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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 >> Amber Valley Borough Council v Secretary of State for Communities and Local Government [2009] EWHC 80 (Admin) (23 January 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/80.html Cite as: [2009] EWHC 80 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/01/2009

MR JUSTICE BEAN :

1. In this claim under section 288 of the Town and Country Planning Act 1990 Amber Valley District Council applies to quash the decision of the Secretary of State's planning inspector contained in a decision letter dated 7^th February 2008. The Inspector granted planning permission for the part demolition and rebuilding of a barn located in a Special Landscape Area, pursuant to the deemed application for planning permission under section 177 of the 1990 Act which followed an appeal by the owners of the barn, Mr and Mrs Northcott, against an enforcement notice issued by the Council. The requirements of the notice were to stop work and remove door openings, a window and walling.
2. The background to these proceedings is that in late 2005 the Northcotts applied for planning permission to convert a barn located on their farm property to provide ancillary residential accommodation for a close relative who was suffering from cancer. This first application was refused in May 2006 because it involved forming new openings in the elevations of the barn. A second, revised application was submitted in July 2006. The description of the proposed development stated that it was to be a "barn conversion to dependent relative unit". The application stated that it would involve "alteration or extension to existing buildings" and a change of use. The officer's report on the revised application concluded that the barn could be converted without extensive alteration or addition and recommended approval. Planning permission was granted on 16^th October 2006 for the proposed barn conversion to a dependent relative unit "in the manner described in the application and shown on the accompanying plans and drawings". It was noted that the permission was given in view of the personal circumstances of the applicant, and that the creation of a dwelling independent of the main household would not normally be permitted on the site, due to its relationship to existing dwellings and the level of amenity provision, in accordance with the policies of the local plan.
3. There was no condition or limitation which expressly prevented or restricted the extent of any alterations which could be made to the barn, including any rebuilding; but Mr Andrew Hogan, on behalf of the Council, contends that such a condition would have been otiose in the light of the permission stating that the proposed conversion was to be "in the manner described in the application and shown on the accompanying plans and drawings". However, the Northcotts' architect subsequently expressed the view that it was self evident that in order to insert the new door and complete the fenestration that had been approved, some localised rebuilding would be essential.
4. The enforcement notice and stop notice were served when the building had been partly dismantled. The Council took the view that the proposed rebuilding of the roof and part of the walls went beyond what was permitted. Indeed, it took the view that what had been done amounted to demolition and rebuilding, and that it was no longer possible to convert the building in accordance with the planning permission. The Chief Executive of the Council, Mr Carney, accepts in his witness statement that the effect of the enforcement notice was, and would be, to leave a ruin. He goes on:-

"The intention of the Council when authorising enforcement action in the terms it did was to leave a ruin, which was considered to be preferable to a new residential building in this location having regard to the provisions of the development plan as a whole. This would have left the Second Defendants with a choice. They could either have proceeded to total demolition, which they could have done without further planning consent, or they could have made a fresh planning application for further development, which application would then have been considered having regard to the provisions of the development plan as a whole."

5. The court bundle includes photographs taken by what Mr Hogan described as a "concerned neighbour" showing the state of the building before and after the work in 2007. The commentary by the anonymous photographer indicates an opinion that what the Northcotts had alleged to be an accidental collapse when the roof beams were removed was nothing of the kind. Mr Carney in his witness statement says that the Northcotts "had only themselves to blame for the situation which they had brought about. There was no need for them to remove the whole of the roof to undertake the works that they had consent to do." But I should make it clear that Mr Hogan, on behalf of the Council, assured me that it was no part of his clients' case that the Northcotts had acted dishonestly.

The Inspector's decision

6. The Northcotts appealed to the Secretary of State under section 174(2), subsections (a) (b) (c) and (f) of the 1990 Act (as amended) against the requirements of the enforcement notice. It was argued on their behalf that the works fell within the terms of the 2006 planning permission, even though more demolition and rebuilding had proved necessary than was contained in the approved scheme. The additional rebuilding was held by the Inspector to be a material change to the scheme and a material variation to the amount of rebuilding, which required an additional planning permission to that which had been previously granted. He held accordingly that there had been a breach of planning control and that the appeals under sub-paragraphs (b) and (c) of section 174(2) failed. He turned to the appeal under section 174(2)(a) and the deemed application for planning permission under section 177(5).
7. He began by stating in paragraph 11 of his decision that "the main issue is the effect of the proposal on the character and appearance of the countryside and the Special Landscape Area." It was common ground before him, and remained common ground before me (as Mr Hogan confirmed), that this was an accurate summary of the main issue.
8. The Inspector continued:-

"12. The adopted Amber Valley Local Plan 2006 includes Policies H6, H12, EN1, EN6 & LS6, together with related Design Guidance Note 4, drawn to my attention by the Council. The policy objectives are consistent with Government advice in Planning Policy Statement 7 Sustainable Development in Rural Areas. Those objectives seek to protect the countryside for its own sake, especially as in this case, where there is landscape of special quality. And, to direct non-essential rural need new housing development to identified settlements in the local plan. One exception, under Policy H6, allows for conversion of existing rural buildings to dwellings where they are not suitable for employment or tourism uses. In such cases they must be of permanent and substantial construction, where their form, bulk and general design is in keeping with their surroundings and they can be converted without extensive alteration, rebuilding or extension.

