Gates Hydraulics Ltd, R (on the application of) v Secretary of State for Communities and Local Government [2009] EWHC 2187 (Admin)

[2009] EWHC 2187 (Admin)Case No CO/11803/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 21st July 2009
Between
THE QUEEN ON THE APPLICATION OF GATES HYDRAULICS LTDClaimant
Strand
London WC2A 2LL
B e f o r e:
FRANCES PATTERSON QC
(Sitting as a Deputy High Court Judge)
v
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantComputer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)Mr S White (instructed by Halliwells) appeared for ClaimantMs S Davies (instructed by Treasury Solicitors) appeared for DefendantJ U D G M E N T(As Approved by the Court)Crown copyright©
[1]THE DEPUTY JUDGE: This is an application under section 288 of the Town and Country Planning Act 1990 quashing the decision of the Inspector appointed by the first respondent, dismissing the application for residential and Class B and employment development at Station Road, St Neots, Cambridgeshire.[2]The application for planning permission was in outline with all matters reserved save for access, the submitted drawing showing a possible layout and disposition of residential and employment uses was purely illustrative. The application was refused by the second respondent on 27th September 2007 for three reasons. Only the first two of these are relevant to these proceedings. Firstly:
"The proposed development of this site for a mixed use will result in the loss of employment land for which an under supply has been identified in the Huntingdonshire draft employment land review and which has been identified for protection and retention for employment use by policy E3 of Huntingshire Interim Planning Policy Statement 2007. The application has also failed to demonstrate that the continued use of the site is not feasible, that existing uses give rise to unacceptable traffic and environmental problems, or that the proposed use would result in greater potential benefits to the community. The proposal would therefore conflict with policy E3 of Huntingdonshire Interim Planning Policies Statement 2007."
The second reason is:
"The proposed mix used development which proposes a residential use surrounded on three sides by industrial use and which is accessed through retained industrial area would result in a poor quality residential environment which fails to interrogate with surrounding uses and where the occupants of the dwellings are likely to be subject to noise and disturbance from surrounding industrial uses. The proposal therefore fails to comply with policy P1/3 of the Cambridgeshire and Peterborough Structure Plan, Policy HL5 of the Huntingdonshire Local Plan Alteration 2002 and Planning Statement 1 and Planning Policy Statement 3."
[3]The third reason related to affordable housing and was subsequently withdrawn by the second respondent upon the claimant offering a unilateral undertaking that was acceptable. The claimant appealed against the refusal of planning permission under section 78 of the Town and Country Planning Act and a public inquiry was held from 23rd to 25th September inclusive 2008. The Decision Letter[4]The Inspector identified in her decision letter, at paragraph 4, two main issues as follows. First, the effect of the proposed redevelopment on the employment opportunities within St Neots and on the living conditions of the future residents of the new dwellings in relation to noise and disturbance.[5]It is agreed that those were the two main issues at the beginning of the appeal by the parties. The Inspector went on to consider the policy context and defined the development plan in paragraph 5 of the decision letter as the East of England Plan (EEP) and the same policies of the Huntingdon Local Plan Part I, adopted December 1995 and the Huntingdon Local Plan alteration adopted December 2002.[6]In paragraph 6 the Inspector summarised the two material policies of the EEP. Policy E1 was recorded as setting out a net growth in terms of jobs of 75,000 for the period 2001 to 2021, as an indicative target. Policy E2 of the East England Plan requires local development documents to ensure that an adequate range of sites/premises catering for relevant employment sectors is allocated to achieve the indicative growth targets of Policy E1.[7]In paragraph 7 the Inspector recorded that the East of England plan stated that "surplus employment land may be released for housing in line with Planning Policy Statement 3. However, it is important to base such decisions on sound evidence. Land that is likely needed for employment uses should be safeguarded against other development pressures."[8]In paragraph 8 of the decision letter the Inspector recorded that the Council had produced an employment land review which identified that over the period of 2001 to 2021 some 22 hectares of green field land at St Neots would need to be provided for employment uses to support the creation of sustainable communities. The employment land review that had been carried out had been predicated on the assumption that employment land identified on the local plan proposals map which included the appeal site would be safeguarded for employment use.