Elliott, R (on the application of) v First Secretary of State [2007] EWHC 3492 (Admin)

Case No CO/10531/2005[2007] EWHC 3492 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 6 December 2007
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE GILBART QC
Between
THE QUEEN ON THE APPLICATION OF MICHAEL JOHN ELLIOTTClaimantv
Between
THE FIRST SECRETARY OF STATEDefendant
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 David Park (instructed by Bremners) appeared for ClaimantMr Philip Coppel (instructed by Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]HHJ GILBART QC: In this matter the claimant, with permission granted by Sullivan J, seeks to challenge the decision of the inspector of the first defendant to uphold an enforcement notice with variations, which related to land at Lenox Farm, Ramsbrook Lane, Hale, Liverpool L24. The enforcement notice was issued under section 172 of the Town and Country Planning Act 1990.[2]The allegation in the enforcement notice read as follows. It related to what was described as "unauthorised use of the site for the storage of vehicles and the erection of a palisade fence at Lenox Farm, Ramsbrook Lane, Hale, Liverpool". It set out various steps within the notice which were to be taken. Included within those steps were ceasing the use of the land for car parking, removing the hardcore and stone, restoration by backfilling, taking down the fence, taking down the steel security gates, and taking down the pole-mounted security cameras.[3]The claimant appealed on various of the grounds set out in section 174(2) of the Town and Country Planning Act 1990. The one relevant to these proceedings is ground (a): in other words that planning permission should be granted for what is alleged in the notice. The inspector dismissed that appeal: in other words under ground (a), but he varied the requirements of the notice.[4]It is useful to look at the history of what had occurred at the site, and indeed, given the issues that we shall come to, it is essential to look at the history of what had happened at the site. The planning history is set out usefully on page 59 of the bundle in an application for planning permission which went to the Committee for the use of the piggeries on site for car parking. But that report gives a great deal of history of what had occurred before.[5]There had been previous planning applications for a stockman's bungalow and for the resiting of a beef cattle building. Both were the subject of an agreement under section 106 of the Act which, amongst other things, required that the stockman's dwelling should not be occupied until the completion of the erection of a beef cattle building.[6]In June 2001, the local planning authority approved a slightly different version of the beef cattle building, and there was a resolution to approve that, subject to an amended section 106 agreement. That was still outstanding pending the outcome of that application. Following the unauthorised use of land for the external storage of vehicles, an enforcement notice had been served in October 2001 requiring that the use of the land for commercial parking ceased. The notice had been appealed, but after negotiations the notice was withdrawn pending clarification of and negotiations on intended uses and operations at the farm.[7]The applicant then put forward a proposal for car parking as I have indicated, and that officer's report indicates that his former pig business had been wound up in 1999 following a downturn in the pig industry and because he was unable to modernise it so as to meet newly introduced health and safety standards within the pig breeding industry relating to the tethering of sows. The officer's report informed the Committee that he intended to erect the beef cattle building for beef cattle and also to fatten pigs for the farm shop. The Committee was informed by the officer in these words:
"The applicant has advised that due to his financial circumstances the only way this operation can be financed without borrowing and to give him an income to live, is from profit for parking cars for people flying out of Liverpool John Lennon Airport."
I interpose, for those who do not have the advantage of being from the north west, that Hale Village is very close indeed to Liverpool Airport. I return to what the Committee was advised:
"The applicant has suggested that he is willing to demolish three of the four piggeries to improve the openness of the Green Belt, though this would require open vehicle storage."
[8]He then went on to describe other matters which the applicant was willing to carry out in connection with the grant of planning permission.[9]After the officer had considered the relevant policies in the development plan, including the fact that the site lay within the Green Belt, he reiterated the policy in what was then Planning Policy Guidance Note 7 on the reuse of buildings in the countryside, and stated this:
"PPG7 states that the re-use and adaption of existing rural building has an important role to play in meeting the needs of rural areas for commercial development and that diversification is important to supplement farming income. Although vehicle storage is not a development normally associated with farm diversification, farm shops are, and as the current proposal will finance the beef and pig business and the related Farm Shop, it is a means to an end. In this respect it is considered that the proposal is within the spirit of advice contained in PPG7."
