned with is the planning principle and not the matters relevant in the context of an application for this sort. Mr Blackie relied on the now almost canonical passage from Lord Brown in South Bucks District Council v Porter (No. 2)[2004] 1 WLR 1953, in which, in paragraphs 35 and 36, his Lordship summarised the law governing the proper approach to a reasons challenge in a planning context.
I have concluded that for the reasons I have given, the absence of reference to Annex E does not violate Lord Brown’s strictures about indicating what conclusions were reached on the principal controversial issues. The main issue was the impact of the proposed building on visual amenity of this site. Paragraph 15 of the decision letter sets out the considerations, the agricultural case and the impact. I therefore reject the submission that the reasons were inadequate. As well as paragraph 15, the appearance of the building is considered at paragraph 12. This challenge is, in substance, parasitic on the challenge based on the submission that a permitted development right is a planning permission even where prior approval is required.
As far as the procedural matters are concerned, the regulations do require the decision to be within 28 days. The claimants’ position on this has to be described as technical. That is not a criticism. We are in an area of law where much depends on technical matters. It is, however, striking that no point was taken, no complaint was made vis-à-vis the second defendant; and no challenge made to the clear statements by the second defendant, both when asking for the information and when registering the revised application. It was not said that there was a problem.
The regulations do enable the authority to, as Mr Blackie described it, stop the clock. He submitted that the letter of 1 December was ineffective in doing this because it purported to find that the application was invalid. Had the letter said: on the information that we now have, we consider prior approval is necessary, or had it expressly tracked the language in A2(2)(iii), this would not have been a problem. But this is not a case in which the local planning authority has simply not responded. It responded on the very day it received the application. It is not clear on the material before me that it had an adequate location plan. Mr Blackie is right to point to the fact that there appears to have been a plan there, but it does not appear to be the plan in the bundle because that is only stamped 9 December, the date on the other material supplied with the resubmitted application.
The Inspector, with her expertise in planning matters, considered that the Council needed sufficient details to judge the design, siting and appearance, acted reasonably in requesting the information, and therefore that the decision was not out of time. Mr Kolinsky invited me to conclude that she approached the matter in a practical way, that both parties proceeded on the basis of a common understanding as to the Council’s time for determining the application, and that there was no challenge to that common assumption until after the decision.
The Inspector took what I accept is a practical approach. There was certainly no prejudice to the claimants of the sort that the 28-day rule is designed to prevent in this case, because the council acted with speed. The letter indicated that on the material it had, it was not able to state whether further approval was required. In this context, given the speed at which this letter was sent, and given the common assumption of both parties, the implication must be that the Council had effectively, although not in very straightforward language, stated that they would require prior approval because it did not have enough information to assess this matter.
Mr Blackie submitted that if one looks at the regulations, all the Claimants had to do was to provide a written description of the development materials and a plan indicating the site: that is seen from A2(2)(i). The materials submitted must have been ones which enabled the Council to operate the statutory procedure. I conclude that it was entitled to ask for what it asked for, that had the effect of stopping the clock, and therefore the procedural challenge is not made out.
For these reasons this appeal is dismissed. In the light of that, I do not have to address the question of whether, notwithstanding any merits in the appeal, the costs order can stand. Clearly, the costs order can stand in the light of my finding. I am grateful to counsel. Notwithstanding my strictures about the font size, Mr Blackie’s skeleton was very clear as was Mr Kolinsky’s. Thank you, both of you.
MR KOLINSKY: My Lord, may I just raise the question of costs? On behalf of the Secretary of State, I would seek an order for costs. I do not know if my Lord -- there are summary schedules --
MR JUSTICE BEATSON: Yes, you both come out about the same.
MR KOLINSKY: My Lord, I think there are actually two schedules on behalf of the Treasury Solicitors.
MR JUSTICE BEATSON: Oh, I only looked at one of them.
MR KOLINSKY: Well, there is the main one, which is the one you have looked at. There is also the one that was attached to the judicial review acknowledgment of service for a much smaller sum.
MR JUSTICE BEATSON: Well, £1,689 and £9,556.
MR KOLINSKY: Exactly, and that is £11,245. And my Lord, I do not know what, if any --
MR JUSTICE BEATSON: £1,689 for -- you know, the same solicitors do acknowledgments of costs in immigration cases for much less money.
MR KOLINSKY: Well, I hesitate to say that immigration cases are less complicated than --
MR JUSTICE BEATSON: But here we have a case where what is in the acknowledgment of service tracks what is in the defence to the section 288 application. I mean, I do not want to be rude, but it is almost a cut and paste.
