Mitchell v Secretary of state for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | Mr Justice King |
| Judgment Date | 05 February 2013 |
| Neutral Citation | [2013] EWHC 1849 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 February 2013 |
| Docket Number | CO/12377/2011 |
[2013] EWHC 1849 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice King
CO/12377/2011
Mr A Gore (instructed by Palmers) appeared on behalf of the Claimant
Mr D Blundell (instructed by Treasury Solicitors) appeared on behalf of the Defendant
This is a statutory challenge pursuant to section 288 of the Town and Country Planning Act 1990 to the decision of the Inspector appointed by the first Respondent, the Secretary of State for Communities and Local Government, allowing an appeal brought under section 78 of the Act by the St Neots Model Flying Club, the Club, against the refusal of the second Respondent, Huntingdonshire District Council, to grant planning permission for "change of use of agricultural land to use for flying of model aircraft" in relation to land off Toseland Road, Great Paxton in Cambridgeshire, the appeal site.
Neighboured property owned and occupied by the fourth Applicant and formerly owned and occupied by the fourth Applicant's partner, Mr Charles Barratt, sadly deceased, included land as well as a dwelling house. The house is known as Cornfields. The farmland surrounding Cornfields, which is also relevant to this case, adjoining the appeal site was actually solely owned by Mr Barratt. He died on 30 July 2010, leaving that surrounding land to the fourth Applicant, his partner, although vesting instruments have yet to be executed in her favour. The fourth Applicant continues to reside in Cornfields.
The fourth Applicant appears, therefore, in her own right as the owner of Cornfields and the interest in the adjoining land. She also appears with the first three Applicants as one of the three executors of the deceased's estate.
In the decision letter dated 8 November 2011, which was made following a site visit on 3 October 2011, in paragraphs 4 and 5 the Inspector rehearsed the nature of the appeal site as follows. Paragraph 4:
i. "The site comprises of part of an open field located on the southern side of Toseland Road, south east of Great Paxton and to the west of Toseland village. It is a roughly rectangular site very approximately 120 metres deep by about 70 metres wide. There is a public footpath extending along the eastern boundary which is accessed via a small wooden footbridge over a ditch running along Toseland Road and an overgrown field access which would be cleared and used for vehicular access. The site is broadly level and currently used for growing crops. A hedge extends along the road frontage and the eastern, western and southern boundaries are currently undefined by any structures or vegetation."
Paragraph 5:
i. "Cornfields is a detached house and is located some 280 metres to the east directly off Toseland Road. It has a large garden, the edge of which is about 245 metres from the appeal site and to the west a track extends from Toseland Road towards the site of a new agricultural storage building which is in the course of construction and is close to the garden of Cornfields. Hollow Farmhouse is to the east of Cornfields and is about 700 metres from the site set back from the road."
The application for planning permission was lodged dated 20 October 2010 and it was accompanied by a planning statement. It attracted objections from the local parish council and local residents, including the present Applicants. The first three Applicants made representations through agents Warmingtons in November 2010 and indeed, February 2011. The fourth Claimant, Mrs Mitchell, in her own right made representations in November 2010 and on 8 February 2011. The first three Applicants also made representations on 8 February 2011 through Warmingtons to the counsellors sitting on the Development Management Panel.
They were due to hear the application at its meeting on 14 February. There was an officer's report also before the Local Planning Authority, the Council at that stage, which recommended that the application should be approved. The application was called in for consideration by members and the Council then refused the application by decision of 18 February 2011. The reason for refusal was narrowly based. It was in these terms:
i. "The change of use of this isolated agricultural land for the flying of model aircraft in the tranquil countryside setting would have an adverse effect on the landscape and the visual amenity of the area. This would be contrary to policies R2 and R13 of the Huntingdonshire Local Plan of 1995."
The Club appealed to the Secretary of State pursuant to section 78 on 21 April 2011. The Club asked for the appeal to be dealt with by written representations. That was a request which was not opposed in terms by the local Council. The Claimants themselves were notified of the appeal and the fact that it was to be dealt with by written representations by a notice given to them and under paragraph 13 of the material Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2009.
That notice, among other matters, stated that any representations made by them to a Local Planning Authority in relation to the application before it was determined will be sent to the Secretary of State and the Appellant by the Local Planning Authority and will be considered by the Secretary of State when determining the appeal, unless withdrawn. It further stated that further written representations might be sent to the Secretary of State within a defined time.
That opportunity to make further representations was exercised by the Applicants in the form of a composite report on their behalf dated 7 June 2011, lodged again by their agents, Warmingtons, and in particular drafted and lodged by one Christopher John Perks who gives his qualifications as a fellow of the Royal Institute of Chartered Surveyors and a fellow of the Central Association of Agricultural Valuers practicing as a land agent and rural property consultant of a member of Warmingtons Surveyors LLP.
The Club itself, in addition to the lodging of the formal planning appeal, also lodged in June 2011 a more detailed appeal statement with appendices which had been prepared by the their solicitors, Taylor Vinters.
The Local Planning Authority; the Council, in other words; also, as they were entitled to, put in a case on appeal by letter of 22 June 2011. Other local residents wrote to oppose the appeal. Indeed, the first Claimant, Mrs Mitchell; and indeed, the fourth Applicant as well in her own right; made further representations.
Although there is no provision in the regulations for a response as such, the Club did put in a response to representations they had received by letter from their solicitors dated 2 August 2011. As I have indicated, the decision letter of the Secretary of State allowing the appeal is dated 8 November 2011.
There was initially a challenge in this application under section 288 to the determination of the Secretary of State, acting through its planning inspectorate, to adopt the written representation procedure acting under the provisions of the relatively new statutory provision in section 290A of the Act. That challenge has been properly abandoned before me by Mr Gore who has accepted that if any challenge were to be made to that decision, it could not be made in the context of the section 288 application and would have to have been done by way of judicial review.
Before dealing with the challenge in any detail, it is convenient if I just rehearse some of the material which was before the Inspector as at the time she made her determination through this written representation procedure.
A reference, as I have indicated, was made by the Local Planning Authority in refusing permission to the change of use being contrary to policies R2 and R13 of the Local Plan. R2 is in these terms:
i. "The District Council will consider planning applications for recreation facilities on their merits, bearing in mind the following factors:
(ii) Advice from sporting recreation authorities on the need for further provision.
i. (ii)The effect upon adjacent residential areas.
ii. (iii)The effect on landscape, visual amenity, nature conservation and archaeological interests.
iii. (iv)Access, parking and traffic generation.
iv. (v) The siting, design and materials of any buildings and structures."
What might be described as the explanatory statements immediately following, there is at 6.15 the following:
i. "There are a wide range of sports which because of their special requirements are best located in the countryside. Sports such as micro lighting, gliding and motor sports are seen as being undesirable because of noise, visual intrusion etc. Careful zoning of recreation uses may allow the practice of noisy or intensive recreation uses without threatening nature conservation interests or enjoyment of the countryside. Planning permission for these sports will be assessed against the criteria in this policy."
Policy R13 is in these terms:
i. "The District Council will support the provision of facilities for informal countryside recreation, subject to the criteria in policy R2."
In the planning statement which accompanied the planning application, the Club at paragraph 4.1 gave some background as to why it was the Club, which had an existing site, wanted to move its base to the appeal site. It reads as follows:
i. "The St Neots Model Flying Club...
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