“The appellant(s) has requested the Written representations procedure. In accordance with s 319A of the Act we have applied the criteria and considered all representations received, including the appellant(s) preferred choice. We consider that the Written representations procedure is suitable and we intend to determine this appeal by this procedure.”
“3. At the time of the application the Council considered the principle of the conversion of the public house to a residential use [was] acceptable', and the contention was over the sub-division to 2 dwellings. Accordingly, the viability of the pub was not part of the reason for refusal. The Council and Parish Council remarked during this appeal, albeit belatedly, that another application for a residential change of use for the appeal building was refused on such a ground.”
“17. Policy AS.10 of the CS allows for the conversion of a building to residential within a village, to which the proposal would comply. Policy CS.25 of the CS seeks the retention of community facilities including pubs unless there is no realistic prospect for commercial or operation reasons. Policy CS.22 of the CS states an existing employment site should not be redeveloped or converted to non-employment use unless it is no longer viable. Paragraphs 88 and 97 of the Framework also acknowledge the contribution of pubs to local communities. Paragraph 8 notes the social benefit of accessible services and also has economic and environmental objectives. The Parish Council also paraphrase the Public Houses Planning Advice note adopted by the Council in May 2024, which seeks to prevent the undue loss of pubs. This seeks evidence of at least 6 months marketing as a pub, viability assessment and community engagement. 18. The Appellant submitted a viability statement dated June 2022 with the planning application, which considered the operating accounts, potential customer base and competition, contribution of letting rooms, and operating costs. This concluded the pub would not be viable. 19. A marketing report was also submitted with the planning application which states the building was advertised for sale as a pub via the internet, trade publications and direct contact between 2018 and 2019. The few offers received were not commensurate with the reasonable value of the building. 20. The Council commissioned their own consultants to undertake a viability assessment, which also found the pub not to be viable. 21. The Appellant forwarded the Council officer’s report on the other application for the change of use of this pub. Whilst this was refused for loss of the pub, the report nonetheless accepts their consultant’s findings on lack of viability. 22. The Parish Council also submitted a late response to this appeal with comments on viability based on a report5 they commissioned, which alludes to the potential for some financial savings including finding cut price supplies, accepting no minimum monthly wages and having to be very innovative, which I do not consider realistic. Moreover, that report was considered by the Council’s consultants, and their response dated19 September 2023 , projects the costs/turnover and finds a loss, confirming the pub would not be commercially viable. They note the commercial challenges of the operating environment and conclude energy, staffing and food/drink costs to have risen considerably since they have been involved. 23. Given its prolonged closure since 2016, regular and loyal customers have been lost, and it would be hard to build up a sufficient customer base again. In addition, the building would have to be re-equipped, re-fitted and stocked to function as a pub, which would require investment well ahead of any potential income. 24. The village has had 'pop up pubs' as photographed in the VDS, and I note the comments from local residents recorded in support of the pub. The building was designated as an Asset of Community Value in 2016 and redesignated, expiring27 September 2026 . Whilst this demonstrates the interest in a pub and is a material consideration, it does not take precedence over the consideration of the Development Plan policies. A considerable customer base would be needed to make and continually sustain its viability and the Council’s own consultant’s report demonstrates it would not be viable. 25. Whilst several examples are quoted by local residents of closed pubs being reestablished, it is not evident how comparable they are to the specific economics of this building. 26. Accordingly, taking the above together as a whole I find that the proposal would not be contrary to Policies CS.22 and CS.25 or the Framework paragraphs 8, 88 and 97. Whilst it would not fully accord with all aspects of the Council’s advice note, fundamentally the lack of viability has been clearly shown.” 22. The Parish Council also submitted a late response to this appeal with comments on viability based on a report5 they commissioned, which alludes to the potential for some financial savings including finding cut price supplies, accepting no minimum monthly wages and having to be very innovative, which I do not consider realistic. Moreover, that report was considered by the Council’s consultants, and their response dated19 September 2023 , projects the costs/turnover and finds a loss, confirming the pub would not be commercially viable. They note the commercial challenges of the operating environment and conclude energy, staffing and food/drink costs to have risen considerably since they have been involved. 23. Given its prolonged closure since 2016, regular and loyal customers have been lost, and it would be hard to build up a sufficient customer base again. In addition, the building would have to be re-equipped, re-fitted and stocked to function as a pub, which would require investment well ahead of any potential income. 24. The village has had 'pop up pubs' as photographed in the VDS, and I note the comments from local residents recorded in support of the pub. The building was designated as an Asset of Community Value in 2016 and redesignated, expiring27 September 2026 . Whilst this demonstrates the interest in a pub and is a material consideration, it does not take precedence over the consideration of the Development Plan policies. A considerable customer base would be needed to make and continually sustain its viability and the Council’s own consultant’s report demonstrates it would not be viable. 25. Whilst several examples are quoted by local residents of closed pubs being reestablished, it is not evident how comparable they are to the specific economics of this building. 26. Accordingly, taking the above together as a whole I find that the proposal would not be contrary to Policies CS.22 and CS.25 or the Framework paragraphs 8, 88 and 97. Whilst it would not fully accord with all aspects of the Council’s advice note, fundamentally the lack of viability has been clearly shown.”
