LDRA Ltd & Ors v Secretary of State for Communities And Local Government & Ors

In this claim under section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”), the Claimants applied to quash the decision of the Secretary of State for Communities and Local Government, dated 13 October 2015, made on his behalf by an Inspector (Mr Richard Clegg), in which he allowed an appeal by Cammell Laird Shiprepairers & Shipbuilders Ltd (“the developer”), and granted planning permission for an on-shore office and warehouse building at the car park, Alabama Way, Birkenhead, Merseyside, CH41 5LJ (“the Site”), to serve as a marine operations and maintenance facility for off-shore projects The off-shore projects to be serviced by the development were windfarms in Liverpool Bay and the Irish Sea. A marine licence had been granted for the proposed floating pontoon and linkspan structure.

The Site is immediately adjacent to the River Mersey. Once the site of a railway, the car park and the adjacent Monks Ferry slipway are now owned by Wirrall Borough Council (“WBC”). The public currently enjoy access to the car park. Charter boat companies use the slipway with the knowledge of WBC. WBC has resolved that its freehold interest in the Site could be sold to the developer. However, planning permission for this development was refused by WBC on 23 July 2014, on the grounds that it would result in an unacceptable loss of amenity for the occupiers at the adjacent residential development at Priory Wharf by virtue of increased noise, general disturbance and poor outlook.

The site is within an area designated as a Primarily Industrial Area in the adopted Wirral Unitary Development Plan (“Wirral UDP”). Policy EM6 provides that applications for new employment development (defined as falling within Classes B1, B2 and B8 of the Town and Country Planning (Use Classes) Order 1987)) will be permitted, provided it does not lead to an unacceptable loss of amenity or have an adverse effect upon neighbouring uses. WBC concluded that the potential impact upon occupants of Priory Wharf would be contrary to Policy EM6.

On appeal by the developer, the Inspector identified six main issues (Appeal Decision (“AD”) [7]):

The appeal was opposed by the Claimants, who were adversely affected by the proposal, and had previously objected to WBC.

The First Claimant operates a high technology business on the industrial park immediately to the south of the Site.The Second Claimant, Dr Hennell, is the managing director and founder of the First Claimant company.

The Third Claimant, Mr Evans, is a member of the Mersey Charter Boat Association, a qualified yacht master and a charter-boat operator. He operates the “Mersey Lass”on the River Mersey for fishing trips and wreck diving. He has operated a charter boat service on the River Mersey since 1991.

The Fourth Claimant is the Priory Wharf Management Company Ltd which operates for the benefit of residents of Priory Wharf, the four storey residential complex located immediately to the north of the Site.

After a hearing lasting two days, and two site visits, the Inspector decided that the appeal should be allowed and planning permission should be granted, subject to conditions. His overall conclusions were as follows:

“75.

The appeal site lies within a primary industrial area on the UDP Proposals Map. Within this designation, the proposed offices and warehouse would be acceptable in principle. However the criteria in Policies EM6 and EM7 apply to new employment development and are also relevant. The development of the site at Alabama Way for a marine operations and maintenance facility would not cause unacceptable harm to the living conditions of nearby residents at Priory Wharf, nor would it result in material harm to the operations of LDRA Ltd. Insofar as nature conservation interests are concerned, there would be no significant adverse effect, and I have found no conflict with Policies EM6 and EM7.

76.

The proposal would not detract from the significance of heritage assets, and there would be no conflict with Policy CH1 of the UDP which seeks to safeguard listed buildings. Policies in the UDP concerning the developed coastal zone and the inter-tidal zone are also relevant to the appeal proposal. Whilst there is compliance with most provisions of Policies CO1 and COI7, the closure of about 40m of the riverside footway would conflict with the requirement to preserve public access to the coast.

77.

As a consequence of the conflict with Policy CO1 concerning public access to the coast the proposal would not be fully consistent with the Development Plan. I consider that the effect on jobs is of neutral significance in the planning balance, but the proposal would contribute to the implementation of off-shore renewable energy projects, and it would thereby accord with a core planning principle of the NPPF. This is a significant benefit of the proposal which clearly outweighs the limited harm of conflict with Policy CO1 arising from the loss of a short stretch of footway.”