MR KOLINSKY: Parts of it are. I accept that there is a duplication in relation to issue 3, which is the one that is addressed in the acknowledgment of service. There is more extensive argument. Well, my Lord, the position is --
MR JUSTICE BEATSON: If you claim your costs, I had better hear what Mr Blackie says.
MR KOLINSKY: I will see what he says.
MR BLACKIE: My Lord, the similarity between the two costs schedules is actually skin deep. If my Lord turns to my costs schedule, I think the figure was £9,892.43.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: That actually includes VAT of £1,300.
MR JUSTICE BEATSON: Oh, so I should look at £8,514 -- there is a real trouble with sums, you know, they are not very good at it.
MR BLACKIE: When one does the sum, my Lord, and adds the judicial review costs schedule to the Treasury Solicitor’s section 288 costs schedule, one reached then a figure which is some £3,000 higher than --
MR JUSTICE BEATSON: You mean the £9,000 is plus VAT?
MR BLACKIE: My Lord, the £9,556 is plus the £1,689. My costs schedule of £8,514, one is comparing that with the --
MR JUSTICE BEATSON: But what I am asking is -- I do not know, does the Treasury Solicitor not charge VAT?
MR KOLINSKY: That is right.
MR JUSTICE BEATSON: Yes.
MR KOLINSKY: The position is that it is net of VAT, and there is no VAT.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: Yes.
MR JUSTICE BEATSON: So yes, but your point stands.
MR BLACKIE: Yes, my Lord.
MR JUSTICE BEATSON: Yes, all right.
MR BLACKIE: So it is slightly strange, my Lord, that (a) the issues on the judicial review are so similar to the issues on the section 288.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: But secondly, that the respondents’ costs should exceed the claimant’s costs, and I say this glibly: the claimant does all the work, of course. He has to decide what the proceedings are about and prepare the bundles, etc.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: The difference though, my Lord, is as to the work done on the documents sections; where the Treasury Solicitors work on documents; taking the two together, it is about £4,300 against £2,700 for the claimants.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: My Lord, this is a summary assessment, a rough --
MR JUSTICE BEATSON: And actually, I must say I am amazed -- well, I suppose the costs of going for a detailed one outweigh the benefits that you might get in precision. But it is summary, it is rough.
MR BLACKIE: It is rough and ready and --
MR JUSTICE BEATSON: And you have heard what I have said.
MR BLACKIE: I have said what I have said, my Lord. So I invite my Lord to consider that point. The second point, my Lord, is as to the discretion; and ordinarily, having lost, I would find it difficult to resist a costs application.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: But, my Lord, what the claimant has effectively lost on is a letter -- a decision letter on the main matter, which does not deal with the essential question that he thought should be dealt with, Annex E; my Lord has expressed reasons why that is acceptable. And the question of the procedural challenge, on the basis that my Lord has found that the letter which the local authority sent did not expressly indicate why the local authority were taking the point that -- my Lord has inferred the point. So twice the claimant suffers, in effect, because of things that were not said. My Lord, it is only a short point, and I --
MR JUSTICE BEATSON: Yes, I mean you are stronger on the first than the second. I mean, if it was really expecting, somebody should have said something on 1 December, you are not stopping the clock. He had not gone to his planning at that --
MR BLACKIE: He had not gone to his planning -- he is a farmer.
MR JUSTICE BEATSON: I know.
MR BLACKIE: Well, my Lord has the point.
MR JUSTICE BEATSON: I have the point.
MR BLACKIE: And I therefore invite my Lord to fix the sum in a rough and ready manner.
MR JUSTICE BEATSON: Yes.
MR KOLINSKY: Well, my Lord, I readily accept my Lord has a wide range of discretion for the purpose of reassessment, and I will not spend a great deal of time arguing about it. May I just say --
MR JUSTICE BEATSON: Just as wide as the Inspector had.
MR KOLINSKY: Indeed, and my Lord is not writing an examination paper on costs taxation, either. May I just say that the reason why there is an extensive sum in relation to work on documents is that the Treasury Solicitors, my instructing solicitor sits behind me, have a practice of preparing a detailed minutes of advice, which obviously is a necessary stage for taking stock. Although it is said that, well, the claimant does all the work, the reality is there is a correct process of appraising where a claim comes cold to Treasury Solicitors, and it is necessary to get instructions from the Inspector. But effectively, the legal review of it is a review that is undertaken by the Treasury Solicitors. So, my Lord, I plainly accept there is discretion, but it is in my submission appropriate for there to be some in-house work starting from not knowing the case to get up to whether -- how it should be pursued and whether it should; and that saves costs in many cases, because where there are -- scope for concessions there are, and that is a part of the process that is reasonably assumed on behalf of those instructing me. So, my Lord, I appreciate my Lord can take your judgment, but I urge you not to reduce too much, because the work has all been necessary.