[9]Paragraph 9 of the decision letter then dealt with the Huntingdon Interim Planning Policy Statement (HIPS) and set out in terms that it did not purport to form part of the development plan. That HIPS had been borne out of the initial core strategy which had been withdrawn and, as a result, the Inspector attached comparatively less weight to HIPS in her determination of the appeal.[10]The Inspector then reviewed the employment land situation and at paragraph 13 set out the characteristics of the appeal site. "The appeal site, some 3.2 hectares of employment land, is located almost opposite the train station. Neighbouring the site to the west and north-west are some of the close-knit suburban streets of St Neots. The edge of town location of the appeal site, so close to housing, the train station and with ready access to other public transport links and services makes it a highly sustainable location. In considering this appeal I have had particular regard to this point as Government policy is that optimum use should be made of existing premises in sustainable locations to encourage continued economic development." She concluded in paragraph 14 as follows:
"As I saw at my site visit the industrial units and offices are, in the main, empty but appear in a sound condition."
The Inspector then went on to consider the impact of the proposed development on employment opportunities and in paragraph 16 said:
"I consider that the value of the appeal site for the provision of employment opportunities within St Neots is intrinsically linked with the realistic possibilities of the buildings and the site being brought back into appropriate commercial uses."
She set out in the following paragraph 17, the clear merits of the existing site:
"This is a highly sustainable site, occupied for many years by a large employer within the town. It forms part of the existing stock of employment land and is centrally located within the established Station Road Industrial Estate where neighbouring premises are still in productive use. The site also forms part of the existing employment land stock upon which the assumptions of the ELR were predicated. Before releasing such employment land which has contributed to the economic well-being of St Neots, I must be confident that such land is no longer required."
The Inspector noted that the claimants had vacated the site over a period of time ending in August 2007 and noted also that there had been time to carry out a robust marketing campaign but that she had no evidence before her that a strategy of marketing the site in a way to explore its potential for employment uses, over and above that which exists was given any serious consideration.[11]As to likely job creation with the appeal proposals, she concluded towards the end of paragraph 19:
"The appellant's premise on job creation centres on a purely hypothetical, numerical exercise in a comparison of job numbers. This would be dependent on the type, mix and density of employment uses which would finally come forward for development. Further, it does not take into account the potential that the totality of the appeal site may have for employment creation in this highly sustainable site."
She concluded at the end of that paragraph:
"Therefore, there is no sound evidence that the continued use of this sustainable site for employment purposes is not feasible, taking into account the existing/potential market demand even in the current economic climate."
She concluded, in relation to the employment land aspect that the proposal would have an unacceptable adverse effect on employment opportunities within St Neots, contrary to government policy along with the substance of EEP policies E1 and E2 and HIP Policy E3, which all seek to improve productivity and the United Kingdom's long term economic performance.[12]The next section of the decision letter was under the subheading "living conditions". Within that section the Inspector commented that the lack of clarity regarding disposition of uses was deliberate to give maximum flexibility to the future developers of the site. It did though give her concerns about the effect of employment uses on the living conditions for future neighbouring residents.[13]On noise the Inspector set out, at paragraph 22, that she had no reason to question the appellant's noise report that noise mitigation measures could achieve acceptable internal levels. On external levels she said as follows:
"However, residents would be aware of noise from fixed and industrial plant and the general movement of staff, vehicles and goods connected with the employment uses in close proximity to the gardens proposed houses. This would impinge on the enjoyment of such private, external space by residents. Whilst the level of noise may be within the tolerances of national guidance, I consider that on a site with the range of uses proposed, it would be likely that the nature of that noise would be distracting, even annoying in such close proximity. I do accept that mature landscaping and boundary fencing would be a means of abating such disturbance. However, as employment uses could range between Class B1, B2 and B8, and they could directly adjoin housing I am not convinced that such measures would be sufficient to provide acceptable safeguarding for the living conditions of the future residents."
