Carol Susan Alderson v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Rhodri Price Lewis |
| Judgment Date | 23 June 2017 |
| Neutral Citation | [2017] EWHC 1415 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 June 2017 |
| Docket Number | Case No: CO/3640/2016 |
[2017] EWHC 1415 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rhodri Price Lewis QC
(Sitting as a Deputy High Court Judge)
Case No: CO/3640/2016
Miss Kate Olley (instructed by Direct Public Access) for the Appellant
Miss Clare Parry (instructed by Government Legal Dept.) for the First Respondent
The Second Respondent was not represented and did not appear
Hearing date: 16 May 2017
Approved Judgment
Rhodri Price Lewis QC:
Introduction
This is an appeal under section 289 of the Town and Country Planning Act 1990 against the decision of the First Respondent through his Inspector, Sukie Tamplin DipTP Pg Dip Arch Cons IHBC MRTPI, to dismiss the Appellant's appeals against two enforcement notices issued on the 18 th November 2015 by the Second Respondent Council as local planning authority for the area.
The land affected by the enforcement notices is at Little Harness Farm, Cowbeech Road, Rushlake Green, Heathfield, East Sussex.
The breach of planning control alleged in the first notice is "without planning permission, change of use of the Land from agriculture to a mixed use for agriculture and for stationing a caravan for residential purposes."
The first notice required the Appellant to stop using the land for the stationing of a caravan for residential purposes, to remove the caravan from the land, and to remove all material arising from compliance with the first two requirements. There was a 3 month period for compliance.
The appeal against that first notice was made on the grounds that planning permission ought to be granted in respect of the breach of planning control (ground (a) under section 174(1) of the 1990 Act), that that breach of planning control had not occurred (ground (b)), that if those matters had occurred they do not constitute a breach of planning control (ground (c)) and that the period for compliance specified fell short of what should reasonably be allowed (ground (g)).
There was no appeal in respect of that first enforcement under ground (f), namely that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy the breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach.
The breach of planning control alleged in the second enforcement notice is "without planning permission, the erection of a freestanding timber decking area ("the Decking")" around the caravan.
That notice required the Appellant to demolish, dismantle and remove the decking from the land and to remove from the land all material arising from compliance with that requirement.
The appeal against that second enforcement notice was made on grounds (a), (c), (f) and (g).
The appeal was determined on the basis of written representations and a site visit that was made on the 13 th June 2016.
The Inspector issued her decision letter dated the 23 rd June 2016 in which she dismissed the appeals against both notices, upheld the notices and refused to grant planning permission.
The Legal Framework:
An appeal under section 289(1) can be only on a point of law, as the sub-section itself provides. The court may refuse leave to appeal where there is no arguable case: Kensington and Chelsea Royal LBC v. Secretary of State for the Environment: [1992] 2 P.L.R. 116. Mitting J granted permission to appeal here on the 6 th September 2016 in the following terms:
"1. Permission be granted limited to the ground of appeal addressing the issue of whether it was necessary for the enforcement notice to require the removal of the caravan and decking in order to rectify the breach of planning control.
2. Permission be refused on the other grounds.
3. The Appellant do have liberty to amend her grounds to re-phrase the ground of appeal on which permission has been granted.
The Appellant amended her grounds to read as follows:
"1. The Planning Inspector erred in her decision for the removal of the static caravan and decking in view of there having been no breach of planning control per se.
2. The Planning Inspector took no account of the statements made by the LPA as to usage of the static caravan not breaching planning control by virtue of it forming part of the agricultural activity on the site."
The general principles concerning the grounds upon which a Court may be asked to quash a decision of an Inspector or the Secretary of State are well established. I gratefully adopt the summary given by Lindblom J, as he then was, in Bloor Homes East Midlands Ltd v. Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) in the following terms:
"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v. Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v. Porter (No. 2) [2004] 1 W.L.R. 1953, at p.1964B-G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v. Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v. Secretary of State for [2001] EWHC Admin 74, at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v. Dundee City Council [2012] P.T.S.R. 983 [now [2012] UKSC 13], at paragraphs 17 to 22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann LJ, as he then was, South Somerset District Council v. The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v. Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).
(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill LJ Fox Strategic Land and Property Ltd. v. Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann LJ in North Wiltshire District Council v. Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145)."
Furthermore an Inspector appointed to conduct a planning appeal must:
i) have regard to the statutory development plan (see section 70(1) of the 1990 Act and section 177(2) in relation to the grant of planning permission on appeals against enforcement notices);
ii) have regard to material considerations (section 70(1) of 1990 Act);
iii) determine the proposal in accordance with the development plan unless material considerations indicate otherwise (section 38(6) of the Planning and Compulsory Purchase Act 2004);
iv) apply...
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Enforcement of Planning Control
...control as the owner had not raised that issue on appeal to the inspector. In any event, it would have been inconsistent with the 92 [2017] EWHC 1415 (Admin). 314 Planning Law: A Practitioner’s Handbook inspector’s findings as to the use of the caravan and its effects to have decided that i......