Davies v Welsh Ministers & Ors [2013] EWHC 2260 (Admin)

Case No CO/909/2013[2013] EWHC 2260 (Admin)HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONADMINISTRATIVE COURTThe Law CourtsMoldFlintshireCH7 1AEDate Tuesday, 28 May 2013
Before
HIS HONOUR JUDGE KEYSER QCsitting as a judge of the High Court
Between
JOHN DAVIESClaimant--and--
Between
WELSH MINISTERSDefendantFLINTSHIRE COUNTY COUNCILDefendant(3)MICHAEL DAVIES-COOKEDefendantHELEN DAVIES-COOKEDefendantPAUL BRYAN DAVIES-COOKEDefendantADELE JOY DAVIES-COOKEDefendant
(DAR Transcript of WordWave International Limited165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 0207 404 1424Official Shorthand Writers to the Court)
Mr Richard Turney (instructed by Burges Salmon) appeared for ClaimantMr Gwion Lewis (instructed by the Treasury Solicitor) appeared for Defendants
JUDGMENTH.H. Judge Keyser Q.C.:
[1]This is an application under section 288 of the Town and Country Planning Act 1990. The claimant seeks an order quashing a decision of the Inspector appointed by the first defendant to grant planning permission on appeal for an equine centre and tourist accommodation and for the erection of an agricultural building for livestock and fodder at Tan yr Allt, Rhydymwyn Road, Gwernaffield, Mold, and at Bryn Celyn Farm at Pen y Fron Road, Rhydymwyn, Mold.[2]Lest I forget to do so later, may I say at the outset how grateful I am to both counsel who have appeared before me today for their detailed and comprehensive written and oral arguments, which lost nothing by being succinct and to the point.[3]The first defendant, as I said, appointed the Inspector. The second defendant is the local planning authority, which refused planning permission for the development in question in February 2012. The third and fourth defendants were the appellants in the appeal. The fifth and sixth defendants own part of the application site.[4]The claimant is the tenant of Tan yr Allt Farm and of Bryn Celyn Farm, though under separate agricultural tenancies. The third and fourth defendants are the freehold owners of Tan yr Allt Farm. The fifth and sixth defendants are the freeholders and owners of Bryn Celyn Farm. The claimant farms them as a single unit.[5]The claimant lives in the farmhouse at Bryn Celyn Farm. His mother, Mrs Enid Davies, lives at the farmhouse at Tan yr Allt. She has done so, according to the statement put in evidence before the Inspector, since 1952—a little more than 60 years.[6]In May 2010 the third and fourth defendants applied to the local planning authority for planning permission for the creation of the equine centre and tourist accommodation at Tan yr Allt and the erection of an agricultural building at Bryn Celyn. That application was, at least in substance, the resubmission of an earlier application that had itself been refused in October 2009. The further application was refused on three grounds: first, that the agricultural buildings to be used were not redundant and surplus to requirements, and their loss would be contrary to Technical Advice Note 6 (“TAN 6”); second, that Tan yr Allt was an existing well-established and viable farm unit and that there was no requirement for diversification to supplement its viability, as the proposed development would not be run in conjunction with the main farm enterprise, and that this again would be contrary to policy in TAN 6 and also to a policy of the unitary development plan; third, that the proposed development would result in the loss of land and buildings, with consequent loss of income and impact on the livelihood of the tenant farmer, again contrary to TAN 6.[7]An appeal was lodged. The first defendant appointed Siân Worden to be the Inspector. She determined the appeal by way of written representations. I shall refer to those in due course.[8]At the appeal stage, the third and fourth defendant produced an agreement by way of deed dated 27 July 2012. The deed contained provisions, of no relevance to this application, relating to the position between the third defendant and the fifth and sixth defendants. However, clause 5.3 did contain a relevant provision:
“[The parties agree] That, if the Inspector appointed by the Welsh Ministers shall deem it necessary as a requirement of the Planning Permission for the Development, the Applicant shall not allow the use of the house at Tan yr Allt aforesaid for the purpose of the proposed Equine Centre and Tourist Accommodation but in the alternative shall allow Mrs Enid Davies, the mother of the Tenant, to reside alone at the said house at Tan yr Allt during her lifetime or until she shall voluntarily vacate the said house and thereafter the use of the house at Tan yr Allt for the purpose of the Equine Centre and Tourist Accommodation shall commence.”