[14]In paragraph 23 the Inspector considered possible conditions but did not find them appropriate in the absence of firm evidence as to future uses and their disposition on the site. As a result, she concluded that the appeal proposal would unacceptably impact on future neighbouring residents by reason of noise and disturbance, contrary to PPG4 which is reflected in HIPS Policy B4.[15]Against that background, I turn to the claimant's criticisms of the decision letter. It is convenient to divide them into two sections. First, employment issues and second, noise and disturbance issues. Employment Issues[16]The first ground of criticism made by Mr White, who appears on behalf of the claimants, is that the Inspector failed to comply with the requirements of section 38(6) of the Planning and Compulsory Purchase Act 2004:
"If regard is to be had to the development plan for the purposes of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Further, section 70(2) of the Town and Country Planning Act states that in determining planning applications 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. The complaint is that at no stage in the decision letter did the Inspector reach a finding as to whether the proposed development was in accord with the development plan, and secondly, that she failed to proceed to consider whether material considerations outweighed the development plan position. The claimant had argued during the public enquiry that there was no development plan policy that justified refusal of planning permission. It is right to record that the Inspector did not refer expressly to section 38(6) of the Planning Compulsory Purchase Act but she did not need to do so. In the case of Spelthorne Borough Council v Secretary of State for the Environment [1994] 68 P & CR 211, at page 211, Mr David Keene QC, sitting then as a deputy judge of this Court said in relation to the preceding provision of the Town and Country Planning Act as follows:
"However, that does not mean that an Inspector or the Secretary of State must always spell out that finding in express terms. No doubt it will be helpful if he or she does so, but I bear in mind that circumstances of cases will always differ. The court is concerned to see that the decision-maker has arrived at the decision in a manner consistent with section 54A... and that the decision letter indicates to the parties, who know the background to and the facts of the case, that the correct approach has been adopted. But how explicit an Inspector needs to be on whether or not a proposal accords with the development plan must depend on the circumstances."
Applying that approach here the Inspector clearly identified the correct component parts of the development plan in paragraph 5 as I have set out. Further, she identified the relevant policies of the EEP and their substance in paragraphs 6 and 7 of the decision letter equally, as I have set out above. She then proceeded to consider the application of those policies to the appeal proposal and concluded, at paragraph 20, that the proposal would be contrary to government policy along with the substance of EEP Policies E1 and E2. The position is therefore clear that her conclusion was that the proposal was not in accord with the development plan as a result of the EEP policies.[17]The claimant has argued that the EEP policies are not relevant because, firstly, they are strategic in their nature and are not development control policies, and secondly, that their function is to inform local development documents. I reject those submissions. It is quite correct that the EEP policies are strategic in the guidance that they provide. But they inform the local development documents which will ultimately set out development control guidance. There is a clear and intended linkage, therefore, between the two stages of development plan policy.[18]The second criticism is that the Inspector failed to consider whether there were any material considerations that outweigh the development plan position. Paragraph 25 of the decision letter sets out the Inspector's overall conclusion. It says:
"Therefore, I conclude that the appeal proposals would unacceptably harm both employment opportunities within St Neots and the living conditions of the future residents of the new dwellings in relation to noise and disturbance. I have considered all the other matters raised, including the benefits which would ensue from the provision of affordable housing within St Neots, but such provision would not outweigh the harm I have identified above."
