Jenkins v Welsh Assembly Government [2009] EWCA Civ 1281

Case No C1/2009/1153[2009] EWCA Civ 1281
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE CURRAN)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 3 rd November 2009
Before
LORD JUSTICE CARNWATH
Between
JENKINSApplicantWELSH ASSEMBLY GOVERNMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Kevin Leigh and Mr Philip Williams (instructed by John Collins & Partners LLP) appeared for Applicant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]This is a renewed application for permission to appeal against a judgment of HHJ Curran QC sitting as a Deputy Judge of the High Court. At issue is an order made by the County Council for the creation of a public footpath which is to be part of the Ceredigion Coastal Path. That is a project which has been underway for a number of years, and much of the path has been achieved by agreement. In this particular part it has come up against the strong opposition of Mr Jenkins, who owns and runs a successful attraction which he has built up which takes advantage of the coastal position and the impressive views contained from there, and he considers that the proposed footpath will be seriously damaging to his business, perhaps principally because it will enable people to see for free what is perhaps the unique attraction of his park, namely the view.[2]This court is not concerned with the merits, but purely with any point of law. The matter was considered by an inspector appointed by the Welsh Office, and he gave his decision in March 2007 following a three-day inquiry and he recommended confirmation. That decision was upheld by the judge. Permission to appeal was sought; Dyson LJ refused permission on the papers. It is renewed, and Mr Leigh has made his case very clearly and I am grateful to him.[3]There are three points, which can be summarised as the safety point, the business, point and the parking point. On safety, Mr Leigh submits that the Inspector effectively abrogated his responsibility to ensure that the path would be safe, and he did not give proper attention to the inevitable risks of a path which runs very close to the edge of the cliff where it will be affected by erosion. In effect he left those issues to be dealt with, if and when they arise, by the council. As I say, he called that an abrogation of responsibility.[4]I am afraid I see no point of law there. The Inspector dealt with the issue of safety; he was clearly aware of the potential problems, but he took account of the experience of the council who were aware of other parts of the path which were similar but had not given rise to problems. In my view, he was perfectly entitled to take that into account and I see no conceivable error of law in the way he dealt with those matters.[5]The next point is what I will call the business point. As I have said, this goes back to the point that the unique selling point of his coastal farm park was the views and the position, and this would be destroyed by the ability of people to get access for free. The Inspector noted that there was no independent evidence of any kind to support that view, and indeed that Mr Jenkins had been offered the opportunity by the council of having a market analysis at no cost but had turned that down. That clearly was something which influenced him in taking a view as to whether this was a major factor or not. He formed the view at paragraph 48 that:
“…It seems perverse to me that both Mrs Thomas and Mr Jenkins see the development of a major tourist attraction on their doorsteps as a threat rather than an opportunity.”
[6]Again, I find it is impossible to see any point of law here. Mr Leigh says that the Inspector failed to grapple with this key point about the unique selling attraction of the position; but the Inspector clearly had it in mind but was not persuaded that it was as fundamental as Mr Jenkins clearly thinks. The Inspector also saw the other opportunities as an important factor. He was perfectly entitled in my view to take account of the lack of any independent evidence and to form his own view, and there is no error in that.[7]Finally, there is the parking point. This has troubled me a little more, although it may not seem to be fundamental to the whole project. The problem is explained by the Inspector very clearly at paragraphs 75-79 and I do not need to read that out. Undoubtedly he accepts that there is really a serious risk that there will be problems caused by people parking on the very narrow roads and getting in the way of Mr Jenkins’ access, and he says:
“…It seems most unfortunate that car parking facilities have not been included in the Coastal Path project. This problem could jeopardise the integrity of the Farm Park and may not permit the desirable separation of paying visitors and path users at the Farm Park entrance…”
His conclusion is this:
“In the wider sense, this seems likely to suppress the full potential of the Coastal Park in terms of attracting more people to the area until parking facilities are provided and in the narrower sense is likely to impact adversely on the Farm Park for which realistic compensation would seem appropriate.”
That is all he says about it. That then leads on to his summary of the various issues; and in particular on the question of expediency, he concludes that there is no evidence that the path would have an adverse impact on the business except for the lack of car parking at the start of the Coastal Path where, as in other areas, compensation arrangements would apply.[8]It seems to me that that does not really deal with the point. Undoubtedly, the Inspector is entitled to take into account the question of compensation because the section says that he should. That is obviously a factor insofar as there is measurable loss caused to the value of a particular holding. But the issues which are flagged up in paragraph 78 and 79 go beyond that. They go to the wider planning issue as to how those visiting the Coastal Path and those visiting the Farm Park are to be managed. It is not simply a question, as he implies, of reducing the attraction of the Path, or compensating any measureable loss to the Farm Park, but the practical issue as to how the conflict which he recognises is to be managed. He seems to have highlighted a failure by the council to address that a significant planning issue, but does not explain why that something which might “jeopardise the integrity” of the Farm Park (thereby presumably implying a threat to its future) should be left simply as a matter for compensation rather than addressed before the path is approved.[9]In my view, this particular point is not adequately dealt with by the Inspector’s reasoning and it seems to me something about which Mr Jenkins has a valid complaint. It follows that, in my view, he is entitled to permission to appeal on that point only. I say that with some reluctance because this case has been going on for a long time and I am not at all convinced that in the long run it is going to assist Mr Jenkins. I am far from saying that he will necessarily succeed on this point when the matter is argued out in the Court of Appeal or that ultimately his battle to prevent the path will succeed. However, the issue before me is whether there is a realistically arguable point on that issue, and in my view there is.[10]So I grant permission on the parking issue. I grant permission to appeal out of time. Half a day, and two Lords Justices plus one High Court Judge.

Order

Application granted in Part.