Stratford-On-Avon District Council v Secretary Of State For Environment, Transport & Regions & Anor [2001] EWHC Admin 467 (20th June, 2001)

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STRATFORD-ON-AVON DISTRICT COUNCIL v. SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS and BOMFORD LIMITED [2001] EWHC Admin 467 (20th June, 2001)

1. This is an application under s.288 of the Town and Country Planning Act 1990 challenging a decision dated 20 December 2000 by an inspector appointed by the Secretary of State whereby the inspector allowed an appeal by Bomford Limited and granted its application for planning permission.

2. Bomford is engaged in the growing of vegetables for direct supply to major food retailers. In the United Kingdom the company farms around 1,570 hectares of land, located for the most part in a broad swathe running from Dunnington and Salford Priors in the west, through Welford-on-Avon and Luddington and past Stratford-upon-Avon to Alveston and Hampton Lucy in the east. The main operational centre is currently at Orchard Farm, Salford Priors.

3. Bomford has a holding at Manor Farm, Luddington, running to around 85 hectares. A group of buildings at that farm is used for the sorting, bundling and packing of spring onions and stick beans. The buildings currently handle the company's entire UK production of spring onions and stick beans, which are brought in from the land by tractor and trailer. The produce is unloaded, sorted, bundled, boxed and chilled. It is then transferred to Orchard Farm, where the onions are washed and further trimmed, labelled ready for sale, packed and stored in cold stores until despatched. Stick beans are similarly transferred for final grading, packing, labelling and storage. Other produce grown in the UK by Bomford, comprising mainly string beans, broad beans, peas and sprouts, is not handled at Manor Farm but is taken straight from the fields to Orchard Farm. Produce imported from abroad is also handled at Orchard Farm.

4. The intention of the proposed development under consideration on the appeal was to consolidate the company's sorting and packing operations onto a single site at Manor Farm. It involved a proposed extension to the existing buildings to provide around 7,000 square metres of additional floor space. Externally, the existing service yard would be extended and two ramped loading bays constructed. A new access would be formed.

5. The appeal to the inspector was against a failure by the claimant council, the local planning authority for the area, to give notice within the prescribed period of a decision on the application for planning permission. The council appeared at the inquiry to oppose the grant of planning permission. It objected inter alia on the ground that the application involved development in the open countryside on better quality agricultural land contrary to the provisions of the development plan.

6. The inspector allowed the appeal and granted planning permission for an extension to the existing building, formation of vehicular access and driveway and use of the proposed building for mixed agricultural and distribution purposes involving storage, handling, refrigeration, packing and distribution of agricultural produce. Permission was granted subject to a number of conditions.

7. The council contends that the inspector's decision was not within the powers of the 1990 Act and/or the interests of the council have been substantially prejudiced by a failure to comply with a relevant requirement, namely the requirement to give reasons for the decision.

8. The first ground concerns Policy G1(3) of the approved Warwickshire Structure Plan Alterations 1989-2001 ("the Warwickshire Structure Plan"), which provides:

"Development outside the built-up area of a town or village will not normally be permitted, except where: ... (b) it is outside the Green Belt and is essential to the operation of a particular agricultural holding ... and, due to its nature, cannot reasonably be accommodated within existing rural settlements or farm complexes."

By s.54A of the 1990 Act any decision whether or not to grant planning permission must be made in accordance with the development plan unless material considerations indicate otherwise. It is submitted that the inspector failed to consider properly or at all, or to find, whether the proposed development was in accordance with that provision of the development plan. If he concluded that it was, he failed to give any or any sufficient reasons for that conclusion. If the development was not in accordance with the decision, then he failed to give any reason why this did not support the council's objections.

9. The second ground concerns the objection to the loss of higher quality agricultural land. Policy ENV12 of the Stratford-on-Avon Local Plan provides:

"The District Planning Authority will protect the best and most versatile agricultural land against development. Where such land occurs, development will not be permitted unless there is a strong case for development which overrides the need to protect such land .... "

The inspector concluded that there would be a conflict with that policy but that little weight should be attached to the objection. It is submitted that he failed to give any rational reason why little weight should be given to the conflict with the policy.

10. The third ground concerns one of the conditions to which the grant of planning permission was subject. Condition 25 requires the use of certain land and buildings "hatched and outlined in black on Plan 2 annexed hereto" for certain purposes to cease. No such plan was annexed to the decision. It is submitted that the condition was accordingly unenforceable or void for uncertainty.

