PNH (Properties) Ltd v Secretary of State for Communities and Local Government [2012] EWHC 1998 (Admin)

Case No CO/3818/2011[2012] EWHC 1998 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/07/2012
Before
CLIVE LEWIS QC(Sitting as a Deputy Judge of the High Court)
Between
PNH (Properties) LimitedClaimantSecretary of State for Communities and Local GovernmentDefendant
Mark Westmoreland Smith (instructed by Quality Solicitors) for ClaimantChristopher Buttler (instructed by Treasury Solicitor) for DefendantHearing Hearing date: 6 July 2012
JudgmentClive Lewis QC :INTRODUCTION
[1]This is an application under section 288 of the Town and County Planning Act 1990 (“the 1990 Act”) for an order quashing a decision of 14 March 2011 of an inspector, given on behalf of the Secretary of State for Communities and Local Government. By that decision, the Inspector dismissed an appeal against a refusal to grant outline planning permission to the Claimant for development comprising the erection of two detached dwellings plus associated arboricultural works of improvement and future maintenance to retain woodland.

BACKGROUND

[2]The appeal site comprised 0.19 hectares of land which formed part of a larger woodland area at Bishop’s Drive, East Harnham, Salisbury. The Claimant, PNH (Properties) Ltd., were the owners of the appeal site. There had been previous applications for planning permission. The most recent had been in 2009 when planning permission was sought for three dwellings on a larger area of land. That application had been refused and an appeal dismissed by a decision dated 2 September 2009.[3]The Claimant made the present application for outline planning permission and sought to address what it considered were the key difficulties identified by the Inspector in the earlier appeal. The present application was for permission to build two dwellings, rather than three, and the appeal site was smaller in size, with a smaller area of woodland being lost. The local planning authority refused planning permission and the Claimant appealed under section 78 of the 1990 Act.[4]The Claimant contended, in its appeal statement and evidence, that the proposed development would not be detrimental to the overall character of the woodland and its contribution to the wider area, given the reduced area of woodland that would be lost. If the proposed development were considered detrimental, the Claimant contended that the adverse affects would be outweighed by the benefit of a positive management plan for the remainder of the woodland. The Claimant submitted a signed deed containing a planning obligation pursuant to section 106 of the 1990 Act. That obligation applied to the appeal site (edged red on the accompanying map and referred to as the Red Land). Clause 1 obliged the owner of that land to deliver and implement a woodland management agreement for the remainder of the woodland (edged blue on the accompanying plan and referred to as the Blue Land). The planning obligation as submitted, however, did not bind the Blue Land. It only bound the Red Land.[5]The appeal was originally to be conducted on the basis of written submission. The Claimant requested an inquiry. The inspectorate decided that the appeal would be dealt with at a hearing but that an inquiry was not required. The hearing was governed by the Town and Country Planning (Hearings) (England) Rules 2000 (“the 2000 Regulations”). Counsel for the Claimant also referred to three documents setting out guidance as to the way in which such hearings were to be conducted. The hearing was held, and a site visit made, on 8 February 2011.

