Brinkworth v Welsh Ministers & Anor

This is an application by the claimant, Mr Tony Brinkworth. The defendants to the application are the Welsh Ministers (who are the first defendant) and Neath Port Talbot Borough Council (who are the second defendant). In fact Neath Port Talbot Borough Council should possibly have been involved in this case as interested parties rather than as second defendants; they have taken no part in the proceedings. The claimant has represented himself; the Welsh Ministers (the first defendant) have been represented by Mr Lewis.

In August 2010 the claimant applied to the second defendant, the local planning authority, for outline planning permission to build a house, garage, workshop and greenhouse on land at CydcoedQuarry, Tonna Road in Neath. On 11 November 2002 the second defendant refused permission. The claimant appealed under section 78 of the Town and Country Planning Act 1990. An inspector was appointed and on 8 March 2011 he visited the site, accompanied by the claimant and by a planning officer of the second defendant. On 6 May 2011 the inspector issued his decision letter dismissing the claimant’s appeal. On 10 June 2011 the claimant issued these proceedings in the Administrative Court seeking a review of the inspector’s decision under section 288 of the Town and Country Planning Act 1990.

It should be noted – though this has no effect upon the decision in this case – that there have been two previous applications for outline planning permission with respect to the same site; both were refused and in each case that refusal was upheld on appeal.

The claimant’s grounds of application can be discerned from his claim and skeleton argument to be as follows. Firstly he contends that the inspector mis-identified the appeal site. In his decision letter at paragraph three the inspector said this,

“The appeal site consists of a former quarry that is situated outside the settlement boundary of Tonna, in open countryside to the south of the rugby club. The quarry has been subject to some fly tipping in the past and there is evidence of quarry waste within the site, nevertheless it has regenerated very well and contains a large number of mature and immature trees and shrubs.”

Further, at paragraph six he refers to there being on the site a small amount of waste and a very small area of Japanese knotweed.

The claimant contends that the area of knotweed was in fact a large rather than a very small area, covering about 40 or 50 per cent of the appeal site. He also contends that there was large quantity of waste on the site rather than the small amount referred to by the inspector. Perhaps more significantly the claimant contends that the appeal site contains no mature trees but only a few immature trees and shrubs. In support of his contention he relies on the following documents which have been included in the bundle. Firstly he relies on photographs from the Google website which he downloaded on 13 May this year but which were taken, he says, about three years ago. These photographs, he contends, show no mature trees on the appeal site. He has marked the appeal site in red upon the photographs. He also relies upon a report prepared in 2008 by the Forestry Commission for Wales. This was a report which the claimant commissioned to assist him with management of woodland which includes the appeal site but is more extensive than that site alone. The report itself runs to about 22 pages but the claimant has extracted the relevant pages for the purpose of supporting his argument. Those pages include page five and a plan of the appeal site and surrounding area. He points out that the general area around the appeal site is described as scrub and that within the appeal site itself there is what is described as an area of dense Japanese knotweed. In support of his application for outline planning permission the claimant submitted a design and access statement. That includes a series of photographs - they are numbered four, five and six on the second page of the statement - which show views of the appeal site and, according to the claimant, demonstrate that it is principally Japanese knotweed which is growing upon it.

On 5 September 2007 there was an email sent from Lee Branner to Mathew Fury (Mathew Fury is, as I understand it, the second defendant’s planning officer). The email says this:

“The trees on this application site are of poor quality and their removal will not have an impact on the surrounding area.”

The claimant relies upon that email to show that it would be wrong to describe the site as having mature trees upon it.