11. Before considering the competing submissions, it will be helpful to examine the decision in some detail.

12. At paragraphs 9 to 20 of the decision, under the heading "Planning Policy", the inspector refers to the Warwickshire Structure Plan, the Stratford-on-Avon District Local Plan and, as regards national policy, PPG7 (Planning Policy Guidance: The Countryside). He makes clear that he has well in mind the relevant policy objectives as well as the specific terms of policy G1(3) of the Structure Plan. He describes PPG7 as "particularly relevant", stating inter alia that the guidance recognises the importance of agriculture, and local planning authorities are urged to take account of the need to maintain an efficient and flexible agricultural industry in preparing their development plans.

13. At paragraph 21 the inspector identifies "the main issues", the first of which is "whether the building and its proposed use would accord with local and national policies for the control of development in the countryside (the objection in principle)". Other main issues concern environmental matters, including "effects on the best and most versatile agricultural land"; highway matters; alternatives and sustainability; and finally "whether having regard to my conclusions on the above matters, the development plan, and all other material considerations, the case for the proposed development is sufficient to overcome any harm that would arise (need and conclusions)".

14. The inspector deals next with the first main issue, "the objection in principle". First, in paragraphs 22 and 23, he states:

"22. The appeal site is located in open countryside, outside the defined boundary of any settlement. As such it is in an area where both national guidance and the development plan seek to strictly control development. Agricultural development is, however, an exception. PPG7 makes it clear that the Government expects planning authorities to take account of the need to maintain an efficient and flexible agricultural industry and include policies in their development plans for considering planning applications for agricultural developments, including farm buildings and structures. This requirement is reflected in policy G1(3) of the approved Structure Plan which states that development outside the built-up areas will not normally be permitted unless it is essential to the operation of a particular agricultural holding and cannot reasonably be accommodated within an existing settlement or farm complex.

23. At the inquiry, there was considerable debate as to the nature of the operation proposed. The Council argued that the proposal would in effect create a new planning unit at Manor Farm, separate from the land and more akin to an industrial and distribution activity than an agricultural use. As such, it should not be located in open countryside but rather on an industrial estate or similar area. The appellant, on the other hand, argued that the use would be primarily agricultural - the company was not a food processor but a grower of vegetables. As a supplier to the major supermarkets, it needed to meet its customers' standards in respect of hygiene and quality. This meant that operations that traditionally would have been carried out in the fields now had to be undertaken under cover."

15. Paragraph 24 starts: "In considering this matter, I shall consider firstly the produce grown by the company in the UK." In my view it is clear that what the inspector goes on to consider in paragraph 24 is the argument as to whether the proposed development was essentially industrial rather than agricultural in character.

16. Paragraph 25 deals with legal submissions made by the council on that issue, to the effect that an activity cannot be ancillary to something outside the planning unit and that the relevant land to consider is the planning unit and not the agricultural unit. In that context the inspector attaches significance to the fact that one of the authorities cited refers to the "agricultural holding" as representing the wider area of land farmed, i.e. the agricultural unit. He says that that is significant "insofar as policy G1(3) supports, subject to several caveats, development that is required for the operation of a particular agricultural holding".

17. In paragraph 26 the inspector returns to "the wider question as to whether the proposal is essentially agricultural or industrial in character": i.e. after the legal interlude in paragraph 25, he comes back to what he was considering in paragraph 24. He concludes:

"It nonetheless seems to me that the building would be used for purposes which, whilst not falling within the strict legal definition of an activity that is ancillary to the planning unit, are nonetheless essential to the successful operation of the appellant company's agricultural holding."

18. That leads to paragraph 27, in which he states: "It is my firm view that, insofar as the produce by the appellant company in the UK is concerned, the activities carried out in the building would, as a matter of fact and degree, be part of the wider agricultural operation." In paragraph 28 he expresses a different view in relation to the imported produce. Then in paragraph 29 he states his conclusion on the first main issue:

"29. In conclusion on the first issue, I find no policy grounds to support the Council's objection in principle to the proposed development insofar as the proposal relates to facilities for the preparation, storage and distribution of produce grown on the appellant company's agricultural land holding in the UK. There is, however, no policy support for the proposed use as a distribution centre for produce grown elsewhere, including that grown by the appellant company on land in its ownership overseas. Use of the proposed building for this purpose would, to my mind, run contrary to the development plan and those Government policies which seek both to protect the countryside for its own sake and direct development of this nature to sites allocated for distribution purposes in the development plan."