In their application under section 288 TCPA 1990, the Claimants submitted that the Inspector erred in respect of his approach to:

Ground 5 was added by way of a late amendment, and both parties filed late witness statements in respect of the issues which it raised.

The First Defendant’s response was that the decision did not disclose any error of law on the part of the Inspector, who had considered all relevant matters, giving them such weight as he found appropriate, and reached conclusions on the planning merits of the proposal which could not be successfully challenged.

Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with and in consequence, the interests of the applicant have been substantially prejudiced.

The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimants must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.

The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1978) 42 P &CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:

“An application under section 288 is not an opportunity for areview of the planning merits of an Inspector's decision.”

The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) of the Planning and Compulsory Purchase Act 2004, read together with section 70(2) TCPA 1990. The NPPF is a material consideration for these purposes.

An Inspector’s decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well-informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment(1993) 66 P & CR 83.

The First Claimant operates an international high technology business, including testing of bespoke computer programmes intended to ensure the safety of both civil and military aircraft. The equipment used for this is highly sensitive. The evidence of Dr Hennell was that the vibration generated by the proposed development, particularly during the construction phase, but also when in operation, would irrevocably harm its computer discs. It would have to re-locate to another site if the development went ahead.

The developer commissioned consultants who prepared a detailed “Construction Noise and Vibration Assessment” which referenced British Standard 5228-2 on Vibration, and the Approved Code of Practice, including best practice vibration mitigation requirements. BS 5228-2 addresses vibration limits for buildings, and contents of buildings, such as disc drives which are sensitive to vibration below the level directly perceptible to people. Because of uncertainty concerning the level of transmitted vibration, and its acceptability to the particular environment, preliminary trials and monitoring may have to be designed to establish a suitable procedure for the work. The report recommended a Noise and Vibration Management Plan, which would be incorporated into the Construction Environmental Management Plan, proposed as a condition of planning consent.

The Inspector accepted the evidence from the consultants that the risk of damaging vibration from the movement and engines of the crew transfer vessels was negligible. Vibration during construction would present a risk but it could be acceptably mitigated by use of the less intensive methods of work recommended in the report, and by monitoring. The Inspector imposed the conditions recommended by the consultants which provided that development could not take place until there was an approved plan addressing “construction noise and vibration management, monitoring and mitigation measures” which was to be adhered to throughout the construction period. In the light of this condition, he was not certain that it would be necessary for the business to re-locate. Even if it did, the loss of jobs would be balanced by about 65 new jobs created by the development proposal.

The Claimants criticised the Inspector’s decision, on the grounds that he failed adequately to address their concerns, and erred in his approach to the British Standards, and relied on monitoring instead of prevention. In my judgment, these criticisms were not justified. The Inspector gave proper consideration to the issue, and reached conclusions which were supported by the consultants’ evidence.

The Claimants submitted that the Inspector failed to appreciate and/or take into account that the likely impact of the development was that disabled persons would no longer be able to access the riverside. This was contrary to Policy CO1 of the adopted Wirral UDP which states that “Public access to the coast will be expected to be preserved and where practical and safe to do so, enhanced.” Paragraph 20.19 of the reasoned justification provides that “No development … should lead to a reduction in public access to the coast, and indeed where possible, should enhance it.”In reaching his conclusions on this issue, the Inspector failed to discharge the public sector equality duty under section 149 of the Equality Act 2010, in particular subsections (1)(a) and (b) and (3)(a) and (b).

The Secretary of State agreed that section 149 of the Equality Act 2010 applied but submitted that the Inspector had discharged the duty by having due regard to the needs identified in subsections (1) and (3). There was no error of law in his approach to access by disabled persons.

Section 149 of the Equality Act 2010 provides:

“149 Public sector equality duty

(1)

A public authority must, in the exercise of its functions, have due regard to the need to—

(a)

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

(2)

A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).

(3)

Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)

remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

(b)

take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;

(c)

encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.

(4)

The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.

(5)

Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—

(a)

tackle prejudice, and

(b)

promote understanding.

(6)

Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.

(7)

The relevant protected characteristics are—

age;

disability;

gender reassignment;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation.

...”

