Kensworth Builders Ltd v Secretary of State for Communities and Local Government & Anor [2016] EWHC 1732 (Admin)

Case No CO/5297/2015[2016] EWHC 1732 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of JusticeDate Friday, 4 March 2016
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE WAKSMAN QC
Sitting as a Judge of the High Court
Between
KENSWORTH BUILDERS LIMITEDClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantCentral Bedfordshire CouncilDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr D Lintott (instructed by Knowles Benning LLP Solicitors) appeared for ClaimantMr R Williams (instructed by the Government Legal Department) appeared for First Defendant for The Second Defendant did not appear and was not represented
JUDGMENTHHJ WAKSMAN QC:INTRODUCTION
[1]This is a section 288 appeal against a decision of the planning Inspector (“the Decision”) contained in a letter dated 23 September 2015 (“the Decision Letter”). By that decision he upheld the refusal by the second defendant, Central Bedfordshire Council, the local planning authority ("the Council"), to grant planning permission and listed building consent to the claimant, Kensworth Builders Limited ("KBL") in respect of the redevelopment of its property and land at 64 High Street, Toddington, formerly a pub known as the Bedford Arms. In doing so, he dismissed the conjoined appeals before him. KBL says that the Decision was unlawful for 5 separate reasons and should be set aside.[2]The three underlying applications which had been refused by the Council were as follows:(1) the planning permission for change of use from a public house to a 3-bedroomed home with garden and parking, no external alterations, but some internal ones;(2) listed building consent in respect of the above, the pub having been given grade 2 listed status in 1980 and(3) planning permission to create three new houses with parking and garden on land to the rear of the pub. It is common ground that the building occupied by the pub is of 17th century origin. There is a dispute as to whether it was always a pub. KBL say that it was originally a pair of semi- detached houses and was converted to a pub some time in the 1960s. The Secretary of State says there is no proper evidence to support that.[3]The Council had refused the first planning permission on the basis that the development would result in the loss of a significant community facility in the centre of Toddington, namely the pub. It found that there was insufficient clearly substantiated evidence to demonstrate that there was no longer a need for such a facility, the loss of which would undermine community and sustainability objectives. It then refused listed building consent on 2 grounds. The first was that the conversion would alter external appearances. That was wrong; it would not. But, secondly, that there was no basis for the listed building consent since the underlying planning permission for the conversion had been refused. It refused permission in respect of the three new houses because of inadequate parking provision, inappropriate design and siting too close to the listed building and loss of community facility again, since the land was necessary to keep the pub viable.

