"BACKGROUND. "1. My site inspection was made unaccompanied. I viewed the site and its surroundings from public places only. I am fully satisfied that I saw everything necessary to make a sound and proper decision. "2 . Both notices relate to the same site. The site is rectangular in shape and about 600 sq metres in extent. It is located at the junction of the local road Bells Hill Road and the A13 major road to the south of Basildon. It lies within a scattering of generally loose-knit development that is situated on the north side of the much improved A13, with similar sporadic development on the south side. "3. On the site is a sizeable mobile home of 'park home' style, a number of small outbuildings, a driveway and areas of hard standing. "
"THE APPEALS AGAINST NOTICE 1 AND 2 ON GROUND (g) "
"Special Circumstances. "
"Procedural Matters "1. The mobile home is already in place. I have therefore considered this appeal as being an application for retrospective planning permission. "
"i) whether the proposal is inappropriate development in the Green Belt. "ii) the effect of the development on the character and appearance of the area and the openness of the Green Belt. "iii) the effect on highway safety and the free flow of traffic; and. "iv) if inappropriate development, whether there are other considerations which clearly outweigh the harm to the Green Belt and any other harm thereby justifying the development on the basis of very special circumstances. "
"70. Determination of applications: general considerations. "(1) Where an application is made to a local planning authority for planning permission -- "(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or. "(b) they may refuse planning permission. "(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."
"47. I deal lastly with Mr Willers' arguments onArticle 8 of ECHR . He contends that there is a 2 stage test in Samaroo v Sec of State for Home Department[2001] EWCA Civ 1139 per Dyson LJ, and that the Secretary of State failed to apply it here. Mr Mould QC drew the court's attention to the subsequent Court of Appeal decision in Lough v First Secretary of State[2004] EWCA Civ 905 [2004] 1 WLR 2557 in which Pill and Keene LJJ (Scott Baker LJ agreed with both of their judgements) considered Article 8 and Samaroo in the context of planning decisions. "48. In Samaroo Dyson LJ propounded a 2 stage test, summarised succinctly in Lough at paragraphs 18 - 19 by Pill LJ: "18. The applicant Samaroo was convicted of serious drug offences and made subject to a deportation order. He challenged the order on the ground that it would involve an interference with the right to family life underArticle 8(1) of the Convention and that such interference was not justified under Article 8(2). Dyson LJ referred to the doctrine of proportionality, as explained by Lord Steyn in R v Secretary of State for the Home Department ex parte Daly[2001] 2 AC 532 , (Daly involved an examination of the privileged correspondence of a prisoner.) Both Samaroo and Daly involved a direct issue between state powers and individual rights. In Samaroo, Dyson LJ stated, at paragraph 19, that: "
"At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention Rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?" "
"I would, therefore, hold that in a case such as the present, where the legitimate aim cannot be achieved by alternative means less interfering with a Convention Right, the task for the decision maker, when deciding whether to interfere with the Right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person's Convention Rights on the other". "49. In Lough nearby residents opposed a new development at Bankside near the south bank of the Thames in London, and claimed in objections at a public inquiry that it would interfere with their residential amenities, which they contended would amount to an interference with their rights under Article 8. They argued that the Inspector had failed to consider whether the interference with their Article 8 rights was necessary and proportionate. At paragraph 23 Pill LJ addressed the scope and relevance of Article 8 in the context in which planning issues fall. ""
""43. It emerges from the authorities: " (a) Article 8 is concerned to prevent intrusions into a person's private life and home and, in particular, arbitrary intrusions and that is the background against which alleged breaches are to be considered. " (b) Respect for the home has an environmental dimension in that the law must offer protection to the environment of the home. "(c) Not every loss of amenity involves a breach of Article 8 (1). The degree of seriousness required to trigger lack of respect for the home will depend on the circumstances but it must be substantial. "(d) The contents of Article 8(2) throw light on the extent of the right in Article 8(1) but infringement of Article 8(1) does not necessarily arise upon a loss of amenity and the reasonableness and appropriateness of measures taken by the public authority are relevant in considering whether the respect required by Article 8(1) has been accorded. "(e) It is also open to the public authority to justify an interference in accordance with Article 8(2) but the principles to be applied are broadly similar in the context of the two parts of the Article. "(f) When balances are struck, the competing interests of the individual, other individuals, and the community as a whole must be considered. "(g) The public authority concerned is granted a certain margin of appreciation in determining the steps to be taken to ensure compliance with Article 8. "(h) The margin of appreciation may be wide when the implementation of planning policies is to be considered. "44. I add that the present alleged breach of Article 8 is based on a departure from the development plan but, following the reasoning in Hatton, where a government scheme regulating movement of aircraft was under consideration, the Court would adopt the same approach whether it is in a departure from the development plan or an application of the development plan itself which is alleged to be in breach of Article 8. Of course, the contents of the development plan, and the procedure by which it is adopted, should be Convention compliant. "