The public sector equality duty has been the subject of detailed consideration by the courts over the years. Mr Whale referred me to R (Coleman) v London Borough of Barnet [2012] EWHC 3725 (Admin), in which Lindblom J. (as he then was) held that the local planning authority had due regard to the statutory equality duty which had been fully set out in the planning officers’ report. Lindblom J. set out the principles to be applied as follows:

“65.

The relevant jurisprudence is clear and not controversial.

66.

As Dyson LJ said in [R (Baker) v Secretary of State for Communities and Local Government [2009] PTSR 809] (in paragraph 31), the duty is not a duty to achieve a result, but to have due regard to the need to achieve the statutory goals. This distinction, said Dyson LJ, is “vital”. The failure of a decision-maker to make explicit reference to the relevant statutory provision (in that case section 71(1) of the Race Relations Act 1976) would not determine whether the duty under the statute had been performed, for this “would be to sacrifice substance to form” (ibid., paragraph 36). Dyson LJ went on to say this:

“37 The question in every case is whether the decision-maker has in substancehad due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed. … To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning.

38 Nevertheless, although a reference to section 71(1) may not be sufficient to show that the duty has been performed, in my judgment it is good practice for an inspector (and indeed any decision-maker who is subject to the duty) to make reference to the provision … in all cases where section 71(1) is in play. In this way, the decision-maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced.”

67.

The court must consider whether due regard has been paid to the equality duty, and not simply whether the failure to have due regard to that duty was Wednesbury unreasonable (R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2011] EWHC 2616 (Admin), at paragraphs 70 to 72). “Due” regard means, as Dyson LJ said in Baker (at paragraph 31), “the regard that is appropriate in all the circumstances”. The circumstances include “the importance of the areas of life of the members of the disadvantaged … group that are affected by the inequality of opportunity and the extent of the inequality” and “such countervailing factors as are relevant to the function which the decision-maker is performing” (ibid.).

68.

As Aikens LJ said in [R (Brown) v Secretary of State for Work and Pensions [2009] PTSR 1506] (at paragraph 35), “the general duty [in section 49A(1) of the Disability Discrimination Act 1995] is expressed in broad and wide-ranging terms of the needs or targets to bring about a change of climate, but the section is silent as to how it should be done”. He emphasized (at paragraph 82) the need for the decision-maker to “pay regard to any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider”. What these factors are in a particular case will depend on the function being exercised and all the circumstances that bear upon it. Aikens LJ added:

“… Clearly, economic and practical factors will often be important be important. Moreover, the weight to be given to the countervailing factors is a matter for the public authority concerned, rather then the court, unless the assessment by the public authority is unreasonable or irrational …”

…

70.

Performance of the due regard duty must be an integral part of the formation of the decision, not merely the justification for the making of that decision (see R (Kaur) v Ealing LBC [2008] EWHC 2062 (Admin), at paragraph 24). Because the performance of the duty is a matter of substance, to be judged according to the facts of the case in hand, there must be enough information to enable the necessary balancing exercise to be carried out, and that information must be before the decision-maker (see Child Poverty Action Group, at paragraphs 70 to 76). In Brown it was held that the underlying objective of the general duty under section 49A(1) of the 1995 Act was “to create a greater awareness on the part of public authorities of the need to take account of disability in all its forms and to ensure that it is brought into “the mix” as a relevant factor when decisions are taken that may affect disabled people” (paragraph 30).

71.

The decision under challenge in this case is a planning decision, the decision of a local planning authority to approve a scheme of development. It is not a decision of a public body to withdraw or reduce a particular service, such as the court had to consider, for example, in the Birmingham case, which concerned the provision made for disabilities in the then current budget of Birmingham City Council. Much of the case law is concerned with decisions of that kind. This is not to say that the public sector equality duty is less onerous in a planning case than it is in others. It is not. But in such a case the circumstances in which the authority's performance of the duty has to be scrutinized will inevitably be different.”

More recently, in Moore and Coates v Secretary of State for Communities and Local Government & Ors [2015] EWHC 44 (Admin), another planning case, Gilbart J. provided a helpful summary of the law on the public sector equality duty:

“109.

In Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, para 26 McCombe LJ summarised the principles to be derived from the authorities on s 149 , as follows:

“(1)

As stated by Arden LJ in R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293 at 274, [2006] IRLR 934, [2006] 1 WLR 3213, equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.

