Garlick, R (on the application of) v Secretary of State for Council Local Government

THE DEPUTY JUDGE: This case illustrates the pitfalls involved in use of the written representations procedure in planning appeals, notwithstanding its promotion by the planning inspectorate, whose appeal form PINS PF01 describes it as "the simplest, the quickest and most straightforward way of making an appeal. Three out of every four people making an appeal choose this method."

In 2010 the claimant acquired a property known variously as "The Dairy" or "The Bungalow", Sodum Lane, Dauntsey, Wiltshire. The property included a somewhat dilapidated freestanding domestic garage/workshop which the claimant then renovated as a residential unit and which I shall hereafter refer to as "the annex".

At the time of the application for planning permission in May 2011 this annex was occupied as a separate dwelling. By later that year it was in use as what is claimed to be ancillary residential accommodation of the Bungalow, being occupied by the sister of the Bungalow's occupant. It appears to be accepted that ancillary residential use is lawful, whilst all agreed use as a separate dwelling requires planning permission.

On 16th May 2011 the claimant applied for retrospective planning permission to authorise the independent residential use of the annex. The proposed development was change of use from an annex already renovated into an independent planning unit. There were no building operations involved in this application.

The council's officer's report recommended the Planning Committee to grant planning permission on the basis that:

The Wiltshire Council's Northern Area Planning Committee rejected their officer's advice and refused the claimant's application for planning permission by notice dated 5th October 2011.

The reason for refusal referred solely to conflict with local plan policy BD6. The claimant appealed against this decision notice, pursuant to section 78 of the Town and Country Planning Act 1990 by a notice and grounds of appeal dated 18th October 2011. Full written representations including an application for costs were submitted in November 2011. The claimant's planning consultant who handled the appeal unsurprisingly concentrated upon the reason for refusal and sought to demonstrate compliance with policy BD6. Amongst other matters arising out of that policy it was argued that:

The defendant appointed a Planning Inspector to hear the appeal. The Inspector, Miss Armstrong, made a site visit on 20th February 2012 and also received written representations from the council and from two neighbouring residents. The third party representations asserted a conflict with local planning policy H4.

The claimant took the opportunity to respond to the council's and the third party representations, contending in particular that "as the existing building has clearly been converted within the established built shell and as recognised by the council's reason for refusal policy H4 does not in fact apply as that would relate to refer to an erection of a new dwelling which is not the case."

The Inspector also had before her an objection lodged to the planning application by Dauntsey Parish Council that the proposal was for a new dwelling within the countryside and did not comply with policy H4 of the local plan and also an objection to the planning application from the County Highway Authority that:

The Inspector decided the appeal on the papers and dismissed the claimant's appeal on 6th March 2012. The Inspector dismissed the appeal on the following grounds:

The claimant challenges the lawfulness of the decision of the defendant conveyed by the notice of 6th March 2012, dismissing his appeal. The decision is challenged by way of a statutory application, pursuant to section 288 of the Town and Country Planning Act 1990, as amended. The claimant seeks an order quashing the decision notice.

There are two grounds. Ground 1 is that the decision notice failed to provide proper, adequate and intelligible reasons and/or failed to explain properly or at all the conclusions made. Ground 2 is that the Inspector breached the rules of natural justice and procedural fairness.

Ground 1 is made under section 288(1)(a)(ii) of the 1990 Act ("any of the relevant requirements not been complied with"), whereas Ground 2, as both counsel agree, arises under section 288(1) (a)(i) ("not within the powers of the Act").

The decision letter referred to three saved planning policies in the North Wiltshire Local Plan (2011) then:

The supporting text to policy to BD6 stated (emphasis added):

Complaint is made about the inspector's statement that she agreed that local plan policies H4 and C3 were the relevant development of policies against which the application should be assessed. There is no indication that the source of alleged agreement, since neither the claimant nor the council had so asserted, there being only passing references to those two policies in the claimant's written representations and only a passing reference to H4 (and none to C3) in the council's statement of case. Only the third parties, including the Parish Council, had suggested there was conflict with policy H4, the stance of both the claimant and the council being that policy H4 had no application.

