England and Wales High Court (Administrative Court) Decisions

MR JUSTICE SCOTT BAKER:

This judgment should be read in conjunction with the judgment I delivered on 25 October 2000 refusing the Claimant permission to amend the grounds of his Section 288 appeal to allege breaches of the Human Rights Act 1998. Following that ruling the application proceeded on what I will call conventional grounds.

Background

1. The Claimant has a long running battle with the local planning authority about a building at Pathfinder Farm, Ramscote Lane, Chesham where he presently runs an ostrich farm. He bought the property in 1992 from a Miss Parrot. He had, apparently, erected a two storey agricultural building between 1986 and 1991 and was faced with enforcement notices from the local planning authority. They were subsequently withdrawn because they had been served on an incorrect footing.

In January 1994 the local planning authority served two further enforcement notices requiring the removal of the building. They were served on the Claimant who was then the owner. He sought to have some educational use attached to the buildings. That had been refused and in May 1994 he started to use the building for the purpose of rearing ostriches. His appeals against the enforcement notices were heard on 6 September 1994. The Inspector upheld one of the notices and quashed the other. The time for compliance was extended to 5 October 1995.

2. In October 1995 the Council threatened direct action if the notice was not complied with. The Claimant then applied for permission for the erection of the building, but with a reduced ridge height, for its use for ostrich breading, rearing and storage. This application was refused on 2 January 1996. On 25 January 1996 the local authority resolved direct action to remove the building. The Claimant sought judicial review of this decision, which was refused.

3. In June 1996 the local planning authority received notice that the Claimant proposed to appeal against the refusal of permission for a building of reduced ridge height. In October 1996 they gave further notice to him requiring compliance with the enforcement notice by 28 November and that, in default, direct action would be taken without further notice. He obtained an injunction to stop them doing so. Next he sought leave to move for judicial review of the decision to take direct action. That was on the grounds that the appeal against the refusal of permission for the building with a reduced height had not properly been taken account of.

4. In February 1997 an inspector dismissed the Claimant's appeal from the refusal by the Council for permission for a building with a reduced ridge height. There was an appeal to Mr Lockhart-Mummery Q.C. sitting as a Deputy Judge of the Queen's Bench Division. He dismissed the appeal but that decision was subsequently quashed by the Court of Appeal in January 1998. The matter went back before another inspector, Mr Turner. He allowed the appeal on 28 July 1998 and granted planning permission for a single storey agricultural building for ostrich breading, rearing and general storage in accordance with the terms of the October 1995 planning application. He did so, however, subject to conditions, the most significant being in effect the abolition of the second storey within 9 months and re-roofing with materials approved by the local planning authority. The Claimant did not comply with the conditions and accordingly the permission has lapsed. Were he to apply again for permission for what he has already been given, one of the material considerations would be whether there has been a material change of circumstances. The present position is, however, that although free to pursue agricultural activities, which includes farming ostriches, he needs permission to erect or keep buildings.

5. Two of the three appeals to which the present hearing relates concern permission for the existing two storey barn, the third to a proposal by the Claimant's son and daughter in law to station a mobile home at Pathfinder Farm for residential purposes. Details of the appeals are set out in a schedule to the inspector's decision letter and it is unnecessary to repeat them here.

6. The Claimant's present application is under section 288 (1) (b) of the Town and Country Planning Act 1990 which provides that a person aggrieved by an inspector's decision who wishes to question its validity may apply to the High Court on the grounds that:

(i) the decision is not within the powers of the 1990 Act or

(ii) any of the relevant requirements have not been complied with in relation to that decision.

7. It is important to have in mind that the High Court's power to intervene is limited. In the words of Lord Denning M. R. in Ashbridge Investments Limited v the Minister of Housing and Local Government [1965] 1 W.L.R. 1320, 1326:

``the court can only interfere on the ground that the minister has gone outside the powers of the Act or that any requirement of the Act has not been complied with. Under this section it seems to me that the court can interfere with the minister's decision if he has acted on no evidence; or if has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statue, or if he has taken into consideration matters which ought not have been taken into account or vice versa; or has otherwise gone wrong in law. It is identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law.''