Subsequently to the inspector’s decision on 3 June 2011 the claimant commissioned a report by Mr Bell of Coed Cymru. The report describes the survey area which is to be equated with the appeal site, and records that there are no mature trees on it. There are a few very young trees on the site, the largest of which is a sycamore which has itself been damaged by squirrels. The claimant also relies on the second defendant’s planning policy ENV5 which relates to the eradication of invasive plant species. Japanese knotweed, he contends – correctly, as I understand it – is such. The claimant’s submission therefore is that the evidence plainly shows that to describe the appeal site as having regenerated very well and as containing a large number of mature and immature trees and shrubs is a significant mis-description of the site, such that the proper inference to be drawn is that the inspector has mis-identified the site itself. The claimant contends – for the reasons I have just indicated and for other reasons relating to rights of way to which I shall come in a moment – that the inspector appears to have identified an area to the north of the appeal site as the area which is the subject of this outline planning application. That is the first ground.

The second ground, so far as I can identify it, upon which the claimant relies is this: that the inspector was wrong to conclude that the appeal site has a natural appearance which blends with the surrounding more mature woodland. This is wrong, the claimant submits, again because the appeal site is infested with Japanese knotweed which is a nuisance and which should be eradicated, and also for the reasons to which I have already referred relating to the description of the site as having mature trees.

Thirdly, the inspector was wrong to conclude that the appeal site was close to public rights of way. Here the claimant contends that there are two errors. Firstly, the reference to rights of way (in the plural) and, secondly, the reference to the proximity to those rights of way. The claimant contends that there is a single right of way running relatively close to the site. That is the right of way known as Quarry Road. There is also another access way leading off Quarry Road which gives access, amongst other places, to the Tonna Rugby Club and its car park. However, says the claimant, that is not a public right of way. Further, he submits that Quarry Road itself is 51.5 metres away from the appeal site. That, he submits, does not merit the description of it as “close to the appeal site”. He submits that the use of the word “close” should be confined to meaning approximately five or ten metres. This complaint about the inspector is linked to the claimant’s first complaint that the inspector has misidentified the appeal site. The area to the north of the appeal site which, the claimant contends, bears a wooded aspect which fits the inspector’s description more accurately, is also close or closer to Quarry Road. That in itself, however, does not, as it seems to me, address the claimant’s complaint that there is a reference to rights of way (in the plural) rather than any right of way (in the singular). Further, the inspector, in his decision letter, refers to the appeal site as being in a prominent position with respect to the rights of way. The claimant disputes that that is accurate. He submits that the appeal site can hardly be seen at all from Quarry Road.

The fourth matter of which the claimant complains, as I understand it, is this. He says that the inspector was wrong to conclude that the proposed development would have a significant harmful effect on the character and appearance of the surrounding area. The claimant submits that the appeal site sits in a quarry surrounded effectively on three sides. It does not include trees to the north of the site as the inspector appears to misapprehend.

Fifthly, the claimant contends that the inspector was wrong to describe the site, as he did in paragraph three of his decision letter, as being in open countryside and also wrong to conclude – as he did in paragraph seven – that the proposal would lead to the urbanisation of what is a pleasant rural wooded area. The claimant says that the appeal site is an enclosed area of land and further seeks to argue that, rather than open countryside, it is effectively part of the urban area of Tonna. In support of this, paradoxically, he relies in part upon the proximity of the appeal site to Quarry Road, which seemed to me to be in contradiction to his earlier complaint about the inspector’s decision letter insofar as it referred to rights of way. The claimant also relies, however, on the fact that there is a radio mast about 150 metres from the appeal site, that the rugby club to which I have referred is about 80 metres from the appeal site and that there are overhead power lines crossing the site or, if not the site, the adjacent area.

Finally, as I understand it, the claimant contends that the inspector was wrong to say that the site has regenerated well and contains a large number of mature and immature shrubs and trees. This is a different point from the point relating to misidentification of the site but nevertheless depends upon the same material in support of it. Those then are the matters about which the claimant complains.

So far as the inspector’s decision is concerned, it seems to me to be plain from the decision letter that the main issue with which the inspector dealt was the effect of the proposed development on the character and appearance of the surrounding area. He said in his decision letter that overall the proposal would have an unacceptable urbanising effect on the area and that, it appears to me, is the essential basis of his decision. In addition, he points out that the proposed development is prima facie contrary to policy ENV1 of the second defendant’s unitary development plan which seeks to limit development in the countryside.