19. The decision proceeds to consider the second main issue, environmental matters. In relation to agricultural land, which is relevant to the second ground of challenge, he states in paragraphs 46 to 48:

"46. It was common ground at the inquiry that the proposed building extension and the associated hard standing would result in the direct loss of around 0.95 hectares of manly Grade 2 agricultural land. Further land, mainly Grade 3, would be taken up by the proposed landscaping.

47. Insofar as the development would result in the loss of Grade 2 land, the proposal would clearly conflict with the development plan policy aim of not building on Grade 1, 2 or 3A land. The relevant policies in both the structure and local plans recognise, however, that in some cases the need for development can over-ride the policy aim. In this connection, it is important, in my opinion, to recognise, firstly, that the proposed development is required to support agriculture; and, secondly, that the loss in terms of the area of best and most versatile land within the holding would be minimal (over 70% of the holding is classified as either Grade 1 or 2). Whilst an alternative site closer to the river would reduce the amount of Grade 2 land taken, it would have clear disadvantages in landscape terms. Other sites elsewhere might, of course, avoid the loss of high grade agricultural land; however, the benefit of association with the existing buildings at Manor Farm would be lost.

48. For these reasons, it is my considered view that, in this case, the policy objection in respect of loss of the best and most versatile agricultural land should be afforded only limited weight."

20. In his overall conclusion on environmental matters, at paragraph 50, the inspector repeats:

"A limited area of good quality agricultural land would be lost. This loss would be minimal in the context of the area of good quality of land within the holding, however, and the development is required for agriculture. I therefore accord little weight to this objection."

21. The next section of the decision concerns highway matters. Then comes the section on alternatives and sustainability. In that section the inspector states at paragraphs 64 to 67:

"64. At the inquiry, one of the main themes of the Council's and local residents' cases was the inappropriateness of the proposed location for the nature of development proposed. In response to an invitation from the appellant company, several alternative locations for the proposed development were suggested. Debate at the inquiry centred on their suitability and availability for the development proposed. In this section, I shall consider the various proposals made. Firstly, however, it is pertinent to consider some of the principles involved.

65. In this regard it seems to me, firstly, that the link to the land is paramount. Whilst the land within the appellant company's holding is scattered over a wide area, the majority is located in a broad swathe running between Salford Priors and Hampton Lucy. Any location not reasonably close to this swathe cannot, in my view, be considered as a realistic alternative having regard to the increases in effort, time and costs incurred in bringing the produce from the fields to the packhouse.

66. Secondly, environmental constraints have to be recognised. Sites close to residential areas or where the access is through residential areas would not, in my opinion, be suitable.

67. Thirdly, the sites need to be genuinely available - an otherwise suitable site is no use if there is no realistic prospect of it being available to the appellant company for the purpose required."

22. He then lists a number of sites and the conclusions he has reached on them in the light of the considerations already set out, the evidence provided and his observations when he toured the sites. He concludes in paragraph 69: "Overall, on the basis of the evidence presented, I conclude that there is no alternative site that is both suitable and available for the proposed development."

23. That brings me to the inspector's more general conclusions. At paragraphs 73 to 75 he states:

"73. Notwithstanding my conclusions on the proposal's acceptability in principle and other matters considered above, the question of need for the proposed development remains to be addressed. The relaxation of the normal policies restricting development outside the built-up areas permitted by Structure Plan policy G1(3)(b) requires, amongst other matters, that the development should be essential to the operation of a particular agricultural holding (my emphasis). This is potentially a tough test. It seems to me, however, that it has to be interpreted in the context of the Government's clear support for agriculture and the requirement that policies in development plans should take account of the need to maintain an efficient and flexible agricultural industry (PPG7, para 3.3).

74. In this regard, I have no doubt that the proposed development would offer several benefits compared to the existing operations. Concentrating operations on one site would avoid the need to move produce between the sites. Tractor mileage would be reduced, as would the effort required to handle the produce. Management and other members of the company's permanent workforce would be concentrated at one centre. Facilities for handling the produce would be improved - more space would be available for preparation and storage and the need to take chilled produce outside to load it into refrigerated lorries would be eliminated. All sorting, washing and packing operations would be concentrated on one site in a single building. Individually, these benefits would be modest. Cumulatively, however, I have no doubt that there would be significant efficiency gains.