[9]The Inspector allowed the appeal. She found that the proposal was in accordance with policy and did not find that the personal circumstances of either the claimant or, more particularly, Mrs Davies, his mother, provided reasons for refusing permission. She also did not consider it appropriate to require the imposition of the obligation provided for in clause 5.3 of the deed. I shall turn to the details of the Inspector’s decision letter in due course.[10]This application was originally made on two grounds, one of them relating to the contention that the agreement by way of deed dated 27 July 2012 was not a valid agreement for the purposes of section 106 of the 1990 Act. That point has, as I understand it, been conceded in the course of discussions and resolved by the putting in place of an agreement that is not subject to those strictures, and the matter has proceeded simply on the other ground of application, which is, in short, the contention that the Inspector failed to have proper regard to the personal circumstances of Mrs Davies when reaching her decision. I shall explain later how that point is advanced.[11]First, however, I shall deal with some general matters of law. The relevant considerations for a local planning authority when dealing with an application for planning permission, or indeed for an Inspector when considering an appeal, are mentioned in section 70(2) of the 1990 Act, which provides that regard shall be had to “(a) the provisions of the development plan so far as material to the application” and “(c) any other material considerations”.[12]Section 288, under which this application is brought, provides:
"(1) If any person— ... (b) is aggrieved by any action on the part of the [Welsh Ministers] ... to which this section applies and wishes to question the validity of that action on the grounds— (i) that the action is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to that action, he may make an application to the High Court under this section."
[13]In R (Newsmith) v Secretary of State for Environment, Transport and the Regions [2001] EWHC 74 (Admin), Sullivan J (as he then was) referred to section 288 as follows in paragraphs 5 and 6:
"5. It is important to note at the outset that a challenge under section 288 to the validity of an Inspector's decision on an appeal under section 78 may be made only upon the grounds that the Inspector's decision: (1) is not within the powers of the Act; or (2) that any of the relevant requirements have not been complied with in relation to the decision. 6. An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits."
He went on to point out that, as well as the evidence given in the inquiry, the Inspector will be informed by his or her inspection of the site. There was a site inspection, of course, in the present case.[14]In Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at 780, Lord Hoffmann said:
"The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process."
[15]Finally by way of introductory law, in Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire District Council [1993] 66 P. & C.R. 263, at 272, Sir Thomas Bingham MR urged that, when reviewing an Inspector's decision, one ought to take a "straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication".[16]With that background in place, I turn to some of the material that was before the Inspector and provides the context in which her decision is to be read and considered.[17]The planning application was accompanied by a number of documents. One, a document headed "Aims and objectives", the title of which is self-explanatory, says in part:
"It is our aim to provide employment for 2 stable hands and 1 Manager with the intention that the Manager would reside in barn 1; which would also accommodate an office and meeting/training room. This would allow Mrs Davies to continue living and enjoying the farm house under a life tenancy or until such time that she vacates the property or no longer needs it. In the event of Mrs Davies vacating, the manager would then take up residence in the farm house freeing up barn 1 for Tourism."
[18]Shortly before the application was submitted, a chartered surveyor and land agent, acting really in the capacity of a planning consultant for the applicants, wrote on 26 April 2010 to the local planning authority. The purpose of the letter was, at least in part, to explain why the application was being resubmitted, having been refused earlier, and to make the point that, as it says in the final paragraph:
"...the applicant [had] considered carefully alternative solutions to mitigate the effects that a successful re-application would have on the tenant, his business and the future well being of his elderly mother."
[19]On the third page of the letter, under the heading "Tan yr Allt farmhouse", the planning consultant said:
"Mrs Davies has a right under the current tenancy arrangements to reside in the farm house and any proposal to re-locate her would be vigorously resisted, irrespective of the fact that Mrs Davies owns another dwelling that could be made available; however, it is acknowledged that this would be unacceptable and alternative arrangements would need to be considered. It is therefore proposed to offer Mrs Davies a lifetime tenancy at Tan yr Allt where she can reside in peace; however, this does not mean that the farm house is not required for this application as it is very clear that it is required to house a manager and his/her family and that facilities would also be incorporated to allow for staff meetings and other functions that a manager would require to perform. Until the farm house is returned to the applicant, accommodation allocated for tourist accommodation would instead be used for this purpose."
[20]That, therefore, is how the application was put forward. The plan accompanying the application and the terms of the application itself made it clear that the farmhouse at Tan yr Allt formed part of the application site.[21]But the application was refused and an appeal was brought.[22]At the appeal, paragraph 6.3 of the statement on behalf of the appellant referred to the provision in clause 5.3 of the deed dated 27 July 2012:
"The proposal makes provision for Mrs Davies to remain living in Tan yr Allt farmhouse for her lifetime, via a legal agreement. Should the Inspector deem this unnecessary, the farmhouse would be used as manager's accommodation, and the manager's accommodation proposed within barn 1 would become an additional holiday unit. It is respectfully asserted that such a change would not involve any material alteration to the submitted floor plans and elevations and therefore could be dealt with by an appropriately worded planning condition."
