The Welsh Ministers & Ors v Davies [2013] EWCA Civ 1792

Case No C1/2013/1640[2013] EWCA Civ 1792
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Cardiff Civil Justice Centre
2 Park Street
Venue Cardiff CF10 1ETDate Wednesday, 27 November 2013
B e f o r e:
THE MASTER OF THE ROLLS
LORD DYSON
LORD JUSTICE UNDERHILL
LADY JUSTICE MACUR
Between
THE WELSH MINISTERS AND OTHERSAppellantv
Between
DAVIESRespondent
DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr T Buley (instructed by Treasury Solicitors) appeared for Appellant sMr R Turney (instructed by Burges Salmon) appeared for Respondent
J U D G M E N T

LORD DYSON: The Welsh Ministers appeal the order of His Honour Judge Keyser QC, who heard an application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"). The judge quashed the appeal decision of a planning inspector who had been appointed by the Welsh Ministers to hear an appeal under section 78 of the 1990 Act.

[2]The appeal decision related to land extending over two neighbouring farms; Bryn Celyn, Pen Y Fron Road, Rhydymwyn in Mold, and Tan yr Allt, Rhydymwyn Road, Gwernaffield, Mold. Mr Davies is the tenant of the two farms pursuant to separate agricultural tenancies. He lives in the farmhouse at Bryn Celyn and his mother, Mrs Enid Davies, lives in the farmhouse at Tan yr Allt.[3]The appeal decision was concerned with an appeal of two other parties, who are the developers, against the decision of Flintshire County Council ("the council") on 13 February 2012 to refuse planning permission to convert the existing barns at Tan yr Allt to an equine centre and tourist accommodation and to construct a replacement agricultural building at Bryn Celyn. The inspector allowed the appeal and granted planning permission for the scheme.[4]Mr Davies was aggrieved by the inspector's decision and challenged it in the court below, principally on behalf of his mother, who had lived at the farmhouse at Tan yr Allt for the past 60 years. The judge quashed the appeal decision on the basis that the inspector had erred in law in the approach that he had taken to the personal circumstances of Mrs Davies. The issue on this appeal is whether the judge was right to do so.[5]The inspector decided the appeal on the basis of the parties' written representations. At paragraph 2 of her decision, she identified the two main issues as being first whether the proposed development would be consistent with national and development planned policies, with particular regard to the viability of the existing farming enterprise, and secondly the effect of the proposal on the character and appearance of the surrounding countryside. She decided that the development would be consistent with national and development planned policies, with particular regard to the viability of the existing farming enterprise. She also held that the proposed new agricultural buildings would:
"... harmonise with the site and surroundings and it would not have a significant adverse impact on the general natural environment, complying therefore with UDP policy GM1."
[6]Having reached that conclusion on the issue of planning policies, she turned to what she described as "Other matters". It is this part of her decision which has really given rise to the subsequent appeal. Under the heading "Other matters", the inspector considered Mrs Davies's personal circumstances. She said this:
"Other matters "10. I am sensitive to the face that the tenant's family has been at Tan yr Allt for over a hundred years and that the proposed development would mean a fundamental change to the circumstances in which they have lived for that long period. I am reassured that the farm business would not be hindered by the changes but they would result in the cutting of ties to a farmstead with which the family has a long and close connection. "11. An option is that the tenant's mother would remain in the farmhouse for as long as she wishes although the living conditions there would be quite different from now and such an arrangement might not be practicable. It is regrettable that the tenant's mother might have to leave the home she has lived in since her marriage fifty years ago. Nonetheless this matter, and others related to possession, are most appropriately dealt with through the tenancy agreements and legislation and I can find no planning policy reasons to insist upon the farmhouse being occupied by the tenant or his family. "12. I have taken these difficult considerations into account in reaching my decision but as they largely concern the relationship between the tenant and landlord I can give them little weight. I do not consider that in themselves they are reasons to dismiss the appeal. ... "15. I have taken all the matters raised into consideration but not found any which amount to compelling reasons to refuse the proposal. "