THE DECISION

[6]In his decision of 14 March 2011, the Inspector described the subject matter of the appeal. He noted that, prior to the hearing, the local planning authority had withdrawn the second of the two reasons for refusing planning permission. That reason related to ecological matters. The Inspector noted that a signed and executed unilateral planning obligation had been submitted on behalf of the Claimant providing for a woodland management agreement.[7]In paragraph 5, the Inspector identified the main issue in the following terms:
“Main Issue 5. From my consideration of all the representations and from my inspection of the site and surroundings, I find that the main issue in this appeal is the effect of the proposed development on the character and appearance of the surrounding area.”
[8]The Inspector then set out his reasoning at paragraphs 6 to 15. He described the location of the appeal site and noted that it lay within an area to which Policy H19 of the Salisbury District Local Plan 2011 applied. That policy permitted residential development of certain types provided four criteria were met. In brief summary, these are that first that was no adverse impact on the character of the settlement or neighbourhood, second, that there was no loss of an important open space, third the loss of features such as trees, hedges and walls, which contribute to the character of the area was kept to a minimum and fourth that the development would be in keeping with the character of the neighbouring properties.[9]The Inspector then describes the appeal site, noting that it comprised some 0.19 hectares of land that formed part of an area of woodland some 0.55 hectares in size. The woodland was the subject of a Woodland Tree Preservation Order and was located at the head of a cul-de-sac forming part of Bishop’s Drive. That road lay to the north-west before turning east. Along the south-east boundary of the woodland lay Old Blandford Road. The Inspector described the character of the area.[10]At paragraph 10, he noted that there had been three earlier appeals relating to the land, the most recent being that in 2009. He noted that all the decisions considered that the woodland made a substantial contribution to the area. The Inspector in 2009 considered that the woodland, although now less characterised by beech trees, still contributed to that area. In paragraph 11, the Inspector noted that by reducing the site area and proposing two dwellings, the proposals sought to address the previous inspector’s concerns over the impact of the development on the woodland area.[11]In paragraphs 12 to 14, the Inspector considered the impact of the development, from Old Blandford Road. He noted that, by taking less of the woodland for development, the boundary of the appeal site would be further from Old Blandford Road. It was likely that the dwellings would only be seen from higher vantage points at Folly Close in the south. He noted that the Claimant contended that the effect on any such views would be mitigated by the retention of trees other than Western Red Cedar trees and new planting. The Inspector then dealt with the future management and maintenance of the woodland and the new planting. He considered the section 106 planning obligation submitted by the Claimant. He concluded, at paragraph 14 of his decision, that the effectiveness and enforceability of the agreement was such that he could give it little weight and said that there was:
“no guarantee that the mitigation measures laid down in the obligation to counter views of the development from Old Blandford Road and Folly Close will be accomplished.”
[12]At paragraph 15, the Inspector turned to the view of the development from Bishop’s Drive and said:
“As well as the aspect from Old Blandford Road, importantly, there is also the effect of the development when viewed from Bishop’s Drive, an important matter raised by the local planning authority. The area of woodland that would be cleared to accommodate the two houses and their garages is prominent when viewed from points along Bishop’s Drive. From the western end the woodland is viewed as rising up beyond the end of the cul-de-sac, thus establishing a green backdrop to the residential area. It softens and enhances the appearance and character of the built form. The inter-relationship between the woodland and the buildings is a feature that Policy H19 seeks to protect. The removal of the trees as proposed and the construction of the new dwellings would divorce the woodland from the street scheme to such a degree that this inter-relationship and hence the character and appearance of Bishop’s Drive would be unacceptably diminished, contrary to the aforementioned policy.”
[13]The Inspector then turned to his conclusions and said this:
“Conclusion 16. I conclude, therefore, that the proposed development would run counter to Policy H19 of the Local Plan in that it would not minimise the loss of features, such as trees, that contribute to the character of the area. 17. In reaching this conclusion I have had regard to the argument promoted by the appellant that the development would be beneficial in that it would secure the future, positive management of the woodland. However the management of the woodland could be equally undertaken without the need for development. I have had regard also to all other matters raised in the representations but not ins sufficient to outweigh the considerations that I deem to be paramount.”
The Inspector therefore dismissed the appeal.

THE CLAIM

[14]The Claimant issued a claim form contending that the Inspector had misdirected himself on a matter of law or had acted in way which was Wednesbury unreasonable and set out eight specific grounds of challenge. In his skeleton argument, Mr Westmoreland Smith for the Claimant has combined those within three grounds of challenge, namely, that: 1) the Inspector erred in his understanding of the planning obligation and consequently failed properly to take into account a material consideration namely the benefits of a woodland management agreement or failed to give reasons for his failure to take into account the benefits of such an agreement; 2) the conduct of the hearing was procedurally unfair; 3) the Inspector failed to have proper regard to the 2009 appeal decision and the importance of consistency in decision-making or failed to give his reasons for departing from the 2009 appeal decision when he did so.