(2)

An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2006] EWCA Civ 1293, [2006] IRLR 934, [2006] 1 WLR 3213(Stanley Burnton J (as he then was)).

(3)

The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at 26–27] per Sedley LJ.

(4)

A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at 23–24.

(5)

These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [2009] PTSR 1506 , as follows:

i)

The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters;

ii)

The duty must be fulfilled before and at the time when a particular policy is being considered;

iii)

The duty must be “exercised in substance, with rigour, and with an open mind”. It is not a question of “ticking boxes”; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;

iv)

The duty is non-delegable; and

v)

Is a continuing one.

vi)

It is good practice for a decision maker to keep records demonstrating consideration of the duty.

(6)

[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria.” (per Davis J (as he then was) in R (Meany) v Harlow DC [2009] EWHC 559 (Admin) at 84, approved in this court inR (Bailey) v Brent LBC [2011] EWCA Civ 1586 at 74–75.)

(7)

Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be “rigorous in both enquiring and reporting to them”: R(Domb) vHammersmith & Fulham LBC [2009] EWCA Civ 941 at 79 per Sedley LJ.”

110.

McCombe LJ went on to identify three further principles, which may be summarised as follows:

(8)

It is for the Court to decide for itself if due regard has been had, but providing this is done it is for the decision maker to decide what weight to give to the equality implications of the decision (following R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), per Elias LJ @ [77]-[78]).

(9)

“[T]he duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consideration with appropriate groups is required” (R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), per Elias LJ @ [89]).

(10)

The duty to have due regard concerns the impact of the proposal on all persons with the protected characteristic and also, specifically, upon any particular class of persons within a protected category who might most obviously be adversely affected by the proposal (Bracking, per McCombe LJ @ [40]).

111.

As to the importance of the second principle, McCombe LJ stated @ [60]-[61]:

“it seems to me that the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude” and “In the absence of evidence of a ‘structured attempt to focus upon the details of equality issues’ (per my Lord, Elias LJ in Hurley & Moore) a decision maker is likely to be in difficulties if his or her subsequent decision is challenged”.”

In this case, the evidence before the Inspector was that public access to the river from Birkenhead is very limited. The Site is the only place in the area where public parking next to the river is readily available. The large car park is immediately beside the River Mersey, thus enabling disabled people and their carers to enjoy the river and the fine views across it, and to watch the activities of ships and smaller boats. Disabled people can remain in the car park area (which is built on two levels) or if they are sufficiently mobile, they can proceed a short distance to the riverside promenade (which forms part of the Wirral Circular Trail) either in a wheelchair or on foot. There was clear evidence before the Inspector from several sources that this car park, and the access which it gave to the river, was an amenity which was both regularly used and valued by disabled people (both adults and children with special needs). I am unable to accept Mr Whale’s submission that there was insufficient evidence of use of the car park by disabled persons for this ground to succeed.

The proposed development will be built on the car park, and so visitors will no longer be able to drive and park by the riverside. Visitors will have to find street parking in Church Street or Ivy Street. From there they will have to proceed on foot along the streets and down a steep footpath for a distance of about 119 metres to reach the riverside. The Statement of Common Ground (“SCG”) recorded at paragraph 3.3, “a steep gradient across the site with the highest elevation in the west of the site approximately 14m Above Ordnance Datum (AOD) sloping to approximately 5.5 AOD in the north east of the site”. In a different context, when considering the impact of the development on Priory Wharf at AD [16], the Inspector said that the appeal Site “slopes down towards the waterfront from about 14m above Ordnance datum (AOD) at the junction of Alabama Way and Monks Ferry to above 6-7 AOD by the riverside wall”. The discrepancy between the agreed figure of 5.5 AOD in the SCG, and the figure of “above 6-7 AOD” stated by the Inspector, was unexplained, as the SCG figure was not disputed at the hearing.

The Inspector’s findings were as follows:

“59.