"Domestic courts must themselves form a judgement as to whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgement)... " "47. I find no breach of Article 8(1). Resort to Article 8(2) is not in my judgement necessary to uphold the decision, for the reasons I have given, but, if I am wrong about that, it provides, on the Inspector's findings, justification for the permitted development. I refer to the findings at paragraph 56 of the Inspector's decision together with an acknowledgement of the right of a landowner to make use of his land, as a factor to be considered. "48. Recognition must be given to the fact that Article 8 and Article 1 of the First Protocol are part of the law of England and Wales. That being so, Article 8 should in my view normally be considered as an integral part of the decision maker's approach to material considerations and not, as happened in this case, in effect as a footnote. The different approaches will often, as in my judgement in the present case, produce the same answer but if true integration is to be achieved, the provisions of the Convention should inform the decision maker's approach to the entire issue. There will be cases where the jurisprudence under Article 8, and the standards it sets, will be an important factor in considering the legality of a planning decision or process. Since the exercise conducted by the Inspector, and his conclusion, were comfortably within the margin of appreciation provided by Article 8 in circumstances such as the present, however, the decision is not invalidated by the process followed by the Inspector in reaching his conclusion. Moreover, any criticism by the Appellants of the Inspector on this ground would be ill-founded because he dealt with the Appellants' submissions in the order in which they had been made to him. "49. The concept of proportionality is inherent in the approach to decision making in planning law. The procedure stated by Dyson LJ in Samaroo, as stated, is not wholly appropriate to decision making in the present context in that it does not take account of the right, recognised in the Convention, of a landowner to make use of his land, a right which is, however, to be weighed against the rights of others affected by the use of land and of the community in general. The first stage of the procedure stated by Dyson LJ does not require, nor was it intended to require, that, before any development of land is permitted, it must be established that the objectives of the development cannot be achieved in some other way or on some other site. The effect of the proposal on adjoining owners and occupants must however be considered in the context of Article 8, and a balancing of interests is necessary. The question whether the permission has "an excessive or disproportionate effect on the interests of affected persons" (Dyson LJ at paragraph 20) is, in the present context, no different from the question posed by the Inspector, a question which has routinely been posed by decision makers both before and after the enactment of the 1998 Act. Dyson LJ stated, at paragraph 18, that "it is important to emphasise that the striking of a fair balance lies at the heart of proportionality". "50. I am entirely unpersuaded that the absence of the word "proportionality" in the decision letter renders the decision unsatisfactory or liable to be quashed. I acknowledge that the word proportionality is present in the post-Samaroo decisions and the judgements of Sullivan J in Egan and Elias J in Gosbee but I do not read the conclusion reached by either judge as depending on the presence of that word or on the existence of a new concept or approach in planning law. The need to strike a balance is central to the conclusion in each case. There may be cases where the two-stage approach to decision making necessary in other fields is also appropriate to a decision as to land use, and the concept of proportionality undoubtedly is, and always has been, a useful tool in striking a balance, but the decision in Samaroo does not have the effect of imposing on planning procedures the straight-jacket advocated by Mr Clayton. There was no flaw in the approach of the Inspector in the present case. "51. There remains the discrete question on the Inspector's finding "that matters of property valuation" do not amount to material planning considerations, and its bearing on Convention rights. I readily accept that a diminution in value may be a reflection of loss of amenity and may be taken into account as demonstrating such loss and its extent but, in his reply, Mr Clayton, as I understand it, sought to create diminution of value as a separate and distinct breach of Article 8 and Article 1 of First Protocol. Having regard to the background and purpose of each Article, I do not accept that submission. A loss of value in itself does not involve a loss of privacy or amenity and it does not affect the peaceful enjoyment of possessions. Diminution of value in itself is not a loss contemplated by the Articles in this context. "52. I do not underestimate the importance to landowners of a loss of value caused by neighbouring developments but it does not in my view constitute a separate or independent basis for alleging a breach of the Convention rights involved. The weighing of interests should not be converted into an exercise in financial accounting to determine the loss to the respective landowners and to the community. "53. I would uphold the conclusion and reasoning of the judge and dismiss the appeal." "51. At paragraph 55 Keene LJ said this: "
"As Mr Willers rightly submitted, the facts of Lough were such that the focus was on a balancing between two or more groups of private interests, but the observations made by the court in that case and, in particular, in the passages from Pill LJ which I have cited are clearly more widely applicable in a planning context and, as it seems to me, are of considerable assistance to any judge in the position that HHJ Gilbart was in, in the present case. Thus he was able to say at paragraph 52 of his judgement: "
"a) One cannot simply read the two-stage test across into the planning context; "b) Provided that the decision maker carries out a proper balancing exercise the test of proportionality is met." "
"The judge was right to reject the contention that a rigid two-stage test of proportionality, as referred to in Samaroo, has to be applied in the context of a planning decision of this kind. The attempt to distinguish Lough is unsustainable: the present case is equally one where a balance has to be struck between the interests of the land owner seeking to develop his land, the interests of neighbouring land owners and the wider interests of the community and the protection of the environment."