GROUND 1: THE PLANNING OBLIGATION

[15]The Claimant contends that the Inspector erred in his approach to the planning obligation in both fact and law.[16]Section 106(1) and (3) of the 1990 Act, so far as material, provides as follows: “(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A and 106B as “a planning obligation”), enforceable to the extent mentioned in subsection (3) –(a) restricting the development or use of the land in any specified way;(b) requiring specified operations or activities to be carried out in, on, under or over the land;(c) requiring the land to be used in any specified way; or ….. (3) Subject to subsection (4) a planning obligation is enforceable by the authority identified in accordance with subsection (9)(d) – (a) against the person entering into the obligation; (b) against any person deriving title from that person.” (a) restricting the development or use of the land in any specified way; (b) requiring specified operations or activities to be carried out in, on, under or over the land;[17]For present purposes, two points need to be noticed. First, the planning obligation will apply to specific land. It can be anticipated that the land to which the planning obligation relates will be identified in the agreement or undertaking which sets out the planning obligation. Second, the planning obligation is enforceable against the owner of the land to which the planning obligation applies and successors in title to that land.[18]In the present case, the Claimant submitted a signed and executed deed which included a planning obligation to the Inspector. The planning obligation defined “the Land” as:
“all that land known as Land at Bishops Drive, East Harnham Salisbury, SP2 8NZ and edged red on the attached plan provided at Schedule 1.”
[19]The attached schedule showed the land edged red as being the 0.19 hectares of the appeal site, i.e. the area where it was proposed to build the two dwellings. The land did not include the remainder of the woodland (the Blue Land).[20]Clause 1 of the planning agreement provided as follows:
“The Owner covenants with the Council that prior to Commencement of Development it will deliver to the Council a Woodland Management Agreement satisfactory to the Council relating to the woodland edged in blue on the plan and that it will following the commencement of the development implement the said management plan to the satisfaction of the Council. An outline 10 year Management Plan is included at Schedule 2 and shall form the basis of the Woodland Management Agreement.”
[21]The Claimant contended that that clause would be capable of binding the owner (the Claimant) and any person who derived title from the Claimant. Consequently, the Inspector erred in considering that there was no guarantee that the woodland management agreement would be delivered and implemented.[22]But, the problem is this. The planning obligation is expressed only to bind the Red Land, that is the appeal site. It requires activities to be carried out on a different area of land, the Blue Land (that is, the remainder of the woodland). If the Blue Land was sold into separate ownership, the planning obligation would not apply to the Blue Land. The local planning authority would not be able to enforce any obligation against the successor in title to the Blue Land – because the planning obligation was not expressed to bind, or be applicable to, the Blue Land. Consequently, the Inspector was correct in concluding that there was no guarantee that the mitigation measures laid down in the planning obligation would be accomplished. His reasoning on this point may not have been well expressed but his ultimate conclusion is correct. Consequently, this first ground of challenge fails.[23]I note the additional argument of Mr Buttler, counsel for the Defendant that the performance of the obligations during the lifetime of the Woodland Management Agreement (as opposed to the implementation of the agreement) was provided for in clause 2, not clause 1, of the planning obligation. The Claimant accepts that clause 2 is defective and would need to be struck out of the planning obligation. Consequently, the Defendant says, for this separate reason, the Inspector also correctly concluded that the planning obligation would not guarantee that the mitigation measures contemplated by the planning obligation would be accomplished. I see the force in the Defendant’s argument on this point. But it is not necessary for me to decide the issue.

