Brightwell, R (on the application of) v Secretary of State of Communities and Local Government & Anor [2008] EWHC 3306 (Admin)

Case No CO/4652/2008

[2008] EWHC 3306 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 11 December 2008

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE SULLIVAN

Between

THE QUEEN ON THE APPLICATION OF PAUL BRIGHTWELLClaimant

Between

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant

BROADLAND DISTRICT COUNCILDefendant

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The Claimant was not present but was represented by this wife, Mrs Brightwell

Mr David Blundell (instructed by Treasury Solicitors) appeared for 1st Defendant

J U D G M E N T

[1]MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") in respect of two decisions of an Inspector appointed by the first defendant refusing three appeals made by the claimant against refusals of planning permission by the second defendant.

[2]The Inspector's decision in respect of the appeals is contained in a decision letter dated 3 April 2008. There is another decision of the same date giving the Inspector's decisions in respect of the second defendant's application for costs.

[3]The three appeals all related to the same piece of land, The Piggeries, The Turn, Hevingham, near Norwich. The first appeal, referred to as Appeal A in the Inspector's decision letter, related to a proposed change of use of a stable block to residential use. The second appeal, Appeal B, related to the retention and use of residential caravans for a limited period, and the third appeal, Appeal C, related to the retention and use of an existing straw barn/livestock building, together with the completion of a second unit.

[4]This application is pursued by the claimant, Mr Brightwell, in person. Sadly, he is not well enough to be here today, and so Mrs Brightwell has put the matter on behalf of him and her family.

[5]The background to the matter is set out in the Inspector's decision letter. Mrs and Mrs Brightwell and their family have been keeping pigs on the site since 1989, and the family have managed to live on the site since 1993. They have managed to do so despite a rather chequered planning history. In 1991 planning permission was granted for a stable block and part use of the land for grazing horses. Some time thereafter, the family brought pigs onto the land, and ever since then they have been seeking to establish that they were operating a financially viable pig unit on the land, and seeking thereby to justify the need for a permanent agricultural worker's dwelling on the land.

[6]A residential caravan was allowed on the site on appeal for two years in 1997, but an application to convert the stable block to a single storey three-bedroomed dwelling was dismissed on appeal in 2001. It is important to bear in mind that that appeal was dismissed because the Inspector at that time in 2001 was not satisfied that the functional test in respect of agricultural dwellings as set out in PPG7 was met. There was an enforcement notice requiring the dismantling of the straw barn, and an appeal against that was dismissed in 2004. In 2007, the High Court considered an application for an injunction which was being sought by the Council, requiring the cessation of the use of the land for the stationing of the residential caravans. Those High Court proceedings were adjourned pending the outcome of the three appeals which were determined by the Inspector on 3 April 2008.

[7]The Inspector, in respect of Appeal A, concluded first of all that a dwelling house in the countryside, unless there was some agricultural justification, would be contrary to established local and national policy. There is no challenge to that conclusion. The Inspector then went on to test whether or not there was a justification for allowing an agricultural worker's dwelling, ie by converting the stable block into such a dwelling, under the test set out in annex A to what is now PPS7. Those tests are twofold and, in summary, there is a functional test and a financial test.

[8]The Inspector concluded that both of those tests were not met. In paragraph 16, for example, he said:

"It is clear to me that since the viability of the pig unit was last tested at the appeal in 2001 the business has continued to struggle with the numbers of livestock decreasing over the last few years. Further, based upon Mr Campbell’s indicative figures and in the absence of any substantive information from the appellant, I am of the opinion that the enterprise falls well short of providing an income for the appellant let alone a profit. In fact, the appellant did not contest the Council’s evidence but rather agreed that the business had struggled from the outset and had become increasingly difficult."

Mr Campbell was the expert witness on agricultural matters, who was called by the local authority at the hearing of the appeal on 5 February 2008.

[9]The Inspector referred to the lack of any supporting financial information, but he also noted that the appellant had explained- "that as a result of this [ie the difficult conditions] he had recently changed his operation to one of contracting, where pigs are brought onto the site from a major pig production company for finishing on a batch basis. This had commenced on 17 January 2008 when 150 young pigs were brought onto the unit, with a further 150 following on the 24 January 2008 ..."