the decision letter

[4]The Decision Letter is short and it is appropriate for me to set out at this stage all of the material paragraphs, being 4 to 11 and 15: "4. The town of Toddington was once on the main coaching route from London to Bedford, the town from which the public house takes its name. Its conservation area encompasses many historic buildings and structures centred on its church and market square, the remains of a motte and bailey castle, and its medieval street plan. The appeal site lies just within the conservation area on the main route through the town. The Bedford Arms was identified as a public house when it was listed at Grade II in 1980. It is described as being from the 17th century and timber-framed with red brick ground floor and first floor nogging under an old clay tile roof. 5. Listed buildings are defined as designated heritage assets under the National Planning Policy Framework (NPPF). Paragraph 132 of the NPPF (NPPF 132) requires great weight to be to be given to the conservation of a designated heritage asset. It goes on to set out a presumption against substantial harm. Where the level of harm would not reach this hurdle, it should be weighed against the public benefits of the proposal, including securing its optimum viable use. Sections 16 and 66 of the Planning (Listed Buildings and Conservation Areas) Act [216 and s66] requires special regard to be had to the desirability of preserving the building or any features of special architectural or historic interest which it possesses. 6. I saw that, although now vacant, the Bedford Arms is an attractive building with what appears to be quite a lot of original fabric. I also noted that, while the fixtures and fittings associated with its last use as a public house are not particularly old or of any great inherent merit, the layout, extensions and internal features are consistent with this use, which was also the use at the time of listing. In my assessment, its special architectural and historic interest comes not only from its 17th century fabric and appearance, as identified in the Heritage Statement, but also from its use as a pubic house which includes the layout and trappings associated with it. I also find that this is an important element of its significance as a designated heritage asset under the NPPF. 7. The proposals in Appeals A and B would result in the change of use from a pub to a house. The internal alterations, as shown on the drawings, would centre on the removal of the kitchen, toilets, and bar partitions and fittings and little if any historic fabric would be lost. The view of the Council's conservation officer was that there would be no harm to the conservation area, as there would be no external changes, and added the opinion, without further explanation, that the alterations would not harm the significance of the Grade II listed building but made no comment with regard to the effect of the change of use from a pub on its historic character. Notwithstanding these comments, given my findings above, also raised by local residents with regard to its character, I consider that the loss of this use, including the changes to its layout, would harm both the significance and the special historic interest of the listed building. 8. As most of the building and its fabric would remain, I find that the degree of harm would not be substantial. I have therefore considered the public benefits of the proposals in accordance with NPPF 134. The building has been vacant for three years. The longer it is vacant the more likely it is to deteriorate. On the other hand, it appeared to be adequately protected and it has also been the subject of planning applications for most of this period. While deterioration of the fabric is a relevant factor, if it was not maintained in the future, and there was evidence of deliberate neglect of or damage, under NPPF 130 the deteriorated state of the heritage asset should not be taken into account in any decision. 9. The appellant has pointed out that the site is for sale and has submitted correspondence from its estate agents. I saw a sign board. I also received representations stating that an offer to purchase it for use as a pub was rejected and that it has only been offered for sale without its garden. I have no other evidence of a lack of interest in its use as a public house rather than as a potential development site. I note that the agent refers to the possible difficulties for the hospitality industry in Toddington but also that a recent planning permission has been granted for a micro pub at The Old Town Hall on Market Square. I accept that in the absence of substantial harm, under NPPF 133, full marketing would be unreasonable. However, this does not negate the evidence that there is an interest in retaining the building in what would be its optimum use. I acknowledge that there are other pubs in the town, but this does not show that the appeal site could not be viable for its former use and a letter from the previous tenants asserts that it was profitable at the time it was closed. 10. To conclude on this issue, in the absence of evidence that resuming its use as a pub would not be viable, I find that this would be its best use and that the public benefit from the reuse of the building as a dwelling would not outweigh the harm to the special interest or the significance of the listed building. On account of the changes in the use and configuration of the building, the proposal would be contrary to policy in the NPPF and to the statutory tests in s16 and s66. To the extent that the use of the building as a public house was part of the historic character of the conversation area, including its possible contribution to a main coaching route, that would also be harmed. 11.The Council undertook a public consultation exercise to establish the degree of interest in the pub as a valued facility and received a significant response. On the other hand, an application to register the pub as an Asset of Community Value (ACV) under the Localism Act was not successful. While a material consideration, this does not invalidate the results of the Council's consultation. On this issue I find that the change of use would be contrary to NPPF 70 which identifies public houses as community facilities and expects planning decisions to guard against the unnecessary loss of valued facilities and services. While the rejection of the ACV application reduces the weight to be given to this concern, it is still a matter to be considered in the overall planning balance... 15. In conclusion, I find that the proposed change of use would harm the special interest and significance of the listed building. On the balance of probability, the former use is likely to be viable and so this harm would outweigh the benefits of putting the building to an alternative use. Although not determinative of matters, the loss of a valued facility and harm to the conservation area support this objection and Appeals A and B should therefore fail. With regard to Appeal C, highway concerns alone would not justify refusal. Nevertheless, the weight to the potential harm to the listed building and its setting, as a result of the loss of associated land which could be important to its viability and which contributes to its significance, would outweigh the benefits of additional housing and this appeal should also fail." the issues The Law

the issues

[5]The appeal before the Inspector was conducted on a written representations only basis so there was no oral evidence or submissions. The principles of law governing a challenge to an Inspector's decision are not in dispute. They were helpfully summarised by Lindblom J as he then was in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) where, at paragraph 19 he said as follows:
"(1) Decisions of the Secretary of State and his Inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way... An Inspector does not need to 'rehearse every argument relating to each matter'... Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed." (2)... An Inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration... (3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court."