8. The power of intervention is therefore very similar to the power on a judicial review application. It is not sufficient that another inspector might have come to a different conclusion. Inspector King's decision must have been unreasonable in the Wednesbury sense (see Associated Picture Houses v Wednesbury Corporation [1948] I KB 223) The Claimant also challenges the fairness of the appeal hearing and I shall refer to this in more detail in due course.

9. I turn now to consider the various grounds of complaint advanced by Mr Dyason. At the beginning of his skeleton argument he sets out five grounds on which he claims inspector King did not conduct the appeal fairly. These are:

(i) the functional needs of caring for emergencies on the farm can not be met by the farm worker living in a dwelling almost two miles from the farm (P.P.G. 7 Annexe I, 6)

(ii) the lack of a written business plan is not clear evidence that the proposed enterprise had not been planned on a sound financial basis (P.P.G. 7 Annexe I, 14)

(iii) the applicant was unfairly prevented from establishing the practical application and meaning of, inter alia, the word essential as it applies to the proper functioning of the enterprise as understood by the applicant's expert, an experienced veterinary, (P.P.G. 7 Annexe I, 14).

(iv) the written evidence of the appellant's landscape architect expert Mrs H. Gibbs, was totally ignored by the inspector. No reference is made to it in his decision letter and the reasons were not given as to why.

(v) the existence of a comparable barn having recent planning approval in the same area was ignored by the inspector and treated as being of no consequence and of no effect in precedence.

10. I shall refer to each of these points in turn. The first three all relate to Annexe I of P.P.G.7. The Claimant's son and daughter in law wanted to have a mobile home at the site for residential purposes. Paragraphs 1, 2 and 3 of Annexe I set out the general approach for meeting applications for residential development for farm or forestry workers at or near their place of work. They point out the need for careful scrutiny of such applications and say that while there will be some cases in which the demands of the farming or forestry work concerned make it essential for one or more of those engaged in the work to live at or in the immediate vicinity of their place of work, whether it is essential in any particular case will depend on the needs of the enterprise rather then the circumstances of the individuals. The criteria for a temporary dwelling are set out at I 14. These are:

(a) clear evidence of a firm intention and ability to develop the enterprise concerned (significant investment in new farm buildings is often a good indication of intention);

(b) functional need;

(c) clear evidence that the proposed enterprise has been placed on a sound financial basis;

(d) the functional need could not be fulfilled by another dwelling on the unit, or any other existing accommodation in the area which is suitable and available for occupation by the workers concerned; and

(e) other normal planning requirements, for example on siting and access, are satisfied.

The functional need referred to in (b) above is further described at I 6 in the following terms:

``a functional test is necessary to establish whether it is essential for the proper functioning of the enterprise for one or more workers to be readily available at most times. Such a requirement might arise, for example, if workers are needed to be on hand day and night:

* in case animals or agricultural processes require essential care at short notice;

* to deal quickly with emergencies that could otherwise cause serious loss of crops or products, for example, by frost damage or the failure of automatic systems.''

(i) Emergencies

11. The Claimant's case is that the inspector has failed to have proper regard to the need to have someone living on the site to cope with emergencies. The inspector correctly directed himself on the appropriate criteria in Annexe I to P.P.G. 7. He first observed that the ostrich rearing enterprise had already been in existence at Pathfinder Farm for more than three years but he concluded that because the application was for a temporary dwelling, it was appropriate to apply the temporary dwelling criteria.