There was a recommendation for approval which was accepted. I should say that the condition which was attached to the planning permission prevented any external car parking.[10]After that, it transpired that the piggeries which now had the benefit of permission for use for car parking could not in fact be converted because that conversion would be prohibitively expensive. So the original proposal was ( and this was accepted by the authority who issued a planning permission and entered into a section 106 agreement accordingly) that there be car parking within the old piggeries, that there be no external commercial car parking outside the piggeries, that there be a new fattening building erected, and that there be a stockman's cottage erected.[11]But, as I have indicated, the conversion of the piggeries proved prohibitively expensive and the claimant set up the use enforced against, which consists of the external parking of cars, and built a palisade fence, security gates and security equipment. He then continued with other parts of his project, and at the date of the inquiry the steel frame building for fattening the animals was in the course of erection.[12]The case mounted at the inquiry for the appellant/claimant was, firstly, that the project was required to enable his business to diversify in accordance with government policy and Planning Policy Statement 7; secondly, that the development would not make any actual difference to the maintenance of Green Belt purposes in the area; thirdly, that there were very special circumstances justifying the grant of planning permission. They took three forms: that there was previously developed land; that there would be no visual harm; and that cars would not be visible from any public view point. He contended that the business would create employment. He contended that the business was sustainable because it would intercept car journeys to and from the airport.[13]The local planning authority's case by contrast was, firstly, that it would be harmful to the Green Belt because it was inappropriate development; secondly, that it would cause harm to two purposes of the Green Belt, namely those relating to urban sprawl and those relating to urban encroachment; thirdly, that it would cause harm to the purpose of preventing urban regeneration; fourthly, that it would cause harm to the Green Belt purpose of the preservation of the setting of Hale Village and its conservation areas (I interpose that that was a rather heroic claim that that was a Green Belt purpose); fifthly, that the fencing and gates would be out of character with the area. Then they said this about farm diversification:
"7.5.7. The farm needs to diversify to make good losses and improve viability. Income from a non-agricultural source is essential and is recognised by Government: I would like to draw the inspector's attention to the Committee report relating to planning permission 02/00032/COU contained in Appendix 10 of this proof. That report considered the needs for the farm to diversify and balanced the decision against the relevant planning guidance. The Council were positive in its decision and recognised the appellant's commercial requirements. However, what is also clear is that the impact of the development on the openness of the Green Belt was its primary consideration. I would also draw the inspector's attention to the most up-to-date planning guidance contained in PPS7 - Sustainable Development in Rural Areas. PPS7 reflects previous guidance and wishes to promote the well being of rural areas. However, this guidance also actively discourages the development of green field land. PPG2 indicates that favourable consideration be given towards diversification in the Green Belt as long as it preserves openness and as long as it does not conflict with the purposes of including land within it. I have already identified that the land conflicts with guidance contained within PPG2 and would also argue that there are no wider benefits associated with this development, which would constitute special circumstances. The appellant's reason does not constitute a very special circumstance."
[14]The local planning authority contended next that there was no evidence of any employment benefits. Next, they contended that the development would not be sustainable. They referred to the introduction of extra activity onto the site, but they also contended that it would not be sustainable because the continuation of car parking for those reaching Liverpool Airport would do nothing to put any restraint on the use of the car by passengers wishing to reach the airport. The local planning authority also contended that the car parking strategy of the airport did not require further provision off-site, and that any claimed inadequacies or shortfall in parking at the airport was consistent with the sustainable transport strategy, which of course would seek to restrict the number of car parking spaces so as to suppress the intention to travel by car.[15]The inspector at paragraphs 4 and 5 of his decision letter set out the relevant policies in the development plan and referred to those of national policy: I read paragraphs 4 and 5. "Planning policies 4. Policy GE1 of the adopted Halton Unitary Development Plan (the UDP) says that planning permission will not be given for inappropriate development within the Green Belt except in very special circumstances. Policy BE22 indicates that boundary fences must be visually attractive and appropriate. Policy GE23-1 says that development within Areas of Special Landscape Value will not be permitted if it would have an unacceptable effect on the visual and physical characteristics for which an area is designated as having special landscape value. Policy GE23-2 says that where existing built-up areas are 'washed over' by an Area of Special Landscape Value designation development will be permitted if it does not form part of the landscape nor is conspicuous from it. Lennox[sic] Farm is within an Area of Special Landscape Value. There is no definition in the UDP of 'built-up areas' but, in my view, the ordinary sense of the phrase means towns and villages rather than very small groups of buildings in the open countryside such as that at, and close to, Lennox Farm. I therefore consider that policy GE23-1 applies rather than policy GE23-2. Policy TP20 says that proposals arising from the Land Transport Plan's Surface Access Strategy that would improve surface access to and from Liverpool Airport will be permitted. 5. Also relevant is Government policy including that in PPG 2 Green Belts, PPS 7 Sustainable Development and PPG 13 Transport."[16]It is sensible at this point in my judgment to refer in particular to some aspects of national policy. I start by referring to national policy in Planning Policy Guidance Note 2. I refer to paragraphs 3.1 and 3.2, which read as follows:
"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. See paragraphs 3.4, 3.8, 3.11 and 3.12 below as to development which is inappropriate. 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."