MR JUSTICE BEATSON: Yes. I am going to make one order in respect of both; I am not going to differentiate. If you want me to make an even further rough apportionment between the two, I will do it. Do you want me to make an apportionment --
MR KOLINSKY: No, for our part one order is absolutely fine.
MR JUSTICE BEATSON: And Mr Blackie -- yes. Well, the defendant is entitled to its costs. I take into account what is said on both sides in relation to work on documents. I am surprised at the figure that is presented in relation to the judicial review, which raised substantially the same issues, although not identical ones. I am therefore going to make a global award of £9,400 in respect of costs. Thank you.
MR BLACKIE: My Lord, there is the question then of whether there should be permission to appeal.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: And I must approach my Lord for that initially. My Lord, I start from the premise that the Orange case was a case which was looked at by the Court of Appeal, and as a result of an order giving permission to appeal made in the Court of Appeal itself; in other words, the learned judge might of course either wasn’t asked or declined.
MR JUSTICE BEATSON: Yes. Well, probably the latter.
MR BLACKIE: Probably the latter. My Lord, in that the Court of Appeal plainly thought that this issue was an issue which was of significance, and worth the Court of Appeal’s time because of the --
MR JUSTICE BEATSON: The nature of the right.
MR BLACKIE: Yes, the nature of the right, to go back to my first issue.
MR JUSTICE BEATSON: No, no, I just want to understand that.
MR BLACKIE: And the submission I would make is that as a result the Court of Appeal might well be interested in the other side of this equation, the question of whether the right during the consideration of the details, the siting, design and appearance of the building, is caught by the same strictures which the Court of Appeal addressed. So on that issue I would submit that there is a realistic prospect of the matter being successful in the Court of Appeal. It is also a matter of significant importance generally, because so far as I am aware -- I must also have got it from my learned friend Mr Kolinsky’s submissions -- there is no authority already on the subject of Part 6, and the implication of Part 6.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: As to the --
MR JUSTICE BEATSON: I am going to stop you just for a minute. I want to make sure: do we have a copy of the form I have to fill out? Good. I do not want to get to the end, give you a reason, then try and write it down and not be able to write it down. Yes?
MR BLACKIE: Yes. As to the other issues in the case, my Lord has found against me essentially on the ground that the Inspector had, in fact, considered the relevant factors. But I simply repeat --
MR JUSTICE BEATSON: Counsel is always in a difficult position, but that is the nature --
MR BLACKIE: It is the nature of the thing.
MR JUSTICE BEATSON: It is the nature of the thing, and you know it and I know it, and you just have to say I have got it wrong, and that is what you will say.
MR BLACKIE: My Lord, yes.
MR JUSTICE BEATSON: We are not going to agree, but I am going to have to decide whether some other judge might agree with you.
MR BLACKIE: Yes. I am obliged, my Lord. I make the point, but will not press it any further.
MR JUSTICE BEATSON: No.
MR BLACKIE: As to the procedural point, my Lord, I would submit that I am on stronger ground there, because the procedural point plainly is a judgment as to whether the statutory regulatory regime has been applied or whether it is capable of some form of an estoppel being found against the claimant in the circumstances of the case; and in my submission, that is a matter on which there is a realistic prospect of the claimant succeeding in the Court of Appeal. Those are my submissions, my Lord, and I invite you to grant permission.
MR JUSTICE BEATSON: Thank you. Yes, do you have anything to say?
MR KOLINSKY: Well, my Lord, in relation to the first point, I would respectfully say that the nature --
MR JUSTICE BEATSON: Well, the Court of Appeal has looked at that, and the regulatory provisions are the same.
MR KOLINSKY: Precisely.
MR JUSTICE BEATSON: So yes, all right, well I do not have --
MR KOLINSKY: I respectfully say that these --
MR JUSTICE BEATSON: But what about the other points?
MR KOLINSKY: Well, in my submission, the conceptual challenge is a challenge to the exercise of a discretionary judgment by the Inspector on what my Lord has fairly characterised as a technical point arising in the context where the matter was not raised. In my submission, your Lordship’s judgment is a practical solution that of course is common sense, and that there is a realistic prospect the Court of Appeal will take different course.
MR JUSTICE BEATSON: Yes.
MR KOLINSKY: So my Lord, may I make one final --
MR JUSTICE BEATSON: But you have skipped over the main one.
MR KOLINSKY: In relation to procedural -- no, sorry.