Policy CO1 expects that public access to the coast will be at least preserved, and Policy CO7 requires that public access should be preserved unless this would be impractical. The greater part of the appeal site comprises a public car park, and a riverside footway from the north continues across the site to its southern boundary. Plan AL16 identifies these areas as highway, which it is proposed would be stopped up. The justification to Policy CO1 refers to an objective of the Council to complete a continuous coastal route for pedestrians and cyclists. The proposal would not sever the riverside route, since a gate prevents access to the south beyond the appeal site. The footway between Priory Wharf and the appeal site would continue to provide public access from the surrounding area to the riverside and the route to the north to Woodside. Only a short stretch of footway would be excluded from public use by virtue of the proposal, and there would still be the opportunity to reach the riverside immediately to the north of the existing slipway. Nevertheless there would be a loss of public access across the site, a distance of about 40m, contrary to the requirement of Policy CO1 to preserve public access to the coast. I appreciate that it would be impractical to permit public access on foot within the operational site, and for this reason I find no conflict with Policy CO7.

60.

There is disagreement between the parties concerning the usage of the public car park at Alabama Way. The car park is a pay and display facility, and the Council’s evidence, endorsed by the Appellant, is that it is little used. Information from ticket sales for the period from January 2011 to April 2014 indicates that on average only 2-4 vehicles a day are parked on the site. Local residents reported that at times there could be up to 30 cars present, and it was suggested that the discrepancy with ticket sales could be due to use of the car park by disabled persons who are exempt from charges, and the non-purchase of tickets for some short stays. I note that photographs 9 and 10 in the Appellant’s LVIA show use of the car park by at least 6 and 8 cars respectively, in excess of the Council’s evidence but markedly less than the number suggested by local residents. There are opportunities to park on nearby streets, and the Council is satisfied that space here would accommodate parking displaced from Alabama Way. No parking survey of the locality has been submitted, but I anticipate that in the evening and at weekends, when there may be more people wishing to reach the riverside by car, competition for on-street spaces with vehicles associated with the industrial and commercial premises in the locality would be less than during the normal working day. That said, the off-street spaces are further from the riverside and less convenient to use, particularly for disabled persons.

61.

As a consequence of redevelopment of the appeal site, there would be no direct access to a short stretch of riverside footway, and the loss of the car park would make it less convenient for those travelling to this part of the riverside by car to reach their destination. I conclude that the proposal would not preserve public access to the coast, and that it would conflict with Policy CO1 of the UDP. This is a matter to which I give limited weight, bearing in mind the short length of footway affected and the continuing opportunity to reach the riverside in the vicinity of Monks Ferry.”

The Claimants submitted that the Inspector’s approach displayed a serious failure to understand the reality of the impact on disabled people. The proposed development was not merely inconvenient, as it would be for able-bodied people; rather it would prevent access to the riverside. Only able-bodied people would have the “continuing opportunity to reach the riverside in the vicinity of Monks Ferry”, referred to by the Inspector at AD [61].

In my judgment, there was a strong argument, based on the written and photographic evidence, that disabled people with impaired mobility would find it very difficult or impossible to go down to the riverside if the development is built because (a) they would be parked too far away; and (b) the footpath down to the riverside, and back up, would be too steep for disabled people and their carers to manage. Even a disabled resident at nearby Priory Wharf said she would find it too difficult. Mrs Cartwright, resident at Priory Wharf, stated in her letter objecting to the development:

“My husband unfortunately suffered a stroke two years ago so obviously he has restricted movement. We use that car park regularly, it is so convenient for me to run him round in the car …. I push him along the promenade because it is nice and flat. I could not do this otherwise because I am no longer young myself. The steep slope down to the car park on foot and with a wheelchair is out of the question for me. I am at a loss to understand the thinking on these plans because that area is used by many, it is the only open space left here that is not taken up by industry.”

Applying the legal principles set out above, I have concluded that the Inspector did not have due regard to the duty under section 149 in this case. In particular, because of the lack of any detailed consideration of the value of the existing amenity to disabled persons (including, for the immobile, being able to sit in the car and look at the river); the lack of any other comparable amenity in the Birkenhead area; the practical difficulties which would be experienced by persons with restricted mobility and their carers in descending and climbing the steep footpath to the riverside; and the apparent failure to consider whether the loss of the car park would not be merely “less convenient” for disabled persons but might well mean that they would be unable to access the riverside at all. If the Inspector was not fully appraised of the relevant information, he was under an obligation to seek the information required. The statutory equality duty was not mentioned in the planning officers’ report, nor in the Inspector’s decision. Of course, the Inspector could comply with the duty without specifically referring to it. But there is no indication in the decision that the Inspector considered the factors set out in section 149, and tellingly there is no reference, express or implied, to the statutory considerations of removing or minimising disadvantages suffered by disabled persons, and taking steps to meet the needs of disabled persons. I consider it is likely that the Inspector overlooked section 149 in reaching his decision, and thus made an error of law.