Ground 1: the origin of the pub

[6]KBL says that the Inspector failed to take into account the fact that the pub was originally two semi-detached houses and this was material because what KBL was therefore proposing was to return the pub to its original use; that would and should have affected his assessment of the impact upon its special and architectural interest, especially as the development would not affect the 17th century exterior.[7]All that was said about the origin of the pub before the Inspector is this: first, in KBL's planning and design assessment in the analysis section after a detailed description of the pub and what the development involved, paragraph 6.20 ended thus:
"Please note that the building was designed as a pair of semi-detached houses until more recently converted to a public house."
[8]No reference to or support for that statement was made in the actual heritage statement in the same document at section 8, although at paragraph 8(4) it referred back to the description in the planning statement. It is clear that the heritage statement was based on the detailed expert report which had been obtained by KBL prepared by Archaeologica Limited. This is a very detailed analysis of the building's history, but nowhere does it say that the pub was originally two houses and recently converted. The high point from KBL's point of view is this. In relation to the impact on the setting of the designated assets, and having dealt with English heritage guidance and the setting of the listed buildings and their environment, the expert report at page 20 then said:
"The major part of the Application Site formed the garden of the former Bedford Arms Public House (64 High Street) which is a mixture of a historic timber-framed building and modern extensions to the rear. The building of the house is of 17th century date."
[9]And so it is said that there is a reference to a house. But in fact, read in context, the house could easily refer to the public house just mentioned, especially as KBL's case is that it was in fact two houses, and there was no prior mention of any such origin in this report, so that does not assist KBL. Nor did KBL make much of this in the submissions to the Inspector. In the introduction in respect of the site and surroundings in its statement of reasons at paragraph 1.3 it merely added this:
"It is understood that the building was as a pair of semi-detached dwellings prior to being converted to a public house."
[10]This was not made the subject of any argument or indeed mentioned again in this 17-page document. Thus far, I do not consider that there was any real or proper evidence to support KBL's contention, such as it was, about the origin of the pub. Although not before the Inspector, on the question of evidence, KBL also relies upon a form which was produced for the purpose of nominating the pub for listing as an asset of community value. That document said under the heading "Reasons why the Bedford Arms is of value as a community asset":
"The Bedford Arms was converted during the 1960s from a row of cottages which were contained within a 16th century timber framed shell of an earlier farmhouse."
[11]But the basis for that statement is not clear and, in fact, it contradicts the very detailed evidence given in the expert report that the origin was 17th century and not earlier; further, KBL does not rely on the fact that it is a row of cottages, as opposed to two semi-detached houses.[12]The first question is whether the Inspector was aware of the fact that KBL was at least contending that the pub was originally something else. I think he must have been, since it was in the PDA and in the submissions, although briefly mentioned. Paragraph 6 and 7 of the Decision Letter are in fact consistent with that awareness. He does not state in terms that the pub had always been there (see the reference to its identification as a public house when listed, also in paragraph 4).