It is perfectly clear, in my judgment, that the Inspector identified that there were no other material considerations to outweigh her conclusions in the harm that she had found resulted from the proposals. It follows that ground 1 must fail.[19]The second ground is put as follow: whether the Inspector failed to give reasons as to what conclusions she had reached on the development plan. That is put in the claimant's skeleton argument as an alternative to ground 1. In my judgment, the reasoning of the Inspector is perfectly clear. The policy framework is that job growth is created, as set out in paragraph 6, and that employment land is likely to be needed in the future and that should be safeguarded. The evidence provided on the use of the appeal site for employment purposes was that there was not a surplus of employment land. However, as part of her consideration of the value of the appeal site for employment purposes in St Neots the Inspector fairly considered whether the appeal site could realistically be brought back into appropriate commercial use. She set out in detail why that was the case and her decision letter from paragraph 16 to 19. Thus, she found that there was an employment site in a sustainable location that could be brought back into commercial use and was likely to be needed in the future. As such, its use for residential purposes would be contrary to policy E1 and E2. It cannot be said, in the light of those reasonings, that there was an absence here of reasoning in relation to the Inspector's conclusions. The third ground and, in my judgment really the key ground in relation to the employment issues, is whether in reaching her determination, the Inspector misinterpreted the provisions of the development plan. The criticism is that the Inspector misunderstood policies E1 and E2 of the EEP, in that they are of no relevance on individual development controlled decisions which was agreed by the planning authority witness in cross-examination. It is agreed that in approaching development plan policy the decision makers approach will only be interfered with if it goes beyond the broad range of meanings that can be given to the language used (see R v Derbyshire County Council ex parte Woods [1997] JPL 958, at pages 967 and 968). That approach has been approved by the court of appeal in R (On the application of Heath and Hampstead Society v Camden LBC [2008] EWCA Civ 193. Here, as set out, policies in the EEP are strategic policies. Their objective is to stimulate job creation, through policy E1 and to ensure an adequate range of employment sites to achieve the employment figures set out in E1, through the application of policy EE2. The Inspector was clearly right, in my judgment, to look at the underlying objectives of those policies in considering the development before her. Whilst it is correct that policy E2 is to inform the policy approach and local development documents as to the choice of sites ultimately to divorce that information from any further application for development proposals would be to live in an entirely unrealistic world. It would be to restrict and emasculate the reach of regional spacial strategy which is part of the statutory development plan. Of course, if there is an element of the development plan which provides more site specific guidance, greater weight would attach to that document than the RSS, but that is not the position here. The Inspector was quite entitled to interpret policies E1 and E2 with regard to their underlying substance and objective. They set the policy matrix which the elements of the development plan. Other elements of the development plan then develop those policies in greater detail. To achieve those objectives the local planning authority has commenced an employment land review to provide an evidence base for a local development document. The employment land review identified employment land as shown on the local plan proposals map, which included the appeal site which would be safeguarded for employment uses. Paragraph 4.11 of the underlying text of policy E2 of the East of England plan says:
"Surplus employment land may be released for housing or other pressing development needs in line with PPS3. However it will be important to base such decisions on sound evidence. Land that is likely to be needed for employment should be safeguarded against other development pressures."