75. In considering need, it is appropriate also to consider alternatives. In this regard there is, as I have already concluded, no evidence to show that there is any designated industrial site or other previously-developed site in the locality that is both suitable and available. Expansion of the appellant company's operations at Salford Priors was found, when an earlier application was considered, to be unacceptable. Whilst an alternative green field site might be considered, none has come forward (apart from the site earmarked for the possible relocation of the cattle market). In principle, any such site would, in any event, appear to offer little, if any, advantage having regard to the benefits gained from association with the existing facilities at Manor Farm and the relative lack of environmental or other harm that would result from the expansion proposed."

24. He then goes on to consider the proposed use of premises to handle imported produce. Finally he reaches his "overall conclusion", in paragraphs 78 and 79:

"78. In conclusion, it is my firm view that the proposal would accord with the general thrust of those Government policies that seek to encourage an efficient and flexible agricultural industry. With the various safeguards that could be achieved by way of conditions, I am satisfied that it would not result in any material harm to the living conditions of nearby residents. Highway safety would not be compromised. Whilst there would be some visual impact, the areas affected are not subject to any landscape designation and the harm would, in time, be effectively mitigated by the landscaping proposed. There would be a conflict with the development plan insofar as good quality agricultural land would be lost. The loss would be minimal in the context of the area of good quality land within the holding, however, and the development is required for agriculture. I therefore attach little weight to this objection.

79. Having taken into account the potential suitability and availability of alternative sites for the proposed development and all other matters raised at the inquiry, including the safeguards that could be achieved by way of conditions, I conclude that the appeal should be allowed."

25. Mr Howell QC submits that the inspector's consideration of Policy G1(3) of the Structure Plan was seriously deficient. The policy establishes a presumption against development on the proposed site unless the development satisfies two conditions, namely that (1) it is essential to the operation of a particular agricultural holding, and (2) due to its nature it cannot reasonably be accommodated within existing rural settlements or farm complexes. Both those conditions have to be considered in order to determine whether a proposed development is consistent with the policy. Yet at paragraph 29 of the decision the inspector reached a conclusion on the objection in principle without having considered either of the two conditions. That his conclusion was intended to embrace Policy G1(3) is apparent from the terms of the objection in principle ("whether the building and its proposed use would accord with local and national policies for the control of development in the countryside"), from his references to the policy at paragraphs 22 and 25, and from the fact that in his conclusion he stated that he found "no policy grounds" to support the objection in principle to the proposed development in so far as it related to produce grown by Bomford in the UK but that its use for produce grown elsewhere "would ... run contrary to the development plan". At paragraph 26 the inspector did use language close to that of the first condition ("the building would be used for purposes which ... are nonetheless essential to the successful operation of the appellant company's agricultural holding"), but even there he did not deal adequately with the condition. The question under the first condition is not whether the development would be used for activities that are essential to the operation of the holding, but whether the development itself is essential to the operation of the holding. Moreover at paragraph 73 the inspector recognised that in reaching his conclusion on the objection in principle he had not addressed the question of need or whether the development was essential within the terms of Policy G1(3)(b). As to the second condition, the paragraphs dealing with the objection in principle do not touch upon it. Mr Howell asks rhetorically: how could the inspector have reached a decision in principle on the application of policy without considering the conditions for compliance with Policy G1(3)?

26. In so far as Policy G1(3) was considered in other parts of the decision, Mr Howell submits that the inspector did not deal with them properly. As to the first condition, the inspector made no finding that the proposed development was essential to the operation of the agricultural holding. He concluded at paragraph 74 that it would provide "significant efficiency gains", but failed to consider and/or to give any reasons why the achievement of any such gains was essential to the operation of the holding. "Essential" does not mean merely "beneficial" or "desirable". It means "absolutely necessary" or "indispensable" (the relevant definition in the Oxford English Dictionary). The achievement of efficiency gains does not in itself make the development absolutely necessary or indispensable. Underlying the approach to the first condition are further errors. At paragraph 73 the inspector erroneously described it as "potentially", rather than actually, a tough test. In so far as he devalued the test by reference to the Government's support for agriculture, he failed to take account of the fact that in his letter of 6 September 1991 approving the Structure Plan the Secretary of State had stated that Policy G1 reflected the importance he attached to the protection of the open countryside; and as to PPG7, the current version post-dates the Structure Plan and is not admissible as an aid to construction of the Plan, but in any event the inspector looked at only one theme in the PPG without taking into account other points concerning protection of the countryside.