[13]The next and key question was whether the origin of the pub was a material factor. In my judgment, it was not, for two reasons. First, the suggestion that it was originally two houses is only an assertion. There is no real evidence of any finding of any kind to back it up, and the tentative way in which KBL put it in its statement of reasons reflects this. The fact that the Council did not specifically assert to the contrary before the Inspector is not to the point. It was very much stated by KBL as a background factor, and no listed building consent submission was made of the kind which has now been made before me, either before the Council or the Inspector. So it is hardly surprising the Council did not engage with the point.[14]If KBL, for the purpose of this appeal, wish to say that there was some proper evidential foundation for its assertion, it should have provided that but it has not done so. I also accept that the Council did not refuse permission on heritage grounds as such, rather the loss of the community asset, and it may be that KBL did not expect the Inspector to do so. However, this was a fresh consideration, and it was incumbent upon KBL to take all the points it thought were significant. On that basis alone, the alleged origin of the pub cannot qualify as a material factor because there was no factual underpinning to it, and thus ground 1 would fail.[15]But secondly, and in any event, it is plain that in the Inspector's judgment the special character and historic interest in the pub was not merely from the 17th century exterior, but also its use as a public house and the layout of associated trappings that went with it (see paragraph 6) This was an important element of its significance. Subject to a separate ground challenging his reliance on use for listed building consent purposes, a matter with which I deal below, it is not said that this judgment was in itself perverse or irrational, nor could it be. On that footing, whether the building was always a pub or not was irrelevant. Its last use, at least since 1980, as a pub was a point allied to the other elements of historic interest which the Inspector identified.[16]Mr Lintott for KBL argues that even if this is how the Inspector approached the matter, the origin of the pub was material, and the Inspector should have dealt with it expressly as part of the balancing exercise on the question of harm as required by NPPF 134. If he had, the balance might have tipped the other way and in favour of KBL. But he impliedly did take it into account since he only relied on the use of the pub and not on any origin as the pub from the 17th century. The Decision Letter has to be viewed in context. KBL made no submission at all to the effect that the recent conversion to a pub, if that is what it was, tilted the balance in its favour for LBC purposes. So it is hard to see why the Inspector should have specifically engaged with that point.[17]If, contrary to my view of the Inspector's Decision, he was not aware of the suggested pub's origin as two houses or had forgotten, so that he proceeded on an allegedly mistaken basis that it was always a pub, the proper basis for challenge would be mistake of fact. What has to be shown here is set out in paragraph 66 of the judgment of Carnwath LJ in the Court of Appeal in the decision of E v Secretary of State for the Home Department [2004] EWCA Civ 49:
"66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge... Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the Tribunal's reasoning."
A challenge based on mistake of fact here must fail, first, because it cannot be said that the mistake might have played a material part in the Inspector's reasons. That flows from his conclusion on use as a pub, not its origin from the 17th century (see above). Second, the claimed origin otherwise is not an established fact. It was not supported by any real evidence. Even now, it has not been objectively verified by KBL. It was not, in truth, uncontentious, the council did not engage with it for the reasons given above. Nor, in the light of the circumstances, was there any need for the Inspector to set up reasons why he did not consider the origin of the pub from the 17th century to be a significant factor. Not only was it not a main issue in the appeal, it was not really an issue advanced by KBL at all.[18]Accordingly, for all of those reasons, ground 1 must fail.