[23]Paragraph 7.7 of the same statement referred to the history of use and occupation of the farm, including the fact that Mrs Davies has lived at the farm since 1952. Paragraph 7.8 read in part:
"The proposal involves the conversion of two barns at Tan yr Allt into holiday accommodation, associated stabling and (potentially) the use of the existing farmhouse as manager's accommodation."
Paragraphs 8.3 and 8.4 read:
"8.3 In addition, the tenant farmer has expressed concern that his mother would be evicted from Tan yr Allt Farmhouse should planning permission be granted for the appeal proposal. This matter is not a planning consideration, and it is dealt with by other legislation. In any event Mrs Davies Sr owns another house in Gwernaffield. 8.4 Notwithstanding this position, a Legal Agreement dated 27 July 2012 has been executed which would enable Mrs Davies Snr to continue living at Tan yr Allt farmhouse for the rest of her life, should the Inspector consider this to be necessary."
[24]These matters were picked up in passages in the written representation made on behalf of the present claimant on the appeal before the Inspector. On page 1 in the introductory section of the representation, it said:
"Under the terms of Mr Davies' tenancy the farmhouse may be occupied either by the tenant or a member of his family. The tenancy has succession rights for a further successor subject to the applicant meeting relevant criteria. Agricultural Holdings Act tenancies provide extensive security of tenure to a tenant with only limited grounds available to the landlord to obtain vacant possession, one of which is the service of a Notice to Quit following the grant of planning consent."
Paragraph 5 began:
"The application provides for the tenants mother Mrs E. Davies to remain in the dwelling for the remainder of her life, presumably with some form of licence or tenancy the terms of which have not been discussed with the tenant."
Pausing there, that of course did not by this stage quite represent the applicant's position, which was that a tenancy or licence for Mrs Davies was a fallback position if the Inspector required it.[25]The rest of paragraph 5 deals with a slightly different point, but paragraphs5.1 and5.2 picked up again the position of Mrs Davies' security of tenure:
"5.1 As there is no proposed change of use to the farmhouse arising from the development (it is to be used as a dwelling house for a Manager) there is no requirement for the farmhouse to be included in the application other than to assist in obtaining possession by including the dwelling in a Notice to Quit for the remainder of the farmstead. The obtaining of possession is not a planning matter and is purely a landlord and tenant issue. 5.2 Whilst the application refers to the provision of a replacement building as referred to further herein and to Mrs Davies' occupation of the farmhouse which are critical components of the applications there are grave concerns as regards the ability to enforce both these provisions upon the applicant in the event the application is implemented. There is no statutory requirement upon an applicant to implement a planning consent even though vacant possession may have been obtained by a Notice to Quit."
[26]Those matters were before the Inspector when she considered the appeal. Her decision letter dated 18 December 2012 covers a number of points that I need not go into in detail. At paragraph 2 she said:
"2. I consider that the main issues in this case are: • whether the principle of the proposed development is consistent with national and development plan policies with particular regard to the viability of the existing farming enterprise, and the • effect of the proposal on the character and appearance of the surrounding countryside."
It might be noted in passing at this stage that the main issues were therefore put really in terms of policy rather than the issues that particularly are raised on this application. I will revert to that point later in this judgment.[27]The Inspector then dealt in detail with planning policy and with character and appearance. The critical passage of her decision letter for present purposes is paragraphs 10 to 12, under the heading “Other matters”; because of their importance I shall set out those paragraphs in full:
"10. I am sensitive to the fact that the tenant’s family has been at Tan yr Allt for over a hundred years and that the proposed development would mean a fundamental change to the circumstances in which they have lived for that long period. I am reassured that the farm business would not be hindered by the changes but they would result in the cutting of ties to a farmstead with which the family has a long and close connection. 11. An option is that the tenant’s mother would remain in the farmhouse for as long as she wished although the living conditions there would be quite different from now and such an arrangement might not be practicable. It is regrettable that the tenant’s mother might have to leave the home she has lived in since her marriage fifty years ago. Nonetheless this matter, and others related to possession, are most appropriately dealt with through the tenancy agreements and legislation and I can find no planning policy reasons to insist upon the farmhouse being occupied by the tenant or his family. 12. I have taken these difficult considerations into account in reaching my decision but as they largely concern the relationship between the tenant and landlord I can give them little weight. I do not consider that in themselves they are reasons to dismiss the appeal."
