John Davies v Welsh Ministers and Others
| Jurisdiction | England & Wales |
| Judge | H.H. Judge Keyser,Judge Keyser,JUDGE KEYSER |
| Judgment Date | 28 May 2013 |
| Neutral Citation | [2013] EWHC 2260 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 May 2013 |
| Docket Number | Case No: CO/909/2013 |
[2013] EWHC 2260 (Admin)
HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Law Courts
Mold
Flintshire
CH7 1AE
His Honour Judge Keyser QC
sitting as a judge of the High Court
Case No: CO/909/2013
Mr Richard Turney (instructed by Burges Salmon) appeared on behalf of the Claimant
Mr Gwion Lewis (instructed by the Treasury Solicitor) appeared on behalf of the Defendants
H.H. Judge Keyser Q.C.:
This is an application under section 288 of the Town and Country Planning Act 1990. The claimant seeks an order quashing a decision of the Inspector appointed by the first defendant to grant planning permission on appeal for an equine centre and tourist accommodation and for the erection of an agricultural building for livestock and fodder at Tan yr Allt, Rhydymwyn Road, Gwernaffield, Mold, and at Bryn Celyn Farm at Pen y Fron Road, Rhydymwyn, Mold.
Lest I forget to do so later, may I say at the outset how grateful I am to both counsel who have appeared before me today for their detailed and comprehensive written and oral arguments, which lost nothing by being succinct and to the point.
The first defendant, as I said, appointed the Inspector. The second defendant is the local planning authority, which refused planning permission for the development in question in February 2012. The third and fourth defendants were the appellants in the appeal. The fifth and sixth defendants own part of the application site.
The claimant is the tenant of Tan yr Allt Farm and of Bryn Celyn Farm, though under separate agricultural tenancies. The third and fourth defendants are the freehold owners of Tan yr Allt Farm. The fifth and sixth defendants are the freeholders and owners of Bryn Celyn Farm. The claimant farms them as a single unit.
The claimant lives in the farmhouse at Bryn Celyn Farm. His mother, Mrs Enid Davies, lives at the farmhouse at Tan yr Allt. She has done so, according to the statement put in evidence before the Inspector, since 1952—a little more than 60 years.
In May 2010 the third and fourth defendants applied to the local planning authority for planning permission for the creation of the equine centre and tourist accommodation at Tan yr Allt and the erection of an agricultural building at Bryn Celyn. That application was, at least in substance, the resubmission of an earlier application that had itself been refused in October 2009. The further application was refused on three grounds: first, that the agricultural buildings to be used were not redundant and surplus to requirements, and their loss would be contrary to Technical Advice Note 6 ("TAN 6"); second, that Tan yr Allt was an existing well-established and viable farm unit and that there was no requirement for diversification to supplement its viability, as the proposed development would not be run in conjunction with the main farm enterprise, and that this again would be contrary to policy in TAN 6 and also to a policy of the unitary development plan; third, that the proposed development would result in the loss of land and buildings, with consequent loss of income and impact on the livelihood of the tenant farmer, again contrary to TAN 6.
An appeal was lodged. The first defendant appointed Siân Worden to be the Inspector. She determined the appeal by way of written representations. I shall refer to those in due course.
At the appeal stage, the third and fourth defendant produced an agreement by way of deed dated 27 July 2012. The deed contained provisions, of no relevance to this application, relating to the position between the third defendant and the fifth and sixth defendants. However, clause 5.3 did contain a relevant provision:
"[The parties agree] That, if the Inspector appointed by the Welsh Ministers shall deem it necessary as a requirement of the Planning Permission for the Development, the Applicant shall not allow the use of the house at Tan yr Allt aforesaid for the purpose of the proposed Equine Centre and Tourist Accommodation but in the alternative shall allow Mrs Enid Davies, the mother of the Tenant, to reside alone at the said house at Tan yr Allt during her lifetime or until she shall voluntarily vacate the said house and thereafter the use of the house at Tan yr Allt for the purpose of the Equine Centre and Tourist Accommodation shall commence."
The Inspector allowed the appeal. She found that the proposal was in accordance with policy and did not find that the personal circumstances of either the claimant or, more particularly, Mrs Davies, his mother, provided reasons for refusing permission. She also did not consider it appropriate to require the imposition of the obligation provided for in clause 5.3 of the deed. I shall turn to the details of the Inspector's decision letter in due course.
This application was originally made on two grounds, one of them relating to the contention that the agreement by way of deed dated 27 July 2012 was not a valid agreement for the purposes of section 106 of the 1990 Act. That point has, as I understand it, been conceded in the course of discussions and resolved by the putting in place of an agreement that is not subject to those strictures, and the matter has proceeded simply on the other ground of application, which is, in short, the contention that the Inspector failed to have proper regard to the personal circumstances of Mrs Davies when reaching her decision. I shall explain later how that point is advanced.
First, however, I shall deal with some general matters of law. The relevant considerations for a local planning authority when dealing with an application for planning permission, or indeed for an Inspector when considering an appeal, are mentioned in section 70(2) of the 1990 Act, which provides that regard shall be had to "(a) the provisions of the development plan so far as material to the application" and "(c) any other material considerations".
Section 288, under which this application is brought, provides:
"(1) If any person—
…
(b) is aggrieved by any action on the part of the [Welsh Ministers] … to which this section applies and wishes to question the validity of that action on the grounds—
(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section."
In R (Newsmith) v Secretary of State for Environment, Transport and the Regions [2001] EWHC 74 (Admin), Sullivan J (as he then was) referred to section 288 as follows in paragraphs 5 and 6:
"5. It is important to note at the outset that a challenge under section 288 to the validity of an Inspector's decision on an appeal under section 78 may be made only upon the grounds that the Inspector's decision: (1) is not within the powers of the Act; or (2) that any of the relevant requirements have not been complied with in relation to the decision.
6. An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits."
He went on to point out that, as well as the evidence given in the inquiry, the Inspector will be informed by his or her inspection of the site. There was a site inspection, of course, in the present case.
In Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at 780, Lord Hoffmann said:
"The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process."
Finally by way of introductory law, in Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council [1993] 66 P. & C.R. 263, at 272, Sir Thomas Bingham MR urged that, when reviewing an Inspector's decision, one ought to take a "straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication".
With that background in place, I turn to some of the material that was before the Inspector and provides the context in which her decision is to be read and considered.
The planning application was accompanied by a number of documents. One, a document headed "Aims and objectives", the title of which is self-explanatory, says in part:
"It is our aim to provide employment for 2 stable hands and 1 Manager with the intention that the Manager would reside in barn 1; which would also accommodate an office and meeting/training room. This would allow Mrs Davies to continue living and enjoying the farm house under a life tenancy or until such time that she vacates the...
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