More fundamentally the claimant contends that policy H4 was irrelevant since it dealt with "New Dwellings" whereas the appeal related to a building (the annex) which had already been converted to a residential use and could lawfully be used as such provided the use was ancillary and not separate. Therefore there was an error of law in misunderstanding the policy or departing from any interpretation of it which was unreasonable - see R v Derbyshire County Council ex parte Woods [1997] JPL 958. Alternatively no explanation had been given why the Inspector considered that the policy was applicable.

The claimant has not pleaded any challenge to the Inspector's conclusion that policy BD6 was irrelevant, although in her submissions it became clear that Miss Montes Manzano, counsel for the claimant, did not agree with that conclusion, referring particularly to the express inclusion of residential use in policy BD6 (iii).

The claimant also challenges the reasoning behind the Inspector's reference to conflict with policy C3. The Inspector's final conclusion in para 6 of the Decision Letter, following reference to both policies H4 and C3, as well as PPS7 and PPG13, was that:

The defendant, through his counsel, Mr Banner, does not dispute that the two policies, H4 and C3, played virtually no part in the principal parties' representations to the Inspector.

Mr Banner contests the claimant's reliance on ex parte Woods in the light of the Supreme Court's decision in Tesco Stores Ltd v Dundee City Council [2012] PTSR 983 that planning policies are to be interpreted objectively and can only have a single objectively correct meaning as determined by the court - see in particular Lord Reed at paragraph 18 - 22. Mr Banner submits that change of use from ancillary residential to a separate residential use was plainly not merely new development within policy C3, which Miss Montes Manzano accepts, but also a new dwelling within policy H4, being a new separate independent dwelling, as opposed to an ancillary residential use. He also drew attention to the supporting text of BE6 which makes clear that: "any residential development will require a special justification". This, says Mr Banner, is a cross reference to policy H4 which itself requires a special justification for new dwellings in the countryside.

He argues that the Inspector was right to conclude that policies H4 and C3 both applied proposal and both were breached. There was no error of reasoning in respect of either policy. The Inspector had, in paragraph 5, made clear her view that it was wrong to look to the nature of the extended works of conversion and that the key issue was whether the change of use from ancillary to residential to separate dwelling was justified which necessarily involved consideration of policy H4 as well as C3. Mr Banner drew attention to the passage in the written representation of the claimant's planning consultant, set out above, admittedly dealing with policy BD6(v) rather than policy C3, where it had been conceded that independent, as opposed to ancillary, use of annex could potentially increase traffic generation. No further reasoning was necessary in respect of H4 or C3.

As I shall explain under Ground 2, I regard as unfortunate the way in which the Inspector came to focus on policies H4 and C3. Nevertheless I see no incomprehensibility or other flaw in her reasoning and certainly nothing to suggest that there is or maybe some lurking error of law by which the claimant has been prejudiced. As Lord Brown said in South Buckinghamshire District Council v Porter (No 2) [2004] 1 WLR 1953, paragraph 35:

I cannot see how a lawful decision could have been reached without the Inspector grappling with policies H4 and C3, both of which were fundamental countryside policies. As a matter of law, I have no doubt, on a proper interpretation of their wording, both policies were relevant to the determination of the appeal and indeed, together constituted the critical parts of the development plan framework. It is not necessary for me to reach a conclusion in relation to the applicability or otherwise BD6 since, as indicated above, this is no part of the claimant's challenge.

With regard to the claimant's point in respect of lack of factual material in relation to policy C3, I see nothing obscure, surprising or remotely unintelligible in the Inspector's implicit finding that permitting a new separate dwelling in the countryside would be likely to generate more traffic and thus be more unsustainable than an ancillary residential use. The former had been conceded by the claimant's planning consultant in the claimant's written representations and the latter was the subject of the County Highway Authority's initial objection, as recorded in the officer's report.

The Inspector's use of the words "I agree" in paragraph 5 of the Decision Letter was unfortunate, since it is unclear with whom she was agreeing. Possibly it was with the third parties including the Parish Council in respect of policy H4 and with the statement in the initial officer's report that C3 was a relevant policy. It would have been better if she had simply said "I find". I do not regard this as a defect of reasoning sufficient to warrant quashing.