[28]The Inspector then went on to consider some other objections that are not of present relevance. In paragraph 15, still under the heading "Other matters", she said:
"I have taken all the matters raised into consideration but not found any which amount to compelling reasons to refuse the proposal."
It may be open to question whether paragraph 15 applies to paragraphs 10 to 14, or merely to paragraphs 13 and 14. The former seems to me more likely, although the point is not entirely clear.[29]Under the heading "Unilateral undertaking", the Inspector said:
"16. I have seen the signed and dated undertaking which will ensure that the replacement agricultural building is provided and completed prior to any work taking place ... 17. As explained above I do not consider it necessary in planning policy terms for the tenant’s mother to continue to live at the Tan yr Allt farmhouse; this does not undermine, however, any rights or protection that the family might have as part of their tenancy agreement or under other legislation."
[30]On this application, the central issue is whether or not the Inspector had appropriate regard to Mrs Davies' personal circumstances in the exercise of her discretion and judgment. I shall come back to this issue presently but first deal briefly with some other related matters.[31]It has been suggested that personal circumstances were in any event relevant as part of the proper application of the policy in, in particular, paragraph 3.2.1 of TAN 6. The first part of the paragraph which alone is material reads:
“When assessing planning applications for the re-use or adaptation of a rural building, the primary consideration should be whether the nature and extent of the new use proposed for the building is acceptable in planning terms. It should not normally be necessary to consider whether a building is no longer needed for its present agricultural or other purposes (although in the case of a tenanted agricultural building, the value in planning terms of the existing use should be taken into consideration).”
[32]In my judgment, the reference to TAN 6 in this context does not advance the application, and I agree with the submission made by Mr Lewis that paragraph 3.2.1 is not in point. As a matter of the plain reading of the relevant paragraph, I should consider that “a tenanted agricultural building” is clearly distinct from “a rural building” and refers to a building actively used for agricultural purposes. That interpretation is suggested not only by the wording, but by what seems to be the policy behind the wording, namely the value of preserving agricultural uses. The matter seems to me to be put beyond reasonable doubt by section 3.3 of TAN 6, which deals with agricultural building in terms which I shall not read, but which, in my judgment, make it fairly clear that “agricultural buildings” means things like barns and sheds and the like—that is, buildings used for farming rather than residential purposes.[33]A second matter that I can, I think, dispose of at this stage is reference to Article 8 of the European Convention on Human Rights. Article 8 has been relied on only to a very limited extent by Mr Turney, and in my judgment it is unnecessary to consider the point in any detail. It is accepted on behalf of the claimant that the correct application of planning law will, in at least the vast majority of cases and in this case, strike the correct balance for the purpose of the proportionality and legitimacy of interference with Convention rights, including rights under Article 8. In other words, it is not suggested that in this case, if the Inspector had properly considered the relevant planning matters and engaged in a proper balancing exercise, she would have had to perform a separate and different exercise to decide whether or not any interference with Mrs Davies' Article 8 right to respect for her home was legitimate and proportionate. I agree with Mr Turney in that regard. Accordingly, it suffices to consider the adequacy of the Inspector's decision from the point of view of planning law, and it is unnecessary to consider Article 8 further.[34]I should, however, observe that questions of Convention rights arose because it was submitted that paragraph 15 of the decision letter, set out above, involved the application of a legal test that was inconsistent with respect for Article 8 rights: in deciding whether an interference with a right under Article 8 is proportionate, it is not (so it was submitted) necessary to find a “compelling reason”, and the Inspector’s remark misstates the correct test and amounts to an error of law. I do not agree with that submission. In my judgment, when the Inspector refers to “compelling reasons”, she does no more than refer to reasons that have compelled, in the sense of persuading her. She is simply saying:
“I have had regard to reasons, but none of them weigh sufficiently heavily with me to lead to a conclusion contrary to that which I have reached.”
Accordingly, I do not think that the Inspector’s reference to “compelling reasons” is fairly read as giving expression to any legal test, let alone an incorrect one.[35]In those circumstances, I turn to consider of the central issue on this application, namely the Inspector’s consideration of the personal circumstances of Mrs Davies.[36]It is clearly established that personal circumstances of a person who would be affected by a proposed development are capable of being a relevant matter under section 70, and indeed are capable of having sufficient weight to override applicable planning policies.[37]Westminster City Council v Great Portland Estate Plc [1985] 1 AC 661 involved a challenge to the legality of a development plan. The nature of the challenge was identified by Lord Scarman at page 669:
"The essence of argument is that the 11.26 policy [that is the policy that was in issue] of protecting certain specified industrial activities is concerned not with development and use of land but with the protection of particular users of land. The plan, it is submitted, has regard to an irrelevant factor, namely the interests of individual occupiers."