[10]The Inspector noted that those plans had been made very recently, had not been brought to the attention of the Council or himself before the inquiry, and had not been supported by any written documentation, for example a contract. I mention that because Mrs Brightwell has drawn my attention to a letter dated 21 October from the major pig production company, a company called BQP which is based in Stradbroke in Suffolk. That letter explains the basis of the arrangements between BQP and the claimant. That letter of course was not before the Inspector, and so, strictly speaking, it is not relevant for the purposes of this application under section 288. However, if there is new information of that kind, for example relating to the claimant's business dealings with BQP and/or to any other matters which were not drawn to this Inspector's attention, then those are matters that the claimant can of course put before the local planning authority, perhaps by way of a further application. The possibility of doing that does not, however, affect the lawfulness of this Inspector's decision on the material that was available before him at the hearing in February 2008.

[11]It is unnecessary to rehearse the detailed reasons why the Inspector concluded that the financial and the functional tests were not met so that granting permission for a dwelling in the countryside without any agricultural justification would be a breach of policy because Mrs Brightwell, in her skeleton argument, did not challenge those conclusions of the Inspector.

[12]In essence, she submitted that it was unfair for her family to have to leave the site. They had been producing pigs on the site for some 15 years now. They were not doing any harm. Her younger children were at the local schools and her older children had attended the local schools. They were well integrated into the community, and the community had indicated that they had no objection to their presence on the site. It is fair to say that those letters of support post-date the Inspector's decision.

[13]I should mention one thing which Mrs Brightwell was concerned about. At the hearing it seems mention was made in response to questions by the claimant of complaints made by the public about the pig-rearing enterprise, and Mrs Brightwell was concerned that those complaints were not raised until the hearing before the Inspector. At the hearing, the planning officer said that the identity of the complainants was confidential. That, however, is not a relevant matter for the purpose of determining this application because at no point in the decision letter is there any suggestion that the Inspector took any account of these alleged complaints, so there is no question of the Inspector refusing permission because there had been complaints, and in a witness statement, the Inspector says in terms that he did not regard the complaints as relevant and did not take them into account. In my judgment, he was right not to do so. They were not relevant for the purposes of the appeals before him.

[14]In essence, permission was refused because to permit a dwelling in the countryside would be contrary to policy unless there was an agricultural justification, and the Inspector concluded that there was no such justification. As he said in paragraph 24 of the decision letter:- "To satisfy policy requirements, a new dwelling in the countryside has to be soundly justified to support the genuine needs of the farming enterprise. My conclusion is, based on both the financial and functional needs tests being clearly not met, that there is not an essential need for the proposed dwelling and that the proposal is therefore contrary to LP Policy HOU7 and PPS7."

[15]Against that background, he then considered Appeal B, which was for permission to retain the use of the residential caravans on a temporary basis. However, the Inspector having concluded that there was not an agricultural justification for a dwelling, concluded that it would not be justifiable to permit the temporary retention of the caravans as agricultural dwellings. Again, it seems to me that his decision in that respect is impeccable.

[16]In respect of Appeal C, the retention of the agricultural buildings, the conclusions in that appeal largely flowed from the Inspector's earlier conclusions as to the viability of the agricultural enterprise. The claimant had argued that the buildings were really no different from many other agricultural buildings seen in the countryside, and Mrs Brightwell made the point to me today that there were many other large barns being erected in the neighbourhood. Anyone who goes around the countryside will readily appreciate that that is the case, but the barns had to be justified in terms of an agricultural need, and the Inspector concluded that that need simply did not exist. In visual terms he- "found the appeal site had the general appearance of a large number of agricultural buildings and field shelters for what represents a relatively small agricultural unit. From the footpath which runs to the east of the appeal site the straw barn with its curved roof is clearly seen in the landscape, whilst the open sided straw barns extend the expanse of roofing which is also notably apparent. Hence, the overall impact of the buildings is one of appearing prominent, cluttered, and untidy. It is in this context that I consider that the appeal buildings exacerbate the visual impact that already exists from the other buildings to the detriment to the character and appearance of the surrounding countryside." He therefore concluded that the appeal buildings were contrary to the relevant Local Plan policies. Again, it seems to me that those were conclusions which were clearly open to the Inspector, and they disclose no legal error.