Having summarised the claimant’s grounds of complaints and my understanding of the basis upon which the inspector reached his decision, let me turn to the law. There is no dispute about the legal principles which should govern my approach to this application. Section 288 of the Town and Country Planning Act 1990 provides, by sub-section (1):

“(1)

If any person—

(a)

is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds—

(i)

that the order is not within the powers of this Act, or

(ii)

that any of the relevant requirements have not been complied with in relation to that order; or

(b)

is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds—

(i)

that the action is not within the powers of this Act, or

(ii)

that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.”

By sub-section (5) it is provided:

“(5)

On any application under this section the High Court—

[…]

(b)

if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action.”

The Court’s approach to an application under section 288 is set out in the judgment of Forbes J in Seddon Properties v Secretary of State for the Environment [1981] 42 P&CR 26. In summary and so far as relevant to this application, it is to review the decision of the first defendant, the Welsh Ministers, to ensure that in taking the decision to accept the inspector’s decisions and reasons, they complied with the following principles: they must not have acted perversely; must not have taken into account irrelevant material or failed to take into account relevant material; must have complied with statutory procedures; and must not have departed from the principles of natural justice. In practice, of course, that will involve a review of the inspector’s reasons and conclusion. In applying those principles the relevant material is usually the inspector’s decision letter. Forbes J in Seddon said that in approaching its task it is no part of the duty of the court to subject that decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute.

Sullivan J in The Queen on the Application of Newsmith Stainless Limited v Secretary of State for the Environment [2001] EWHC Admin 74 said at paragraph five to paragraph eight:

“5.

It is important to note at the outset that 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 have not been complied with in relation to the decision.

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.

7.

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. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

8.

Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task. It might be thought that the basic principles set out above are so well known that they do not need restating. But the Claimant's challenge in the present case, although couched in terms of Wednesbury unreasonableness, is, in truth, a frontal assault upon the Inspector's conclusions on the planning merits of this Green Belt case.”

The weight to be attached to a consideration is a matter of planning judgment. On that, see the speeches of Lord Keith and Lord Hoffmann in Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759.

Against that summary of the legal principles let me turn to the grounds of this application: firstly, the ground that the inspector has mis-identified the appeal site. It is conceded on behalf of the first defendant that if the inspector has mis-identified the site that is a factual mistake which is capable of vitiating his decision. The concession, it seems to me, is plainly right. However, the defendant does not concede that any factual error will lead to the decision being quashed. Again that seems to me to be correct. It must be an error which the Court concludes affected or may realistically have affected the inspector’s decision. In this case the matters on which the claimant relies do not persuade me that I should conclude that the inspector mis-identified the appeal site. It is of significance that the inspector carried out a site visit accompanied by the claimant and by the second defendant’s planning officer. According to correspondence passing between the claimant and the Treasury Solicitor (which has been included in the bundle for this hearing) the claimant and the defendant’s planning officer assisted the inspector on the site in identifying the proposed positions of the buildings. There would need to be some fairly compelling evidence to be extracted either from the decision letter or from surrounding material which was not in issue, to show that the inspector in those circumstances had come to the conclusion that the appeal site was an area to the north of the actual appeal site as the claimant contends. None of the material provided by the claimant, it seems to me, has that consequence.

Further, there must be some debate about the precise meaning of the sentence taken from paragraph three of the inspector’s decision letter. The sentence, it will be recalled, is this:

“The quarry has been subject to some fly tipping in the past and there is evidence of quarry waste within the site, nevertheless it has regenerated very well and contains a large number of mature and immature trees and shrubs.”