[38]Lord Scarman then went on to refer to and approve the general principle stated by Lord Parker C.J. in East Barnet Urban District Counsel v British Transport Commission [1962] 2 Q.B. 484 in the context of a change of use:
"what is really to be considered is the character of the use of the land, not the particular purpose of a particular occupier."
Lord Scarman said that the words had been recognised as extending beyond the issue of change of use and were accepted as a statement of general principle in planning law, applying to development plans as well as to planning control. At 670C he said:
"The test, therefore, of what is a material ‘consideration’ in the preparation of plans or in the control of development ... is whether it serves a planning purpose"
At 670E, he said:
"However, like all generalisations Lord Parker C.J.'s statement has its own limitations. Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases. If a planning authority is to give effect to them, a specific case has to be made and the planning authority must give reasons for accepting it."
[39]That decision was applied in R v Vale of Glamorgan District Council, ex parte Adams [2001] J.P.L. 93, a decision of Richards J (as he then was). It is unnecessary, I think, to deal with the detailed facts, although it is of note that they were, broadly speaking, quite similar to those of the present case. At various stages and both in writing and orally the planning Sub-Committee of the Vale of Glamorgan Council had received advice concerning the relevance of personal circumstances. One piece of advice in particular was mentioned by the Chief Planning Officer in the affidavit that he made in the High Court proceedings as quoted at paragraph 22 of the judgment:
"I explained to members that there was no planning reason to refuse the application and that the position of the tenant, though a material consideration, was not, in the absence of any other objection, sufficient ground to sustain a refusal of the application. The Chair advised the Committee that he was reluctant to concede the point but that it appeared that the Committee had reached the end of the road. A local member agreed and stated that the matter had to be addressed as one of planning simpl[icit]er, and that personal sympathy for the tenant should not cloud the judgment of members. It was therefore moved and seconded that the officers recommendation to approve the application be accepted, and this was carried without objection."
[40]Richards J was persuaded that the members “were misdirected and felt unduly boxed in” by the advice they had received. At paragraph 28 he said:
"First, members were not informed that ‘the personal circumstances of an occupier, personal hardship and the difficulties of businesses which are of value to the character of a community’ are capable of being material considerations even if to give effect to them will involve an exception from general policy (see Westminster City Council v Great Portland Estates Plc, above). It would have been for the members to decide whether the circumstances were sufficiently exceptional or special to justify taking them into account in that way. On the material before the Court, and having regard to the general approach of the members of the sub-committee, I do not think that one can exclude the possibility that they would have so regarded them or that they would have been able to advance proper reasons for so regarding them."
[41]At paragraph 31 he roundly rejected the adequacy of advice that the loss of the buildings to the holding was not a material planning consideration. At paragraph 33 he said:
"I recognise that some, but not all, of the relevant policy material was quoted in or appended to the reports to the sub-committee and that the members will have been able to read that material for themselves. In the light of the way in which the matter was presented to them, however, I am satisfied that they did not properly understand the policy framework within which their decision fell to be made or the true extent to which the matters of concern to them could be taken into account as material considerations. It is evident that they relied on the erroneous advice given to them. In consequence they did not give proper consideration to the circumstances of the applicant and his family and did not properly weigh the various planning considerations engaged by the application for permission, including the harm to the existing agricultural use and the need for a new residential dwelling. There is a real possibility that they would have arrived at a different decision had they done so."