In those circumstances, the Inspector's conclusions as to the objectives of policy E2 were clearly within the range of meanings that could be attributed to it. I therefore reject the submission that the Inspector misinterpreted the policy. The next ground is that the Inspector took into account an irrelevant consideration, namely an informal policy document - HIPS, or alternatively, reached an irrational decision basing the refusal on the document. As I have said, HIPS was no part of the development plan. It was based upon the Huntingdonshire core strategy, a development plan document 2006 which had been found to be unsound. As an interim measure the local planning authority adopted certain policies as a guide to its decision-making process. Policy EE3 dealt with redevelopment of office of industrial and warehouse sites and was therefore applicable to the appeal site. HIPS was thus, clearly, a material consideration, and accepted by Mr White to be so, albeit it was not one to which much weight should attach. That was the approach which the Inspector took. It was, in my judgment, an approach which she was clearly correct to do. The next ground is that the Inspector misdirected herself as to the appropriate policy test for determining the appeal. In relation to that Mr White contends that when the Inspector set out in paragraph 17 that she had to be confident that the land was no longer required for employment purposes, that that was a test for which there was no base in policy and that, secondly, when she set out in paragraph 20 that there was an unacceptably adverse effect on employment opportunities within St Neots, contrary to government policy, along with the substance of the EEP policies E1 and E2 that had no policy base. The only basis for it was paragraph 4.11 which I have set out above and that was not representative of the policy. Dealing with those points in the reverse order. So far as paragraph 20 is concerned, because of the qualitative attributes of the appeal site which the Inspector set out and the objective to retain land needed for employment use, the Inspector's conclusion was one which was clearly justified and correct. So far as paragraph 17 is concerned and the submission that that was a test which was not to be found anywhere with the documents, I reject that submission. It is clear from paragraph 4.11 as to safeguarded land and the objectives of the strategic RSS policies that there was a basis to look at the requirement to retain the employment land further. Policy EE3 of HIPS raises within its terms the test as to whether the continued use of the site is no longer feasible. Even if less weight is given to that there is an interrelationship between HIPS and the strategic direction in the RSS. I therefore reject all points of criticism relating to employment land issues in the decision letter. I turn to deal with noise and disturbance issues. Noise and disturbance issues[20]The factual matrix in relation to those issues is that prior to the public inquiry the appellant and the local authority submitted proofs of evidence. The appellant submitted a proof by Mr Miller, a consultant in environmental acoustics. He set out the criteria against which the application was to be appraised and recorded that the second respondent's environmental health officer had advised that planning permission should be granted subject to conditions akin to those recommended by Mr Miller. Mr Miller's evidence then proceeded to summarise the environment noise report of May 2007, which was attached to his proof, and then update the position by more recent site visit at which noise readings had been taken, on 18th August 2008. That visit confirmed the recommendations which had been set out in his earlier report. Mr Miller's proof then went on to consider external noise, so far as the proposed new residencies were concerned from the retained employment land.[21]Section 6 of his proof deals with a site control and control of noise from the retained employment land. He concluded his evidence by saying in paragraph 7.2:
"The change of use from employment to residential on the western half of the site is of benefit to residents living in Sandwich Road, immediately to the west, as the employment uses have been moved approximately 100m further away and are screened by the proposed dwellings. • An acceptable noise climate can be achieved at the proposed housing by adopting noise mitigation measures and by applying noise conditions requiring them to achieve appropriate standards."
His evidence was therefore that the development was acceptable from a noise point of view, both internally and externally, so far as the new residential dwellings were concerned.[22]Miss Platt was the planning witness on behalf of the second respondent at the public inquiry. Her evidence included a section which dealt with residential amenity and living conditions. In that she accepted that there was no statutory noise nuisance but said at paragraph 11.15:
"The activity related to employment uses within Class B could be considerable with associated traffic and noise disturbance. As previously stated, whilst there may be no statutory nuisance or highway safety issue with this relationship the nature of activity would be likely to be subject the future occupiers of the proposed residential development to noise and disturbance."
[23]After proofs were exchanged the parties met and agreed a statement of common ground attached to which was a noise statement of common ground. The statement of common ground was submitted to the Inspector on the opening day of the public inquiry.[24]The noise statement of common ground is of some importance to the issue as it has been put before me. The first section is an introduction which deals with what had happened prior to the execution of the statement of common ground. It summarises the first noise survey undertaken by Bickerdyke Allen & Partners in paragraph 1.2. It refers to Mr Miller's proof and recent survey in paragraph 1.3 and in paragraph 1.4 refers to the evidence to which I have already adverted on noise and disturbance set out in Miss Platt's proof of evidence. The statement then goes on to deal with matters relating to PPG 24 assessment and concludes with the agreement that the recommendations in the Bickerdyke Allen & Partners Environment Noise Report of 30th May 2007, provide adequate protection of future residents against the effects of noise from the above sources. The above sources had previously been set out as road traffic, rail traffic and industrial noise. Also set out within that section was an agreed planning condition, No 13:
"Before any development is commenced a scheme for protecting the proposed dwellings from noise from the industrial and transport sources in accordance with the recommendations set out in the Bickerdike Allen Partners Environmental Noise Report (30/05/2007) shall be submitted to and approved in writing by the Local Planning Authority. All works which form part of the scheme shall be completed before any proposed dwelling is occupied."
