Malvern Hills District Council v The Secretary of State for Housing, Communities And Local Government & Anor

On 6 March 2020, a planning inspector appointed by the Secretary of State (“the Inspector”), granted planning permission for the erection of a storage shed to house an ex-British Railways steam operated crane ADRS 95000 (“the steam crane”), following an appeal by Ross-on-Wye Steam Engine Society (“the Society”) against an enforcement notice served against it by Malvern Hills District Council (“the Council”). The steam crane is of considerable heritage interest. The Society keep it in working order and use it for demonstrations at the Welland Steam and Country Rally.

The Council appeals pursuant to s.289 of the Town and Country Planning Act 1990 against the Inspector’s decision. Permission to appeal on three grounds was granted by HHJ Worster (sitting as a judge of the High Court) on 13 August 2020. I am grateful to Mr Timothy Jones and Mr Charles Streeten, who represented the Council and the Secretary of State, respectively, for their clear and concise written and oral submissions. The Society did not participate in this appeal.

The appeal site (“the Site”) lies outside of any settlement boundary as defined in the adopted Development Plan and is in the open countryside. The building which is the subject of the appeal was erected in July 2018 without planning permission. Following three applications (two of which were withdrawn), on 11 July 2019 the Council refused planning permission to retain the building. The Council gave these reasons:

On 2 August 2019, the Council issued an enforcement notice, requiring (primarily) the demolition of the building within 3 months. The reasons given for the enforcement notice at (iv), (v) and (vi) are in almost identical terms to the reasons given for refusal of planning permission (quoted immediately above), excluding the alleged lack of agricultural need.

No reference was made in either the refusal of planning permission or the enforcement notice to the impact of the building on any public right of way.

The Society appealed against the enforcement notice pursuant to s.174(2)(a) of the 1990 Act, on the basis that planning permission ought to be granted, and (in the alternative) pursuant to 174(2)(g), submitting that the period of three months to comply with the notice fell short of what should reasonably be allowed. The Society’s statement of case addressed the impact of the building on the landscape character and visual amenity of the area; the justification of the use of the building for storage of the steam crane; and the justification of the agricultural need for the building.

The Society stated:

… planning permissions were granted for a separate, longer length of track, to the west of the appeal site upon which the Welland Steam Rally operates a steam train during the yearly event. This use of the section of track was limited to the display and operation of trains and other rolling stock for not more than 28 days in a calendar year…

The building, subject of this appeal was erected in July 2018 to the east of the short section of track (some 60m) upon which the steam crane] has been stored and then displayed during the yearly Rally. Given the scale of the Crane and the significant challenges in moving the object it has not left this section of track since being brought to site in 2004. …”

In the context of the appeal pursuant to subsection (g), the Society stated:

The Society submitted expert evidence from Mr Parker, the Director of a company which has been involved in historic railway preservation for over 30 years, who said that:

A supporting statement provided by Land Development and Planning Consultants Ltd stated:

The Council’s statement of case acknowledged that the “Steam and Country Rally has run annually from the site for 26 years making an important contribution to the local economy for the duration of the event”. But the Council maintained its assessment that the development is not compatible with the character of the area. The Council observed:

The Council resisted the appeal pursuant to s.174(2)(g) on the basis that the steam crane appeared to have been stored in the open for at least 15 years; it was “unclear why it now, after all this time, requires storage within a building”; the enforcement notice required the building, not the steam crane, to be removed; and the Council considered it unlikely that the Society intended to remove the steam crane from the site in the near future.

The Council’s statement of case also noted that the “building has been located on the definitive line of Welland footpath WD-507 which crosses the site” and identified the impact on the public right of way as one of the two main issues on the appeal, the other being the policy and principle of development. The Council stated:

Notwithstanding the Council’s view that the development is wholly unacceptable, should the inspector be mindful to grant the Ground A appeal it understands that as it is retrospective a condition cannot be imposed requiring an application to be made to divert the PROW.

Worcestershire County Council have advised that they would object to the appellants being granted planning permission for the alleged breach due to the building having been constructed across the definitive legal line of Welland footpath WD-507.”