13. In granting the October 2006 planning permission the Council accepted that the approved scheme met the requirements of local plan Policy H6. Nor did it request a structural condition survey or impose a condition that the development should be carried out strictly in accordance with the approved plans and drawings. From the Appellant's architect's letter dated 7 March 2006 it should also have been clear that part of the north elevation, together with the whole of the roof, were to be reconstructed. However, the Council argues that the former barn has been substantially demolished, such that the original building no longer exists and cannot be rebuilt.

14. The Appellant concedes that out of a total external wall area of about 135 square metres about 50 square metres has been demolished for rebuilding. That represents about 37% of the total wall area as against about 16% envisaged in the approved scheme. It is claimed that was necessary, in addition to the envisaged wall repairs and roof rebuilding, in forming the approved door and window openings. They also indicate that the only changes to the elevations of the former barn, save for rebuilt sections of wall, are the north elevation, an existing window in the east elevation has been altered to accommodate the raised floor level, a new window inserted in the west elevation and 2 roof lights will be installed into the north and south roof slopes. But, those alterations were substantially indicated in the approved drawings.

15. From the drawings and photographs submitted, together with my own inspection of the site, it is clear that in addition to the removal of the original barn roof, a substantial part of the whole of the north elevation, together with parts of the first floor of the south, east and west elevations have been removed or rebuilt. And, where new external works have occurred they have the appearance of new development. However, a substantial part of the original barn walls remain. The rebuilt sections, including the door and window openings, are essentially as indicated in the approved drawings and the building has the same footprint. Nor has it been extended. That being so, I consider that if the building is completed, insofar as is now possible in accordance with the approved scheme, the effect on the character and appearance of the area, including the Special Landscape Area, would be little different from that of the approved scheme for the original barn. That effect would also be lessened by the weathering of new works. The alternative, in accordance with the notice requirements, would be retention of the remaining original walls of the barn as a ruin…

18. Taking these considerations together, I conclude that the proposal should be allowed subject to suitable conditions. Those conditions would require any further works to conform to the design of the approved scheme, save for the greater extent of rebuilding now necessary, and reinstatement of the excavation works in accordance with details of a scheme to be agreed with the local planning authority. I will also attach the conditions of the existing planning permission, where still relevant, including the restrictive occupancy condition. The reasons for those conditions are to safeguard visual amenity and having regard to the personal circumstances of the Appellants. On that basis, the proposal would not harm the character and appearance of the countryside or the Special Landscape Area.

19. For the reasons given above I conclude that the appeal should succeed on ground (a) and planning permission will be granted. The appeal on ground (f) does not therefore need to be considered."

9. The Inspector referred in paragraph 12 to specific provisions of the local development plan. Mr Hogan laid particular emphasis on policy H6 in the Housing section of the Borough Local Plan, which states:-

"Planning permission for the conversion of existing buildings in the countryside to residential use from other usage will only be permitted if…the building or group of buildings is of permanent and substantial construction, is of a form, bulk and general design in keeping with its surroundings and can be converted without extensive alteration, rebuilding or extension."

10. Policy H12 in the same section provides that "in considering applications for housing development, the Borough Council will require that the proposals:- (a) are in scale and character with their surroundings…"
11. In the Environment section of the Borough Local Plan Policy EN6 provides that "planning permission for new development, including conversions of and extensions to existing buildings, will only be permitted in Special Landscape Areas if it does not have an adverse effect on the landscape quality or character."
12. Policy EN1 provides that "in the countryside, outside the built framework of settlements, new development will only be permitted where it:

a) is essential in conjunction with the requirements of agriculture or forestry,

b) is necessary within the countryside and cannot reasonably be located within an existing settlement, or

c) will improve the viability, accessibility or community value of existing services and facilities in settlements remote from service centres provided by the towns and larger villages."

13. Finally, though not strictly part of the local development plan, a "Design Guidance Note" issued by the Council states that where alterations are made to agricultural buildings "it is most important that the original scheme is not spoilt by individual occupiers altering the building in an inappropriate manner…the proposed use must require minimal alteration to the external and internal character and appearance of the building for it to be acceptable. It is for this reason that the change of use of agricultural buildings to residential use will normally be unacceptable as it is rarely possible to convert agricultural buildings for residential use without a large amount of alteration to provide acceptable living conditions".

