Villa Ria Trading, R (on the application of) v First Secretary of State & Anor [2006] EWHC 3326 (Admin)

Case No CO/1308/2006[2006] EWHC 3326 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 8th December 2006
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE GILBART QC
Between
THE QUEEN ON THE APPLICATION OF VILLA RIA TRADINGClaimant-v-
Between
(1)FIRST SECRETARY OF STATEDefendantSLOUGH BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR ALAN MASTERS (instructed by Messrs Blake Lapthorn Linnell)appeared for CLAIMANTMR PHILIP COPPEL (instructed by the Treasury Solicitor)appeared for DEFENDANT
J U D G M E N T
[1]In this matter the claimant seeks to quash a decision letter of 3rd January 2006, whereby an inspector appointed by the First Secretary of State dismissed the appeal of the claimant against the refusal of Slough Borough Council to permit a temporary caravan park for construction workers at Manor Farm, Poyle Road, Poyle, Slough, Buckinghamshire. The claimant had sought planning permission for that temporary caravan park for construction workers. The site lies in the Metropolitan Green Belt close to the junction of the A30 and the M25, and therefore, of course, very close indeed to the construction of the fifth terminal at London Heathrow Airport. The caravan site was already in use without the grant of planning permission. As it is a site in the Metropolitan Green Belt and the use proposed was by definition one which was inappropriate, it followed that the claimant had to show very special circumstances why it should be permitted.[2]It is sensible to refer to paragraphs3.1 and3.2 of the national guidance on Green Belts in Planning Policy Guidance Note 2, which is headed "Presumption against inappropriate development":
"3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances..." "3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."
[3]Of course, the test which is set out in that part of the Planning Policy Guidance note had come about as a result of a number of Court of Appeal decisions and, in particular, the very well-known decision of Pehrsson v Secretary of State for the Environment [1990] 3 PLR 80.[4]The appellant's case was that there was a considerable need for accommodation for workers involved in constructing the fifth terminal. The appellant's case fell into the following parts. First, that the construction of the fifth terminal presented a significant need for accommodation for workers which could not be met without the use of sites in the Green Belt. Some were accommodated at a site called Plot 9, which was a site permitted under the general permitted development order within the airport boundary. Others were accommodated on unauthorised sites in the Green Belt and others were accommodated in bed and breakfast and other accommodation. Second, that employment levels would peak at 2006 but may not decline thereafter; the phrase "may" comes from the evidence of the planning consultant called by the claimant. Third, a particular contractor was employed on ground works. Part of its contract with the British Airports Authority, who are of course building the fifth terminal, required it to restore Plot 9 at the end of its use as a caravan site. Thus, the need for accommodation would continue, said the claimants, and it would not be reduced proportionately with the decline in the levels of employment because, of course, part of the accommodation and existence would be removed as part of the further works. Fourthly, it was said by the claimant, that particular contractor was housing its workers at the appeal site.[5]The Local Planning Authority's case was that there would be substantial planning harm caused. It put a case that there was harm by reason of inappropriate development of the Green Belt that would be harm to other important planning interests, including landscape, landscape management and highways. There were also concerns about pollution control.[6]The decision letter is a substantial one, I am not going to incorporate all of this into my judgment but certainly significant parts of it must be included: "Procedural Matters[1]The application description above is from the planning application forms. It was agreed during the inquiry that the description of the development should be: Change of use from agricultural land to residential caravan site to provide for 100 caravans together with hard surfacing of land, removal of existing bunding along northern boundary as indicated on the site layout drawing (L/1040/02/Revision F), car parking, 7 facility buildings and 2 electrical switch rooms, fencing and landscaping, gate house, light poles and sub-station for a temporary period of 3 years (retrospective application). I shall determine this appeal based on the amended description.[2]The appellant indicated that he was seeking planning permission through to the end of March 2008 to give approximately 3 years continued caravan site use from the date that the inquiry began. The Council objected to this on the grounds that the permission should run from the date on which the application was made. However, I can see no objection to the appellant's request given the way in which the application was worded on the application forms with no specific reference to an end date.