[25]The statement of common ground then proceeds to deal with matters relating to noise from the retained employment land. Paragraph 3.2 is relevant. That says:
"It is agreed that future use of the retained employment land is likely to give rise to noise emissions and that the mitigation of this noise may be treated as a reserved matter and covered by appropriate noise conditions to mitigate such future noise."
In conclusion paragraph 4.1 says:
"It is agreed that this statement covers all noise issues relevant to this appeal."
The statement was then signed by Miss Platt and Mr Miller.[26]As the inquiry opened the Inspector identified the two main issues which I have set out, including that relating to noise and disturbance. The local authority then called its witnesses. Miss Platt was cross-examined. She confirmed, firstly, that the local authority accepted Mr Miller's proof of evidence, and secondly, that the local authority agreed the statement of common ground. According to Mr Andrew Piatt, solicitor to the then appellants, who attended at the inquiry, she tried to explain the council's position and he sets out the position in paragraph 10 of his witness statement:
"In order to assist the Second Defendant's case, Ms Platt then tried to explain that the Council's position was not in relation to noise levels as a specific issue, but to noise disturbance in general to the residential element due to the proximity of the proposed employment use."
In cross-examination Miss Platt confirmed that there was no noise issue but more a design issue that was likely to cause disturbance due to the proximity of uses. That is set out at paragraph 11 of Mr Piatt's witness statement. At the end of Day 1 of the inquiry Mr Piatt records Mr White as saying:
"Mr White then confirmed his understanding of the position which was that Mr Miller's technical noise evidence arrived at the conclusion that the recommended noise mitigation measures would provide adequate protection for future residents against the effects of noise from the relevant sources and that there were no other examples of disturbance stated by any party. Mr White asked the Council to reflect on this position overnight."
[27]On Day 2 the Council commented no further. Mr White then indicated that he did not intend to call Mr Miller in light of the council's position. Council, I should recall were represented by experienced planning counsel, who did not object or take any point on that course of action.[28]The Inspector has also filed a witness statement which sets out her position:
"10. However, at the start of the second day of the Inquiry when the case for the Claimant was to commence the Claimant's advocate said that Mr Miller was on a train back to London as the Claimant had decided it was not necessary for Mr Miller to give evidence as the Second Defendant was not challenging his evidence. 11. This decision was taken without any reference to me and I expressed my surprise at this to the advocate. I had not anticipated Mr Miller's absence on the second day of the Inquiry. His absence meant that I was unable to ask him any questions about the effect of the proposed redevelopment on the living conditions of future neighbouring residents in respect of noise and disturbance. 12. The advocate indicated that Mr Miller's absence was unfortunate but suggested that perhaps Mr Hinds, the Claimant's other witness, could assist me. The Claimant did not at any stage ask for an adjournment in order to call Mr Miller or indicate that it wished to do so in the light of my comments."