Ground 2 – the name Bedford Arms

[19]This alleges that the Inspector took into an account in a irrelevant consideration namely that the Bedford Arms took its name from the town Bedford, for which there was no evidence. This arises from what he said in paragraph 4. In my view, this is a hopeless point. It is a fair inference that the pub took its name from Bedford, since Toddington was on the route to Bedford, as KBL's own heritage expert accepted. But, in any event, this is an introductory remark and there is no basis for saying it played any part in the Inspector's reasoning later. The only later reference is at the end of paragraph 10 where, after saying that:
"In the absence of evidence that resuming its use as a pub would not be viable, I find that this would be its best use and that the public benefit from the reuse... would not outweigh the harm to the special interest or significance of the listed building." ie the weighing exercise, he goes on to say: "... the proposal would be would be contrary to policy in the NPPF..." and then added: "
To the extent that the use of the building as a public house was part of a the historic character of the conservation area, including its possible contribution to a man coaching route, that would also be harmed."[20]That latter observation was clearly not a determinate part of the decision at all, but at best a yet further reason to support the conclusion already reached. In fairness to Mr Lintott, he did not make any oral submissions on this ground, but referred me simply to what he had said in writing. Accordingly, this ground fails.

Ground 3 - Fallback

[21]Here KBL alleges that the Inspector failed to take into account the fact that there was a fallback position. While at one stage the pub was listed as an asset of community value, it was then delisted, meaning that, subject to questions of listed building consent, the GDPO 2015 would have allowed a change of use to a shop, professional or financial services or restaurant or cafe without planning permission.[22]It is not surprising that the Inspector did not consider that argument, since it was not squarely put to him. It is true that in the appeal statement, KBL said this, first of all under paragraph 5.18, that in relation to the value to be put upon it as a community facility, that had been the point taken by the council. The council had determined that it does not meet the criteria for an asset of community value, and yet it said there was a loss of significant community facility. That was a conflict. No evidence or reason was given in relation to that. So this point was all about loss of community facility. It then went on to say that the fact that this was a material consideration and this process of listing or not listing an asset for significant community value was something given significant weight by the government. Then it went on to say that by way of example, the GDPO attributes significant weight to this procedure under the Localism Act because of the changes of use which would be allowed provided that the asset was not listed as a community asset. And then it went on to say at 5.19:
"In this case, therefore, the use of the building could be changed to other uses without requiring planning permission. A material consideration of the value of a public house to a local community is whether it is eligible for listing as a community asset. In this instance the Council has determined that the application property is not an asset of community value, yet the LPA have ignored this... The application has not been considered in a fair and balanced way because an important material consideration has not been taken into account."
[23]All of that, therefore, was in the context of a submission that the Inspector should take into account the delisting at a relevant point to the argument which had found favour with the Council that planning permission be refused because it would entail a loss of significant community facility. Despite the reference to the GDPO, which was there simply as an example of the effect if there was a delisting, no fallback point was made. KBL was obliged to make the point if it wanted the Inspector to take it into account (see, for example Taylor v Secretary of State for the Environment, Transport and the Regions [2001] EWCA 1254 at paragraph 41, albeit on a case in relation to enforcement notices. Moreover, for a fallback point to reach the threshold of being a material consideration, there needs to be a more than theoretical possibility that such alternative development might take place. As Ian Dove QC, as he then was, put it in the case of Gambone v Secretary of State for as Communities and Local Government [2014] EWHC 952 (Admin) paragraph 26:
"26. The fall-back argument is in truth no more or less than an approach to material considerations in circumstances where there are, or may be, the opportunity to use land in a particular way, the effects of which will need to be taken into account by the decision maker. That involves a two stage approach. The first stage of that approach is to decide whether or not the way in which the land may be developed is a matter which amounts to a material consideration. It will amount to a material consideration on the authorities, in my view, where there is a greater than theoretical possibility that that development might take place."
[24]In tracing the history of the principles here, he referred in paragraph 24 to the decision of Simpson v Secretary of State for Communities and Local Government [2011] EWHC 283 and to part of the judgment of the Deputy High Court

Judge who said:

"A fall-back position clearly has two elements that need to be established before it can be brought into the evaluation. The first is the nature and content of the alternative uses... The second element is the likelihood of the alternative use or operations being carried on or carried out. This has to be established for two reasons... First, unless the alternative uses or operations are a realistic possibility, it would be Wednesbury unreasonable to treat the harm that would result from them as a reason for granting planning permission for the proposed development. Secondly the degree of likelihood of the alternative uses or operations being carried on or carried out will, or at least may be, a material consideration, to be weighed along with the harm that they would cause and the other pros and cons..."
[25]Mr Lintott urged upon me that the true test is whether it would be Wednesbury unreasonable for the decision maker not to take the alternative use into account, and if that could not be said, then not to take it into account, and if that could not be said, then not to take it into account is an error of law because it is a failure to take into account a material consideration. That argument is misconceived, in my view. A reference to Wednesbury unreasonableness was, in the context of explaining the threshold there described as a real possibility. Put another way, unless there is a real possibility of an alternative development under the GDPO there is no point in considering the matter further. That is all. Here KBL never sought to put in any evidence on the prospect of alternative development, no doubt in part because, in truth, it was not backing a fallback submission. It has now sought to rely upon a third party representation which had been made to the Inspector by email. This sent by a Mr Di Stazio on 21 July 2015, saying that he had sold an investment property and had family background in restaurants, something like the Bedford Arms seemed an obvious choice which would satisfy local interest as the intention would be to keep it as a public house- restaurant retaining the house and gardens. He said that he contacted the agents who were marketing it and, in no uncertain terms, was advised and concluded the owners had no interest in selling the property. He brought this to the intention of the Inspector because in the applications the owners had used the fact they could not sell the property as justification for developing it. He believed that to be misleading and the Inspector should be presented with all the facts. But first there is no backup or follow up evidence to that particular proposal but, in any event, the writer was not seeking an alternative use permitted by GDPO but principally to buy the pub and run it as such, in other words, in its current use. Accordingly, there is no more than a theoretical possibility of alternative development under the GDPO or, to put it another way, there is no real possibility of such alternative use so there is nothing in Ground 3.