[17]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 [1983] PLR 80, although I must note that as this is a Green Belt established by a statutory development plan, the three stage-test in Pehrsson must be read in the light of the enactment of what is now section 38(4) of the Town and Country Planning Act 1990.[18]Mr Park also drew my attention to the following paragraphs of PPG 2:
"3.7 With suitable safeguards, the re-use of buildings should not prejudice the openness of Green Belts, since the buildings are already there. It can help to secure the continuing stewardship of land, especially by assisting farmers in diversifying their enterprises, and may contribute to the objectives for the use of land in Green Belts. The alternative to re-use may be a building that is left vacant and prone to vandalism and dereliction. 3.8 The re-use of buildings inside a Green Belt is not inappropriate development providing: (a) it does not have a materially greater impact than the present use on the openness of the Green Belt and the purposes of including land in it; (b) strict control is exercised over the extension of re-used buildings, and over any associated uses of land surrounding the building which might conflict with the openness of the Green Belt and the purposes of including land in it (eg because they involve extensive external storage, or extensive hardstanding, car parking, boundary walling or fencing); (c) the buildings are of permanent and substantial construction, and are capable of conversion without major or complete reconstruction; and. (d) the form, bulk and general design of the buildings are in keeping with their surroundings2. (Conversion proposals may be more acceptable if they respect local building styles and materials, though the use of equivalent natural materials that are not local should not be ruled out). ... 3.15 The visual amenities of the Green Belt should not be injured by proposals for development within or conspicuous from the Green Belt which, although they would not prejudice the purposes of including land in Green Belts, might be visually detrimental by reason of their siting, materials or design."
[19]He also referred me to National Policy on Rural Development, which is Planning Policy Statement 7, entitled “Sustainable Development in Rural Areas”, which was published in 2004. He referred me to the advice on farm diversification at paragraphs 30 and 31, which read as follows:
"30. Recognising that diversification into non-agricultural activities is vital to the continuing viability of many farm enterprises, local planning authorities should: (i) set out in their LDDs the criteria to be applied to planning applications for farm diversification projects; (ii) be supportive of well-conceived farm diversification schemes for business purposes that contribute to sustainable development objectives and help to sustain the agricultural enterprise, and are consistent in their scale with their rural location. This applies equally to farm diversification schemes around the fringes of urban areas; and (iii) where relevant, give favourable consideration to proposals for diversification in Green Belts where the development preserves the openness of the Green Belt and does not conflict with the purposes of including land within it. (Where farm diversification proposals in the Green Belt would result in inappropriate development in terms of PPG2, any wider benefits of the diversification may contribute to the 'very special circumstances' required by PPG2 for a development to be granted planning permission). 31. A supportive approach to farm diversification should not result in excessive expansion and encroachment of building development into the countryside. Planning authorities should: (i) encourage the re-use or replacement of existing buildings where feasible, having regard to paragraphs 17-21; and (ii) have regard to the amenity of any nearby residents or other rural businesses that may be adversely affected by new types of on-farm development."