[42]For the claimant, Mr Turney submits that the Inspector took effectively the same approach as that of the legal adviser in Adams. Although the Inspector referred to personal circumstances as a factor that she had taken on board and purported to have regard to them, she does not appear from the decision as a whole to have considered them capable of overriding policy matters. Thus, at in particular paragraphs 2, 11 and 17 of the decision letter, she dealt with the matter in what appear to be purely policy terms. That is the context in which her comments on landlord and tenant relationship and other legislation are to be viewed. Put shortly: the Inspector had regard to the factors in much the same way as was urged by the legal adviser in Adams, namely as factors that were material but could not override policy; but she does not appear to have countenanced the possibility that the factors could override policy considerations; on the contrary, she used the existence of another legislative scheme, namely the scheme relating to agricultural tenancies, to duck the planning issue that was clearly before her, namely the balance between policy and personal circumstances.[43]For the Welsh Ministers, Mr Lewis submits that the Inspector's approach is not open to criticism in this Court. She was bound to consider planning policy. She made it clear in the decision letter that she did consider personal circumstances. She considered them in a context where it was by no means clear what would be the effect of a grant of planning permission on Mrs Davies—whether the indirect effect in terms of the inconvenience and impracticability of her continued residence at the farmhouse, or the direct effect arising from an application for possession under a different legislative scheme. The Inspector was entitled to think that that other scheme, which would govern any claim for possession that might subsequently be brought, was a better forum in which to address such issues as arose. The matter really came down to two questions:(1) Did the Inspector take personal circumstances into account? The answer to that question is Yes;(2) Can there be an arguable complaint about the weight the Inspector gave to those personal circumstances? The answer to that question, in the light of the established law as stated by Lord Hoffmann in the Tesco Stores case, above, is No. In those circumstances, says Mr Lewis, this application should be rejected.[44]This brief summary does scant justice to counsel's submissions, but I hope that it at least captures their essential points.[45]I turn to my conclusions. I must read the decision letter in a fair and broad-minded manner, approaching the contents and the forms of expression in a commonsense way, rather than in an overly legalistic or exegetically over-sophisticated manner. I must also of course view the decision letter as a whole rather than taking certain bits and ignoring certain other bits.[46]These points, I think, cut in two directions. On the one hand, the concern for substance and for practical realism tells against adopting a hyper-critical approach or reading the decision-letter as though it were a legal treatise. This is one reason why it would, in my judgment, be inappropriate to take the reference to “compelling reasons” in paragraph 15 of the decision letter as though it were the statement of a legal test.[47]On the other hand, the concern for substance rather than niceness of expression evident in Sir Thomas Bingham M.R.’s dictum in the Clarke Homes Limited case, above, is not merely a device for upholding administrative decisions. It means that one must look at the substance of the decision letter's approach (though not, of course, at the substantive merits of the decision) rather than merely treat the use of certain words or phrases as though they were themselves definitive of a correct approach in law.[48]In this regard, although the Inspector said that she took personal circumstances into account, her decision letter, when read as a whole and I trust in a fair and not overly legalistic manner, leads me to the conclusion that she failed to have regard to personal circumstances as factors that were genuinely capable of overriding countervailing policy considerations. I shall explain why I have formed that view.[49]I have already referred to paragraph 2 of the decision letter. It makes no mention of personal circumstances when identifying the main issues. Of course, I bear in mind a number of factors. One is that no single paragraph is to be taken in isolation. Another is that the arguments in this case involve a focus on a particular issue, namely personal circumstances, whereas the Inspector had to consider other issues that were relevant for her but are not directly relevant for this application. However, personal circumstances clearly were not a merely tangential matter for the purposes of the planning appeal, as is plain, first, from the contents of paragraphs 10, 11, 12 and 17 of the decision letter and, second, from the obvious human element in the case; it is impossible not to see Mrs Davies' position as being a significant issue, regardless of how it plays against other relevant factors. The terms of paragraph 2 of the decision letter are in no sense determinative. But it is a matter of interest, in the context of the decision letter as a whole, that the Inspector identified the issues in the way that she did. It is suggestive, and I think the suggestion is confirmed by the rest of the decision letter.[50]The central part of the decision for present purposes is paragraphs 10 to 12. The inspector says in paragraph 10 that she is sensitive to the connection of Mrs Davies and her family to the farmstead. In paragraph 11 she says:
"Nevertheless this matter, and others related to possession, are most appropriately dealt with through the tenancy agreements and legislation and I can find no planning policy reasons to insist upon the farmhouse being occupied by the tenant or his family."