Accordingly the challenge on the first ground is rejected.

This is more promising terrain for the claimant.

The claimant alleges manifest unfairness in the appeal process because the Inspector regarded policies H4 and C3 as decisive of the main issue without the benefit of evidence or representations from the claimant who was entitled to believe, as was the case, and to advance his case upon the basis, that the council agreed that the policy H4 did not apply and that there was compliance with policy C3.

Miss Montes Manzano says that the claimant should have been given the opportunity to analyse and discuss the potential relevance to the appeal of these two policies and whether weight should be given to them by the Inspector. What is described in the claimant's skeleton argument at paragraph 38 as "natural fairness" allegedly "dictated that [the Inspector] requested and stayed her decision pending full written representations on the matter." The claimant had been deprived of an important opportunity to deal with a new case to the one he perceived to be in issue in his own written representations and as a result of which the development plan context had changed from one favourable to the development to one in which conflict was being asserted.

Miss Montes Manzano prays in aid by analogy the principle established in Ball v Secretary of State for the Environment Transport and the Regions [2000] PLCR 299 that:

She also relies on the approach taken in other cases. The first of these is R (Poole) v Secretary of State for Communities and Local Government [2008] EWHC 676 (Admin), where the appellant had confined his evidence at a public inquiry to the council's sole reason for refusal and had not called arboricultural evidence. When the inspector proceeded to refuse the appeal solely on arboricultural grounds the decision was set aside for procedural unfairness.

She also relied on the decision in R (Gates Hydraulics Ltd) v Secretary of State for Communities and Local Government [2009] EWHC 2187 (Admin), where a planning decision following a public inquiry was quashed in circumstances which have some parallel to those in the present case. At issue was the question of external noise from proposed employment uses on the living conditions of future neighbouring residents. It had been agreed in the statement of common ground that mitigation of this noise should be treated as a reserved matter and covered by appropriate noise conditions. In evidence and under cross-examination, the council's noise witness had confirmed that the recommended noise mitigation measures would provide adequate protection. In those circumstances the appellant did not call its own noise witness. However, the Inspector rejected the appeal on grounds which included that the occupants of the dwellings were likely to be subject to noise and disturbance from surrounding industrial uses. She rejected the use of conditions to mitigate noise disturbance. The Deputy High Court Judge held at paragraph 30 that:

If and in so far as the Inspector was finding that the development was in conflict with H4, the claimant would have been enabled to advance further argument. Critically there are important submissions which could have been made in respect of policy C3. Assuming that the Inspector was concerned about noncompliance with policy C3(vi) by reason of failure to promote sustainable patterns of development that would reduce the overall need to travel, the claimant's planning consultant, in his written representations, had already made the point that the existing use of the annex as ancillary accommodation generated its own traffic and that the proposed independent use of the annex would not be materially discernible as part of the surrounding network. If put on notice that the Inspector saw potential conflict with policy C3, the claimant would and should have been able to expand on its reasoning and might have been able to satisfy the Inspector that, as the council itself appeared to accept, the proposal was not in conflict with policy C3 whatever might be the position with regard to policy H4.

Mr Banner retorts that any competent professional planning consultant would have addressed all development plans policies applicable to the proposal, including H4 and C3, and not merely those relied on in the council's reasons for refusal.

There could be no complaint concerning policy H4. It had been in issue since first raised by the Parish Council. The claimant was sent a copy of the representations submitted by third parties which included a letter from local residents which expressly drew attention to the policy H4 and contended that the proposal was in breach of it . The claimant's representative took the opportunity to answer the new argument in the passage I set out earlier in this judgment. I interpose to say that strictly it was not a new argument since it had been raised by the Dauntsey Parish Council all along. Importantly the claimant's representatives did not submit that, should the Inspector agree with the local residents that the proposal did engage H4, its requirements were satisfied or that all material considerations which outweighed a breach of this development planned policy for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004.