“33. ... The criteria, themselves, contain a clear warning to the effect that they must be applied with common sense and they cannot be regarded as “fully prescriptive or entirely determinative”
“Ground 1 relates to the mode of appeal, and in particular the Claimant’s request that a mode other than written representations be utilised. The Claimant’s letter to the Planning Inspectorate (CB58) gives as reasons for the request (i) the level of public interest and (ii) the need for “hearing evidence directly from experts and proprietors within the leisure industry and from members of the Campaign and local community”
“There are powerful reasons why it is desirable for administrative bodies to give reasons for their decisions. They include improving the quality of decisions by focusing the mind of the decision-making body and thereby increasing the likelihood that the decision will be lawfully made; promoting public confidence in the decision-making process; providing, or at least facilitating, the opportunity for those affected to consider whether the decision was lawfully reached, thereby facilitating the process of judicial review or the exercise of any right of appeal; and respecting the individual’s interest in understanding — and perhaps thereby more readily accepting — why a decision affecting him has been made. This last consideration is reinforced where an interested third party has taken an active part in the decision making-process, for example by making representations in the course of consultations. Indeed, the process of consultation is arguably undermined if potential consultees are left in the dark as to what influence, if any, their representations had.” 42. And later: “32. There is a strong analogy between the need to give reasons in order not to frustrate a statutory right of appeal and the need to do so in order not to frustrate a potential application for judicial review. However, whatever the merits of the analogy, if this were always to ground a basis for requiring reasons to be given, it would be inconsistent with the lack of any general common law obligation to give reasons. Nonetheless, there will be many cases where it is in the public interest that affected parties should be able to hold the administration to account for their decisions, and in the absence of a right of appeal, the only way to do so is by an application for judicial review. Where the nature of the decision is one which demands effective accountability, the analogy with a right of appeal is surely apt.” 33. Absent reasons, there are considerable difficulties facing a potential applicant who suspects that something may be wrong with a decision but is unsure. Unless the decision is plainly perverse, the assumption will necessarily be that the decision was lawfully made; there is a presumption to that effect given that the burden of establishing illegality is on the applicant. No doubt there will be cases where a party has sufficient material to be able to mount some sort of legal challenge and get beyond the leave stage. In those circumstances the respondent will effectively be compelled to provide reasons in order to defend the case because if no reasons are given, the court may infer that the decision is bad: see the seminal case of Padfield[1968] AC 997 (HL) . Even then, however, the applicant may not be given full reasons, merely such explanation of the reasoning as meets the particular ground of challenge. Moreover, if the basis of the claim is too speculative — as it may well be where no reasons are available — the application is likely to fail at the leave stage.”
“a hearing would be appropriate if: ·. the case has generated a level of local interest such as to warrant a hearing (Where the proposal has generated significant local interest a hearing or inquiry may need to be considered. In such circumstances the local planning authority should indicate which procedure it considers would be most appropriate taking account of the number of people likely to attend and participate at the event. We will take that advice into account in reaching the decision as to the appropriate procedure)”
“We keep our choice of procedure under review throughout the appeal. Subject to notification and procedural requirements, we may change the procedure. We may also, either at the start or at any point throughout the appeal, combine procedures.”