[20]The inspector defined the main issues as follows. He sets them out at paragraphs 6 and 7 of his decision letter. "The Main Issues 6. The appellant accepts that, according to PPG 2, the car parking development is inappropriate in the Green Belt. PPG 2 indicates that inappropriate development is, by definition, harmful to the Green Belt and that there is an eventual presumption against such development which should not be approved except in very special circumstances. These will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. 7. I consider that the main issues raised by this appeal are(i) the nature of the harm caused by the car parking development to the Green Belt and to the landscape,(ii) the impact of the development on the need to reduce travel by car and(iii) whether there are very special circumstances that justify the grant of planning permission."[21]He then dealt with the issues in the following terms at paragraphs 8 to 22 of the decision letter. "The harm caused to the Green Belt and to the landscape 8. The harm to the Green Belt that arises, by definition, by 'inappropriateness' is the same from wholly inconspicuous development as it is from development that is conspicuous. Substantial weight attaches to this harm. If the car parking area were reduced in size, as now proposed, the harm by inappropriateness would still arise but the degree of harm would be reduced. 9. The 2.4m high steel palisade fencing and the open air parking of cars also harm the openness of the Green Belt. This urban-style development encroaches westwards into the previously undeveloped open countryside away from the former farm buildings. It now occupies twice the footprint of those former buildings. I recognise that the old piggery buildings had an impact on the openness of the Green Belt but they were appropriate rural structures previously needed for agriculture and acceptable in Green Belt countryside. The appellant's evidence is that the piggery buildings became redundant for their original use and that it was impractical and uneconomic to try and convert them. They have been removed. That is now part of the history of the land. I do not, therefore, consider that it is very relevant that the inappropriate car parking use takes place on land formerly occupied, in part, by agricultural buildings. Nor is there any logic or merit in now restricting parking to the historical footprint of the piggeries. New inappropriate development of land in the Green Belt needs justification. I do not consider that this is achieved by comparing it to the impact made by some former appropriate, but now absent, development. The land would be more open if the car parking development were not present. So, there would still be a harmful impact on the openness of the Green Belt if the extent of car parking were reduced. 10. Third, the intensive parking of cars and the industrial-style perimeter steel palisade fencing harm the landscape which the UDP designates as being of special character. The landscape is flat, open and very predominantly rural in character. Car parking and steel palisade fencing are inherently alien in such a landscape. This would still be the case if the development were reduced in extent to the footprint of the former piggeries. The development does not therefore accord with policy BE22 or policy GE23-1 of the UDP. 11. I acknowledge that little can be seen of the unauthorised development from public places, though there are some views of it from the rural footpath to the south. From this path the view from the perimeter fencing detracts a little from the rural character of the area. I accept that painting it green could make it less noticeable. I do not accept, however, that the fact that the development is not very conspicuous means that it is acceptable. If that ... were the case then all sorts of unattractive developments could be justified in the Green Belt and in special landscape areas, on the basis that they are not easily seen. 12. For the above reasons I conclude that the unauthorised development causes serious harm to the Green Belt and to the landscape. The need to reduce travel by car 13. Government objectives for transport, as set out in PPG 13 Transport, are to promote more sustainable transport choices and to reduce the need to travel, especially by car. In relation to aviation PPG 13 says that surface access needs should be planned as part of wider transport strategy. Airport operators are required to prepare Surface Access Strategies. Surface transport initiatives should be implemented to ensure that access by public transport is enhanced. This may involve parking restraint. The current Surface Access Strategy for Liverpool Airport indicates continued opposition to the establishment of off-site car parks close to the airport. 14. The appellant maintains that his operation offers a sustainable transport choice and reduces the need to travel by car. Most customers approach his site from the south, east and north and get to it before reaching the airport. They then travel to the airport in his minibuses. Sometimes, his customers share minibus trips and there is, therefore, he maintains, a saving in car trips. 15. The appellant's analysis of vehicle movements saved does not, however, record the occasions upon which the minibus has to travel to or from the airport empty. It is, in my view, a partial, inconclusive analysis. Furthermore, and importantly, the appellant's operation encourages people to travel long distances by car to the locality because they can take advantage of the high-quality, secure, relatively low-cost service that he provides. This is clearly of benefit to his customers, as evidenced by all the letters of support, but it does not accord with the objective of reducing travel by car. I consider therefore that the unauthorised development does not accord with the Surface Access Strategy for Liverpool Airport. Very Special Circumstances? 