[3]The site is in the Metropolitan Green Belt. It is not a matter of dispute between the parties that the development is inappropriate development in the Green Belt. Such development is by definition harmful and very special circumstances are required to justify it. Very special circumstances will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations." "Main Issue[5]The main issue in this appeal is: whether there are any very special circumstances sufficient to outweigh the harm through inappropriateness and any other non-Green Belt harm. Planning Policy[6]The development plan for the area includes the Local Plan for Slough (2004). This contains a presumption against inappropriate development in the Green Belt unless justified by very special circumstances (CG6). Any proposal which threatens the clear separation or the role of open land within the strategic Green Belt gap between the Slough urban area and Greater London will not be permitted (CG9). Proposals for development within the countryside or other open areas in the Colne Valley Park will not be permitted unless, amongst other things, they maintain and enhance the landscape and resist the urbanisation of existing areas of countryside (CG1). New development should not endanger the safety of road users (T3). Development will not be permitted on or near to landfill sites unless it can be demonstrated that arrangements can be made to overcome the problems caused by the possible migration of landfill gas and other ground pollutants (EN30). New development should not harm the quality of surface water or groundwater and should not increase the risk of flooding through surface water run off (EN31 and EN32) Reasons Background "7. The appeal site lies in a semi-rural location in the Green Belt. The appellant says that the caravan site is needed to house construction workers at the Heathrow Terminal 5 (T5) development. The use of the site to provide caravan accommodation commenced around July 2002." "Harm caused by inappropriateness[9]The appeal site comprises a fairly large area. Fully occupied by 100 caravans and associated cars it would comprise a substantial and notably urbanising form of development to the significant detriment of the openness of the area.[10]I attach considerable importance to the above due to the site's location between the settlements of Colnbrook and Poyle. These settlements lie within that part of the Green Belt identified by the Council as a strategic Green Belt between Slough and Greater London and to which Local Plan Policy CG9 applies. The importance of maintaining the strategic gap has been reinforced by the London Planning Advisory Committee who consider that the Green Belt on the west side of London is at its most fragmented and vulnerable. Explanatory text to Local Plan Policy CG9 says that the area to the east of Slough is important in that it defines the character of the area that separates Slough from other settlements, provides a desirable contrast between the built-up area and countryside, and importantly breaks up the contiguous area of built development.[11]In arriving at my view on the importance of retaining the appeal site as open and undeveloped, I have taken into account the fact that directly to the east of the site on the other side of Poyle Road is a substantial industrial estate. However, that area contrast notably with the generally more open and undeveloped appearance of land to the west of Poyle Road. In the recent enforcement appeal decisions on the appeal site the Inspector found that Poyle Road is a defensible boundary to the Green Belt and that permitting development west of the road would carry the risk of weakening the Green Belt which would be very undesirable. All that I saw leads me to a similar view, notwithstanding some established and lawful development in the vicinity of the appeal site.[12]My conclusion above has had regard to the present characteristics of the land directly to the west of the appeal site. This land comprises large heaps of soil many metres high associated with a recycling facility. These mounds stand out starkly against the generally flat and open landscape to the west of the Poyle Road and detract from the openness of this part of the Green Belt. However, this land is the subject of an extant enforcement notice, upheld on appeal, which should result in the removal of the spoil and the associated use. The appellant alleges that a previous use of the site would enable this land to remain developed notwithstanding the enforcement notice. However, no substantial evidence was provided to justify this view given the contrary opinion expressed by the Inspector on the enforcement appeal. In any event, even if the appellant's view was correct it would not justify the substantial additional harm to the openness of the Green Belt that would be caused by the proposed development.[13]I have also taken into account the fact that on appeal a data centre for the storage and distribution of data has been permitted in the Green Belt to the north of the appeal site and on the western side of Poyle Road. However, key to that decision was the fact that there remained an extant planning permission on the site for a hotel that both could and probably would have been implemented. Although the proposed data centre would be a substantial building that would undermine the openness of the Green Belt it was found that it would be less harmful in this respect than the hotel and would represent a much lower risk to public safety in an aircraft Public Safety Zone. These considerations were found to be very special circumstances overriding the harm through inappropriateness. The permitted data centre has yet to be built. However, were it to be built I consider that it would make it even more important to retain as undeveloped other land on this side of Poyle Road, such as the appeal site, in order to protect the openness of the Green Belt in this location.[14]The appellant says that the harm through inappropriateness would be lessened because only temporary permission is sought. However, whilst I note what other inspectors have said on this, guidance in Circular 11/95 is that the material considerations to which regard must be had are not limited by resolving to make that decision a temporary one. In any event, I consider that a temporary 3 year period would give rise to harm over a sufficient period for significant weight to be attached to it.