What is the “it” which has regenerated very well? Is it the appeal site or is it the quarry? The sentence could be read either way. The claimant’s approach is this: “it” must be taken to be the appeal site; the appeal site does not contain a large number of mature and immature trees and shrubs, therefore the inspector has mis-identified the appeal site. An alternative way of approaching the sentence is this, the inspector visited the site, he had a chance to look at it, accompanied by the claimant and the second defendant’s planning officer. They assisted him in identifying on site the positions of the proposed buildings. Accepting that the appeal site does not contain a large number of mature and immature trees and shrubs, in those circumstances is it more likely that the “it” relates to the appeal site or that it relates to the quarry? Given the knowledge of the inspector, it seems to me that an equally plausible argument can be advanced, that the word “it” in the sentence relates to the quarry generally rather than to the appeal site itself. I see no reason to discount that as a rational interpretation of the sentence set against the factual background to which I have referred. Accordingly I am not persuaded that this ground of the claimant’s objection has any validity at all. In any event, there is no suggestion, as Mr Lewis points out, that the visit to the site was conducted in any improper way or in any way which in itself might lead to the quashing of the inspector’s decision.

The second ground relied upon by the claimant is this, that the inspector was wrong to conclude that the appeal site has a natural appearance which blends with the surrounding more mature woodland. That was a description of the site which the inspector gave to it after a visit. The photographs do not show, in my judgment, that that description is plainly wrong. The fact that Japanese knotweed is an undesirable plant does not mean, in my judgment, that its presence upon a site makes the site unnatural. The description of the site contained within those words of which complaint is made is a description which the inspector was entitled to give to it having seen it.

The third complaint is that the inspector was wrong to conclude that the proposed development was close to public rights of way. The reference to rights of way (in the plural) is not, in my judgment, wrong. There are, on the claimant’s case, what might be described as three separate ways in the area, that is, Quarry Road as it approaches the site, the access way which leads towards the Rugby Club and its car park and the extension of Quarry Road which leads on in the general easterly direction from the appeal site itself. It should be noted that the inspector was not relying upon any definitive map in order to identify public rights of way. What he was doing was simply describing what he saw on site. The reference to rights (in the plural) - even therefore, if the claimant is correct in his assertion that there was strictly only one public right of way in the area - is not in itself sufficient to show that the inspector had come to some material mistake which led to an erroneous decision or indeed, if it is relied upon for this purpose, to show that the inspector had misidentified the site. Is the use of the word “close” to identify a road which is 51.5 metres away so inappropriate that the inspector’s decision should be overturned? In my judgment it plainly is not. “Close” is a relative expression; I do not see any reason why a right of way which is 51.5 metres away should not be described as “close to the appeal site”. In any event, as I have pointed out, paradoxically, the claimant himself was relying upon the proximity of that road in support of another of his complaints. I therefore do not find that the inspector was wrong to conclude that the proposed development was close to public rights of way as the claimant suggests or that such an error – if it is an error – is one which vitiates his decision.

The fourth complaint is that the inspector was wrong to conclude that the proposal would have a significant harmful effect on the character and appearance of the surrounding area. This, it seems to me, goes to what the decision is all about. This was a central issue, as the inspector saw it. He determined this point adversely to the claimant but that is essentially a matter of planning judgment for the inspector who visited the site. Further, it is a decision which he based on the second defendant’s planning policy ENV1. I see no basis upon which I can possibly interfere with that conclusion.

Fifthly, it is said that the inspector was wrong to describe the site as in open countryside in paragraph three of the decision letter and wrong to say that development of the site would lead to urbanisation in paragraph seven. Again these are essentially matters of description. There is no issue, as I understand it, that this site does lie outside the strict boundaries of Tonna. In those circumstances the inspector is right to describe it as “in open countryside” in planning terms. Whether or not the proposed development would lead to urbanisation is therefore a matter of planning judgment and not a matter in which I can interfere.

Finally, the sixth complaint made by the claimant is this: that the inspector was wrong to say that “it” – whether that is the quarry or the site – has regenerated well and contains a large number of mature and immature shrubs and trees. It must be remembered that this is an area which was a quarry. Again this conclusion is a matter of the inspector’s judgment. In the context of the use to which this area of the countryside was at one time put, it cannot be wrong to describe the site in the way in which the inspector did. To a large extent, of course, this objection simply repeats the objections relating to the mis-identification of the site with which I have already dealt.