16. The appellant's case depends essentially on the claimed merits of the unauthorised development as a mechanism of farm diversification. The income from the airport car parking business would, it is said, enable investment in agriculture at the farm, including, in particular, the completion of a large steel-framed building on the land and the purchase of beef stock. The appellant says this cannot be done without income derived from diversification into non-agricultural activity. 17. Government policy in PPS 7 recognises that diversification into non-agricultural activities is vital to the continuing viability of many farm enterprises and indicates that farm diversification in the Green Belt may, in certain circumstances, contribute to the very special circumstances that can justify inappropriate development. 18. In this case, however, there is no active agricultural enterprise at Lennox Farm at all. The car parking use is not vital to the continuing viability of any existing farm business. There was no evidence as to the viability of the intended new beef enterprise and, therefore, in my view, no confidence that it would be developed and maintained. If planning permission were granted for the airport car parking use, there may well be little incentive to embark upon an uncertain and costly agricultural venture. Furthermore, the airport parking use is not of the type that PPS 7 recognises as being well-conceived because it does not contribute to sustainable development, it is not consistent with its rural location and it does not preserve the openness of the Green Belt. Any landowner with agricultural land close to the airport could seek to justify the airport parking provision on the basis of the need for farm diversification. For all these reasons I do not accept that the claimed benefit of farm diversification is a very special consideration that justifies the grant of planning permission. 19. I recognise that planning permission was granted for airport car parking at Lennox Farm by the Council in 2003 but this was in entirely different circumstances. The permission then related to the appropriate re-use of agricultural buildings in the Green Belt involving a completely different policy context and a prohibition on open-air parking. It is not a matter that is very relevant or special now. I note that the Council supported the farm diversification case in 1993 but, for the reasons given above, I take a different view. 20. The appellant claims that the site of the former piggery buildings is previously developed land and is, therefore, appropriate for re-use. However, the policy emphasis is on maximising the re-use of such land in urban areas. Moreover, the fact that land was previously developed does not justify inappropriate development. 21. I recognise that the unauthorised development has benefits in terms of providing local employment and spin-off benefits to the neighbouring bed and breakfast enterprise and to the local repair garage. These types of economic benefit are, however, not unusual when considering inappropriate commercial development in the Green Belt. They are not very special considerations that justify the development. Nor are the facts that the development is not very conspicuous visually, that some hardsurfacing will remain, that there are no written complaints about the development from neighbours or the public generally, or that the grant of planning permission would provide personal benefit to the appellant. 22. For the above reasons I conclude that there are no very special circumstances that clearly outweigh the harm caused and that the grant of planning permission is not justified. The appeal on ground (a) therefore fails."[22]Mr Park argues the following three grounds. Firstly, he says that the inspector should have explained why the development would cause serious harm to the Green Belt when it was largely hidden from public view. Secondly, he contends that he failed to give adequate reasons for finding that the car parking business was unsustainable, and thirdly (and this is in two parts) Mr Park says (the first part) that the inspector questioned the viability of the farm business and whether or not it would continue, when the local planning authority had not done so and when, says Mr Park, the inspector had never raised the issue at the inquiry. That, says Mr Park, was unfair. I should add that while the inspector has filed evidence, he does not suggest that he raised the issue as such at the inquiry.[23]The second part of Mr Park's third ground is that he contends that the inspector at paragraph 19 was wrong to describe the situation at the inquiry as "entirely different" or the policy context is "completely different".[24]It is sensible at this stage of the judgment to note the statutory basis for decision-making by an inspector appointed to conduct a planning appeal. He or she must[25](a) have regard to the statutory development plan (that is section 70(1) of the Town and Country Planning Act 1990);(b) have regard to material considerations (see the same section);(c) determine the proposal in accordance with the development plan unless material considerations indicate otherwise (that is section 38(6) of the Planning and Compulsory Purchase Act 2004);(d) give his or her decision with reasons in writing, which duty arises by statutory instrument. It requires the inspector to give proper, intelligible and adequate reasons which dealt with each of the substantial points raised by the parties, and I refer to the well-known case of South Buckinghamshire Council v Porter (No 2) [2004] 1 WLR 1953.(e) While an inspector is not required to invite submission from the parties, if he adopts a line of reasoning open to him on the issues which have been raised at the inquiry, he should not rely on an issue which has not been so ventilated. That is the "fair crack of the whip" principle found in Fairmount Investments Limited v Secretary of State for the Environment [1976] 1 WLR 1255 at 265 per Lord Russell.(f) If it is shown that the decision-maker had regard to an immaterial consideration or failed to have regard to a material one, the decision will be quashed unless the court is satisfied that the decision would necessarily have been the same: see Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 57 P&CR 306.