[15]Moreover, if temporary planning permission were given now it might be difficult for the Council to refuse applications for the subsequent retention of the caravan site for a longer period. I am of this view in part, because although indicating acceptance of a temporary condition, the appellant expressed concerns about the extent to which it would be reasonable to require that substantial and costly works already undertaken to establish the site should be removed at the expiry of that period. Furthermore, whilst retention of the caravan site would not create a precedent for other development in the area, it would create a more built-up appearance to the area that could make future development in the surrounding Green Belt area more difficult to refuse. Other harm Effect on objectives for the Colne Valley Park[16]The appeal site lies in the Colne Valley Park. This was conceived in the 1960s as a regional park covering a substantial area of Green Belt land to the west of London. Explanatory text to Local Plan policy CG1 says that the key strategic aims of this park are, amongst other things, to maintain and enhance the landscape, resist urbanisation, safeguard existing areas of countryside from inappropriate development, and provide facilities for countryside recreation. It goes on to say that the Park is at its narrowest in the Colnbrook and Poyle area and that the protection and enhancements of this section is of utmost importance.[17]I consider that given the scale of the caravan site, and the nature of such development, that its proposed retention would run counter to all the above objectives with the possible exception of the reference to countryside recreation facilities. This is so notwithstanding that the caravan site is reasonably well screened from Poyle Road and thus not greatly visible from it. For it seems to me that such arguments could frequently be used to justify development in such an area to the detriment of the objectives behind its designation. Highway safety[18]The caravan site uses an existing access onto Poyle Road, which lies to the north of a well-established access into adjoining land on the same side of Poyle Road. This access is slightly offset to the north from The Hollies, an industrial estate on the opposite side of Poyle Road. At this point Poyle Road widens slightly to provide a right turn lane into The Hollies. The Council's highway concern is that the existing access arrangement is deficient to serve the additional traffic created by the caravan site as there is a conflict in the centre of Poyle Road between traffic turning right into The Hollies and the appeal site.[19]I share the Council's concern on the inherent dangers of the present arrangement, especially given the extensive use to which The Hollies access road is used. I do so notwithstanding the appellant's evidence that insufficient additional traffic is generated to cause harm given that the access is not used at peak hours and that many workers travel to work by bus. For these considerations may not always remain the case. Nor do I consider that the appellant's evidence on accident statistics, the lack of need for significant queuing to access the site and details provided of junction arrangements with traffic lights substantially supports its case.[20]The Council preferred to see changes that would prevent right turning into or out of the access. The appellant said that were I minded to allow the appeal, and considered junction improvements were required, slightly more minor changes to the road markings and location of the access would suffice, whilst retaining the ability to turn right into or out of the site. On this I broadly agree with the appellant. Of a series of proposed changes I consider, from what I saw, that the one indicated by the appellant in plan JPH-1B is the only one to provide a sufficient degree of separation between traffic turning right into the appeal site and right into The Hollies to ensure improved highway safety.[21]However, the plan referred to above is a sketch proposal and fully worked up drawings would be required to enable the scheme to be implemented. This could potentially be achieved by a Grampian style condition. However, I have a twofold concern on imposing such a condition. First, as this is a retrospective application, the requirement that no development shall begin until a scheme is approved and implemented, which usually precedes the requirements of a Grampian condition, cannot be imposed. This concern is potentially resolvable through a condition proposed by the appellant which requires that the use shall cease within 28 days of a number of requirements not being met. These requirements include dates for the submission of details and the approved work being undertaken. However, they also allow for a potential appeal against a decision to refuse the details submitted. Whilst that may be acceptable in some cases I do not think it would be so here. For appeals lodged against any details submitted could substantially delay the implementation of the required highway improvements and this would be unsatisfactory given the public safety implications behind the proposed condition. I am of this view notwithstanding the Inspector in the 2003 enforcement appeal decision on the site indicating that some outstanding matters could be dealt with by condition as there is no evidence that he had similarly detailed evidence before him.[22]My second concern is that any works in connection with this condition may potentially add to the permanence of the caravan site by increasing the infrastructure associated with the use and increasing the already substantial costs of making the site available for caravan use. This may well make it more difficult for the Council to refuse any application to extend the period of use of the site. Material considerations put forward in support of the proposal Need[23]The appellant refers generally to the need for caravan accommodation for workers on the T5 development at Heathrow. The best information on this is in the Dudset Farm appeal decision on which it is said that BAA expect the total number of workers on this contract to exceed 6000 between October 2004 and May 2006 and to decline sharply thereafter. In my view this reduces the weight to be attached to need through the full period sought by this application. Moreover, it was also stated in the inspector's report on that case that the total civil engineering workforce had already peaked and was expected to decline with an increasing proportion of the construction workforce engaged in mechanical and electrical trades. Workers in the latter trades are said to be less reliant on caravan accommodation. Thus the number and percentage of workers occupying caravans was expected to decline.