THE SECOND GROUND: FAIRNESS

[24]The Claimant contends that the way that the Inspector dealt with the appeal was procedurally unfair. First and foremost, the Claimant says, if the Inspector was not satisfied that the planning obligation was enforceable, then he should have raised that issue with the Claimant’s representatives and given them the opportunity to deal with the issue. Secondly, the Claimant makes a number of discrete points which, it alleges, demonstrates that the Inspector acted in a way which was procedurally unfair.[25]The relevant law in this respect is well-established and not in dispute. Counsel for the Claimant stresses the need for there to be a fair hearing even where the procedure adopted is that of holding a hearing, not an inquiry, conducted in accordance with the 2000 Regulations: see Dyason v Secretary of State for the Environment and Chiltern District Council (1998) 75 P. & C.R. 506.[26]The question is what, on the facts, does fairness require? The relevant principles can be found in Fairmount Ltd. v Secretary of State for the Environment [1976] 1 W.L.R. and the judgment of Ouseley J. in Castleford Homes v Secretary of State for the Environment [2001[ P.L.C.R. 29, both of which were discussed in Edward Ware New Homes Ltd. v Secretary of State for Transport, Local Government and the Regions [2004] 1 P. C.R. 63. The Court of Appeal in that case cited the following dictum of Ouseley J. at paragraph 65 of the Castleford case:
“If an Inspector is to take a line which has not been explored … 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 be 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.”
[27]The first question is whether the Inspector in the present case was raising a new point which the Claimant did not know, and could not reasonably be aware, was an issue. In my judgment, properly analysed, that was not the case here. The first issue for the Inspector was the effect of the proposed development on the character and appearance of the surrounding area, to determine whether or not the proposed development was consistent with, in particular, Policy H19 of the Salisbury District Local Plan 2011. The Claimant understood that, as is clear from its appeal statement. The Claimant contended that the proposal was not detrimental but, if it was, then a commitment to active woodland management would outweigh the harm: see paragraphs 2.3 to 2.6 of the statement lodged on behalf of the Claimant for the appeal. It was the Claimant who sought to demonstrate that a woodland management scheme would be prepared and carried into effect. To that end, the Claimant submitted a signed and executed deed containing a planning obligation. The Claimant choose to make that planning obligation bind only the appeal site (the Red Land) and it did not bind the remainder of the woodland (the Blue Land). That would give rise to difficulties if ownership of the Blue Land and the Red Land diverged. The Inspector was not, in my judgment, raising a new issue about the enforceability of the planning obligation. There was no obligation on him to go back to the Claimant and point out the deficiencies in the planning obligation that the Claimant had submitted. The Inspector was, in truth, adjudicating on the adequacy of what the Claimant had put forward as a means of achieving benefits which the Claimant said would outweigh any harm. In my judgment, therefore, there was no procedural unfairness in the way in which the Inspector dealt with the planning obligation submitted by the Claimant. For that first reason, this ground of challenge fails.[28]Secondly, and separately, in my judgment, the decision of the Inspector did not, on a proper reading of the decision letter, depend upon the problems relating to the enforceability of the planning obligation. That aspect of the appeal was dealt with in the context of the impact of the development as seen from Old Blandford Road (see paragraph 12 of the decision letter). The concern was the impact on views of the development from the south, and Folly Close in particular. The impact of the dwellings would be mitigated by the retention of certain trees and new planting. The management and maintenance of the woodland would be secured by the signed and executed planning obligation. It was in that context that the Inspector considered whether the planning obligation would guarantee that the mitigation measures would be accomplished. The Inspector then goes on to deal at paragraph 15 of his decision letter with a different matter, namely the impact of the development when viewed from Bishop’s Drive. Then, at paragraphs 16 and 17, the Inspector sets out his conclusion that the proposed development would run counter to Policy H19. He says that in reaching that conclusion he has had regard to the argument that the development would be beneficial in that it would secure the future, positive management of the woodland. But he rejects that argument for the reason given in the next sentence