I am unable to accept Mr Whale’s submission that I should not quash the decision because this was only a sub-issue, not a main issue in the appeal, and if the Inspector had performed his statutory duty, the decision would have been the same in any event. In my view, the evidence of disadvantage to disabled persons was significant, and the Inspector failed to recognise its importance. I cannot say with confidence that the Inspector’s conclusion as to the weight to be accorded to the factor of coastal access would have been the same if the Inspector had properly applied his mind to the considerations set out in section 149. Moreover, the section 149 duty is concerned with the manner in which decisions are made, not merely outcomes.

The Claimants submitted that the Inspector failed adequately to address the adverse impact of the proposed development on charter-boat operators who would no longer be able to operate their businesses from Monks Ferry slipway. Mr Flint, who owns Discovery Charters Ltd, gave evidence that, because of the tides, Monks Ferry slipway was the only location within 60 miles where 24 hour access was feasible throughout the year. He used it regularly. The Third Claimant, Mr Evans, who runs diving and fishing trips from Monks Ferry throughout the year, confirmed that there was no suitable alternative access because of tidal conditions. Mr Dickinson, who runs a single hull boat with a capacity of 10 passengers from Monks Ferry, also uses it full-time. He explained that there were eleven local charter boats and another 5 or 6 Welsh boats that used the slipway. Mr Parry, of Jensen Sea Angling, sent an objection in writing saying that although he mainly worked out of Liverpool Marina, he had to use the slipway when he could not access the Marina because of tides.

According to the Council, the slipway is not open to the public (it is gated); it is intended for use by the emergency services and the Council. The Claimants submitted that the 24 hour emergency access to and from the river at Monks Ferry ought, in the interests of safety, to be maintained. Use of the Monks Ferry slipway by the charter-boat operators is not officially authorised by WBC, but the Council has been aware of it for many years, and has not objected. A public or private right of access is now being investigated by the charter-boat owners.

The Inspector’s conclusions were as follows:

“64.

I have also considered the implications of the proposal for charter boat operators who use the slipway to collect and disembark customers. Representatives of the Mersey Charter Boats Association explained that the slipway is used by about 11 local boats and 5/6 Welsh boats, principally in connection with fishing trips. The three operators who appeared at the hearing explained that there is no place other than the Monks Ferry slipway where they are able to gain 24 hours access to the Mersey. This is important since fishing trips do not typically last from one high tide to another, and each considered that inability to use the slipway would threaten the future of his business. However no detailed assessments have been submitted to demonstrate that the operation of these businesses cannot be adjusted to withstand the loss of access to the Monks Ferry slipway. Another operator, although objecting to the proposal, has stated that he uses the slipway on rare occasions and works out of Liverpool Marina during the winter months.

65.

Although the charter boat operators make use of the slipway, their right to do so has been questioned by the Appellant. The slipway is owned by the Council, which has explained that the slipway is not open to the public, that there are no recorded permit holders, and that it is intended for use by the Council, emergency services and Government agencies. At the hearing the legal representatives of the Appellant and LDRA/ Dr Hennell agreed that private rights of way could be established if there was evidence of uninterrupted use over a period of 20 years. That is not a matter for consideration as part of this appeal. However, if a private right to access the slipway by the charter boat operators were established they should be able to continue using it irrespective of the development. On the other hand, if no such right were found to exist, there would appear to be no basis for their use of the slipway.

66.

The proposal would create up to 65 new jobs, but there is a possibility that jobs at LDRA would be moved out of the area if redevelopment went ahead. The number of jobs created by Cammell Laird would be less than the number potentially affected at LDRA; however in my judgement there would be greater certainty attached to job creation by the development on the appeal site, and I consider that these factors carry equivalent weight. From what I have heard, the ability of the charter boat operators to continue to use the slipway by is not dependent on the outcome of this appeal. Overall, the implications of the proposal for jobs are a neutral factor in the planning balance.”