[24]The appellant referred to a second phase of T5 due to commence after 2006 and be competed by 2011. Reference was also made to general improvements being undertaken to facilities at Heathrow within the next 7 years. Due to additional projects it was said that employment levels may not decline significantly after the peak levels of May 2006. However, no substantial corroborative evidence was provided for this. Nor is it clear how work at Heathrow airport up to 2011 justifies the temporary permission sought up to 2008. The owner of another illegal site, which will need to close following successful enforcements action, referred to the need for another contractor with workers on his site to be present at T5 up to 2008. However, again no corroborative evidence was provided, and in my view even if the appellant's allegations on employment levels beyond 2006 are correct that would not outweigh the harm I have identified.[25]On the matter of need generally the appellant referred to guidance in Planning Policy Guidance Note 3: (PPG3) that Local Planning Authorities should carry out assessments on the need for housing including that for key workers and occupants of mobile homes. The Council was able to provide no evidence that such studies had been undertaken in relation to the need for accommodation for T5 workers. However, even if the Council could be criticised for this I consider that lack of such studies should not override the substantial concerns I have found in relation to this particular site.[26]The appeal site has been occupied by caravans since approximately 2002. It has been, and continues to be predominantly occupied by these employed by CA Blackwell (Contracts) Ltd. The company is a civil engineering earthmoving contractor employed at T5. In May 2005 it wrote to say that 'our resources employed at T5 are due to continue at current levels (requiring approximately 140 caravan plots) until August 2005 at which point we envisage a reduction to under 100 places until completion of our works at T5 (estimated at April 2007)'. A memo from BAA confirms that this contractor will be engaged at T5 up to the April 2007 date.[27]Whilst the above information may appear to offer some support for the continued use of the appeal site as a caravan park, for at least part of the time sought, Blackwell's gave no direct evidence to the inquiry. Although they provided a letter strongly supporting the appellant's caravan site there is no evidence that if this were not available that their contractual obligations to BAA would be in jeopardy. Nor has BAA provided any evidence that the absence of the appeal site for caravan use, either by Blackwells or others, would prevent T5 being completed on time or place unacceptable burdens on their contractors or their workers. I place substantial weight on this. Provision for workers accommodation[28]BAA has provided a site for approximately 260 caravans for T5 workers, know as Plot 9. It is the only lawful site specifically provided for T5 workers. BAA had sought to provide new build and caravan accommodation for TV workers. However, they did not proceed due to problems in negotiating the schemes and there is no evidence that further sites are planned in relation to the T5 project. BAA does have a help desk arrangement to provide T5 workers with bed-and-breakfast and privately rented housing accommodation.[29]The evidence from the Dudsett Farm appeal in 2004 was that 'a currently high level of demand for caravan accommodation' would not be met on sites lawfully used for that purpose. It was also said that reliance on hotels and bed and breakfast accommodation etc would be likely to intensify already fierce competition from other temporary and permanent residential sectors. Detailed evidence provided by the appellant supports this view. However, the weight I attach to this on the appeal before me is reduced by the lack of clear evidence of the situation post 2006.[30]At present, of the 6000 T5 workers approximately 3600 are working away from their main home and require accommodation locally. Given the evidence in the Dudsett Farm decision that approximately 800 workers were accommodated in caravans this leaves a substantial proportion in other accommodation. That would be so even if the appellant's assertion that a rather greater proportion of workers may occupy caravans is correct. Thus as the workforce declines it will be likely to increase the opportunity for workers to find accommodation other than on caravan sites. Though I appreciate that this may not be so financially advantageous to workers, I am not convinced that this need be unaffordable given the number of workers currently occupying other than caravan accommodation, and the potential for employers to offer accommodation subsidies.[31]There are currently a not insubstantial number of other unlawful caravan sites in the Green Belt around Heathrow, although the extent to which they are occupied by T5 workers is not entirely clear. It is clear, that any caravan accommodation to house T5 workers needs to be within the Green Belt. However, even if dismissing this appeal were potentially to lead in the short term to the further use of some of the existing unlawful sites that does not make the proposed development any more acceptable. This is because of the substantial harm I have identified having regard to the specific location of the appeal site within the Green Belt and the other non-Green Belt harm. Conclusions on need[32]Drawing together my conclusions on need, the evidence is that the workforce generally at the Heathrow T5 development will decline sharply after May 2006 which should free up other alternative accommodation after that date. Moreover, notwithstanding the general arguments on the need for caravan accommodation there is no substantial evidence that the accommodation at Poyle farm is required to ensure that Blackwell, the contractor with most employees on site, would fail to meet its contractual obligations to BAA. Nor is there any substantial evidence that the accommodation is required to enable the T5 development to be constructed on time. In my view, the evidence provided on need does not amount to a very special circumstance sufficient to outweigh the harm through inappropriateness. Other considerations put in favour of the proposal[33]The appeal site provides a good level of amenities and a secure site for its residents. There is potentially some benefit in the workers of T5 contractors being centrally located so as to make it easier to provide communal transport to their place of work. It is said that the site is more suitable than the BAA plot 9 which suffers more from aircraft noise. Were highway improvements to occur as a result of allowing this appeal there would be some highway safety benefit. There is evidence that if the site remains landlocked it has no commercial agricultural use.