Nor was there any procedural unfairness in relation to policy C3. It had been referred to specifically in the officer's report. The sustainability issue raised by the county highway authority, although not specifically expressed by reference to policy C3, was one which the Inspector would have to deal in any event.

Mr Banner drew attention to Castleford Homes v Secretary of State for the Environment [2001] EWHC (Admin) 77, where at paragraph 52 Ouseley J said:

Put simply, on the present facts, it was the claimant's fault that the obvious problems posed by policy C3 and the sustainability issue had not been addressed in his written representations.

Additionally given the single objectively correct interpretation of policies H4 and C3 adopted by the Inspector, and the absence of material considerations outweigh the development plan, there was no basis for granting relief in any event because there had been no prejudice. Therefore were the court to find for the claimant on ground 2, if only in respect of policy C3, this was one of the rare cases where the court should exercise its discretion not to quash.

I have found this ground troublesome. Plainly the council officers did not regard the proposal as contrary to C3. That much is plain from the officer's report and from the absence of any reference to C3 in the council's statement of case. So far as concerns H4, it is troubling that the council's statement of case made no reference at all to this policy in the key section headed "The council's case", the only reference being in paragraph 4.5 under the heading "Local planning policy" where following a reference to BD6 there appears the following:

I agree that the claimant had the opportunity in its initial written representations to put forward arguments as to why policies C3 and H4 did not apply and did not do so. They did specifically address policy H4 in response to the third parity objections. I regard it as impossible to say that there has been procedural unfairness in respect of the Inspector's treatment of policy H4.

Was there procedural unfairness in respect of policy C3? Given the key role of C3 in the local plan, the possibility that the proposal might be held to be in conflict with it should have been obvious to the claimant. Whether by design or by oversight the claimant's planning consultant failed to deal with the sustainability issue raised in the clearest terms in the objection of the county highway authority.

The three cases relied upon by Miss Montes Manzano: Ball, Poole and Gates Hydraulics are plainly distinguishable on their facts. In particular in the second case, as the judge found, it was clear that the appellant could not reasonably have anticipated that the issue of whether a tree could be retained would even be an issue.

In the third case, as the Deputy Judge said in paragraph 20:

The issues arising out of policy C3 are technical ones but of a lesser order than those the subject of Gates Hydraulics.

Accordingly I conclude that the claimant has largely itself to blame for its predicament, although the situation was undoubtedly aggravated by the use of the written representations procedure, it being virtually inconceivable, despite what happened in Poole and Gates Hydraulics, that the significance of policies H4 and C3 would not have become apparent had an inquiry been held.

I agree with Mr Banner that the inspector's approach was one which the claimant could reasonably have anticipated, so that the claimant fails by the guidelines in Castleford Homes.

In these circumstances it is not necessary for me to consider Mr Banner's arguments on discretion, though I would not readily have acceded to them.

The result is that the claim fails on both grounds.

MR BANNER: My Lord, I am grateful for that. I would ask, in light of your Lordship's judgment, for an order, firstly, the claim be dismissed, and secondly, for an order the claimant pays the defendant's costs.

THE DEPUTY JUDGE: You cannot oppose the first part of that. Miss Montes Manzano have you had a chance to look at the statement of costs which has been put in, which I think is in the sum of £6,148?

MISS MONTES MANZANO: My Lord, yes I have had an opportunity and I have taken instructions on the particular items. My instructions are that the item on solicitors costs were done on documents on the second page, the one that relates to paragraph C. Fifteen hours at £160 per hour is simply too much. That is because it is not comparable to my instructing solicitor's costs, which were in effect half of those costs claimed by the defendant's solicitor.

THE DEPUTY JUDGE: Well I have your statement of costs, where are you directing me to?

MISS MONTES MANZANO: It would be the first page, your Lordship will see items "(a) for attendances of claimant, letters written, letters received, filing papers ..."

THE DEPUTY JUDGE: Yes. Those all total, on my copy the total does not appear. (Pause) I have a blank against the total.

MISS MONTES MANZANO: £1,953.

THE DEPUTY JUDGE: £1000...

MISS MONTES MANZANO: £1,953.