of paragraph 17, namely that the management of the woodland could equally be undertaken without the need for development (and that particular conclusion has not been challenged as irrational or based on no evidence). In other words, the Inspector concluded that the development would run counter to the policy in the development plan which provided that dwellings in this area should be permitted provided that four criteria were met as one of the criteria would not be met. He considered that that factor was not outweighed by any benefit from future management of the woodland because that could be achieved without the need for the development – not because of his conclusion that the mitigation measures necessary in relation to Old Blandford Road could not be guaranteed by the Claimant’s planning obligation. Even if, therefore, fairness would require that the problems over the enforceability of the planning obligation be raised with the Claimant if any decision was to be based on that issue, the decision was not, in fact, on a proper reading, based on that issue. Therefore, no unfairness occurred in the way in which the planning obligation was dealt with for this separate and second reason. For that additional reason, this ground would fail.[29]The Claimant raised a series of discrete points about the way in which the Inspector conducted the hearing and says these demonstrate procedural unfairness in the way the appeal was dealt with. Before turning to those matters, it is important to bear in mind the nature of the evidence of what, factually, occurred at the hearing and on the site visit and what was, in fact, said and done. The principal evidence is a typed note, dictated by Mr Martin Leay on 9 February 2011 from hand written notes made on 8 February 2011 which was the day that the hearing and the site visit took place. The handwritten, contemporaneous notes are not exhibited: it is not clear whether the typed note is intended to include all the material in the handwritten notes. The typed note is exhibited to a witness statement made by Mr Roger Hutton (not by Mr Martin Leay who made the handwritten notes and dictated the typed note). The witness statement gives no information about the typed note but simply says that a copy of various notes and correspondence is exhibited. More importantly, the dictated note does not only set out factual material but includes comments made by Mr Leay (see for example, paragraph 12 of the note, which records that the Inspector “indicated (with some disdain it seemed) that the last Inspector was an Architect”). The same is true of the letter of complaint dated 5 April 2011 (after the decision had been published) and which sets out in part the views of the writer on the Inspector’s conduct. By way of example, it says that the Inspector “responded dismissively” to the Claimant’s argument without recording in fact what was said. That is also the case in part of a third document relied upon, an e-mail of 21 February 2011, sent before the decision was published, where the writer complains that the Inspector “appeared impatient”. In dealing with complaints of procedural unfairness, which are based on claims about what an inspector said or did at a hearing or site visit, it is important to separate out the actual facts from comments or the views of one of the parties on those facts. A court can then consider whether the facts show that there was procedural unfairness in the way in which the arguments and evidence of the parties was dealt with.[30]Against that background, I turn to the principal complaints which are set out in paragraph 44(ii) of the Claimant’s skeleton. First it is said that the Inspector dismissed the Claimant’s comment that the main issue identified by the Inspector (the effect of the proposed development on the character and appearance of the surrounding area) needed to be balanced against the positive management of the woodland. The evidence relied upon is paragraphs 2 to 4 of Mr Leay’s typed note. But that says that Mr Leay indicated that he thought the main issue needed to be balanced alongside the positive management and commitment to the woodland. The note records that the Inspector replied that he had seen that in Mr Leay’s statement and the note says “there was hardly any subsequent discussion of this in the meeting room session – only on site”. That is not, in my judgment, evidence that the Inspector dismissed the comment. Rather, it is the opposite. It is evidence that the Inspector was aware of the argument that the Claimant was making and that was the subject of some (it is unclear how much) discussion although that took place mainly on the site visit rather than at the hearing. Further, the complaint is inconsistent with the actual decision of the Inspector. He specifically says he has had regard to the Claimant’s argument on this point in his conclusions at paragraph 17 of the decision and explains why he has rejected it. The Inspector did not act unfairly in relation to this matter. There is no evidence that the Claimant’s argument was dismissed in the sense that the Inspector refused to allow it to be advanced or refused to address the issue. Rather the argument was considered and rejected by the Inspector.