[34]However, I do not consider that these matters amounts to very special circumstances sufficient to outweigh the harm I have identified. Conditions Period of use[35]The Council indicated that had I been minded to grant planning permission an expiry date of January 2007 should be imposed so as to give approximately 3 years permission from the date on which the application was made. However, the applicant was opposed to such a limitation. In any event, especially given my concerns on the potential difficulties of preventing the continued use of the appeal site beyond even the temporary period sought, I do not consider that such a reduced period would render the proposal sufficient more acceptable as to allow permission to be granted. Land contamination and surface water drainage[36]On land contamination Planning Policy Statement 23: Planning and Pollution Control (PPS23) says that it is essential that local planning authorities should consult relevant officers on any development proposed on land that might be affected by contamination. In this case the Council consulted its contaminated land officer. The advice given was that a condition should be imposed requiring a survey of the degree, nature and extent of contamination and of any necessary remedial work to be carried out. The appellant would accept such a condition. However, for similar reasons to those given on the highway safety matter above I consider that a Grampian style condition may well be ineffective in ensuring that the required survey and any remedial works that may be found necessary are carried out. Alternatively, compliance with such a condition may increase the infrastructure costs associated with the development and make it more difficult for the Council to restrict its period of use.[37]Notwithstanding the appellant's agreement to the above condition there was some dispute at the inquiry on its necessity given the extent of evidence supplied by the Council on contamination. The evidence relied upon is primarily microfiche records held by previous authorities. There is no evidence to suggest that infill on the appeal site is likely to cause a problem. However, notwithstanding a certain lack of clarity in the records there is evidence of potentially unlawful tipping in the past on land likely to be in the reasonable vicinity of the appeal site. Given the potential for the migration of landfill gases I consider that the evidence provided is sufficient to justify the type of condition proposed by the Council's contaminated land officer.[38]I am of the view notwithstanding the fact that the appellant has dug some trial bore holes and says that no landfill gases or leachates were found. For no records were retained of this work. Nor was PPS23 advice followed. This says that all investigations of land potentially affected by contamination should be carried out by or under the direction of a suitably qualified competent person who would normally be expected to be a chartered member of an appropriate professional body.[39]I have also had regard to the appellant's reference to the precautionary principle. PPS23 advice is that the precautionary principle should be invoked when, amongst other things, there is good reason to believe that harmful effects may occur. However, this is linked to a 1992 Rio Declaration on Environment and Development which states that 'where there are threats of serious of irreversible damage, lack of all scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.' It does not in my view prevent the imposition of a condition in cases where there are reasonable grounds for suspecting that there may be contamination that needs further investigation. Nor do I consider that the lack of objection from the Environment Agency weakens the need for a condition given the other evidence available to the Council.[40]On surface water drainage Thames Water Authority (TWA) require the appellant to make proper provision for surface water drainage of a kind that does not pose an unacceptable threat of surcharge, flooding or pollution. To this end they suggest a condition requiring details of drainage works to be submitted and approved and for those works to be implemented.[41]The appellant has provided some details of drainage works already made and alleged that the site has never been flooded. However, no technical evidence has been provided to show that such a condition is not required to in order to prevent the caravan use of the site causing the potential harm identified by the TWA. Indeed, their list of suggested conditions includes one to this effect. However, for similar reasons to those referred to on land contamination matters I am not satisfied that this matter could satisfactorily be governed by condition.[42]The inability to ensure that land contamination and surface water drainage concerns can be satisfactorily be dealt with by condition adds weight to the harm I have identified on other matters. Balancing conclusion[43]Having regard to my findings above, I consider that the evidence provided on the need for caravan accommodation for workers on the Heathrow airport T5 development, and all other material considerations raised in favour of the proposal, do not, even judged cumulatively, comprise very special circumstances sufficient to outweigh the substantial harm I have identified through inappropriateness and the non-Green Belt issues.