The claimant expressly does not seek to argue that the energy efficiency of the proposed development justifies the grant of permission. In his skeleton argument at its conclusion he says this:

“I have purposely avoided, any legal arguments to the many types of material considerations which include the Governments National Policy statements, Planning Policy Statements or Guidance notes, setting out the purposes that justify this type of development, which would be to build one of the first code 6 sustainable homes with on site renewable energy to be built in Wales if not in the UK, on a derelict part contaminated Brownfield site.”

The claimant did make some attempt during oral argument to raise those issues and to support them by reference to documents which had not initially been included in the bundle for this hearing. However, in my judgment his initial stance on this was correct; he was right not to take these points. The fact that this house, if built, would be energy efficient was not ignored by the inspector. The fact that the clearing of the site for the purpose of building the house would have the advantages of removing Japanese knotweed and of removing waste which had been fly tipped on the site also was not ignored by the inspector. The fact that he took those matters into consideration is established by the following sentences from paragraphs six and seven of his decision letter. In paragraph six he says:

“I consider that the management of the site for nature conservation purposes the prevention of fly tipping; the removal of the small amount of waste that exists within the site, and the management of the very small area of Japanese knotweed is not dependent on residential development on the site.”

He then refers to the fact that the site may generate surplus renewable energy as a feature of the residential development rather than as generation in its own right.

In paragraph seven he says this:

“Even so the proposal would have a significantly harmful effect on the character and appearance of the surrounding area, and would lead to the urbanisation of what is a pleasant rural wooded area. On balance I consider that the benefits of a sustainable location and the sustainable nature of the proposed dwelling would not outweigh the considerable harm that I have identified.”

Essentially this was a case which required the exercise by the inspector of his planning judgment. In those paragraphs it is plain that he exercised that judgment. He took into account matters which the claimant contended favoured the grant of development and weighed them against the adverse effects upon the locality as he perceived them to be. The weight which is to be given to those factors is a matter for the inspector. The claimant cannot show that the inspector ignored any material consideration in carrying out the balancing exercise which was required in the planning judgment in this case, nor that he took into account anything that was immaterial. Essentially the claimant’s case is based upon his own assertion that the inspector came to the wrong decision. However, as I pointed out to him during his submissions, that is a matter entrusted to the inspector and not to this Court.

Further, the inspector plainly took into account the second defendant’s policy ENV1. That policy is helpfully set out in the planning officer’s report in this case. It is summarised as follows: Policy ENV1 aims strictly to control new development in the open countryside unless it satisfies a number of criteria. The criteria are then set out and they include, as one would expect, development for agricultural or forestry purposes; the conversion or adaptation or replacement of existing buildings and development appropriate to and associated with nature and conservation, to summarise but three. It is the last at paragraph (g) upon which the claimant relies. That criterion is this: it is development necessary for derelict or contaminated land reclamation. This is a policy which the inspector considered and he concluded that none of the exceptions to the restriction on development was made out in this case. It is plain that the exception on which the claimant relies was not made out. As the inspector said at paragraph six of the decision letter, the management of the site, the removal of waste and the management of the Japanese knotweed is not dependent on residential development on the site. In the end, it seems to me, the claimant was accepting that that was the case. It could not therefore be said that it was necessary to permit this development in order to control the Japanese knotweed on site or to provide for the disposal of waste which had been dumped there. There is further an overriding proviso in policy ENV1 in these terms: in all cases the development should not create unacceptable impacts upon the character or appearance of the countryside. The inspector evidently concluded that this development did have that forbidden effect and that, as I have said, is a matter for him and not for me.

In bringing this challenge the claimant has therefore taken upon himself the difficult task to which Sullivan J referred in Newsmith Stainless Limited of attempting to overturn the decision of an inspector who visited the site and conducted a view. As Sullivan J said, that is a difficult task which seldom succeeds and on the facts of this case I conclude that the claimant has failed to establish that this decision should be overturned. The application under section 288 of the Town and Country Planning Act 1990 therefore must fail.