"There is a danger upon the procedure now followed by the Secretary of State of observing the right to be heard by holding a 'hearing', that can lead for such consideration is forgotten. The danger is that the "more relaxed" atmosphere could lead not to a "full and fair" hearing but to a less than thorough examination of the issues. A relaxed hearing is not necessarily a fair hearing. The hearing must not become so relaxed that the rigorous examination essential to the determination of difficult questions may be diluted. The absence of an accusatorial procedure places an inquisitorial burden upon an inspector." "
"I add that each case must be determined on its own merits and plainly there are limits to the inspector's duty to ask questions... the court will need to enquire, by reference to the decision letter, whether there has been a sufficient consideration to the various cases put forward by a party and of any challenge to it." "24. Laws LJ agreed with that approach. "25. In LB Croydon v Secretary of State for the Environment[1999] EWHC Admin 748 , Keene J, as he then was, stated in relation to an informal hearing, at paragraph 43: "
"The inspector ought to have been alerted to conclude that the appellant and those advising him had 'taken their eyes off the ball'." "
"It can be said that an appellant at an Inquiry should be alert to the potential rejection of its arguments by an Inspector; but that is not so easy to say fairly when the Council has not made clear its opposition to that particular argument and an Inspector does not seek to clarify the position." "
"No question was put by the Inspector alerting the Claimant to the possible conclusion that the real answer to the debate between the Claimant and the Council was on-site provision for residents alone in the event that he rejected the Council's primary position." "
"Whilst an Inspector can reasonably expect parties at an Inquiry to explore and clarify the position of their opponents, if an Inspector is to take a line which has not been explored, perhaps because a party has been under a misapprehension as to the true position of its opponents, as in my view happened here, fairness means that an Inspector give the party an opportunity to deal with it. He need not do so where the party ought reasonably to have been aware on the material and arguments presented at the Inquiry that a particular point could not be ignored or that a particular aspect needed to be addressed." "32. Ouseley J went on to hold, on the facts of that case, that the appellant's attention should have been drawn to the relevant issue. In my judgement the present case is very much on the other side of the line. This was a case where the inspector was entitled to assume that the appellant knew of the issue in relation to the high level duct, and on noise and odours, and was entitled to conclude that, advisedly, the appellant was putting her case as it was put, namely to stake all on the adequacy of the low level system. "33. I would add that, even on the case put forward, technical evidence, which one might have expected to be available in support, was not available. Before the court is a long statement from Mr Stanway in which he attempts to deal with matters relied by the inspector, though in the context of the submission that the inspector was not entitled to have regard to them. He refers, at paragraphs 28 and following of his second statement, to further information obtained to the effect that Mr Love's expert opinion is that "to all intents and purposes clean air" comes out of his system, and to his further opinion, which was available only well after the hearing, that "noise generated by the fans would be insignificant"
"38. I agree. Had the appellant not been professionally represented at the hearing by a chartered town planner who was also a chartered architect, there would have been a stronger argument for a more interventionist role to have been played by the inspector at this informal hearing; but when an appellant is professionally represented, an inspector is normally entitled to expect that the appellant's case will be adequately put forward by that representative and will address at least those issues which have been identified beforehand by the pre-enquiry statements and such other documents as the planning authority's reasons for refusing permission. Such was the situation here. The planning authority's objection to a low level ventilation system had been clearly flagged up in advance of the hearing, and in those circumstances the inspector could properly proceed on the basis that if the appellant sought to establish that that objection was invalid, then evidence would be produced to that effect. That being so, I for my part am not persuaded that the procedure adopted here was unfair. I too would dismiss this appeal."