General propositions of law

14. By virtue of section 38 of the Planning and Compulsory Purchase Act 2004, if regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise. But, as Ouseley J held in R(Cummins) v Camden LBC [2001] EWHC Admin 1116, the sub-section requires compliance with the development plan considered as a whole, and it is for the Inspector to identify which policies are dominant or directly relevant rather than tangentially relevant. And by section 177(2) of the 1990 Act the Inspector, in considering whether to grant planning permission under subsection (1) was bound to have regard to the provisions of the development plan "so far as material to the subject matter of the enforcement Notice" (that is to say so far as material to the breaches which had been established) and to any other material considerations.
15. In Tesco Stores Ltd v Secretary of State for the Environment [1995] 1WLR 759 at 780 Lord Hoffmann said:-

" The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

16. What the statute does not do is to tell the decision-maker what weight to accord either to the development plan or to other material considerations (per Glidewell LJ in Loup v Secretary of State for the Environment (1995) 71 P&CR 175 at 186, cited by Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 at 1458). An application under section 288 is not an opportunity for a review of the planning merits of the Inspector's decision, and Court must be astute to ensure that such challenges are not used as a cloak for what is in truth a re-run of the arguments on the planning merits (per Sullivan J in R(Newsmith Stainless Ltd) v Secretary of State for the Environment Transport and the Regions [2001] EWHC Admin 74). Decision letters are to be read in a straightforward down-to-earth way, without excessive legalism or exegetical sophistication (per Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263 at 271), and excessively legalistic textual criticism of planning decision letters is something the courts should strongly discourage (South Lakeland DC v Secretary of State for the Environment [1992] 2 AC 141 at 148). In a well known passage in South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 at 1964, Lord Brown of Eaton-under-Heywood said –

"The reasons given for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law……..But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration…...A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision".

The Claimant's case

17. Mr Hogan's skeleton argument summarised the principal points of the Council's case as follows:-

"The Inspector failed to identify the magnitude of the departure from what had been approved [in 2006]; then proceeded to grant planning permission failing to take into account the relevant planning policies and guidance forming the development plan, which precluded development of the type and scale undertaken by the [Northcotts]. What he should have done is refuse planning permission leaving a ruin in the landscape, a more natural adornment than what substantially, as a question of fact and degree, is a new house".

18. The first ground of challenge pleaded in the Particulars of Claim is that the Inspector erred in stating that the "relevant starting point" was the 2006 grant of planning permission for the conversion of a barn to dwelling. The Council argues that the starting point should have been the position as it stood on the ground at the time of the service of the enforcement notice.
19. I accept the submission of Mr Richard Honey, for the Secretary of State, that the Inspector did not adopt the wrong starting point. The reference in the decision letter to a starting point is in relation to the site history. The Inspector, as he records in paragraph 1 of the decision, was considering whether to grant planning permission on the application deemed to have been made under section 177(5) of the 1990 Act for the development already carried out, namely the part demolition and rebuild of the barn. The 2006 planning permission was clearly a relevant material consideration. It had permitted the conversion of the barn from agricultural to residential use.
20. The Council next argued that the Inspector was wrong to describe the development for which permission was sought from him as a part demolition and rebuilding of a barn (as opposed to the partial demolition of a barn and construction of a new dwelling house). But the breach of planning control in the enforcement notice was stated to be "the part demolition and rebuild of a barn", and the Inspector adopted the same wording in granting permission for "the development already carried out, namely the part demolition and rebuild of a barn". Given the terms of section 177(5) of the 1990 Act, stating that the Appellant is deemed to have applied for planning permission "in respect of the matter stated in the enforcement notice as constituting the breach of planning control", this was the correct approach to adopt. Planning permission was not, and could not have been, granted for "demolition and construction of a new dwelling house".
21. In any event, although the Council argued before me that the Northcotts have built or sought to build a new house, that is not what the Inspector found, following his examination of the evidence and a site inspection. He found that a substantial part of the original barn walls remained and that the rebuilt sections, including the door and window openings, were essentially as indicated in the approved drawings. The building had the same footprint as before and had not been extended. These were factual conclusions based on his planning judgment and his inspection of the site and cannot be impugned in this court.
22. Mr Hogan next criticised the sentence in paragraph 13 of the decision stating that 'from the appellant's architect's letter dated 7^th March 2006 it should also have been clear that part of the north elevation, together with the whole of the roof, were to be reconstructed'. Since the letter was not referred to in the 2006 planning permission it was, he submits, an irrelevant matter in construing the extent of that permission. He referred me to the decision of Keene J in R v Ashford BC ex p Shepway DC [1999] PLCR 12.
23. It is curious that the council should now argue that the letter of 7^th March 2006 was an irrelevant consideration to which the inspector should have paid no attention, since it was relied on by the council in its submissions to the inspector in answer to the Northcotts' appeal. In any event, I accept the submission of Mr Honey that the description of the development in the 2006 planning permission was ambiguous as to the extent of the works which would be required. Where there is ambiguity in the wording of the permission, it is permissible to look at extrinsic material to resolve that ambiguity, as the Shepway case among others demonstrates. The letter was relevant extrinsic material within that principle.
24. The Claimant next asserts that the inspector was wrong to find that the development permitted by the 2006 planning permission necessarily comprised an element of demolition. The Tesco Stores case is authority for the proposition that the detailed ambit of the works permitted was a matter for the inspector's judgment based on the evidence, subject only to Wednesbury limits. In any event, it was not the council's case before the Inspector that the 2006 planning permission comprised no element of demolition. It is true that the application form answered 'no' to the question 'are any buildings to be demolished?'; but the Inspector was entitled to take the view (as do I, for what it is worth) that this answer on a common sense construction did not rule out the partial demolition and rebuilding of the barn. The application form made it clear that alterations to existing buildings were required; plainly these could include partial rebuilding. I note that in its appeal statement before the Inspector the council contended only that extensive alterations and substantial demolition were not authorised, and argued that there had been extensive demolition which had "gone further than that required for a proposed conversion". There was ample evidence to support the Inspector's conclusion that the 2006 planning permission authorised some element of demolition and rebuilding.