27. As to the second condition, again it is submitted that the inspector made no finding that the condition was satisfied in its terms. Although he examined alternative sites at paragraphs 64-69 and 75 of the decision, he did not consider whether due to its nature the development could not reasonably be accommodated within existing rural settlements or farm complexes. For the purpose of considering that question the availability of alternative sites was irrelevant: it cannot have been intended that the restriction imposed by Policy G1(3) could be overridden simply by the unavailability of alternative sites, when the effect of building upon open countryside is that it is lost permanently. Alternatively, if availability was relevant, the inspector failed to consider why an alternative site had to be available now rather than at some time in the future: the council had argued that there was no reason to assume that a suitable site could not be found if and when it was needed.

28. As a final point on the first ground, Mr Howell submits that the inspector failed in any event to give adequate reasons for his conclusion, in that he did not make clear whether the development was in accordance with Policy G1(3) or was a justified departure from it (see Horsham DC v. Secretary of State for the Environment [1992] 1 PLR 81, 88B-89A).

29. For the Secretary of State, Mr Brown submits that the first part of the argument for the council is based upon a misreading of the inspector's decision and fails to recognise the way in which the inspector has structured his analysis. Paragraphs 22-29 of the decision are concerned with the broad thrust of policy rather than with the details of the development plan policies. The inspector is answering a preliminary question about whether the proposal can properly be characterised as "agricultural" at all. In so far as he refers to Policy G1(3) or to its language in this section of the decision, he does so only for the assistance it gives in relation to the broad issue of principle, not for its detailed application. The conclusion at paragraph 29 is to the effect that the broad policy objection fails in so far as the proposed development relates to produce grown in the UK (leaving the detailed application of the relevant policies of the development plan still to be considered), but that it succeeds in relation to its use for imported produce, in that use as a distribution centre takes it outside any of the potentially applicable policies.

30. Mr Brown accepts that the inspector needed to reach a view on the detailed application of Policy G1(3), but submits that he went on to do just that. When the decision is read as a whole, it is clear that he has reached conclusions on the two relevant conditions of the policy and that he has given reasons for those conclusions.

31. As to the first condition, Mr Brown submits that the inspector made an express finding in paragraph 26 of the decision that the purposes for which the building would be used were essential to the operation of the holding and that it is clear from paragraph 74 that he regarded the production of significant efficiency gains as a justification for carrying out those activities at the proposed development rather than at the existing site. Thus he impliedly found that the development was essential because of the efficiency gains it would produce. He was entitled to interpret the policy that way rather than in the way for which the council contends, which would be an absurdly literal approach to the policy and would frustrate almost any significantly beneficial but not absolutely vital agricultural development. In paragraph 73 the inspector set out his reasons for adopting a more practical approach to the policy. Examination of the decision as a whole shows that the inspector was well aware of government guidance about the importance of protecting the countryside, but also appreciated that protection of the countryside was not the end of the story and that importance was attached to the support of agriculture. Specific reference to the Secretary of State's letter of 6 September 1991 was unnecessary. Although PPG7 post-dated the Structure Plan, the development plan should be considered in the light of current Government policy, which carries greater weight.

32. As to the second condition, Mr Brown accepts that the inspector did not find that there was anything inherent in the nature of the development that in principle precluded its accommodation within an existing settlement, but submits that he went on to consider whether in practice such accommodation was possible. He found that due to its nature it could not be accommodated on any of the identified sites, and in considering those sites he did look at possible future availability. The argument that the matter should be looked at in the abstract, rather than by reference to identified sites, was not advanced at the hearing and is unrealistic and unattractive. If it was contended that a site might become available in the future, it was for the council to put it forward for consideration.

33. Mr Wolton QC, for Bomford, adopts most of Mr Brown's submissions and adds a few points in support of them. He submits that Bomford, having already made an unsuccessful application in relation to the site at Salford Priors, was trying by this development to get the facilities it wanted and needed in order to comply with new regulations and "to stay ahead of the game". He takes issue with the statement, in a witness statement on behalf of the council, that no evidence was put forward that a site was required immediately and indeed that no evidence of need was put forward at all. He has been unable to point to any specific evidence in the material before this court, but refers to the list of witnesses for Bomford at the inquiry, which includes an economic consultant. He submits that it is to be inferred from the inspector's decision, in particular at paragraph 74, that the inspector accepted that the development is necessary for the operation of the holding.

34. In my judgment the inspector erred in his treatment of Policy G1(3) and/or failed to give an adequately reasoned conclusion in respect of its application.