[51]The factors mentioned here are, first, the contractual and legislative scheme relating to the landlord and tenant relationship and, second, planning policy. The Inspector says that she can find no policy reasons to insist upon the farmhouse being occupied by the tenant or his family. But the point in issue was the relative importance of personal circumstances and planning policy—that is, in particular, whether personal circumstances were capable of trumping planning policy—not the question whether planning policy itself provided an answer to the question of whether members of the Davies family ought to be occupying the farmhouse. It is of interest that the particular point made at the end of paragraph 11 is the absence of policy reasons to support Mrs Davies' position.[52]As regards the statutory scheme relating to agricultural holdings, it should be noted that it had no bearing at all on the factors mentioned in the first half of paragraph 11, where it is acknowledged that implementation of the permission, even if not directly involving the displacement of Mrs Davies from the farmhouse, would significantly alter her living conditions and might render her continued occupation of the farmhouse impracticable and make it necessary for her to leave the home at which she has lived since her marriage. The relevant issue so far as concerns Mrs Davies is not planning policy. But nor is it, in this connection, the legislative scheme for agricultural holdings, which was immaterial to the possibility of Mrs Davies being forced by practicalities to leave her home.[53]As for the question of legislation in the context of possession proceedings, the point had been squarely raised before the Inspector that the inclusion (unnecessarily from a planning point of view: see paragraphs 24 and 25 above) of the farmhouse at Tan-yr-Allt in the unit to which the application related raised the possibility of future reliance by the applicants on one of the limited grounds for obtaining possession of the farmhouse, namely a notice to quit after the obtaining of planning permission. The decision letter gives no indication at all that the Inspector realised that her decision, far from running parallel to the operation of the statutory scheme for agricultural holdings, itself had the potential to affect the operation of that scheme, either by bringing it into play or at least by altering the way in which the other legislation might apply. In this regard the case is significantly different from, for example, a case where planning permission for a development can be given largely regardless of whether the implementation of the permission would involve an interference with private rights such as a right of way or a right to light. In that case, the decision-maker may well take the view that planning merits are one thing and private rights or easements are another and, in a sense, never the twain shall meet: if a development would interference with rights to light, that is a matter for the courts in private civil proceedings, and the existence of the private rights will not be affected by a grant of planning permission. By contrast, in the present case the point was squarely before the Inspector that the planning decision itself had a potential impact upon the operation of the other legislative scheme. But the Inspector did not give any indication of having recognised this point.[54]In this regard, the Inspector did in my judgment (and in my inelegant phrase, not Mr Turney's) duck the issue, because the circumstances of the case and the issues that it raised made the balance between planning policy and personal circumstances appropriate for consideration in the planning proceedings, not for leaving for another forum.[55]The Inspector said that she had regard to the question of personal circumstances. In paragraph 12 she said that she had taken them into account. But she said that "as they largely concern the relationship between the tenant and landlord I can give them little weight. I do not consider that in themselves they are reasons to dismiss the appeal".[56]As I have said more than once, one must seek to interpret fairly the decision letter. However, taking the decision letter as a whole, it does seem me that the Inspector regarded Mrs Davies’ personal circumstances as matters that were not capable of overriding planning policy. When she writes, "I can give them little weight", one asks what she means. It seems to me that in context the most likely construal is that she felt unable to attribute to them sufficient weight to override considerations of planning policy. That is why she identifies policy in paragraph 2 of the decision letter. That is why at the conclusion of paragraph 11 she says that she finds no planning policy reasons to insist on the farmhouse being occupied by the tenant or his family And that is why, even though it might be said that she purports to take personal circumstances into account and that she says only that they "largely" concern the relationship between tenant and landlord, she appears to conclude that, in the absence of a planning policy that supports the continued occupation of farmhouse by the Davies family, the personal circumstances cannot prevail. In my judgment, the Inspector’s approach was akin to that of the legal adviser in the Adams case, who accepted in terms that the factors were material but erred in thinking them incapable of outweighing an applicable policy.[57]This reading of the decision letter is borne out further, in my judgment, by paragraph 17, which is of interest in two respects. First, it confirms my reading of the earlier parts of the decision letter:
"As explained above I do not consider it necessary in planning policy terms for the tenant’s mother to continue to live at the Tan-yr-Allt farmhouse; this does not undermine, however, any rights or protection that the family might have as part of their tenancy agreement or under other legislation."