[44]I conclude on the main issue, that there are no very special circumstances sufficient to outweigh the harm through inappropriateness and the other non-Green Belt harm identified and that the proposal would be contrary to the provisions of the development plan identified in paragraph 6 above. The fact that the Local Plan has no specific Policy on development of the type proposed does not alter my judgment on this. Human rights[45]The appellant claims that the Human Rights of all those occupying the appeal site would be violated by refusal of the proposed development. The claim is made in relation to Article 8 of the Human Rights Act 1998, the right to respect for private and family life.[46]In support of this claim, a broad allegation was made that residents of the appeal site, including those with families, would lose their home if planning permission were refused. It was said that it does not matter that they may have permanent homes elsewhere as they need to be close to Heathrow to work. Given the lack of alternative sites and the fact that a temporary planning permission is being sought it is claimed that refusing planning permission would not be proportionate. Three residents of the caravan site spoke in support of this.[47]In my view, refusing planning permission in this case may lead to an interference with the Human Rights of residents on the site under the provisions of Article 8 of the Human Rights Act. However, for the reasons given above, I have found the development to be inappropriate development in the Green Belt and that this and other non-Green Belt harm would not be outweighed by any very special circumstances. I am satisfied that the legitimate aims of protecting the Green Belt and preventing the other harm identified can only be safeguarded by the refusal of planning permission. This would not, on the evidence before me, place a disproportionate burden on the occupants of the appeal site and I therefore find no violation of their human rights. I am of this view notwithstanding the temporary nature of the planning permission sought.[48]Given the above, I am satisfied that the Human Rights issue raised by the appellant does not, weighed in the balance with all the other material considerations, tip the balance in favour of planning permission being granted. Conclusion[49]For the reasons given above and having regard to all other matters raised, including the lack of substantial local opposition to the proposal, I conclude that the appeal should be dismissed. The other matters also include observations made by the appellant in closing that the enforcement notice served on the caravan use of the site in March 2003 is legally deficient. However, I have no substantial evidence on this nor any evidence to conclude that even were it so that it should influence my decision on this appeal."[7]Mr Masters says that, first, on the issue of need, the Inspector has not given adequate reasons and has failed to address the evidence that was put to him. Secondly he says that his conclusions on need were unreasonable in a Wednesbury sense. Third, he says that, if the Inspector was to take the point which he did at paragraph 27, in other words the point that the contractor's contract was not said to be in jeopardy with the British Airports Authority, Mr Masters said he should have invited comment from the parties and he points out that the contractor has since confirmed that the absence of accommodation on the site could affect the carrying out of its contract with the British Airports Authority. Fourth, Mr Masters criticises the Inspector for his conclusion in paragraph 15 and 22 about the cost of removing site works that might bring pressure on the Authority to allow the continuation of an authorised use. Next, he says that the whole decision letter is Wednesbury unreasonable and, lastly, he criticises the treatment by the Inspector of the rights of the workers living on the site under Article 8 of the European Convention on Human Rights.[8]I start by dealing with the principles which must inform the way in which I address the decision letter. I must read it as a whole. The question is not what I would have decided but, first, whether the Inspector took all material considerations into account and ignored immaterial considerations; secondly, whether he gave adequate and intelligible reasons; and, thirdly, whether or not he complied with procedural rules; and, of course, fourthly whether or not his conclusions are irrational and Wednesbury unreasonable. I shall then turn to consider his treatment of the human rights point.[9]While I recognise that this was a strong case on need, the weight to be given to it was for the Inspector and he was weighing a strong case on need against a very powerful case for refusal being put forward by the authority on Green Belt, highways, environmental and other grounds. I do not regard the Inspector's conclusions as anything other than his way of saying that he did not find the case on need sufficiently compelling to outweigh the case against it.[10]I do not regard his conclusion on paragraph 27 with regard to the British Airports Authority and its contract with the contractor as anything other than strictly true. It was strictly true that the British Airports Authority had not provided any evidence that the absence of the appeal site for caravan use, either by the contractor or others, would prevent T5 being completed on time or place unacceptable burdens on the contractors or their workers. It was a matter for the Inspector if he wished to give weight to it, as he was entitled to do. In my judgment, this is not a factual question which he was bound to raise with the parties.[11]As to the points taken by Mr Masters about paragraph 15 and paragraph 22, the Inspector has sworn a statement in these proceedings in which he contends that he specifically asked the claimant at the inquiry whether temporary planning permission was appropriate, given the costs of setting up the site. He says:
"His response to that question was that he did not think it was appropriate having regard to those costs but that he was prepared to accept such a condition if I required it."