[17]Mrs Brightwell submitted that the appeals raised a human rights issue, and that it was simply unfair for her family to be uprooted from the site after all these years. I agree that the appeal did indeed raise a human rights issue under

Article 8 of the European Convention on Human Rights

, but the Inspector recognised that that was the case. He said in paragraph 40 of the decision letter:

"Regarding the reference made relating to Article 8 of the European Convention on Human Rights, I recognise that the dismissal of Appeal A and Appeal B would result in an interference with the appellant’s home and private and family life. However the interference must be balanced against the public interest in pursuing the economic well being of the country, which includes the preservation of the environment. I have considered the possibility of a personal condition, offered by the appellant as a means of overcoming objections to the proposal and to enable Human Rights considerations to be decisive. However, in view of my conclusions that there is not an existing functional need and that the enterprise is not financially viable, that type of condition would not be appropriate. Accordingly the serious objections to the proposals cannot be overcome by granting a planning permission subject to conditions. The public interest can only be safeguarded by the refusal of permission. In all the circumstances, I consider that the refusal of planning permission is necessary in a democratic society in furtherance of the legitimate aims stated. They do not place a disproportionate burden on the appellant. I therefore consider that the dismissal of the appeals would not result in a violation of his rights under Article 8 of the Convention."

[18]It is important to remember that Article 8 requires respect for family life, ie requires that factor to be taken into account in the balancing exercise. It is not an absolute bar, and indeed could not possibly be an absolute bar to any disruption of family life. It simply requires that the disruption must be shown to be clearly justified in the public interest. That is a matter which the Inspector squarely grappled with in paragraph 40 of the decision letter, and so I would reject the submission made in the claimant's written skeleton argument that the Inspector failed properly or at all to carry out the necessary exercise of examining and weighing in the balance the infringement of the appellant's human rights on the one hand, and the prejudice to the public interest on the other. That is precisely the exercise on which the Inspector was engaged.

[19]Moreover, it is clear that in considering how the balance should be struck, the Inspector was well aware of the fact that the appellant and his family had been on the site for many years. He said in paragraph 19 of the decision letter:

"The appellant’s evidence highlighted the fact that he has kept pigs on the site since 1989 and that he and his family have managed to live on the site since 1993. However, this in itself is not proof of the financial viability of the business."

Thus the Inspector did carry out the necessary balancing exercise, and it cannot be said that the way in which he struck the balance, having heard all the evidence that was put before him in February 2008, was in any way unlawful or unreasonable.

[20]That disposes of the challenge to the three Appeals A, B and C. I have mentioned the fact that the Inspector also dealt with an application by the second defendant for costs against the claimant. In respect of Appeals B and C the Inspector concluded that the claimant had not behaved unreasonably and made no award of costs, but the Inspector did conclude that the claimant's conduct in respect of Appeal A was unreasonable and had resulted in unnecessary expense and therefore made an award of costs. He did so, in summary, because he concluded that this was an appeal which was bound to fail in the light of local and national policies in the absence of any clear-cut agricultural justification. That was a conclusion which was reasonably open to the Inspector. The costs decision letter discloses no error of law. The Inspector applied the correct test, that is to say unreasonable behaviour, and certainly pursuing an appeal of this kind in respect of an agricultural dwelling in the countryside without complying with the requirements of PPS7 in respect of the relevant financial and functional tests is capable of being unreasonable behaviour, particularly bearing in mind the failure of the earlier appeal in 2001.

[21]I should mention one matter that is pointed out in Mr Blundell's skeleton argument on behalf of the first defendant. The challenge to the costs decision should not in any event have been made under section 288 of the Act. Section 288 may be used to challenge decisions to grant or refuse planning permission, but if someone is aggrieved by an adverse costs decision, that should be challenged by way of judicial review. Had I thought that there was any substance in the challenge to the costs decision, then I might well have been sympathetic to an application to amend the application and to turn it effectively into an application for permission to apply for judicial review. But it is unnecessary to consider whether that course would have been appropriate because I am satisfied that there is no error of law in the Inspector's costs decision.

[22]I have dealt with these issues at some length because Mrs Brightwell is understandably concerned that she and her husband are not lawyers. While they have had access to some legal advice, they have not got a lawyer to represent them, and I am anxious that she should understand that I have considered very carefully whether there is any possible error of law (and I emphasise "law") in the Inspector's decision letter. I am quite satisfied that there is not. This was a decision made on the planning merits, and it really raises no arguable issue of law at all.