“it leaves some uncertainty about what particular factors are sufficient to trigger the common law duty, and indeed as to the justification for limiting the duty at all... The answer to the latter must lie in the relationship of the common law and the statutory framework. The court should respect the exercise of Ministerial discretion, in designating certain categories of decision for a formal statement of reasons. But it may also take account of the fact that the present system of rules has developed piecemeal and without any apparent pretence of overall coherence. It is appropriate for the common law to fill the gaps, but to limit that intervention to circumstances where the legal policy reasons are particularly strong. 59. As to the charge of uncertainty, it would be wrong to be over-prescriptive, in a judgment on a single case and a single set of policies. However it should not be difficult for councils and their officers to identify cases which call for a formulated statement of reasons, beyond the statutory requirements. Typically they will be cases where, as in Oakley and the present case, permission has been granted in the face of substantial public opposition and against the advice of officers, for projects which involve major departures from the development plan, or from other policies of recognised importance (such as the “specific policies” identified in the NPPF .... Such decisions call for public explanation, not just because of their immediate impact; but also because, as Lord Bridge pointed out ... they are likely to have lasting relevance for the application of policy in future cases.”
“19. It is convenient to start by considering this question from first principles, absent any reference to statute or case law. Is it necessary, in order to deal fairly with requests under s.77, for the SoS to give reasons when he decides not to call in an application? As a matter of common sense, it seems to me that the answer to that question must be No. A decision under s.77 is not a substantive decision. It is not one that goes to the detail of the application, and its merits or demerits from a planning perspective. It does not affect anyone's substantive rights. It is not directly determinative of the planning application itself. Instead, it is a procedural decision going to the straightforward question of who should deal with the planning application: the LPA, or the SoS? It would be unnecessary and burdensome if the SoS had to give reasons every time he decided not to call in an application under s.77, particularly in circumstances where that is the default position which is departed from only rarely: as the WMS made plain, the policy has long been that most planning applications should be dealt with at a local level. ... 26. Furthermore, I do not consider that Mr Harwood QC, on behalf of SAVE, derives any assistance from those cases concerned, not with s.77, but with substantive planning decisions. R v Aylesbury Vale DC ex parte Chaplin[1998] 76 P&CR 207 is authority for the proposition that there is no general duty to provide reasons in relation to substantive decisions in planning cases. That general proposition was not ultimately modified or altered by the Court of Appeal in R (Oakley), although Elias LJ had clearly been tempted to do so. At [76] Sales LJ noted that the court should be wary of imposing a general duty where Parliament has not done so, and went on: "In my view, the common law should only identify a duty to give reasons where there is a sufficient accumulation of reasons of particular force and weight in relation to the particular circumstances of an individual case." 27. Mr Harwood QC placed particular reliance on the recent decision of the Supreme Court in CPRE. However, I do not consider that the part of the judgment of Lord Carnwath JSC to which we were taken (which was in any event obiter, because it was found, in that case, that the Environmental Impact Assessment Regulations imposed an obligation to give reasons in any event) is of any real assistance to SAVE in the present case. The principles to be derived from that part of Lord Carnwath's judgment can perhaps be summarised as follows: (a) Public authorities are under no general common law duty to give reasons for their decisions [51]; (b) Fairness may in some circumstances require reasons to be given, even where there is no express statutory duty [51], [54]; (c) In the planning context, an LPA is generally under no common law duty to give reasons for the grant of planning permission [52], although special circumstances may require it [52], [57]; (d) The common law principle of open justice or transparency also applies to whether reasons are required to be given for a planning decision [55]; (e) In deciding whether reasons should be given, the court should "respect the exercise of Ministerial discretion, in designating certain categories of decision for a formal statement of reasons" but recognise that "the present system of rules has developed piecemeal and without any apparent pretence of overall coherence" [58]. (f) "It is appropriate for the common law to fill the gaps [and require reasons to be given] but to limit that intervention to circumstances where the legal policy reasons are particularly strong" [58]. "In my view, the common law should only identify a duty to give reasons where there is a sufficient accumulation of reasons of particular force and weight in relation to the particular circumstances of an individual case." 28. On an application of those principles to a decision under s.77, I am in no doubt that there was no requirement to give reasons. There are no good legal policy reasons (let alone strong ones) which require reasons to be given for a decision which is procedural only, and which is not directly determinative of the relevant parties' rights and obligations.”
“31. I should just record that the decisions taken by the Inspectorate about the mode of appeal were not communicated to the Claimant (or other objectors) save for the letter written to the local member of Parliament. It has not been suggested, however, that this lack of communication rendered the procedure unfair, no doubt for eminently sensible reasons.”