35. Although I have reached that conclusion, I do accept the broad thrust of Mr Brown's submission that the inspector's consideration of "the objection in principle" was not intended to encompass the detailed application of the policy. But the way in which the inspector described and approached the issue betokens a serious lack of clarity on his part. He expressed the issue (at paragraph 21) in terms that suggested that it covered the compatibility of the development with local as well as national policy. In the course of considering the issue he referred to Policy G1(3) both expressly (paragraphs 22 and 25) and by implication (notably at paragraph 26). The terms of his conclusion (at paragraph 29) could reasonably be taken as a finding that the development would be contrary to the policies of the development plan, including Policy G1(3), in so far as it related to imported produce but would be compatible with those policies in so far as it related to produce grown in the United Kingdom. Nevertheless, looking at the decision as a whole, I do not think that he can have intended to reach a conclusion on the detailed application of the policy at this point. Despite the language used, the focus of his attention was on the specific argument that the development would involve an industrial and distribution activity rather than an agricultural use. Moreover, had he been reaching a conclusion about the detailed application of Policy G1(3), he would not have gone on to consider that policy in the way he did later in his decision.

36. It is unnecessary to dwell on the question whether the inspector dealt adequately with the specific argument as to industrial/distribution of agricultural use, on which Mr Howell did advance some additional submissions, though it is certainly puzzling that he felt able to express such clear views on policy in paragraph 29 in circumstances where he had not yet fully considered the development plan policy of most immediate relevance to the proposal. It is more important to go on to consider how he did subsequently approach Policy G1(3), it being common ground that if he had not reached any conclusion on it by paragraph 29 it was incumbent on him to reach a conclusion on it later in his decision.

37. It is striking that at no point did the inspector go on to express in terms any overall conclusion about the application of Policy G1(3), despite its obvious importance. One is left to piece together passages in which he addressed issues raised by the policy. That adds to my sense of unease about his handling of the issue and makes me less inclined to give him the benefit of the doubt where there is a lack of clarity about his findings. This is a decision where lack of clarity seems to arise more from confusion or deficiency of reasoning than from a simple failure to express the reasoning fully.

38. As to the first condition of the policy, i.e. that the development must be "essential to the operation of a particular holding" if it is to come within the exception to the prohibition on development outside built-up areas, the inspector's findings are to be found in his conclusions at paragraphs 73-74 where he says that the question of need for the proposed development remains to be addressed and he goes on to describe the relevant test under Policy G(1)(3)(b) as potentially a tough test, though one that has to be interpreted in the context of the Government's clear support for agriculture and the requirement that policies in development plans should take account of the need to maintain an efficient and flexible agricultural industry. Although he plainly had this provision of the policy well in mind, he made no finding in terms that the proposed development was essential to the operation of the holding. But he appears to have regarded the issue as resolved in Bomford's favour by his finding that the proposal would lead cumulatively to "significant efficiency gains".

39. I think it tolerably clear that in the inspector's view, interpreting the policy in the light of the considerations to which he referred, the development could be considered "essential" within the meaning of the policy by reason of the fact that it produced significant efficiency gains. In my judgment, however, the inspector thereby misinterpreted the policy. I accept Mr Howell's submission that "essential" connotes something more than "beneficial" or "desirable". Whether or not it has in this context the full force of the dictionary definition cited by Mr Howell, it does at least involve some element of necessity. The inspector erred in finding that significant efficiency gains rendered the development essential to the operation of the holding when there was nothing to show that the achievement of those gains was necessary rather than merely beneficial or desirable. For whatever reason - and it does not matter whether he had the full scope of relevant government policy in mind or not - he watered down the test in Policy G1(3)(b) to an impermissible extent. (The finding in paragraph 26 that the purposes for which the building would be used were essential to the successful operation of the holding does not satisfy the test in Policy G1(3), which relates to the need for the development itself, and I do not understand the inspector to have relied on that finding in the present context.)

40. If the inspector did not make the error to which I have referred, then it is altogether unclear how he reasoned the matter and his defective reasoning would be a separate and alternative ground for quashing his decision.

41. I am wholly unpersuaded by Mr Wolton's submission that the inspector was impliedly accepting that the development was necessary for the operation of the holding by reason of Bomford's need for the development in order to comply with new regulations and stay ahead of the game. That reasoning is altogether absent from the decision and the inspector would not have limited himself to referring to significant efficiency gains if the true basis of his finding was that the development was needed in order to comply with new regulations or, for example, that the achievement of efficiency gains was necessary to enable Bomford to stay in business or to compete effectively. In any event I have not been shown any evidence upon which the inspector could have reached conclusions of that kind. At the very least, if this is the path that the inspector was following, he has done so by way of reasoning that is so inadequate and unclear that his decision on it cannot stand.