MR JUSTICE BEATSON: No, the point as to whether, absent -- why do you say that it is not arguable that I am wrong in concluding that not mentioning any of the Annex E --
MR KOLINSKY: Because the position is that one takes a practical approach, and the issues that the Inspector addressed were plainly the issues that Annex E required her to address, and that there is no disparity between the correct approach and the actual approach. My Lord, that is my submission. May I make one practical suggestion?
MR JUSTICE BEATSON: Yes.
MR KOLINSKY: Which is that whichever way my Lord goes on permission to appeal, and this is a point I hope that is fair to the claimant, if there is going to be an application it would probably be the case that the costs award would want to travel with the 288, in which case unless my Lord actually grants permission, there will be a different regime for appealing, because it would be -- so I would invite my Lord to grant --
MR JUSTICE BEATSON: You want me to grant permission in the judicial review, and dismiss the claim?
MR KOLINSKY: Grant permission, yes, exactly, so that they are capable of travelling --
MR JUSTICE BEATSON: I think that is actually logical, because as I have said, it all depended on the appeal and as nobody suggested that what Mr Blackie was unarguable, then that must be right.
MR KOLINSKY: Yes, and that way they can travel together without the need for procedural gymnastics.
MR JUSTICE BEATSON: Right, good. Well, before I deal with permission to appeal, let me just say this, so that my learned clerk will have to draw up the order note. In relation to the section 288 appeal, the appeal is dismissed, and in relation to the application for judicial review permission is granted and the application is dismissed. Costs in the sum of £9,400. That is all that the order has to have, other than what I am going to say about -- well, it does not have to say anything about permission to appeal, because I will deal with that separately.
Mr Blackie, I am actually somebody who gives permission, so I do think on the Orange one the Court of Appeal has decided it, and the statutory regime is the same. If they want to hear that again, it is really for them to say so. Laws LJ may want to come back to it. So I am going to say no on that.
On the merits, I have concluded that there is no discrepancy between what the Inspector did and Annex E; and in those circumstances, I do not myself think that even though it is an appeal and not a review, having regard to Sullivan J’s formula of what a section 288 appeal is about, I do not consider that this has a realistic prospect of success.
With regard to the procedural point, I am going to give you permission on the procedural point, because although I do regard it as a technical point, one not raised, in view of the formulation of the letter and the regulations, it must be arguable. So I will just spend a minute writing it down and I will read it to you.
MR BLACKIE: May I make one further point then, my Lord, so that when my Lord gives the decision on that it can be recorded? And that is that the time period for approaching the Court of Appeal on these issues --
MR JUSTICE BEATSON: Would you like an extension of time?
MR BLACKIE: Yes, my Lord.
MR JUSTICE BEATSON: There is Easter next week, is there not? What would you like?
MR BLACKIE: What I would request, my Lord, is 21 days from the transcript being available. I think that although my Lord has given an extensive judgment.
MR JUSTICE BEATSON: Yes, well, 21 days from the transcript might take you into 2011. That is just a realistic comment. What do you say, Mr Kolinsky? It seems reasonable to --
MR KOLINSKY: I think it is entirely reasonable to have some form of an extension. Some judges are concerned about the uncertainty of when the transcript is available.
MR JUSTICE BEATSON: Well, I am concerned. I mean, it is possible for you to approach and ask for expedition.
MR BLACKIE: Yes.
MR JUSTICE BEATSON: But you would have to pay for it, I’m having … monthly, for costs, I am not … I am not going to do that. But what I think I am going to do is this: I am going to give a fixed time with liberty to apply if you cannot get the transcript, and I will reserve the liberty to apply to me. I will be in London, but -- does that make sense?
MR BLACKIE: Yes, my Lord, the reason for the request being particularly pertinent here is because we have a lay claimant, as it were --
MR JUSTICE BEATSON: Yes.
MR BLACKIE: -- and therefore -- it is very significant, the costs issue.
MR JUSTICE BEATSON: No, no, I know. Right.
(Pause)
MR JUSTICE BEATSON: What I have got down is that I have said that the application for permission to appeal is allowed in part, permission to appeal is granted on the question whether the 28-day period for the second defendant’s decision had expired before the decision was made. (2) Permission to appeal on the nature of a permitted development prior to receipt of a response by the planning authority, and on whether the Inspector’s decision failed to take account of a relevant consideration is refused, as the requirements of CPR 52 are not met. And I will just say for the benefit of my clerk, I will add to the order that time for lodging an appeal is extended for 28 days, and liberty to the claimant to apply for a further extension if a transcript has not been received. But then the onus is on you to try and get the transcript and sort that.
Thank you both.