[29]The Inspector's witness statement does not say that she was concerned about not hearing from Mr Miller because his evidence related to one of the two main issues that she had identified. Nor does it say that she had intended to ask Mr Miller questions. I bear in mind that at this time, at the commencement of Day 2, the Inspector had had, and I am sure had read the statement of common ground and was aware of its contents. Mr Piatt's notes of cross-examination record the events at the beginning of the second day with the Inspector saying "Simply a couple of questions...". Presumably that refers to what the Inspector wanted to ask. In any event she acquiesced and put whatever questions she had to Mr Hinds who was the appellant's planning witness later that day.[30]On receipt of the decision letter the claimant was surprised to see the section dealing with noise and disturbance and how that was developed within the decision letter. From that Mr White constructs a further five points of challenge which, in my judgment, can be distilled into two:(i) procedural fairness and(ii) whether the Inspector was acting irrationally in failing to take into account material consideration. It is the concept of procedural fairness which has troubled me the most in relation to this case. The case of Poole (R on the application of) v Secretary of State for Communities & Local Government [2008] EWHC 676, dealt with a similar situation where there had been a departure from an agreed statement of common ground. Sullivan J (as he then was) dealt with the requirements of circular 5/1000 and paragraph 40 of that which sets out the requirements relating to statements of common ground. He proceeded in paragraph 42 as follows:
"If a party to an inquiry reasonably believes that a matter which was in dispute has been dealt with by way of agreement in a statement of common ground, it may well be unfair to allow the apparently agreed issue to be reopened without giving the party a proper opportunity to address the issue, if necessary by calling appropriate expert evidence."
Further, within paragraph 44 Sullivan J said as follows:
"... the imperative in the Rules requiring the principal parties to focus their attention on the issues that are in dispute would be wholly frustrated if appellants and local planning authorities were unable to place any degree of reliance on matters that had been apparently resolved in a statement of agreed facts. It would be entirely unsatisfactory if, having agreed such matters, the principal parties to an inquiry would still have to prepare their evidence on the basis that the Inspector might wish to pursue a particular line of reasoning that departed from the agreed statement."
Of course, the difference in that case is that there was an application for an adjournment to meet what appeared to be becoming a new and unexpected issue and that application for an adjournment had been refused. The issue here is whether, against the facts that I have set out, the claimants were denied a fair crack at the whip. In the case of Castleford Homes v Secretary of State for Environment and the Royal Borough of Windsor [2001] EWHC Admin 77 Ouesley J said at paragraph 52:
"The relevant law, though not cited to me, is to be found in cases such as Fairmount Investment Ltd. -v- The Secretary of State for the Environment 1 WLR 1255 at p.1266; and H. Sabey & Co. Ltd. -v- The Secretary of State for the Environment [1978] 1 All E.R. 586. Did the Claimant have a 'fair crack of the whip?' Was the Claimant deprived of an opportunity to present material by an approach on the part of the Inspector which he did not and could not reasonably have anticipated? Or is he trying to improve his case subsequently, having been substantially aware of, or alerted to, the key issues at the Inquiry? Did he simply fail to realise that he might lose on an aspect which was fairly and squarely at issue and hence fail to put forward his fall-back case? Those are the sort of questions which can be used to guide a conclusion as to whether the manner in which a particular issue was dealt with at an Inquiry involved a breach of natural justice and was unfair."
Those are all questions that have troubled me because here it was through the claimant's own actions that the situation that it now complain about arose. I have concluded though, that here, where the Inspector raised, as a main issue in the determination of the appeal noise and disturbance and where all noise and disturbance matters were agreed and confirmed as being agreed in evidence on Day 1, as between the principal parties and set down in the statement of common ground and in the agreed conditions, that if the Inspector still had concerns about those issues, that they should have been raised at the public inquiry. The Inspector accepted that the noise mitigation measures were appropriate to deal with and provided acceptable internal noise limits. Her concerns related to the nature of the noise from the employment uses and associated activity and the possibility of that being annoying and in close proximity to the residential dwellings. Those were matters that she found ultimately would unacceptably impact on the living conditions of future neighbouring residents. Those matters though were, in my judgment, covered in paragraph 3.2 in particular of the noise statement of common ground and indeed in the draft condition 13. The noise report which is referred to in both the condition and the statement of