Unilateral undertaking "16. I have seen the signed and dated undertaking which will ensure that the replacement agricultural building is provided and completed prior to any work taking place on the equine centre part of the proposal. In being necessary to make the development acceptable in planning terms; directly related to the development the undertaking complies with the CIL regulations. I can therefore give significant weight to it. "17. As explained above I do not consider it necessary in planning policy terms for the tenant's mother to continue to live at the Tan yr Allit farmhouse; this does not undermine, however, any rights or protection that the family might have as part of their tenancy agreement or under other legislation."[7]The judge considered the appeal in a very careful, and indeed rather impressive, judgment. At paragraphs 11 to 15, he correctly summarised the various points of the general approach as a matter of law to planning challenges under section 288 of the 1990 Act. At paragraph 15, he referred to the well known dictum of Sir Thomas Bingham, Master of the Rolls, in Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council [1993] 66 P&CR 263 at 272:
"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."
[8]The judge also correctly summarised the law on the relevance of personal circumstances in planning matters. At paragraph 48, the judge recorded his conclusion that the inspector had erred by:
"... failing to have regard to personal circumstances as factors that were genuinely capable of overriding countervailing policy considerations."
His reasons are set out in paragraphs 49 to 59.[9]First, the judge considered that it was of some significance that the inspector had identified the main issues in the appeal at paragraph 2 of the decision letter without reference to the personal circumstances. I should say that this is a point on which some weight is placed, but it seems to me that it is clear that the inspector was fully justified in identifying the two main issues in the appeal in the way that she did, having regard to the way in which the issues were argued before her. It is not suggested that the failure to make any reference to the personal circumstances of Mrs Davies in paragraph 2 is in any way decisive of the issues arising on this appeal.[10]Then the judge turned critically to deal with paragraph 12 of the decision letter, which is one of the most important paragraphs of that document. What the judge said was:
" ... as I have said more than once, must seek to interpret fairly the decision letter. However, taking the decision letter as a whole, it does seem to me that the inspector regarded Mrs Davies's personal circumstances as matters that were not capable of overriding planning policy. When she writes, 'I can give them little weight', one asks what she means. It seems to me that in context the most likely construal is that she felt unable to attribute to them sufficient weight to override considerations of planning policy. That is why she identifies policy in paragraph 2 of her decision letter. That is why at the conclusion of paragraph 11 she says that she finds no planning policy reasons to insist on the farmhouse being occupied by the tenant or his family, and that is why even though it might be said that she purports to take personal circumstances into account, and that she says only that they 'largely' concern the relationship between the tenant and landlord, she appears to conclude that in the absence of a planning policy that supports the continued occupation of farmhouse by the Davies family, the personal circumstances prevail. In my judgment, the inspector's approach was akin to that of the legal adviser in the Adams case, who accepted in terms that the factors were material but erred in thinking them incapable of outweighing an applicable policy."
[11]It is submitted by Mr Buley that this paragraph appears to contain the judge's encapsulation of the error of law which he considered the inspector to have committed; that is to say that the inspector believed wrongly that she was legally bound to find that planning policy considerations outweighed personal circumstances. I agree with that summary of the judge's main conclusion.[12]The judge drew further support for this conclusion from paragraph 17 of the decision letter, and the judge said at paragraph 57 that:
"This passage is under the heading of 'Unilateral undertaking' and is clearly a refusal to require the imposition of an obligation pursuant to clause 5.3 of the deed dated 27 July 2012, namely to give a right for life to Mrs Davies. The wording of paragraph 17 tends to confirm that the inspector's earlier discussion, which premised upon the supposition that the existence of planning policies supportive of the appeal meant that it was planning policy alone that could make Mrs Davies's personal circumstances a ground potentially sufficient to refuse planning permission."
[13]Then at paragraph 58 the judge said that the passage that he had set out in paragraph 17 of the decision letter amounted to:
"... the complete abdication of the exercise of judgment and discretion on the question of whether or not in the circumstances it was appropriate to improve an obligation pursuant to clause 5.3 of the deed. The inspector deals with that, so far as she does deal with it, purely and simply on the basis of planning policy. At this stage of her reasoning she does not advert to non policy based considerations of personal circumstances at all. I think that that reflects the underlying way in which she approached the matter, notwithstanding that certain phrases such as 'I have taken these concerns into account' can be used to argue to the contrary."
[14]Finally, at paragraph 59,

the judge said that:

"If one stands back from the decision and looks at it in the round for a moment, there is nothing at all in the decision letter that shows that the inspector understood that the fact that Mrs Davies had lived in the farmhouse for 60 years was itself, and in the absence of a specific planning policy, a factor that she could consider capable of overriding policy considerations."
[15]Mr Buley submits that the judge was wrong to conclude that the inspector had erred in her approach to the issue of Mrs Davies's personal circumstances. He submits that the critical question is whether the judge was right at paragraphs 56 and 59 of his judgment in his interpretation of paragraph 12 of the decision letter.[16]The issue therefore is whether, when the inspector, having referred to Mrs Davies's personal circumstances and said that she could give them little weight, the inspector meant: one, that as the judge held that, as a matter of law she was constrained to give them little weight or constrained to find that they were overridden by planning policy considerations; or two, as Mr Buley submits, she meant merely that on the facts of this case, the inspector found them to be matters to which she could or should give little weight.[17]Mr Buley advances a number of reasons as to why the second interpretation is to be preferred. First, he submits that it is the natural reading of the language which the inspector used. It is commonplace in judicial language to say that one can -- I emphasise the word "can" -- give little weight to a particular matter, meaning only that a judge or other decision maker is only prepared -- and I emphasise the words "only prepared" -- to give that matter little weight. Mr Buley submits that the judge's reading of the inspector's decision provides a classic example of the kind of overly legalistic reading that Sir Thomas Bingham, the Master of the Rolls, and others have counselled against.[18]Secondly, he submits that this conclusion is reinforced when one sees that the inspector gave personal circumstances little, rather than no, weight. Of course it is trite law that the question of what weight should be given to a material consideration is not a question of law.[19]Mr Buley submits that the other matters discussed by the judge at paragraph 55 of his judgment do not support his conclusion. He submits first that the judge relied on the fact that the inspector had identified the main issues at paragraph 2 of the decision letter without reference to personal circumstances, but that, he submits, merely serves to emphasise the context in which the personal circumstances of Mrs Davies had to be considered. Section 38(6) of the 1990 Act requires that priority be given to the development plan.[20]In those circumstances the inspector, Mr Buley submits, was entitled to identify the main issues in the way that she did, and by the time the inspector came to consider personal circumstances, they had to be considered at best as an exception to an exception; that is, the inspector had properly concluded that the scheme complied with the development plan and with national policy. She would only have refused permission if there were other material considerations sufficient to displace the primacy of the plan. Mr Buley refers to the well known speech of Lord Scarman in the Great Portland Estates case, which is reported at [1985] 1 AC 661, the passage at 669H and following.[21]I have found Mr Buley's submissions on this compelling. Ultimately, the question of how one reads paragraphs 10 to 12 of the decision letter is a matter of impression and is not susceptible of detailed argument. Bearing in mind the strictures of not adopting an unduly legalistic approach, it seems to me that Mr Buley's interpretation is to be preferred to that of Mr Turney. The inspector was right to say that there was no planning policy reason to insist on the farmhouse being occupied by the tenant or his family. Indeed, Mr Turney does not contend otherwise. There was no particular policy requirement on which Mr Davies could rely.[22]If the inspector had regarded the absence of such a policy as being of itself fatal to the tenants' case, then she would have fallen into error, but in my judgment she did not commit this error. She did not say that the personal circumstances of Mrs Davies were not capable of being overridden by planning policy considerations, still less that they were of no weight, whether as a matter of law or fact. She merely said that they were of little weight. There was nothing to indicate that she felt that she was constrained as a matter of law to give them little or no weight or to find that they were overridden by planning policy considerations.[23]In my judgment, that is sufficient to dispose of what seems to me to be the principal issue arising on this appeal. Indeed, when preparing for the hearing of this appeal, that was what I considered to be the issue in the case, but it became clear during the course of Mr Turney's submissions that he was seeking to advance another, apparently freestanding, point. That arises from what the judge said at paragraph 53 of his judgment. I will not read it out, but it should be set out in its entirety in this judgment.[24]In short, the argument was that the inspector misdirected herself in two parts of her decision: first at paragraph 11, when she said:
"Nonetheless, this matter and others related to possession are most appropriately dealt with through the tenancy agreements and legislation and I can find no planning policy reasons to insist upon the farmhouse being occupied by the tenant or his family."
And then at paragraph 17, when she repeated that it was not necessary in planning policy terms for the tenant's mother to continue to live at the farmhouse. She then said:
"This does not undermine, however, any rights or protection that the family might have as part of their tenancy agreement or under other legislation."
[25]Mr Turney's point is that under the Agricultural Holdings Act 1986, the grant of planning permission is a ground for possession under the provisions of that Act. We have not been shown any of the case law that considers how the relevant provisions of that Act are to be applied. It is not clear to us whether there is a mandatory or merely a discretionary ground to grant possession where planning permission has been granted. In my judgment it is, however, unnecessary for us to explore that issue for reasons I shall explain in an moment.[26]Mr Turney's point is that the grant of planning permission would be determinative of any possession proceedings that were brought against Mr and/or Mrs Davies, and in those circumstances Mr Turney's point is that it was misdirection for the inspector to say, and to take into account, that the question of the personal circumstances of Mrs Davies would be most appropriately dealt with through the medium of private law possession proceedings. That is the point which in effect the judge accepted at paragraph 53 of his decision.[27]Mr Buley makes a number of points. First of all, he submits that it is not open to Mr Turney to take this point; there has been no respondent's notice advancing this point, he has been given no notice of it, and it is wrong in principle for the respondent to be permitted to take this point in such circumstances. The point was in any event barely touched upon in the court below. It did not form part of the ground of appeal to the judge. For those reasons Mr Buley submits that we should not entertain this point. I am sympathetic to that submission. Mr Buley did, however, go on to make brief submissions, although he had not had any time to consider how best to make those submissions.[28]I have come to the conclusion that there is in any event no substance in this point that Mr Turney seeks to advance. If the inspector had expressed a view as to the substantive outcome of such private proceedings, and that that had been an erroneous view to express, then there would have been substance in the point that the inspector had misdirected herself as a matter of law. But she did not do that. It is to be assumed that she was alive to and familiar with the basic approach to grant of planning permission in circumstances where the requirements of all relevant planning policies have been satisfied. She was so satisfied in this case, and as is clear from the speech of Lord Scarman in the Great Portland Estates case, and indeed elsewhere, in such circumstances it would indeed be an exception for personal circumstances to outweigh a conclusion otherwise dictated by planning policy requirements.[29]The inspector did not express a view as to what the outcome of the private law proceedings would be. She merely said that that was the appropriate forum for the determination of the question whether or not Mrs Davies's personal circumstances should be respected; that is to say, in the context of private law proceedings. In other words, she was not persuaded that Mrs Davies's personal circumstances were so compelling that as a matter of planning law she was prepared to decide that they should override the dictates of the application of planning policy.[30]For those reasons, I am not persuaded that there is substance in this point. It is unsatisfactory that the point has been taken and raised before this court in the way that it has, but I am satisfied that no injustice is done in deciding that aspect of the matter in the way that I have just described.[31]The conclusion that I reach, therefore, is that the Welsh Ministers' appeal should be allowed.

LORD JUSTICE UNDERHILL: I agree.

LADY JUSTICE MACUR: I also agree.