I understand why the charter boat operators were aggrieved at the Inspector’s approach to this issue, in particular, because he did not fully accept their evidence. However, this is not a re-hearing of the appeal before the Inspector and the Inspector’s conclusions can only be successfully challenged if there is an error of law. I am unable to identify any error of law in the Inspector’s approach. In my view, he was not persuaded by their evidence as to the likely impact on their businesses. On my reading of the decision, he did not decide this issue on the basis of whether there were or were not any rights of access to the slipway.

The point concerning provision for emergency access to the slipway was not pursued at the hearing before me. It ought to be addressed at any re-hearing of the appeal, if it remains a live issue.

The Claimants submitted that the Inspector erred in refusing to impose a condition restricting use of the building to B1 and B8 uses, excluding B2 use.

The application for planning permission was made upon the basis of proposed B1, B2 and B8 uses. The Design and Access Statement referred to a building within B2 use. This was consistent with the Site’s allocation. The Statement of Common Ground recorded at paragraph 4.2: “1,500 sq m storage and office building (use class B2: general industry)”.

The Inspector refused to impose the condition proposed by the Claimants, and previously agreed by the developer, restricting the use of the building to B1 and B8 uses. He held:

“74.

The Appellant has put forward the proposal as a blend of B1, B2 and B8 uses. A condition restricting the use of the site to B1 and B8 uses would therefore be unreasonable. In any event conditions requiring a construction management plan and noise mitigation measures should protect the amenities of adjacent occupiers, and they would also render a condition concerning loud individual noises unnecessary.”

In my judgment, the Inspector’s decision was correct. Although the evidence pointed to primarily B1 and B8 use, it was clear that the developer at all times sought B2 use as well. I do not consider that the Inspector misunderstood the Claimants’ suggestion that the condition be limited to the building, despite his use of the word “site”. I find it inconceivable that the Inspector overlooked potential B2 use at this Site, when he granted planning permission and imposed conditions to protect the amenities of neighbouring occupants.

It was common ground at the appeal that it was appropriate for possible alternative sites to be considered and the developer presented a report considering six alternative locations. The Claimants submitted that the Inspector erred in his approach to a potential alternative site, running between Pacific Road, Woodside (near the Irish ferry terminal), and Seacombe (an area which includes the Mersey Ferry jetty and a derelict riverside site known as Kings Wharf/Fishermen’s Wharf). This area was not considered by the developer.

The Inspector, at AD [67] to [70], considered the alternative sites presented by the developer and then said, at [70]:

“Dr Hennell has pointed to unused land and foreshore between Pacific Road at Woodside and Seacombe, and has also made reference to the Liverpool side of the river. However there are no details of specific locations in these extensive areas. The information before me does not indicate that any of the alternative locations put forward would be more appropriate for the proposed marine operation and maintenance facility than the appeal site.”

It was not in dispute that the Inspector had the following material before him:

During the hearing before me, Dr Hennell’s solicitors’ notes were produced. They were good quality notes, and their accuracy was not disputed by the Secretary of State. After the site visits, the note summarised a roundtable discussion about alternative sites, in which Dr Hennell referred to “North of Irish Ferry terminal. Land available”. The Irish ferry terminal is at Woodside. The Claimants submitted that this was a further means of identifying the site to the Inspector.

The Inspector conducted an accompanied site visit by boat, travelling across the River Mersey from Liverpool towards Birkenhead, and back. According to the evidence of Mr Flint and Mr Dickinson, as they reached a point approximately 500m from the Site, it was possible to see the coastline from Woodside to Seacombe, north of the appeal Site. Mr Dickinson explained to the Inspector that WBC had suggested that the charter-boats could use Seacombe Ferry jetty but that it was too high for their boats. Mr Dickinson then pointed out the derelict land at Kings Wharf (also known as Fishermen’s Wharf because of the public house there) and said that it could be used for the on-shore maintenance operations for the wind farms and the Seacombe Ferry jetty could be used for access to the river. At this point, Mr Vitkovitch of Cammell Laird interrupted and told the Inspector that Kings Wharf was not a suitable site. Dr Hennell was also present on the boat and has filed a witness statement confirming that the site which he referred to in his evidence was pointed out to the Inspector on the boat trip.