[31]Next, it is said that the Inspector refused to hear evidence about ecology matters. Reference is made to Mr Leay’s note which says that the Inspector said he had no wish to hear any thing to do with ecological matters. But the context is important. The Council had originally refused the planning permission for two reasons, the second of which was the potential harmful ecological impacts of the development, in particular on the habitat of protected species. The Claimant had attached to its statement for the appeal (and it was before the Inspector) the proof of evidence of a Mr Allen as presented to the 2009 inquiry. That proof dealt with biodiversity and nature conservation. The inspector in the earlier 2009 inquiry had found that ecological impact was not a reason for refusing permission. Mr Allen did not attend the hearing or the site visit in the present appeal. Prior to the hearing – as is recounted at paragraph 2 of the decision – the Council withdrew its second reason, the potential ecological impacts, as a reason for refusing permission. Thus, the Inspector did not need to be addressed on why potential ecological impacts did not justify refusal of planning permission. The Council had accepted that. Ecological impacts were no longer an issue in the inquiry and they do not feature in the Inspector’s decision as a reason for refusal. There was, therefore, no unfairness in relation to this matter. There was some suggestion that the ecological issues were part of the benefits of the woodland management plan. First, in my judgment, there is no evidence that there was any specific ecological aspect to the woodland management. The evidence is (as appears from section 7 of the statement of the Claimant for the appeal) that ecological matters related to the separate, and second reason of the Council for refusing planning permission. Secondly, in so far as ecological matters were included in the benefits to be provided by the woodland management agreement (and there is no evidence of this), there is no evidence that the Inspector was unprepared to hear argument or consider that evidence. The comment relied upon, that the Inspector had no wish to hearing anything to do with ecological matters, was said in the context of the ecological issues originally relied upon by the Council for refusing planning permission. The comment does not evidence any refusal to consider any other matters and does not demonstrate any procedural unfairness.[32]Next, it is said that the Inspector gave the appearance of impatience and not wanting to discuss matters at the Council offices (where the hearing was being held). There is no evidence to support any finding of procedural unfairness. The issues that the Claimant wished to be considered were considered, as appears from the decision letter. The Inspector ultimately found against the Claimant on those issues. The views of the Claimant’s representatives on the way that the Inspector conducted the hearing do not, in my judgment, establish that any unfairness occurred.[33]Then it is said that the Inspector was not interested in the relevant expertise of the parties’ witness. In fact, reading the typed note of Mr Leay, what happened was that Mr Leay asked what the qualifications and experience of the Council’s witnesses were. The Inspector is recorded as saying that he had no interest in personal attacks on the credibility of the witnesses. Mr Leay said he thought their qualifications were relevant. The Inspector then obtained confirmation that one of the witnesses was a chartered planner. That exchange does not demonstrate that the Inspector was not interested the witnesses’ expertise. Rather, if any thing, it suggests that he misunderstood the reason behind Mr Leay’s question and, once explained, he dealt with it. The suggestion was made that the Inspector did not deal with the qualifications of the other Council witness who was the arboricultural officer. But there is nothing in the decision letter to suggest that the Inspector’s decision was based on the evidence of that officer and was attributable to that officer having better qualifications as compared with the Claimant’s representative. Rather, the decision is based on the Inspector’s assessment of the impact of the proposed development on the character and appearance of the area. There is no basis for contending that the exchange in relation to the qualifications and experience of the Council’s witnesses demonstrates any procedural unfairness. A number of other points were referred to including the length of the hearing. None of these points, taken individually or cumulatively, demonstrate any procedural unfairness.[34]For those reasons, the second ground of challenge fails.