[12]I accept that evidence and I can find nothing untoward in the conclusions he reached, which in my judgment were ones he was entitled to reach. The fact that cessation of the use would involve the loss of costs which have been incurred in setting up the site was a matter to which he was entitled to have regard.[13]I should add also that Mr Masters sought to take points on the basis that the Inspector did not in his witness evidence in these proceedings deal with attacks on his reasoning or on the way in which he had dealt with material considerations. I am very surprised indeed that such an attack was made. The reason for the restraint on the part of the Inspector is simple and it applies in every case, in my experience, where an Inspector puts in a witness statement. It is the decision letter which contains the reasoning of the Inspector, not witness statements, and it is would be unfair to all those affected by a decision letter if its reasoning could be supplemented or explained by the contents of a witness statement. As to the claim that this decision letter, or parts of it, were unreasonable in a Wednesbury sense, I think there is not the slightest merit in that claim.[14]As to the point about the Human Rights Act, I find great difficulty in following Mr Masters' argument. In my judgment, the treatment by the Inspector followed the approach endorsed by the Court of Appeal in Lough and others v First Secretary of State [2004] 1 WLR 2557. That is the case in which the Court of Appeal considered the interrelationship between the European Convention on Human Rights and, in particular, Article 8 thereof and decisions made under the English and Welsh town planning system. In my view, it was incumbent on Mr Masters to cite that authority to me. I refer to the judgment of Pill LJ at paragraphs 43 to 51. In my judgment the claim on the human rights point has no merit whatever. I conclude that the Inspector dealt with the matter properly.[15]I follows that I dismiss this claim. There will be judgment for the defendant First Secretary of State. MR COPPEL: My Lord, I would ask for the First Secretary of State's costs. I would ask for them to be summarily assessed. HIS HONOUR JUDGE GILBART QC: I have a copy of that. MR COPPEL: I would ask for it in the sum shown: £6,897. HIS HONOUR JUDGE GILBART: Thank you. Just before you rise, Mr Masters: Mr Coppel, that is the right figure for the briefing on the hearing, is it? I mean, you would know. MR COPPEL: Yes, it is. HIS HONOUR JUDGE GILBART QC: I was told this week that there is a scale. Does this comply with the scale? MR COPPEL: It does. It represents my appearance fee plus my skeleton argument and the fee for the hearing. MR MASTERS: I cannot resist it. I do not seek to. HIS HONOUR JUDGE GILBART: I make an order for costs, which I summary assess as £6,897. Do you have any other applications, Mr Masters? MR MASTERS: My Lord, no. My Lord, I hope it is not impertinent to say that I welcome you down to London. HIS HONOUR JUDGE GILBART QC: You will see a lot more of me, Mr Masters. MR MASTERS: I no doubt will. HIS HONOUR JUDGE GILBART: And you must ask Mr Coppel to tell you about incinerators. MR COPPEL: I have already told my instructing solicitor. MR COPPEL: I was the prosecutor.[17]HIS HONOUR JUDGE GILBART: Defended by Mr Roger Farley in the Court of Appeal. HHJ Openshaw QC as he then was gave a judgment.[18]MR COPPEL: I did not know it went up to the Court of Appeal.[19]HIS HONOUR JUDGE GILBART QC: Appeal against sentence, I note. Well, there we are. Thank you Mr Masters.