The local development plan

25. The Claimant's grounds then turn to alleged failures to have regard to the policies in the local development plan. I have already set out the five passages to which Mr Hogan referred me. They all seem to me to feed into the main issue, which both sides accept the inspector to have identified correctly, namely "the effect of the proposal on the character and appearance of the countryside and the Special Landscape Area". The question of whether the barn could be converted for residential purposes had been determined in the Northcotts' favour in 2006. The events of 2007 did not involve any increase in the footprint of the building. But in so far as the appearance of the building as rebuilt might differ from the appearance of the building shown on the plans for which permission had been granted, this might have an adverse effect on the character and appearance of the countryside in the Special Landscape Area. That was a legitimate concern of the Council, and it was the main issue which the Inspector was required to, and did, address.
26. As to the particular policies mentioned by Mr Hogan (and by the Inspector in paragraph 12 of his decision): policy H6 applies directly only to applications for planning permission for the conversion of existing buildings to residential use. Planning permission had already been granted for the conversion of the barn to residential use in 2006. I asked Mr Hogan whether it was the Council's contention that if the barn had simply fallen down from natural causes in 2007, policy H6 would have prohibited permission being given for its reconstruction for residential use. His answer was that it would have done so. This seems to me surprising. I do not think that policy H6 was more than tangentially relevant in the present case.
27. Policy H12(a) similarly applies directly only to applications for housing development, which was not what the inspector had to determine. In any event, the requirement that the proposal should be "in … character with [the] surroundings", is embodied within the main issue and policy objectives identified by the Inspector.
28. Policy EN1, applying to 'new development', does not appear to me to be directly applicable to the rebuilding or conversion of the barn; and if it was, that issue had been decided in 2006.
29. The design guidance note was not part of the local development plan. In any case the guidance which it gives was embodied within the main issue identified by the Inspector.
30. Policy EN6 was directly relevant to the application which the Inspector had to determine, as it had been to the original 2006 application. But it, too, was embodied in, indeed was indistinguishable from, the main issue identified by the Inspector coupled with the policy objective, which he records in paragraph 12, of protecting the countryside for its own sake especially where there is landscape of special quality. His conclusion in paragraph 15 that "the effect on the character and the appearance of the area, including the Special Landscape Area, would be little different to that of the improved scheme for the original barn" is one which was open to him on the evidence and involved no departure from nor any misinterpretation of policy EN6. It is, in my judgment, fatal to the Council's case.
31. Mr Hogan argues that the Inspector failed to identify material considerations justifying a departure from the development plan. However, the Inspector concluded that the proposal would not harm the character and appearance of the countryside or special landscape area. It therefore complied in his view with the plan, and it was not necessary for him to identify material considerations justifying a departure from it.

Conclusion

32. Applying Lord Brown's observations in the South Bucks case, the reasons given by the Inspector were entirely adequate. They enable the reader to understand why the main issue was resolved as it was, and they do not give rise to any substantial doubt on my part as to whether the Inspector erred in law.
33. In his witness statement Mr Carney states frankly that "this appeal raises in part the old issue [of the] tension between decisions made by locally elected representatives and review of those decisions by independent planning inspectors". But the fact that the Council disagrees with the Inspector's decision is not a ground for overturning it. I agree with Mr Honey that this challenge is in substance an attempt to re-run the merits of the appeal to the Secretary of State. The council's claim under Section 288 of the 1990 Act must be dismissed.