THE THIRD GROUND: THE 2009 APPEAL DECISION

[35]The Claimant contends that the 2009 appeal decision was a material consideration. It related to the same land, comprised similar development and the same policy applied. The Claimant contends that the Inspector did not accord proper weight to the 2009 appeal decision and did not explain the reasons for departing from it, contrary to the decision in North Wiltshire District Council v Secretary of State for the Environment and Clover (1993) 65 P. & C.R. 137.[36]The particular respect in which the Inspector is said to have departed from the 2009 appeal decision concerns the assessment of the impact from Bishop’s Drive. In that earlier decision, at paragraph 11, dealing with a proposal for three dwellings on a larger site, the Inspector found that the proposed development would be glimpsed between existing houses and garages and the backdrop to the proposed development would change. The removal of the broadleaved trees on the woodland edge would expose the etiolated trunks of the remaining exotic evergreen conifers leaving them open to view and they were unsightly. The Inspector considered that the removal of the broadleaved trees on the site would therefore be detrimental to the character of the area.[37]The Inspector in the present appeal was well aware of the earlier 2009 appeal decision. He noted that that appeal decision, and earlier decisions, had found that the woodland made a substantial contribution to the area and referred to the findings of the Inspector in 2009 in that regard: see paragraph 10 of the decision. He was well aware that the present application for planning permission had been designed in a way that the Claimant hoped would address the concerns of the Inspector in 2009: see paragraph 11 of the decision. In relation to Bishop’s Drive, the Inspector’s view was expressed in paragraph 15 which is set out at paragraph 12 above. The Inspector considered the proposal would involve clearing an area of woodland which was prominent when viewed from points along Bishop’s Drive. It provided a green backdrop to the residential area. He considered that the inter-relationship between the woodland and the buildings was a feature which Policy H19 was intended to protect. He considered that the removal of the trees, and the construction of the new dwellings, would divorce the woodland from the street scene to such an extent that the inter-relationship, and hence the character and appearance of Bishop’s Drive, would be unacceptably diminished.[38]The Claimant says that this involves a departure from the 2009 appeal decision. That decision was concerned with the impact of leaving the stems of the conifer trees open to view if woodland was removed. It did not find that the separation of the woodland from the street scene would diminish the character of the area.[39]First, in my judgment, the Inspector did not contradict or depart from the 2009 appeal decision. That earlier decision found that the proposed development in issue in that case was detrimental to the character of the area. The Inspector focused on the impact of the removal of the broadleaved trees and the etiolated trunks of the trees that would remain. He did not state expressly that the proposal would be acceptable and would not be detrimental to the area but for the issue of the etiolated trunks. Nor, in my judgment, can it reasonably be inferred that he was finding that the development would have been acceptable so far as Bishop’s Drive but for the issue concerning the exposure of the etiolated trunks. Rather, he found the development to be detrimental and gave his reason for it, namely the exposure of the trunks. The Inspector in the present case also found the proposed development in this case to be unacceptable and gave his reasons for that. That did not involve contradicting or departing from the earlier 2009 appeal decision.[40]Secondly, if that view is wrong, and if the Inspector was departing from the earlier 2009 appeal decision, then he gave reasons for that departure. He explained why he thought the proposed development would be detrimental to the area, namely the divorce of the woodland from the street scene. That was a judgment that he was entitled to reach. He explained why he reached it. In so far as his decision is a departure from the earlier 2009 appeal decision, he has explained his decision.[41]Finally, the Claimant also contended that the Inspector was dismissive of the earlier inspector and this demonstrated that he did not accord the earlier decision the weight or respect it warranted. This was put initially as an aspect of ground 2, procedural unfairness, but in oral submission, counsel for the Claimant took the view that this point was better considered as an aspect of ground 3. However the point is characterised there is my judgment, no substance in the point. The evidence for this claim is, first, paragraph 12 of the typed note of Mr Leay of 9 February which states that the “Inspector indicated (with some disdain it seemed) that the last Inspector was an Architect .. so there we are…”. The words in parenthesis are the views of Mr Leay. The facts are that he said the last inspector was an Architect. First, that statement does not demonstrate, in my judgment, that the Inspector was unprepared to accord appropriate weight to the earlier judgment. That is particularly so when the note is read in context. Mr Leay was referring to paragraph 1.9 of his statement. That refers to the 2009 appeal decision and stated, in summary, that the earlier decision identified the concerns which led to the dismissal of that appeal and which had been addressed in the new application and said that the earlier decision was a material consideration which guided the Claimant’s approach to the proposed development in the present case. The Inspector did not dismiss that point. He referred to it expressly in paragraph 11 of his decision. He then went on to consider whether or not the proposed development was detrimental to the character of the area. There is no basis for concluding that the Inspector was dismissive of the earlier appeal decision. The other material relied upon is the letter of 5 April 2011 from Mr Hutton to the Planning Inspectorate where Mr Hutton says in point 2 that the Inspector undermined the weight to be attached to the earlier decision by noting in a derogatory tone that “after all Mr Barton is only an Architect”. The quotation marks and the underlining are Mr Hutton’s. Mr Barton was the Inspector at the earlier appeal. Mr Hutton goes on to say that this predetermination of the weight to be give to the previous inspector’s findings was crucial as the Claimant’s case took the previous inspector’s starting point as crucial. For the reasons given above, in my judgment, the claim that the Inspector said the words alleged does not evidence any predetermination or failure to accord weight to the earlier inspector’s decision. The Inspector was well aware that the proposed development was intended to address the concerns of the earlier inspector who had found that the development proposed in that appeal was detrimental to the character of the area. The Inspector then went on to consider if the proposed development was detrimental to the character of the area and found it was. There was no predetermination of the weight to be accorded to the earlier decision. There was no failure to accord it proper weight or respect.[42]For those reasons, ground 3 of this challenge fails.

CONCLUSION

[43]For those reasons, the grounds of the claim are not made out and this application to quash the decision of the Inspector of 14 March 2011 is dismissed.