common ground considered industrial noise from nearby premises and provided two alternative solutions to deal with its emission. One of those was a fence around the southern and eastern site boundaries for the provision of sound reduction. In other words, it did not deal solely with internal noise. Indeed the Inspector appears to recognise that within her own decision letter. The difference is that that condition 13 was agreed as being appropriate by the main parties to deal with all noise issues. It is clear from the evidence submitted and agreed by the Council, that in this case the issue of disturbance was subsumed into the noise issues. There is therefore no additional matter upon which an independent judgment could attach. I conclude therefore that the claimant had a reasonable expectation that upon the conclusion of the statement of common ground, upon confirmation of its status in cross-examination, that noise and disturbance were no longer a main issue at the public inquiry. If it had appeared to the Inspector that she was of a different view, then that was something that she should have made clear to enable the claimant to have a fair crack at the whip. I completely accept, as Miss Davies has submitted, that it is not incumbent on any Inspector to check that all parties are aware of all of the issues at all of the times. In the particular circumstances here, however, as the evidence unfolded and the statement of common ground was produced, it was reasonable to conclude that what had initially been thought of as a main issue was no longer the case. If that was not the position, so far as the Inspector was concerned, it was, in the particular circumstances, something that she should have raised. I conclude, therefore, that it was procedurally unfair for the Inspector to come to the conclusion that she did, without providing the claimant an opportunity to address her concerns. This is not a case of aesthetic judgment for the Inspector. The circumstances here raised potentially a technical issue relating to tone or quality of noise which could therefore have been addressed by an expert in that field. As a result, I am satisfied that there was a breach of the requirements of natural justice in that the procedure that was adopted was unfair. In the light of my finding on that ground, it is not necessary for me to deal at any length with the other grounds that were raised. The other grounds relate to the substantive decision but, as I have said, because of my finding in relation to procedural unfairness, I do not find it necessary for me to go into those and to give full reasons for them. Save as to one matter which I just want to make clear, which relates to the issue of conditions. It is right, as was agreed in argument, that an Inspector is not obliged to cast around for conditions which would suit circumstances. I make it clear that I am certainly not expecting any Inspector to be in that situation. The difference here though is that that condition that was proposed was part of the content of the statement of common ground and therefore was something that should have been taken into account by the Inspector in looking at whether that was adequate to deal with the residual matter of concern to her or whether because of the procedural position, she should have made her position clear, so that the claimants in these proceedings had the opportunity to address that matter. In my judgment, she should have done so, and that ground succeeds. In those circumstances, the decision letter is quashed on that basis.[31]MR WHITE: My Lady, in those circumstances could I please ask for the claimant's costs in this matter from the first defendant?[32]THE DEPUTY JUDGE: Do you have anything to say about the costs that are claimed Miss Davies?[33]MISS DAVIES: My Lady, we have reached agreement about the figure but I have not flagged up with Mr White this point that I am going agree, there is an agreement to the actual figure, but as to the principle of costs, I would say that given that your Ladyship has rejected, as it were, half of the claim and allowed only part of it, plainly that part of it that has been rejected has taken up time and expense. I would say your Ladyship make a proportionate reduction.[34]THE DEPUTY JUDGE: What is the agreed figure?[35]MR WHITE: The agreed figure is £16,000.[36]THE DEPUTY JUDGE: In terms of any proportionate reduction are you giving me any assistance on that?[37]MISS DAVIES: I would not say it would be 50/50 because plainly there would have to be costs that were occurred in any event, whether one was arguing one ground or the other. So it is something less than a 50 per cent reduction perhaps of the order of 40 or 30 per cent.[38]THE DEPUTY JUDGE: Mr White, do you have anything to say?[39]MR WHITE: My Lady, I make the obvious submission, we have succeeded and I leave it to your judgment. I think it would be very reasonable, as we have been brought in on the grounds you have identified it is reasonable that we get all our costs in the light of your judgment.[40]THE DEPUTY JUDGE: I am grateful to you for at least agreeing a starting figure in relation to costs. It does seem to me there is something in what Miss Davies says and there should be some reduction for the amount of time which was taken up dealing with the employment issues. I therefore award the claimant its costs in the sum of £14,000. Thank you both very much for your help.

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