In relation to the public right of way, the Society’s supporting statement said:

The Inspector, Stephen Hawkins, issued his decision allowing the appeal on 6 March 2020, having made a site visit on 25 February 2020. The Inspector identified the main issue as “the effect of the building on the character and appearance of the countryside”.

The Inspector noted that the appeal site consists of an “extensive area of open pasture land” which is used for farming and to hold the Welland Steam Country Rally, “an established annual event which takes place over a weekend in July”. “The appeal building has been erected towards the middle of the site.” The steam crane, which “is used for lifting demonstrations during the rally”, “is currently kept in the main part of the building”.

The Inspector found “the building has a form and appearance not dissimilar to that of a modern farm structure” and it “has quite modest proportions when compared with those of many contemporary farming structures”.

The Inspector found:

Having noted that the pre-existing structures on the site were lawful in planning terms, “form an appreciable part of the foreground and backdrop”, and that the “building appears closely related to several of the structures”, the Inspector continued:

There is no requirement in LP Policy SWDP 34 or the other LP policies referred to above for tourism development to be justified . In any event, at paragraph 83 the National Planning Policy Framework (the Framework) supports sustainable rural tourism and leisure development where, as in this case, the character of the countryside is respected. I am given to understand that the crane was built in the mid-1950s and might well be the last surviving example of its type in existence. Therefore, this crane is of considerable heritage interest. Also, I understand that whilst the crane is currently in working order, it has deteriorated significantly due to being kept in the open over many years and unless stored undercover, the prospects for its long-term survival are limited. It might be possible for the crane to be transported to the site for the duration of the rally, in a similar manner to a locomotive or traction engine.

Therefore, erection of the building has assisted, albeit to a modest degree, in sustaining the tourism and leisure benefit afforded by the rally to the surrounding area and is consistent with the Framework paragraph 83. Furthermore, as a welldesigned place has been achieved there is no inconsistency with the Framework paragraphs 124 and 127.

The building has been erected across the route of a public footpath. The National Planning Policy Framework (“NPPF”) “is a material consideration in planning decisions” (NPPF, §2). NPPF §98 states:

The first ground of appeal is that the Inspector erred in failing to treat the blocking of a public footpath as a material consideration.

Mr Jones submits that the Inspector failed to follow the clear and unequivocal central government guidance provided in NPPF §98 without giving any reason for departing from it. He referred to R (Lochailort Investments Ltd) v Mendip District Council [2020] EWCA Civ 1259 at [6] and [33] for the proposition that a planning decision which fails to comply with the NPPF is not automatically rendered unlawful, but any departure from the NPPF must be reasoned.

The Inspector recorded the fact that the building blocked the public right of way, but Mr Jones contends that recording a decision that it is not a material consideration is the opposite of treating it as a material consideration. A right of way is not protected if it is blocked.

Mr Streeten submits that the Council’s argument mischaracterises the Inspector’s decision. On a fair reading, §§6 and 12 of the decision (quoted in §§18 and 19 above) show that the Inspector expressly considered the impact of the developments upon footpaths WD507 and WD512, in the full knowledge that the development had been erected across the footpath of WD507. In doing so, the Inspector applied NPPF §98.

Mr Streeten draws attention to the judgment of Lord Carnwath JSC in Suffolk Coastal District Council v Hopkins Homes Ltd [2017] 1 WLR 1865 at §25 in support of his submission that the court should respect the Inspector’s expertise and start at least from the presumption that he will have understood the policy framework correctly. No express reference to NPPF §98 was required, not least because it was nowhere referred to in the Council’s reasons for issuing the enforcement notice or any of the submissions made by the Council in response to the appeal.

The Inspector made no error of law in addressing the fact that the building has been erected across the route of the public footpath Welland WD 507. He expressly referred to that fact: there is no suggestion that he was unaware of it or overlooked it. In my judgment, the Secretary of State is correct to say that the Inspector was not saying (in §12 of his decision) that the fact that the building was erected across the public footpath was immaterial in determining whether to grant planning permission, only (and correctly) that it was not a material factor in considering the planning merits of the building itself.