(g) Similarly if the claimant shows that he succeeds on Mr Park’s third ground which is the fairness ground, Mr Coppel accepts that it is then for the defendant Secretary of State to show that the decision would have been the same in any event.[32]In my judgment, ground 1 of the claimant is simply unarguable. The inspector gave very clear reasons for his conclusions in paragraph 12 of his decision letter. The inspector had found that the car parking and fencing were inherently alien, and plainly found that to be a matter of objection even though the development was not much visible from public view points. Mr Park rightly accepts that a development can be harmful in landscape or visual terms even though it is not visible from a public view point. The weight one gives to the effect on the area is then a matter for the decision-maker. This conclusion was properly reasoned and justified.[33]Ground 2 is similarly unarguable. The inspector made very clear findings and reached a wholly reasoned and justified conclusion in the sentence in paragraph 15 which reads: Furthermore, and importantly, the appellant's operation encourages people to travel long distances by car to the locality because they can take advantage of the high-quality, secure, relatively low-cost service that he provides. This is clearly of benefit to his customers, as evidenced by all the letters of support, but it does not accord with the objective of reducing travel by car. I consider therefore that the unauthorised development does not accord with the Surface Access Strategy for Liverpool Airport."[34]In my judgment, it is irrelevant whether or not he was fair in the way in which he treated the schedule of trips. That conclusion, it seems to me, is an overwhelming one and one which he was entirely justified in making and he gives reasons for. So I reject the first two grounds.[35]Ground 3 raises a much more serious point. Both parties accept that, as a matter of policy, it was for the applicant to show that permission should be granted, and I note that that is not a legal burden as such, as I endeavoured to explain in Vicarage Gate Limited v First Secretary of State [2007] EWHC 768 Admin at paragraphs 44 to 52, which has been followed in Harris v the First Secretary of State [2007] EWHC 1847 Admin by Lloyd Jones J, in which Mr Coppel appeared. Mr Coppel says that once that principle is accepted, and once the applicant chose to make farm diversification part of his case, it was up to him to call such evidence as was required.[36]Mr Park says that that is too stringent, and that an applicant is entitled to rely on the fact that he has called evidence on this issue which has never been challenged or questioned by the authority. He also points out that this is not a scheme which had not been progressed, as the building for the beef cattle was partly constructed.[37]There is always a spectrum of cases in this area: at one end are cases where it must be perfectly obvious that the issue was before the inspector, either directly or inferentially, and that he has reached a conclusion on material before him; at the other end are the cases where the inspector has raised a wholly new point unrelated to any issue any party has raised. In my judgment, one must stand back and ask if, as a matter of impression and judgment, this approach by this inspector on this issue was fair.[38]I am particularly struck by the following features.[39]Firstly, the local planning authority had not only never challenged the concept, but had actually accepted the idea that this farming business required diversification which would be provided by allowing the car parking use. Its case was that that was not enough to amount to special circumstances.[40]Secondly, the applicant gave specific evidence on his financial position and the relationship of the two which was never questioned by anybody. If I have not already referred to it, I should perhaps refer to it. Paragraphs 6.6 to 6.8 of the claimant's evidence reads as follows:
"6.6 Diversification Paras 2.1 to 2.5 above give some indication of the commitment I made to this project. My intentions were always bona fide. The piggeries alone cost in excess of £100,000 (without the land and services). I borrowed the money and have now paid it back. New electric and water supplies were laid on from the village at my sole cost. At one time, I was getting up at 03:00 to deliver milk around schools in Liverpool, returning to feed and muck out the pigs, going in to my full-time job, returning to feed the pigs and then driving to Wales to collect live lambs for delivery to the abattoir finishing at midnight. 6.7 The downturn in the economies of pig production were not reasonably foreseeable. I came to depend on the premium available from direct sales to the public through the farm shop. Enforcement action by the LPA led to the closing of the shop and finished any possibility of viability of the pig unit. Imprudently perhaps, I stayed in business and the consequences for the years 1998-2001 are there to see. I sold all my farm machinery and used all my savings to stop the bank foreclosing on the land. 6.8 My letter to the LPA dated 8 February 2002 (Appendix 2) states my intentions for the future. It has taken me 5 and a half years to clear by overdraft but, for the first time since 1981, my bank statement for July shows a credit balance. The first thing I have done is to have a steel frame for the cattle building, which has been lying in the field for 5 years, erected. If the car parking operation is allowed to continue then the income will allow the completion of the building, subsequent stocking and I will be able to get the land back into agricultural use. I can think of no agricultural enterprise which is showing a level of profit sufficient to generate this growth without the introduction of capital from an outside non-agricultural source. Having seen the financial difficulty I have faced and the current state of agriculture I doubt that my bank would not let me have a loan for any agricultural purpose at all. I say that because the bank even declined my application to re-mortgage the house."