THE DEPUTY JUDGE: That you say is the comparable figure to be set aside the Treasury Solicitors figure, which is what?

MISS MONTES MANZANO: £4,334. My Lord I say that because of course the other defendants, they in terms of work done on documents, there was no written evidence presented, no detailed reasons of grounds for contesting the claim.

THE DEPUTY JUDGE: Sorry?

MISS MONTES MANZANO: No reasons or grounds for contesting the claim. There was only one acknowledgement of service and nothing else to come with it. No other documents were included. Of course they --

THE DEPUTY JUDGE: Normally it is much cheaper to resist a claim than bring a claim because that I suppose is to be said that the amounting they are claiming is £2,000 less.

MISS MONTES MANZANO: My Lord, yes. Of course they are represented by counsel and it would be the claimant who prepared both bundles for the court. My submission is that they should be reduced at least to parity to the claimant's solicitor's costs.

THE DEPUTY JUDGE: What do you say the total amount should be? What do you say their claim is for £6,148. What do you say should be come down, to approximately £5,000?

MISS MONTES MANZANO: I would say take off half of the solicitor's costs so approximately £2,000.

THE DEPUTY JUDGE: Take off half of the solicitor's costs. Which would be?

MISS MONTES MANZANO: Approximately £2,000, give or take.

THE DEPUTY JUDGE: Bring that claim down to £4,000 rather than £6,000.

MISS MONTES MANZANO: My Lord, yes.

THE DEPUTY JUDGE: You are entitled to challenge the Treasury Solicitor's costs. It is rare normally for some relief, unsuccessful applicants meant that those in Mr Banner's position are remunerated. Mr Banner, what do you say to that?

MR BANNER: My Lord, I will list the principal elements and then I will give my explanation. The principal elements for the --

THE DEPUTY JUDGE: Have you been given any notice of this?

MR BANNER: My learned friend mentioned this before lunch and I am content to proceed. My Lord, the C items 15 hours, include in particular an advice note which the Treasury Solicitor prepared. That is a customary practice in cases such as this, where before papers go to counsel, a detailed comprehensive and generally very helpful advice notice is prepared which saves counsel's times later on. Then, there was the acknowledgement of service, albeit largely the form that was undertaken, reviewing my skeleton argument, reviewing a note from the Inspector. There was no witness statement, but instructions were taken. Although the bundle of authorities were prepared by the claimant, it was given to us in electronic format so it was required to be printed. Those are some specific items I can highlight.

THE DEPUTY JUDGE: What about the point that is made that it is rather extraordinary that the solicitors costs for the claimant for comparable ones are so much reduced. It may be that counsel had in that case to do all the work themselves whereas in your case, you have the enormous advantage --

MR BANNER: That is exactly the point. It does not appear from the claimant's cost schedule that the claimant's solicitor did any advice. The function was attendances and letters. The advice or at least the lion's share was my learned friend's and doubtless that is one of the reasons why her fees for advice are getting on for three times of mine, whereas I had the head start, the leg up Mr Bell gave me and so therefore overall the fees for advice are broadly comparable.

THE DEPUTY JUDGE: Do you have anything further to add Miss Montes Manzano on this matter?

MISS MONTES MANZANO: My Lord, no. No further submissions on that particular point. We take no objection to my learned friend's fees of course. It just seems that when counsel is instructed inevitably counsel would have to do their own research and preparation for the case and whilst a note from the solicitor is detailed and helpful, it does not take away from the task that counsel has to perform to prepare for a full hearing.

THE DEPUTY JUDGE: I have listened to the arguments and it seems to me that when I look at the amount charged for advising whether by solicitors or by counsel and taking the matter cumulatively on the two sides, there is not a great deal of difference. In the circumstances it seems to me the Secretary of State is entitled to costs in the amount which has been claimed.

MR BANNER: Thank you my Lord.

MISS MONTES MANZANO: I am grateful.

THE DEPUTY JUDGE: Are there any other matters that arise?

Very well. I am very grateful to both counsel for the clarity of their submissions and although we went a little bit over half-a-day, it was not very much over as we started late yesterday.