12. He was satisfied about the first of the five criteria. As to the second, he noted that unlike with permanent accommodation the need did not have to relate to a full time worker but that the functional need was nevertheless applicable to both temporary and permanent accommodation. He emphasised the word essential and the phrase at most times. He observed that the Claimant's son and daughter in law lived only one and a half miles from the site and that the journey time was about six minutes by car and that they were able to supervise the holding frequently and conveniently at most times. He pointed out that the Claimant accepted that remote alarms could be fitted to warn, for example of power failure, but that none had been fitted. He concluded that while it was desirable, or even advisable for a worker to be available at most times to provide care at short notice and to deal with emergencies on the farm it was not essential for the proper functioning of the enterprise, and that accordingly the functional test had not been met. This, in my judgment, is a conclusion to which he was entitled to come on the evidence. The inspector mentions in his affidavit that from the evidence of the Claimant's son it was clear that he had not investigated the local property market and that weakened his case. Criterion (d) was therefore not established. Other existing accommodation in the area might have provided the answer.

(ii) Lack of a business plan.

13. Appendix I 14 (c) requires clear evidence that the business has been planned on a sound financial basis. The inspector in paragraph 23 of the decision letter pointed out that despite the intention to develop the enterprise there was little evidence to show that it had been planned on such a basis. There was no business plan for the current or following year and the plan for the previous year had proved to be optimistic. No separate accounts were kept and the business had hardly generated any income. There appeared to be little evidence of financial rigour in running the business.

14. The inspector in his affidavit expanded on the issue of a business plan. The Claimant agreed, as he said in paragraph 23.1.2 of his affidavit, that his plan for 1998/99 was optimistic and added that it is axiomatic that most business plans for new enterprises are optimistic. He told the inspector there was not one because it would be the same as for the previous year. The Claimant's son agreed in cross examination that not only was there no business plan for the current year there were no trading accounts for the previous year. Only twelve birds been sold in 1998/99. The son was unable to hazard a guess at the income that would derive from the sale of the current year's birds or the likely net profit per bird. There was some evidence that even on a projected production of 162 birds the enterprise would not make a profit in 1999/2000. The business had never made a net profit. The Claimant argued that his continuing perseverance is proof of his ability and that a formal business plan would be no more than guessing at what would transpire in a developing enterprise. He says he made it clear during the enquiry that there were legitimate business and tax reasons why there were no accounts for the farm and they were not shown separately from his other private businesses. In my judgment, however, the inspector was not unfair in his treatment of the Claimant. He took into account both the present depression in livestock farming generally, volatility in the demand for ostrich products and the potential to save costs in marketing the meat direct as an indication there might be potential to increase the income in future, but nevertheless concluded that the enterprise did not appear to be planned on a sound financial basis.

15. The inspector had to form his own judgment on these matters. He has given intelligible reasons for his conclusions and I can detect no error in law.

(iii) The meaning of essential

16. The Claimant's argument is that he was unfairly prevented from establishing the true meaning in practical terms of essential for the proper functioning of the enterprise in I 6. I have already in part made reference to this under the heading of emergencies.

17. The Claimant makes the point that the word essential is qualified by the words for the proper functioning of the enterprise. However, it is perfectly plain that the inspector had this well in mind for he said at paragraph 38 of the decision letter that whether it is essential for a worker to live at or near the site of his work will depend on the needs of the enterprise concerned and not on the circumstances of any of the individuals involved.

18. One of the complaints made by the Mr Dyason is that the inspector was unfair in not allowing him sufficient latitude when examining his expert veterinary witness Mr Unwin. It appears that Mr Dyason wanted Mr Unwin to say what essential meant in terms of best farming practice. The inspector would not let him lead the witness. This, Mr Dyason says, makes the hearing unfair. As the inspector pointed out in his affidavit, the Claimant chose to represent himself as he had done in earlier proceedings. He was not ignorant of the rules. Indeed the inspector explained them on several occasions and reminded him he was not to lead his witnesses. He suggested he might compose his questions differently. He noted that on more than one occasion there was a complaint by the 2nd Defendant about the Claimant's abuse of re-examination. The inspector concluded on this aspect of the case by saying the Claimant could have given evidence himself instead of putting it into the mouths of witnesses, but that he choose not to do so. Mr Dyason argued his case before me with skill and intelligence. I am quite sure from the evidence I have read and the argument I have heard that he received a completely fair hearing from the inspector both in this and all other matters. Incidentally it was not for Mr Unwin to define the meaning of the word essential in P.P.G. 7 Annexe I 6. That was a matter of interpretation for the inspector in the light of all the evidence. Whilst the complainant was understandably anxious to downgrade essential to something less than necessary, I am unable to find any fault with the inspector's approach.