The Inspector determined, from the viewpoints of users of the footpaths, that the building integrates effectively with the surroundings and with the character and appearance of the surrounding countryside and landscape. He described the placement of the building as “well-designed”.

I agree with the Secretary of State’s submission that on a fair reading of the decision, taking into account the Inspector’s expertise, it is apparent that the Inspector has, in substance, applied NPPF §98.

The Society’s evidence was that “the users of the footpath can be provided with an equally convenient alternative route” and there was no evidence before the Inspector to the contrary. The Inspector rightly recognised that the question whether to divert the footpath would need to be determined on an application made in accordance with the Highways Act 1990. As he said, the grant of planning permission does not authorise the obstruction of the footpath by the building.

The Inspector did not fail to treat the need to protect public footpaths as a material consideration. If the footpath can be diverted to an equally convenient alternative route, which seems likely given that it is a 50ha site of primarily grassland, the public right of way will have been protected. On the other hand, if on an application to divert the footpath it were to be concluded that there is no equally convenient alternative and the footpath should not be diverted, then (notwithstanding the grant of planning permission) action could be taken to require the removal of the obstruction: s.137 and 137ZA of the Highways Act 1980.

Accordingly, I reject the first ground of appeal.

LP Policy SWDP 34 provides:

The development is compatible with the physical character of the area.

The significance of heritage assts and their setting is conserved and, where appropriate, enhanced.

The public enjoyment and understanding of the historic and natural environment is promoted.

Where schemes are proposed on greenfield land, consideration has been given to the availability of alternative brownfield sites.

Appropriate provision is made for access and vehicular parking facilities (including coach parks, where appropriate).

The site is readily and safely accessible by means of transport other than the private car.”

The Council’s second ground is that the Inspector misread SWDP 34. Each criterion must be met. Criterion (iv) means that before greenfield land is developed, consideration must be given to the availability of alternative brownfield sites. The Council contends that the Inspector fell into error by failing to recognise that no such consideration had been given.

In his skeleton argument, Mr Jones put this ground in two ways. First, the Inspector failed to have regard to material considerations, namely, (i) SWDP 34, criterion (iv) and (ii) the Society’s failure to consider alternative brownfield sites. Secondly, the Inspector misinterpreted SWDP 34, failing to recognise that the policy seeks to protect greenfield sites and criterion (iv) requires consideration of the availability of brownfield sites.

However, in oral submissions he accepted that this ground was probably a complaint of misapplication rather than misinterpretation of policy. Mr Jones submits that there should have been consideration of brownfield sites and it was for the applicant, not the Council, to undertake that consideration. He acknowledges that there is no burden of proof on either side, but submits that in accordance with the principle of fairness it was for the Society to show that it had considered brownfield sites.

If there was evidence, then the Inspector’s assessment would be a question of planning judgment, but it was not because there was no evidence. There is no reason to believe that there would not be a brownfield storage facility capable of storing the steam crane. In their appeal pursuant to s.174(2)(g), the Society submitted they would need 12 months to remove the steam crane, not that there was nowhere else they could store it. If that were the position, they could be expected to have said so.

Mr Streeten submits that this is an attempt to reargue the planning merits. The Inspector had regard to SWDP 34, to which he expressly referred in §9. There is no basis for suggesting that the Inspector misunderstood the policy. The Inspector’s reference to SWDP 34 is a strong indication that he took all the elements of the policy into account. The policy is not complex, and it should be presumed, applying Hopkins Homes, that the Inspector understood it. The Inspector addressed the question of alternatives in the decision at §10, noting the problems associated with transporting the steam crane to and from the site and the absence of covered storage “readily available elsewhere”. Finally, Mr Streeten submits that the Council has not raised a genuine case of misinterpretation, rather the complaint is concerned with application, which falls to be assessed by reference to the standard of rationality.