The Inspector has filed two witness statements dealing with this and other issues. In his first witness statement at paragraph 5, he stated that he interpreted Dr Hennell’s description of an alternative location in his statement (set out above) as extending up to but not including the Seacombe Ferry. In paragraph 7, he stated that at the site visit, the hearing did not continue and so no evidence could be given. Those present were restricted to pointing out places and features. He said:

“the boat travelled across the river from Liverpool Marina towards the appeal site and it then went upstream to Rock Ferry to enable views of possible alternative sites to the south of the appeal site. Seacombe Ferry is, by contrast, downstream and to the north of the appeal site. After Rock Ferry, the boat followed the same course in reverse back to Liverpool Marina. I have no recollection of a site at Seacombe Ferry being pointed out during the site visit.”

In his second statement, the Inspector repeated his description of the route of the boat, saying he had no recollection of Seacombe Ferry being pointed out to him. At paragraph 11, he stated that he was unclear as to whether the Kings Wharf site was the same site as the Seacombe Ferry site, or a different one.

Mr Vitkovitch has filed a brief statement which did not state in terms whether or not he recalls the conversation described by Messrs Flint and Dickinson. However, he stated that he agreed with the Inspector’s statements.

On considering the witness statements, looking at the maps, and hearing submissions, I am satisfied, on the balance of probabilities, that when they were on the site visit, Messrs Dickinson and Flint pointed out to the Inspector the location of Seacombe Ferry and the land south of it, known as Kings Wharf or Fishermen’s Wharf. I found their evidence detailed, plausible and convincing. It appeared to me that the Inspector either did not understand the significance of what he was being shown, or subsequently forgot about it. Contrary to the Inspector’s recollection, I am satisfied that, as the boat was coming over from Liverpool, there would have been a clear view of the coastline north of the appeal Site, before the vessel turned south to look at the alternative sites referred to by the developer.

The purpose of the site visit was to identify and view possible alternative sites. Those accompanying the Inspector were permitted to point out the sites and identify features. In my view, there was a breach of natural justice/procedural fairness in that the Inspector did not take into account the identification of the Seacombe Ferry/Kings Wharf site. The Inspector subsequently dismissed Dr Hennell’s evidence on the basis that his proposed alternative site had not been properly identified to him. In my view, the Inspector’s witness statements demonstrated that he was confused about the area which Dr Hennell was referring to, and he did not understand the location of the potential alternative site. Rather than dismiss it out of hand, he ought to have asked for further assistance by way of maps or photographs or conducted a site visit on land, so that he could give it due consideration.

If due consideration had been given to this alternative site, the outcome might have been different, and in my view the Claimants have been substantially prejudiced. If the alternative site had been found to be suitable and did not have the adverse impacts of the appeal Site, planning permission might not have been given. Subsequent events lend support to Dr Hennell’s submission that this was a suitable alternative site. Dong Energy, which holds the contracts for the servicing of off-shore wind turbines located in the Irish Sea, was granted planning permission by WBC on 7 December 2015 for a wind turbine servicing facility to be built at Kings Wharf, Seacombe, with sea access via Seacombe Ferry terminal. These were the locations shown to the Inspector by Mr Dickinson on the boat trip, and the alternative site proposed by Dr Hennell. Mrs Lawson, who is the Chair of the Priory Wharf Management Company Ltd, has stated in her witness statement:

“I refer to the witness statement of Dr Hennell in relation to the alternative facility at Seacombe Ferry, which is before the Council at the date of this witness statement. The leader of Wirral Borough Council, Cllr Phillip Davies, has confirmed to me personally that the Council supports the Dong Energy facility so as to avoid the adverse residential amenity impacts the development at Alabama Way would give rise to. ”

As the developer and WBC did not appear before me, it was not known what were the future plans for the appeal Site, and obviously that is not an issue for me in this application.

The Claimants’ application succeeds on Grounds 2 and 5 and the decision of the Inspector must be quashed.