[23]For the sake of completeness I should mention also that Mrs Brightwell has supplied me with a folder of documents which I have considered. Some of them are documents which pre-date the Inspector's decision. However, it is not clear whether those documents were supplied to the Inspector at the hearing. Some of them, for example the letter from BQP, post-date the decision letter. Now that this challenge to the Inspector's decision letter dated 3 April 2008 has been dismissed, consideration will no doubt be given to the adjourned proceedings for an injunction. I would simply say this: it is of course for Mr and Mrs Brightwell to take their own legal advice, but it is very important that if there is any new material, for example in relation to their arrangements with BQP, in relation to their family circumstances, for example the fact that the younger children are still at the local school, it is very important that those circumstances are drawn to the attention of the court when it decides what order to make in respect of the Council's application for an injunction. So the fact that I am dismissing these appeals does not prevent Mr and Mrs Brightwell from putting that material forward. I am not of course giving any indication as to whether it will or will not be found to be persuasive, but they do still have that opportunity.

[24]That said, I dismiss this application under section 288 of the Act.

[25]MR BLUNDELL: My Lord, I am grateful for that judgment. My Lord, there is one remaining matter which is costs. I have handed a schedule of the Secretary of State's costs to Mrs Brightwell today. I am not sure if your Lordship has a copy of the schedule. I have a spare one I can hand up if necessary.

MR JUSTICE SULLIVAN: I do have it.

[27]MR BLUNDELL: In fact, the costs are slightly higher than they should be because it was anticipated the case would last for a day and we have only been here for an hour, and so by my calculation the sum of £960 should be taken off the total on page 2 of £5,720, which would then be £4,760.

[28]MR JUSTICE SULLIVAN: I think, Mr Blundell, this case indicates so clearly the need for a permission stage for these section 288 appeals. An unrepresented claimant in all good faith has simply ended up with a huge costs bill with really no advance warning as to what might happen. Is there any letter from the Treasury Solicitor saying this is hopeless? Sometimes there is, and I realise it is a difficult thing appearing not to be heavy-handed, but equally giving fair warning. Is there something from the Treasury Solicitor?

[29]MR BLUNDELL: I think there may be a letter giving warning of the possibility of costs.

[30]MR JUSTICE SULLIVAN: Yes, I would like to know that please. I realise sometimes the Treasury Solicitor is in an invidious position. He is damned if he does and damned if he does not, but can I have a look?

[31]MR BLUNDELL: Yes, of course. My Lord, as regards your Lordship's comment about the permission stage, I certainly see the force in what your Lordship says.

[32]MR JUSTICE SULLIVAN: It is a classic case, is it not? Whether a refusal on the papers would have resulted in the end of the case, one does not know.

[33]MR BLUNDELL: Of course. (Pause)

[34]MR JUSTICE SULLIVAN: It is a perfectly reasonable warning, but yes, thank you very much. What do you want to say about costs, Mrs Brightwell?

[35]CLAIMANT: Well, I mean, I did think there were three things I did want to say. Back in, I think it was 2000, I brought on the Council in front of the sub-planning councillors the point that was passed, and they were in our favour, that was passed. They had a vote and they were in our favour and they passed it once -- us living where we are living. I got the letter, if I can just draw your attention to it --

MR JUSTICE SULLIVAN: Is that for the caravans?

[37]CLAIMANT: Hang on. That is for us changing use of the stable block for living.

MR JUSTICE SULLIVAN: Right.

[39]CLAIMANT: Page 41:

"The planning sub-committee considered your application"

. That is one of the many meetings we went on and the councillors looked in favour of us and put their hands up and voted for us for the conversion of existing stables to a single storey three-bedroom dwelling, and they voted and that was in our favour. As you can imagine we were very relieved. The head of planning, Mr Kirby, ordered another vote, and when the councillors' vote -- I forget the exact number, but we had an extra hand in our favour to pass where we lived. We were that close. We would not be here today. This is ridiculous.

[40]MR JUSTICE SULLIVAN: The letter actually says because the sub-committee made a recommendation contrary to policy, it is going to be considered by the development committee, and then the development committee turned it down.