I reject the contention that the Inspector failed to have regard to SWDP 34. He referred to it expressly in §9 of his decision and he addressed the possibility of the steam crane being stored on an alternative site in §10. SWDP 34 is not a lengthy or complex provision. The Inspector’s express reference to it provides a strong indication that he took the whole provision into account and there is nothing in the decision that leads to a contrary conclusion.

I also reject the Council’s submission that the Inspector misinterpreted SWDP 34. In Trustees of the Barker Mill Estates v Test Valley Borough Council [2016] EWHC 3028 (Admin), [2017] PTSR 408 at §§83-84 Holgate J said:

The Council has addressed point (i) by identifying criterion (iv) in SWDP 34, but point (ii) and (iii) have not been met. The real complaint is that the Inspector misapplied SWDP 34 by failing to consider whether brownfield sites were available for the storage of the steam crane before determining that the greenfield site was appropriate.

The Inspector is a specialist tribunal. He was entitled to reach a decision on the evidence presented to him, applying his planning judgement and common sense. The evidence was that the steam crane had been in the open for “over 60 years” (see §9 above). It had been saved from decomposition in a scrap yard by the enthusiasm of members of the Society who had brought it to the site in 2004 (see §10 above). The steam crane had not left the section of track on which it was originally placed when brought to the site due to the “significant challenges” in moving it (see §7 above). The decision was taken to construct a shelter to protect the steam crane from further decay because “they were unable to house the crane” (see §10 above). In my judgment, the Council has not come close to establishing that the Inspector’s assessment was irrational.

Mr Jones submits that at the end of §10 of the decision the Inspector speculated on matters which, if correct, should have been addressed by the Society in evidence, giving the Council an opportunity to respond. The Society did not contradict §5.3.7 of the Council’s Statement of Case (quoted in §11 above). In their ground (g) appeal the Society’s case was that they would need 12 months to remove the steam crane, not that it would be impossible to find somewhere else to store it. The Inspector reached a conclusion that neither party had advanced.

Mr Jones submits that in taking into account the matters he did at the end of §10 of the decision, the Inspector had regard to an immaterial consideration. He should not have filled a gap in the Society’s case with speculation on matters going well beyond planning judgment, at least not without giving the Council an opportunity to comment.

Mr Streeten submits that the question whether the steam crane could be moved to and from site was squarely before the Inspector in light of the reasons given by the Council in the enforcement notice, as expanded upon in the Council’s submissions to the Inspector. The Inspector was not bound to accept the Council’s assessment that the Society had provided inadequate justification to demonstrate why the steam crane needed to be stored on site, rather than brought to the site for the duration of the rally. The Council should not be permitted a second bite of the cherry simply because they did not anticipate that they might lose on this aspect of the case: Kerry v Secretary of State for Housing, Communities and Local Government [2020] EWHC 908 (Admin) at §§46-51.

The considerations referred to in §10 of the decision are not immaterial but go precisely to the questions the Inspector was required to decide.

The Society’s case on the ground (g) appeal was that they would need a year to find somewhere to store the steam crane if they were required to demolish the building. The time they sought to find alternative storage if the enforcement notice was upheld does not support the Council’s submission that any alternative site was readily available or that it would be feasible for the steam crane to be moved to and from the site on an annual basis.

There is very considerable overlap between the Council’s third ground and the matters I have already addressed in the context of the second ground. I agree with the Secretary of State’s submissions, as summarised above, that there is no merit in this ground. The feasibility of storing the steam crane off site and transporting it to and from the rally, and the availability of alternative storage, was squarely before the Inspector and he reached sound conclusions on the evidence before him. The matters he considered were not immaterial.

The Council’s submissions before the Inspector anticipated that if the building had to be demolished the steam crane would remain on site in the open. The Council lost on the question whether the need for the steam crane to be stored under cover had been demonstrated. It would have been open to the Council to have presented evidence in support of its fall-back position that the steam crane could be stored elsewhere, but it did not. It was open to the Inspector on the evidence (including that to which I have referred in §41 above) to conclude that he was not satisfied covered storage for the steam crane was readily available elsewhere.