[41]Thirdly, the inspector queried the credibility of the farm business going forward, and referred to the possibility of other land owners claiming special reasons, in his words "on the basis of the need for farm diversification". But here the building was actually under construction for the fattening of the cattle and the pigs. It thus could not, on any reasonable view, be equated with cases where there was no more than a claim of intended farm diversification.[42]Next, had the matter been raised at the inquiry, consideration could have been given at the time to the continued use for car parking, and the continuation of the agricultural business together, whether by means of a condition or, more likely, by a section 106 obligation. I of course remind myself that that could have been entered into unilaterally if the local planning authority had not been willing to enter into it as well.[43]But lastly and above all I am struck by the fact that the inspector, against a background of broad agreement between the applicant for planning permission and the local planning authority on this issue, remained silent when one or two questions could have allowed the applicant a chance of dealing with the issue, or would have shown that he could not do so. In my long experience at the Bar of Public Inquiries that is what I would expect an inspector to do in the circumstances of this case. It would have added little, if any, time to the length of the inquiry and, most importantly of all, it would have been fair to the claimant.[44]As to the second part of ground 3, I do consider that the inspector overstepped the mark in his choice of adverbs. I do not go as far as Mr Coppel does and seek to make some qualitative distinction between an adverb on the one hand and a noun on the other. I merely say he overstepped the mark on his choice of adverbs. The situation on the ground, and therefore in policy terms, was different and significantly so, but the use of the descriptions "entirely" and "completely" was unjustified. However, had this ground stood on its own, it would not, in my judgment, have justified the quashing of the decision. But looking at the first part of ground 3, I consider that the conclusions reached in paragraph 18 of the decision letter were reached unfairly. They inform the overall conclusion of the inspector on this issue at paragraph 22.[45]I then ask myself, as Mr Coppel asked me to: would he have reached the same conclusion in any event? Mr Coppel urges upon me that he would have done. I must, with regret, disappoint him. There is simply nothing in the decision letter which would allow me to conclude that he would have rejected the appeal even if he had found the diversification case to have been made out. It was open to him to do so because it was exactly the course which the local planning authority had argued and the addition of a sentence in the decision letter indicating that that is the approach he adopted would have enabled me to draw that conclusion, but the decision letter is silent on the issue. Indeed, the fact that he did not say that, given the nature of the case, must be judged a striking omission.[46]It might be thought the case against the proposal was a very strong one anyway, but I am not the decision-maker and I am not going to get drawn into forming my own judgment on the merits. This matter must be remitted to the Secretary of State.[47]MR PARK: My Lord, thank you very much. It may be that I misheard what your Lordship was saying at the beginning. I thought you said permission was granted by Sullivan J; it was Wilkie J.[48]HHJ GILBART QC: That is interesting because I have different information about that.[49]MR PARK: Right.[50]HHJ GILBART QC: The information from the court office is that it was Sullivan J. Let us check the reference.[51]MR COPPEL: I should remember, I was there, my Lord.[52]HHJ GILBART QC: Sullivan J, and he records having heard you. It is sad, is it not, Mr Coppel?[53]MR COPPEL: As sad as my forgetting your case.[54]HHJ GILBART QC: You cannot remember where you used to work and you cannot remember which judges you appeared in front of.[55]MR PARK: I know Sullivan J, and yet I remember the -- anyway, my memory has obviously gone. I am about to give up. I may not appear again. The other little point was that, it may be I have misread --[56]HHJ GILBART QC: Strangely enough I did come across a mention of Wilkie J in the papers. I wonder if it was only in your skeleton.[57]MR PARK: It may have been.[58]HHJ GILBART QC: Anyway, it is Sullivan J.[59]MR PARK: I of course give way. The only other little point is I thought that your Lordship mentioned that the enforcement notice was issued pursuant to section 171.[60]HHJ GILBART QC: What should have I have said?[61]MR PARK: 2.[62]HHJ GILBART QC: Thank you.[63]MR PARK: Other than that, my Lord, I am grateful.[64]HHJ GILBART QC: You have a claim for costs?[65]MR PARK: We do, and we agree the figure subject to your approval. My Lord, £15,685.05.[66]HHJ GILBART QC: I award costs in that sum against the first respondent.[67]MR PARK: I am so grateful.[68]MR COPPEL: My Lord, I have an application.[69]HHJ GILBART QC: On an enforcement notice do you actually apply to me? I thought you went to the Court of Appeal on an enforcement notice.[70]MR COPPEL: On the basis that it is a second appeal?[71]HHJ GILBART QC: Make it and I will tell you what my ruling is.[72]MR COPPEL: I think it would be safer if I do.[73]HHJ GILBART QC: Of course, make your application, Mr Coppel.