42. Turning to the second condition that had to be met in order to come within the exception in Policy G1(3)(b), it is unfortunate that the inspector did not address the condition in terms and express a clear conclusion about it, but the decision does in my judgment contain just about enough to cover the substance of the issue. In considering alternative locations for the development at paragraphs 64-69 and 75, the inspector did in practice take into account the nature of the development and the limitations that it imposed upon its location, including the need for it to be located reasonably close to the swathe of land where the produce was grown and the need to avoid residential areas or access through residential areas because of environmental constraints. I accept Mr Brown's submission that the issue had to be examined by reference to the actual availability of sites rather than as a purely theoretical exercise: it seems to me that the policy must be looking at practical realities, both as regards the development being essential and as regards it not being reasonably possibly to accommodate it in a built-up area. It may be that the inspector's focus was somewhat too narrow, in that he seems to have concentrated on immediate availability rather than looking at the possibility of a site becoming available in the future. But this was largely the result of focusing on the particular candidates put forward; and if the council wished to contend that a suitable site, although not immediately available, was likely to become available within a reasonable time, it was for the council to identify such a site and put forward a case in respect of it. Accordingly, although the inspector's treatment of the second condition was not altogether satisfactory, I would not regard this as a sufficient ground for quashing the decision if it stood alone.

43. The inspector's erroneous and/or inadequate treatment of the first condition does, however, constitute a sufficient ground for quashing the decision; and if the matter is reconsidered, I hope that it will lead to a much clearer consideration of Policy G1(3) as a whole.

44. To the extent indicated, the council succeeds in its challenge on the first ground.

45. Mr Howell submits that the inspector found that there would be a conflict with the development plan in so far as the development would result in the loss of Grade 2 agricultural land, but attached little weight to this policy objection "because the loss would be minimal in the context of the area of good quality land within the agricultural holding ... and the development is required for agriculture" (paragraph 78; see also paragraphs 46-48). Yet he failed to give any rational reason why little weight should be given to the policy objection. Policy ENV12 of the Local Plan provides that development will not be permitted unless there is a strong case for development which overrides the need to protect such land. The inspector cannot have considered there to be an overriding case here: had he done so, he would have concluded that the development was consistent with the policy and no question would have arisen of attaching little weight to the policy objection. The absence of an overriding case means, by definition, that the need to protect the land from development is not overridden by the need for the development. PPG7 and the explanatory text to Policy ENV12 emphasise that "considerable weight" is to be given to the protection of such land from development, and that Policy ENV12 represents a clear recognition of the principle that the need to safeguard higher grade agricultural land is a factor of "significant weight". Those considerations must apply irrespective of the nature of the development or the extent of the land involved. It is therefore unclear why the inspector relies on the fact that the development is required for agriculture and that the loss of agricultural land within the holding will be minimal as the basis for attaching little weight to this conflict with the development plan. Further, there is no rational reason to treat the need to protect better quality agricultural land as being of less weight according to the use to which the lost land may be put; and there is no rational reason why the resource should be treated as less valuable because it is within the holding rather than held by other persons.

46. Alternatively, if (contrary to what he actually says) the inspector considered there to be no conflict with the development plan, then he failed to consider or to give reasons as to why, within the terms of Policy ENV12, there was a strong case for the development which overrode the need to protect the land.

47. Mr Brown submits that analysis of paragraph 47 of the decision shows that the inspector did not find a conflict with Policy ENV12 as a whole. The statement in the first sentence that the development would conflict with the "policy aim" of not building on Grade 1, 2 or 3A agricultural land reflects the first limb of the policy ("... will protect the best and most versatile agricultural land against development"). The second sentence of paragraph 47 refers to the second limb of the policy ("... development will not be permitted unless there is a strong case for development which overrides the need to protect such land"). The third sentence of paragraph 47, to the effect that the development is required to support agriculture and that the loss of the best land would be minimal, applies that second limb. Thus the inspector gave clear reasons for concluding that the general policy objective was overridden. There was every reason to treat the loss differently, depending on the use to which the land would be put, since government guidance urges authorities to take account of the need to maintain an efficient and flexible agricultural industry, development required to support agriculture is more likely to be necessary in the countryside than in urban areas, and in the present case the inspector expressly found that "the link to the land was paramount" and that the development needed to be close to the broad swathe of Bomford's holding (paragraph 65). The inspector's reliance on the minimal loss of land within the holding reflected the fact that, in absolute terms, the area lost would be small and the fact that the development, in benefiting the holding, would not materially damage the activity it was designed to benefit (by significantly reducing the land available to grow produce). Thus there was a reasonable basis for the inspector's conclusion, based as it was on the carrying out of the balancing exercise required by the policy.