19. It will be seen therefore that the inspector was not satisfied that three of the five criteria in paragraph I 14 had been met. In my judgment he was justified in each instance in reaching such a conclusion.

(iv) Mrs Gibb's evidence

20. The Council called Mr Martin, a senior planning officer with a degree and diploma in Town and Country Planning. The Claimant did not call Mrs Gibbs. There was, however, written evidence from her. This comprised a statement that she had prepared for the 1998 planning enquiry into the Claimant's proposal to alter the existing barn to single storey agricultural accommodation.

21. Mr Martin's evidence was that the building, the subject of appeals 1 and 2, is both prominent and visible in the landscape. He found the building to be harmful both to the openness of the green belt and the appearance of the countryside. He maintained his opinion under cross-examination.

22, Mrs Gibbs is a landscape architect of considerable experience. The thrust of her statement is that the building does not damage the quality and visual character of the area and that it integrates well into its setting. The Claimant drew my attention to photographs annexed to her statement. He argued that Mrs Gibbs was more of an expert than Mr Martin, but that the inspector took no account of what she said. Furthermore, Mr Martin gave no description of how the amenities were affected. The inspector did not have the advantage of either hearing Mrs Gibbs in person or having her evidence tested in cross-examination. There is, however, no doubt that he had Mrs Gibbs' evidence in mind. He said at paragraph 28 of his decision letter:

``the barn is located in an attractive valley, containing mainly grazing land on its lower slopes, and many trees on the higher land. In some views, some other buildings maybe glimpsed, at Bower Farm and on Vale Road, but mostly it is not seen in the context of other development. It is a large building of apparently industrial origin, with windows inserted in the western end. At close quarters at Ramscote Lane all but its top is screened by panel fencing; and it is obscured by trees and hedges when approaching from the east. Some young trees and hedging have been planted around it, which in time may limit its impact.''

23. However, he did go on to say that, especially from elevated public viewpoints, the building is a prominent feature of the landscape. It had a greater visual impact than would the permitted single storey structure. He said: ``though the ridge of the latter would only be some 0.76 metres below the present level, the eaves height would be approximately 1.38 metres lower. Consequently the barn in its present (and proposed) form would be significantly more bulky.'' He concluded that it adversely affects the openness of the green belt and detracts from the appearance of the countryside. As it was in an area of outstanding natural beauty to which walkers and riders are attracted this was a factor of considerable importance. He concluded that under appeals 1 and 2 the character and appearance of the countryside would be harmed contrary to the relevant policies in both the Structure Plan and the Local Plan.

24. The Inspector was, in my judgment, well placed to form a judgment on this issue. He cannot be criticised for preferring the opinion of the expert who saw give evidence and tested in cross-examination. It is true that he did not mention Mrs Gibbs by name in his decision letter, but it is perfectly clear both from the content of that letter and from his affidavit that he had her views well in mind. There is, in my judgment, no substance in the criticism of this aspect of the Inspectors' approach. The inspector fairly considered the issue.

(v) Comparables.

25. The Claimant says the inspector's decision is inconsistent with granting permission for ``the Cox Barn'' at Hawridge Hill Cottages in 1995. The inspector deals with this in paragraph 35 of his decision letter. He was not satisfied the two barns were comparable in size. The Cox Barn is less than half the length of the Claimant's barn and although the ridge is marginally higher the eaves are lower.