Ground 4 - Change of Use and Listed Building Consent

[26]This contends that the Inspector erred in his judgment on the listed building consent because he took into account in respect of the pub's historic character not merely the proposed works but also the change of use. One goes, first of all, to section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990. That says: "... no person shall execute any works for the demolition of the alteration or extension of a listed building in any manner which would effect its character as a building of special architectural interest unless the works are authorised.”[27]That is the threshold for requiring LBC. Here there were some internal works, as noted by the Inspector, and this was obviously appreciated by KBL, which was no doubt why it sought the listed building consent (see paragraph 7 of the decision letter). Then we come to section 16(1) and (2):
"(1)... the Secretary of State may grant or refuse an application for listed building consent and, if they grant consent, may grant it subject to conditions. (2) In considering whether to grant listed building consent for any works the local planning authority or the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses."
[28]So far as policy is concerned, paragraph 131 of the NPPF says that the LPA should take account of sustaining and enhancing the significance of heritage assets and putting them to viable use as consistent with conservation. The positive contribution that heritage assets can make, among other things. And then in 134: where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, which is the case here, this harm should be weighed again the public benefit tot he proposal, including securing its optimum viable use.[29]One then needs to read the Inspector's actual findings, or re-read them. Again, in paragraph 6:
"... the layout, extensions and internal features are consistent with this use [as a public house] which was also the use at the time of listing. In my assessment, its special architectural and historic interest comes not only from its 17th century fabric and appearance... but also from its use as a public house which includes the layout and trappings associated with it. I find also that this is an important element of its significance as a designated heritage asset..."
[30]Clearly not only use but the associated layouts and trappings which would be removed by the internal works were to be brought into account. The internal words may have been minor but the Inspector was still entitled to give them the weight that he thinks appropriate in this context. Secondly, and as a matter of law, it was open to the Inspector to take into account the fact of any proposed change of use. I can see nothing in section 16 or policy which prevents him from doing so. He was entitled at the time of the appeal to see the use of the building as a pub in its 17th century building, and with its particular layout and trappings as a pub, or being part of its heritage significance to which weight had to be given.[31]By analogy, if listed building consent was required to put a café into a listed building that could then be used to obtain throughput by members of the public to view the asset, that might be regarded as attracting more weight in the balancing exercise than, for example, of putting in an office. Accordingly, in my judgment, there is nothing in Ground 4.

Ground 5 – Viable Continued Use

[32]Finally, KBL challenges the Inspector's finding that the continued use of the pub was viable. He had before him the evidence from the last publicans, from 2011, in a letter. They wanted to say that the pub was a going concern. They were making a profit, business was increasing week on week. It was the owners who had decided to sell it and the reason why the owners decided to sell this as well as 10 other pubs was because they had invested in other business opportunities. They chose to sell the pub because of the land behind it that could be used for development. The pub was always popular with the village and had a large garden, parking area, and significant car park. And then it set out some of the various uses to which it had been put.[33]Then, in paragraph 9 the Inspector set out a number of factors pro and con in relation to viability, and at the end said that "I acknowledge that there are other pubs in the town, but this does not show that the appeal site could not be viable" and referred to the letter from the previous tenants.[34]The specific point made is that the Inspector, however, did not refer to the following statement which came in KBL's reply submissions at internal page 3. When responding to the Council's submission statement for the appeal, it said:
"Notwithstanding the above, the appellant contends the public house was not a viable business prior to the purchase of the property. The previous owners... entered into a tenancy agreement with Mr & Mrs Hardiman... whereby the first six months were free and then a significantly reduced rent of £400 per month for the following six months. The business could not sustain a market rent and the tenants were given notice to quit in December 2011."
[35]The Hardimans might have had a six month rent free period but their letter does not support the notion that they could not afford the rent at all. Their evidence, of course, comes from the horse's mouth, as it were. By comparison, it is not clear where KBL got its information about profitability or why the tenancy came to an end. The issue of non viability in fact only arose by a side wind because KB's primary submission was that if there was sufficient other pubs around, and it said there were, there was no need to establish non viability of this pub. Hence the statements just read out came in its response to the Council's statement on the appeal. The Inspector in fact gave a detailed consideration to and judgment on the question of viability in paragraph 9. The factors relied upon by KBL came from its reply document. The Inspector must have seen the reference in the six month rent holiday. The fact he did not refer to it is not fatal here. He clearly considered the evidence in the round and was well entitled to conclude, as he did, if that involved giving little or no weight to the rent free period and more to the direct evidence from the Hardimans.[36]It was here that the email which I have already read out would assume its relevance, if any, because it went to the question of the viability of the pub qua pub. It was not necessary for the Inspector to rehearse every piece of evidence or argument expressly (see Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28). Therefore, Ground 5 fails also.

conclusion

[37]Accordingly, for all of those reasons this appeal must be dismissed.