[74]MR COPPEL: I make my application for permission to appeal. The point is not just related to your Lordship's judgment, but there is actually a wider issue at play here. The point I make is that, as your judgment has expressed, if I might put it this way, it muddies, in a way which is inconsistent with authority, the obligation of a decision-maker, here the inspector, to identify where it is not already obvious or apparent the issues that are at play -- we have no difficulty with that -- with on the other hand an obligation to identify, if it is not already the case, evidence that is going to be rejected -- that is not this case -- but what is this case is the notion that a planning inspector must indicate an evidential shortfall upon an issue that has been identified or is apparent at play, and that, my Lord, is the point of broader importance. The reason it is of broader importance, we say, is that it is not always obvious during or at the end of an inquiry any more than it is at the end of judicial proceedings precisely how the evidence is all going to pan out in the assessment of the decision-maker, and if in fact the decision-maker is required to express a tentative view, to give what your Lordship has described as a fair crack of the whip, that is an additional burden upon the decision-maker.[75]HHJ GILBART QC: Mr Coppel, I am sorry, you keep on putting it that way. You appear to be suggesting that there is something unusual in an inspector saying:
"I want to hear about this issue"
. I cannot think of an inquiry I did in my last ten years at the Bar when an inspector did not say that. It is standard practice at the beginning to say:
"These are the issues, and I would like to hear about the following, and at the end I would like to hear about that"
. There is nothing unusual about it. You are making it sound as if I am making a new area of jurisprudence.[76]MR COPPEL: My Lord, it is not that they never say anything, the question is whether they are necessarily obliged to do so. The point is this: at the end of an inquiry, at the end of a hearing, there will be some things which he will be uncertain about and will ask the parties to address him further on. There will be other things that he will go away with, look at the totality of the evidence, and then draw the conclusion:
"I don't think that evidence that was put before me is sufficient to satisfy me of X, Y or Z"
. The question is whether, in those circumstances, he has to have indicated, albeit tentatively, which way he might or may not go.[77]HHJ GILBART QC: Mr Coppel, you keep saying that. I must be blunt. You are putting it quite wrongly. I am not suggesting the inspector has got to do that. I am not suggesting that. Nothing in my judgment says that. I have only said that if the inspector is concerned about a point, he will ask a question such as:
"What guarantees could I have that, if I grant permission, the business would remain in being?"
[78]MR COPPEL: My Lord, I will not -- just one last, as it were --[79]HHJ GILBART QC: Please, if you want to put to me that that raises an arguable point of law, I would like to hear you about that. But the first argument you are putting is directing yourself to a different judgment.[80]MR COPPEL: My Lord, I am sure I am not making myself clear. The point is that concerns -- the way your Lordship has just described it -- concerns which translate ultimately into finding that the onus has not been discharged, sometimes only manifest themselves to the decision-maker after a consideration of all of the evidence, as should be done, after the conclusion of the hearing. That is the point, my Lord.[81]HHJ GILBART QC: Yes, well, where do you go next?[82]MR COPPEL: Where we go --[83]HHJ GILBART QC: There is nothing unusual about the inspector saying: "I want to hear submissions on this point; written submissions please".[84]MR COPPEL: My Lord, that is just the point. We say that if after going away and considering all the evidence, provided that the issue is live at play at the hearing, and provided it is not a question of saying:
"I am rejecting evidence", if that is the case, the inspector is not obliged to go back to the parties and say: "
I have a concern, you are not going to make the grade evidentially and I want to hear more from you". That is the point.[85]HHJ GILBART QC: Mr Coppel, you keep on addressing a judgment I have not delivered. I am not suggesting the inspector should say:
"You have not made the grade evidentially"
. That would be a quite improper thing for him to say. But, Mr Coppel, I do want to understand this. Are you suggesting it is somehow unusual for inspectors to do this?[86]MR COPPEL: No, my Lord.[87]HHJ GILBART QC: So nothing I have said in my judgment sets out any test which any inspector would regard as unusual?[88]MR COPPEL: It is not unusual for an inspector to ask. The question is not whether they can or cannot ask, the question is whether they must ask. That is the point.[89]HHJ GILBART QC: Thank you.[90]MR COPPEL: Grateful.[91]HHJ GILBART QC: I need not trouble you, Mr Park. Mr Coppel seeks to turn this into a state trial on the duties of inspectors at inquiries. It is not. This is a very simple proposition of law which has been a central part of the inquiry system for at least the last 35 years, and it is a simple rule observed in my experience by most inspectors, which is that if there is a point which is troubling them which has not been raised by the parties, they raise it.[92]If, as Mr Coppel says, it occurs to them after the end of the inquiry, then what they do is invite a submission. I do not consider that my judgment raises any difficult point of law. I have reached a judgment which is my judgment, forming my judgment and impression based upon the application of long-established authority to the facts. This application is refused.[93]If it is any consolation, Mr Coppel, had Mr Park lost or applied, I would have had exactly the same observations to make.[94]MR COPPEL: I would not doubt it for a moment, my Lord.