26. Then there was case where permission was granted for a mobile home in connection with an ostrich rearing enterprise in West Stafford, Dorchester. Again the inspector was entitled to regard this of little weight as a precedent. He pointed out that the labour requirement calculation in that case, which was not subject to examination at the enquiry, was greatly at variance with the evidence in the present case. The inspector is not, in my judgment open to criticism in his treatment of comparables.

Other points

27. The Claimant has another point that arises from his alleged difficulty in examining witnesses. It really, I think, comes to this that the inspector had an inquisitorial duty to bring out the material evidence. He makes this same point about several aspects of the evidence. A good example is the inspector's statement that ``I head no evidence to show that health or safety regulations would be breached if the rest room and other facilities were not provided.'' The Claimant relies on the observations of Pill L.J. in his judgment on an appeal in relation to the same site Dyason v the Secretary of State for the Environment and another [1998] JPL 778. There is an important distinction however between that case and the present one. There, there was a ``hearing'' see Department of Environment Circular 15/96 entitled Planning Appeal Procedures, whereas in the present case there was a public enquiry. As Pill L.J. explained, the hearings procedure is simpler and quicker then that for enquiries. There is no formal cross-examination or advocacy. The absence of an accusatorial procedure in such a hearing places an inquisitorial burden on the inspector. But that is not the position here where there was a full public enquiry. The Inspector said in his affidavit:

``It would have been open for the witnesses to have asked for clarification if they did not understand, or for a clarification of their understanding to have been sought in re-examination if the Claimant felt they had misunderstood, subject only to them not being lead. Indeed, in answer to a re-examination question as to what the ``best welfare situation for the birds'' would be, Mr Unwin said that it would be ``preferable'' to have someone on call or available. I am certain he fully understood what was meant by essential.''

28. In my judgment the present case is quite unlike the previous one where the inspector failed to discharge the inquisitorial burden that was placed upon him by the particular nature of the proceedings. I am unable to detect any unfairness in the procedure followed by the inspector, which seems to me to have been entirely appropriate. I have asked myself the question posed by Kerr J. in Lake District Planning Board v the Secretary of State for the Environment, approved by Swinton Thomas L.J. in R v Secretary of Environment ex parte Slot [1998] J.P.L. 692

``would a reasonable person viewing the matter objectively and knowing all the facts which are known to the court consider that there was a risk that the procedure adopted by the tribunal in question has resulted unfairness or injustice''.

The answer is emphatically ``no''.

29. The Claimant sets out his argument in considerable detail in his affidavit of 29 November 1999. He expanded in forceful oral argument at the hearing. He has criticised the decision letter on a line-by-line basis. He complains that the inspector failed to take account of a number of matters and asks me to draw certain inferences. I am reminded by Mr Mould for the Secretary of State that I am concerned with errors of law rather than revisiting the merits of the Claimant's planning case. Mr Mould relies on Lord Lloyd's speech in Bolton Metropolitan District Council v the Secretary of State for the Environment [1995] 3 P.L.R. 37, 42 where he referred to the correct approach in cases like the present. First of all the inspector is not required to deal specifically with every material consideration. Secondly, since there is no obligation to refer to every material consideration, but only the main issues in dispute, the scope for drawing any inference will necessarily be limited to the main issues, and then only as Lord Keith pointed out, when ``all other known facts and circumstances appear to point overwhelmingly to a different conclusion.'' What the Secretary of State must do, said Lord Lloyd, is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the ``principal important controversial issues.'' To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden.

Conclusion

30. Reading the inspector's decision as a whole I am entirely satisfied that he dealt with all the main issues and reached conclusions that were fully justified on the evidence before him. The Claimant had a full and fair hearing and there are no grounds justifying intervention under section 288 of the Town and Country Planning Act 1990. The appeal is therefore dismissed