This passage is under the heading of "Unilateral undertaking" and is clearly a refusal to require the imposition of an obligation pursuant to clause 5.3 of the deed dated 27 July 2012, namely to give a right for life to Mrs Davies. The wording of paragraph 17 tends to confirm that the Inspector’s earlier discussion was premised upon the supposition that the existence of planning policies supportive of the appeal meant that it was planning policy alone that could make Mrs Davies’ personal circumstances a ground potentially sufficient to refuse planning permission.[58]Second however, the passage I have just set out amounts, in my judgment, to the complete abdication of the exercise of judgment and discretion on the question whether or not in the circumstances it was appropriate to impose an obligation pursuant to clause 5.3 of the deed. The Inspector deals with that, so far as she does deal with it, purely and simply on the basis of planning policy; at this stage of her reasoning, she does not advert to non-policy-based considerations of personal circumstances at all. I think that that reflects the underlying way in which she approached the matter, notwithstanding that certain phrases such as "I have taken these considerations into account" can be used to argue the contrary. But it also leads me to the conclusion that the Inspector failed properly to exercise her discretion in considering the imposition of an obligation pursuant to clause 5.3. In my judgment, in that regard also that she fell into error.[59]If one stands back from the decision and looks at it in the round for a moment, there is nothing at all in the decision letter that shows that the Inspector understood that the fact that Mrs Davies had lived in the farmhouse for 60 years was, itself and in the absence of a specific planning policy, a factor that she could consider capable of overriding policy considerations. I think that overall impression of the decision is one that is justified on a closer reading of it, and in the circumstances, I uphold the application. MR TURNEY: My Lord, I am very grateful. I have spoken very briefly to Mr Lewis about the question of costs. There is of course an application for costs. Mr Lewis does not have the benefit of an instructing solicitor, and whilst we would normally do this by way of summary assessment, or attempt to do so following a one-day hearing, he does not have an instructing solicitor, nor has he had the opportunity to take instructions on our statement of costs because he has only just been very briefly shown it. So my suggestion is that the order should be that the first defendant pay the claimant's costs, and that the quantum of those costs be the subject of written representations to your Lordship in the first instance. I know from Mr Lewis' immediate reaction that he will say something about the overall reasonableness of the sum demanded. JUDGE KEYSER: Yes. So let us deal with things in stages. As to the principle of the order for costs, is there any issue on that? MR LEWIS: No issue on principle given my Lord's judgment. I should explain also the reason why I do not have instructing solicitors, my Lord, is that in the Government Legal Service, no one is working today because it is the day after the bank holiday, so that explains my difficulty in obtaining instructions. JUDGE KEYSER: Thank you, yes, that is interesting. In that case, I will say that the first defendant shall pay the claimant's costs of the application. As regards the question of assessment: written submissions. Is that convenient? MR LEWIS: Indeed it would be, my Lord, yes. We will seek to agree the costs of course in the first instance and it might be that we will be able to reach agreement on that point, but if not, what I would suggest, my Lord, is this: the order could say something along these lines: should the parties not be able to agree on the issue of costs within 14 days, then both parties should make short written submissions to your Lordship and that your Lordship then decide the issue on the papers. It does not seem to me necessary or proportionate for us to come back to court on that issue. JUDGE KEYSER: No. Fine, so are you going to do submissions at the same time? You have got the schedule, I take it, although you have not had a chance to take instructions. MR LEWIS: I will have it by that time, certainly, my Lord, yes, and will have been able to take instructions on it. It would seem that because there will be discussions around that schedule and of course the schedule for the other side that it would be appropriate for there to be simultaneous submission of costs submissions because both parties will be relatively aware of the other side's position by that stage in any event. JUDGE KEYSER: Yes. How long do you want, 21 days? MR LEWIS: I was going to say that 14 would be sufficient, my Lord, in order to apply appropriate pressure to the parties as well to come to a resolution. JUDGE KEYSER: That makes sense. Happy with that? MR TURNEY: My Lord, yes. JUDGE KEYSER: Where does that take us? MR LEWIS: It is 11 June, my Lord, I believe. JUDGE KEYSER: Yes. I will make an order then that if the parties are not able to agree the amount of the costs, then they can make written submissions on assessment and then I will determine the matter on the papers. Obviously, I am not encouraging it, but if any point were to arise that you thought required anything else, then just let me know. MR LEWIS: My Lord, it is always invidious given my Lord's judgment to stand and to make the application that I am about to make, but I ought to make it simply for completeness. I would ask on behalf of the Welsh Ministers for permission to appeal against the order that my Lord has made. It would be, to put the case very summarily, my Lord, on the basis that, with respect to your Lordship, there is a real prospect, a realistic prospect of the Court of Appeal finding that when one looks at the decision as a whole, then a court is capable of saying that the approach of the Inspector was adequate in law so far as taking relevant considerations into account was concerned and coming to an appropriate decision on weight. I say, with respect to the court, that that there is at least a realistic prospect of the Court of Appeal coming to the view that this court might have overreached itself in interfering with that judgment on weight. I put it no higher than that. JUDGE KEYSER: Thank you. I shall refuse permission to appeal on the ground that, although all of the points were eminently properly taken, in my judgment, when the matter is looked at as a whole, there is a clear answer to it, and I would not consider that there was a realistic prospect of the Court of Appeal disagreeing. If the Court of Appeal does disagree … MR LEWIS: I am grateful. JUDGE KEYSER: And I am again very grateful to both counsel. Thank you very much.