48. If, on the other hand, the inspector did recognise some conflict with the policy, then he was entitled to give only limited weight to the policy objection. Where the balance comes down only just on the side of a conflict with the policy, less weight can properly be attributed to the conflict than where the balance comes down strongly on the side of conflict.

49. Mr Wolton does not adopt the entirety of Mr Brown's submissions on this issue, in that he accepts that the inspector clearly found a conflict with the policy. He submits, however, that the inspector was entitled to attach little weight to the conflict. In particular, is it common sense that to take away such a small amount of land for agricultural purposes is a much less serious conflict than would arise if more land were involved and it were being lost for non-agricultural purposes.

50. On this issue, too, I am not entirely happy with the inspector's approach. He does not spell out the terms of Policy ENV12 and how they apply to this case. He does, however, plainly have them in mind at paragraph 47 of the decision, where the general thrust of the argument would appear to be directed towards a conclusion that the policy aim of protecting the best agricultural land is overridden by a strong case for development. Yet far from reaching such a conclusion, he appears to find that the case for development does not override the need to protect the land. That is the only rational basis upon which he could find a "policy objection" to the proposal (paragraph 48) and a "conflict with the development plan" (paragraph 78). If the case for development did override the need to protect the land, the proposal would in this respect be in accordance with the development plan and would not be the subject of a policy objection. Thus I cannot accept Mr Brown's rationalisation of paragraph 47, attractive though it otherwise is.

51. Given that the inspector appears to have found that, notwithstanding the matters to which he referred in paragraph 47, the case for development did not override the need to protect the best and most versatile agricultural land against development, there is some attraction to Mr Howell's submission that he did not have a rational reason for going on to hold that the policy objection should be given limited or little weight. Moreover, although I accept the submissions for the Secretary of State and Bomford that the weight to be given to a conflict with Policy ENV12 can properly vary according to the circumstances, it is material that PPG7 and the explanatory text to Policy ENV12 emphasise that considerable or significant weight is to be given to the protection of such land from development. In my view that should have been the inspector's starting point. It may be that his ultimate conclusion as to the attribution of limited or little weight to the policy could have been reached by reference to the fact that only a very small amount of land would be lost and the fact that it would be lost for agricultural purposes. But a fuller process of reasoning was required before one could be satisfied that such a conclusion was rational and properly founded. The failure to acknowledge the correct starting point and to deal with the point more clearly amounts to a sufficient defect of reasoning to justify quashing the decision.

53. Mr Howell submits that the failure to annexe the plan referred to in Condition 25 goes to the enforceability of the condition. The council, if seeking to enforce the condition, could be met by the objection that no plan had been annexed to the decision. The condition was therefore unenforceable or void for uncertainty and, even if the other grounds were to fail, the decision should be quashed to allow this matter to be corrected.

54. Mr Brown draws a distinction between, on the one hand, an error in the decision letter itself and, on the other hand, a situation where the decision is correct but an administrative slip occurs in the process of sending it out to the parties. In the latter case, he submits, there is no basis for quashing the decision. The error can be corrected administratively, as was done in this case by supplying the missing plan subsequently.

55. Mr Wolton adopts Mr Brown's submissions on this ground and suggests that a developer would be laughed out of court if it resisted enforcement of condition 25 on the ground that the plan had not been sent out with the decision.

56. In my judgment there is no substance in this ground of challenge. The administrative failure to include the plan in the copy of the decision sent to the parties did not constitute a defect in the decision itself and was capable of being remedied, as was done, by sending the plan to the parties when its omission was noted. The original omission of the plan would not have rendered the condition unenforceable and did not give rise to uncertainty such as to invalidate the decision. Accordingly, the third ground of challenge fails.

57. For the reasons given, the council's claim succeeds on the first and second grounds, but fails on the third ground. The decision will be quashed.

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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Stratford-On-Avon District Council v Secretary Of State For Environment, Transport & Regions & Anor [2001] EWHC Admin 467 (20th June, 2001) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2001/467.html Cite as: [2001] EWHC Admin 467

England and Wales High Court (Administrative Court) Decisions

STRATFORD-ON-AVON DISTRICT COUNCIL v. SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS and BOMFORD LIMITED [2001] EWHC Admin 467 (20th June, 2001)