[41]CLAIMANT: Yes, and that was strange that was. We have been on many meetings and we were asked to stay downstairs on that meeting, and the same councillors, I am sitting here, the same faces who were putting their hands up and speaking for us, saying that these are ridiculous questions the councillors were asking us, and that they should pass this because they could see we were only down there trying to earn a living. There was also a letter in the back here from the Parish Council themselves supporting us. We actually did have a couple of letters from the Parish Council supporting us. Over years, as you can manage, I got suitcases full of papers and that has gone astray somewhere. We have had support. We have had letters of support. We find this very strange. That was a battle just to get two years temporary, when most people in our predicament who is getting planning permission for agricultural reasons get that anyway. That took us, as you can see at the front of the folder, in front of the Master of the Rolls, just to get two years temporary. That has been a battle for us for the last 15 or 16 years. We are more determined now because that is a big slice of our life and our children's lives we have took battling this along, and we are not going to go give up.

[42]MR JUSTICE SULLIVAN: I see that. I think you can probably leave it to me to look at these costs. The normal rule is, if you are not successful in these, you pay costs. However, the Secretary of State is only entitled to reasonable costs, and I am bound to say that this amount does seem, with the greatest of respect to the Treasury Solicitor, way over the top for what would be to a lawyer a very simple planning application case. For example, who on earth spent 18.6 hours looking at this? I cannot imagine what they were doing. I mean, they must have gone to sleep in the bath with the papers in their hand, I should have thought. What is the justification for it? How can you spend 18.6 hours? What were they doing?

[43]MR BLUNDELL: My Lord, I anticipated that your Lordship might draw attention to that point. I have taken instructions. I am told that those 18.6 hours represent work done on a minute of advice, first of all to the client and the Department, also instructions to counsel and also the draft of the Inspector's witness statement.

[44]MR JUSTICE SULLIVAN: I do think if the Treasury Solicitor chooses to drive around in a Rolls Royce it is perfectly fair for the Treasury Solicitor -- instead of writing a short note saying it does not raise any point of law, but I do not think this claimant is going to pay for all of that anyway. Thank you very much.

[45]CLAIMANT: Can I say, somewhere I read in here they thought that we were -- I forget the exact words -- but wasting time, keep bringing it to the High Court, but I feel if you were going to lose your leg you would do everything you could to save it, wouldn't you?

MR JUSTICE SULLIVAN: I would.

[47]CLAIMANT: I do not feel as if I'm wasting people's time because this is our life; this is our children's life. This is 16 years of our lives.

MR JUSTICE SULLIVAN: I quite understand that.

[49]CLAIMANT: And we do everything we do could to fight it.

[50]MR JUSTICE SULLIVAN: I think, Mrs Brightwell, the best I can could do for you -- the Secretary of State is entitled to some costs. What I can do is to say that the reasonable costs are nothing like £5,700. I shall give the Secretary of State --

[51]MR BLUNDELL: My Lord, just before your Lordship makes that final assessment, it is simply so that your Lordship appreciates the point that the £5,720 is more than it should be.

[52]MR JUSTICE SULLIVAN: I do. It should be £4,700 and something because we have gone short, as it were, today.

[53]MR BLUNDELL: That is all I was going to raise.

[54]MR JUSTICE SULLIVAN: I do see that, of course. I think the reasonable costs of defending this would be somewhere in the region of £2,000, including counsel, and I summarily assess the Secretary of State's costs in that amount. I am afraid that is the best I can do for you. I cannot possibly say you should not pay any costs, Mrs Brightwell, because you have appealed. You have been warned about costs by the Treasury Solicitor. That is fair enough, but that is the best I can do.

[55]So I have dismissed your application. You are entitled to ask me for permission to appeal to the Court of Appeal, but if you do, and you may want to, I am going to refuse you because I do not think there is any point of law in this case so there is no real prospect of success. So if you want to go any further, you will have to ask the Court of Appeal. But of course if you do and you fail, you will incur more costs. That is that. I think the better course, and it is not for me to advise you, but the better course is for you to get this new information, and any information that you did not provide earlier about your family and the local connections and the fact that the local people support you and so on and so forth, if there is that information, get it, send to the Council so it can be taken into account in the injunction proceedings.

[56]CLAIMANT: What you have in front of you the Council has received.

[57]MR JUSTICE SULLIVAN: All right. That is the way to do it because the next stage of this will be, should an injunction be granted, to require you to actually move, and the court anyway, in deciding whether or not to grant that injunction, will itself look at all the facts, and so it will look at all this stuff. Maybe go along to a lawyer and try to get all of this in, as it were, some sort of order. It is particularly important not to go over old ground, but to have any new material you have not drawn attention to before, all right?

[58]CLAIMANT: Yes.