Enforcement notice — Lake in green belt — Use for angling — Traffic and parking objection — Inspector dismissing appeal and refusing to grant planning permission — Whether inspector had proper regard to structure plan policy encouraging water-based recreation — Adequacy of reasons — Failure by inspector to explain why objection could not be overcome by imposing conditions
Rossmere, a
lake near Mobberley, Cheshire, formed on the site of former sand workings and
within the green belt, was used for fishing by the members of an angling
society. Access to the lake was by a lane, Newgate, along which there were a
small number of houses. There were traffic objections from local residents and
eventually the local planning authority served an enforcement notice requiring
discontinuance of the use of the lake for angling purposes. On the society’s
appeal against the notice to the Secretary of State for the Environment it was
not in dispute that in itself recreational angling was an acceptable green belt
use but the inspector dismissed the appeal and refused to grant planning
permission, on the deemed application, because of the traffic and parking
generated and their effect on local amenities. He declined to impose conditions
to restrict either parking or the user of Newgate on the basis that such
conditions would be difficult for the society to administer and impractical for
the council to enforce. An appeal to the High Court against the inspector’s
decision was dismissed by Sir Graham Eyre QC (sitting as a deputy judge of the
Queen’s Bench Division) and the society appealed.
1. The
inspector had failed to give sufficient weight to para E.9 of the Cheshire
Structure Plan, which stated that proposals for all forms of water-based
recreation facilities were to be encouraged. For a development to be deserving
of encouragement was a different concept from its merely being ‘acceptable’.
Because the inspector failed to set the structure plan policy against the
traffic objections he had identified, the balancing exercise involved in his
determination was flawed: see pp 36F-H and 39C-D.
2. The
inspector had also failed to give reasons for his conclusion that conditions to
overcome the parking and traffic objections would be difficult to administer
and enforce: see pp 39A and 39D.
Per Russell LJ: It was difficult to understand why appropriate
conditions could not be devised which would strictly limit the parking of
vehicles in the vicinity of the lake and, by the same token, strictly limit the
passage of vehicles up and down Newgate.
Decision of
Sir Graham Eyre QC reversed.
to in the judgments
Pehrsson v Secretary of State for the Environment (1990) 61 P&CR
266; [1990] 3 PLR 66, CA
Appeal against
decision of Sir Graham Eyre QC
This was an
appeal by John Turner, for himself and on behalf of members of the Prince
Albert Angling Society, against a decision of Sir Graham Eyre QC (sitting as a
deputy judge of the Queen’s Bench Division) on October 2 1990 whereby he
dismissed an appeal under section 246 of the Town and Country Planning Act 1971
(section 289 of the Town and Country Planning Act 1990) against a decision
dated February 7 1990 of an inspector appointed by the first respondent, the
Secretary of State for the Environment, who dismissed the society’s appeal against
an enforcement notice dated May 19 1989 served by the second respondents,
Macclesfield Borough Council. The enforcement notice required the
discontinuance of the use of a lake, Rossmere, near Mobberley, Cheshire, for
angling purposes.
by Donn & Co, of Manchester) appeared for the appellant, John Turner.
Ashford-Thom (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for the Environment.
respondents, Macclesfield Borough Council, did not appear and were not
represented.
following judgments were delivered.
SIR DONALD
NICHOLLS V-C: I will ask Russell LJ to give the
first judgment.
RUSSELL LJ: Rossmere is a lake situated about one and a half miles from Wilmslow
and close by the village of Mobberley, Cheshire. It has a long planning
history. Originally on the site of the lake there were wet-sand workings. When
they were exhausted the lake was formed. It now has a water surface area of
some 12 acres and is in open countryside. The lake is owned by a local farmer.
There are two accesses to the lake: one is called Burleyhurst Lane and the
other is called Newgate.
In the early
1980s an angling society known as the Prince Albert Angling Society came on the
scene. The society concluded an agreement with the farmer whereby it acquired
exclusive angling rights in the lake. The society stocked the lake with fish
and anglers thereafter began to fish at the lake. It was capable of
accommodating up to 80 fishermen, though the evidence discloses that nothing
like that number ever fish this lake.
The agreement
between the farmer and the society provided for access to be gained via Newgate
and no pedestrian or vehicular access was permitted along Burleyhurst Lane.
That is still the position. Newgate has
part of its length is not well-surfaced. Originally the lane was used by heavy
goods vehicles on their way to a local tip, but the court is informed that that
practice has now ceased.
There were, in
the early 1980s, objections registered by local residents in the vicinity of
Newgate to the use of the lake for angling purposes in so far as it promoted
traffic along Newgate, and eventually in 1984 a planning inquiry was held, in
consequence of which no permission to use the lake emerged. Despite that,
anglers of the Prince Albert Angling Society continued to use the lake and
further planning proceedings ensued. All that I need say in this judgment is
that eventually the local planning authority, Macclesfield Borough Council,
served an enforcement notice upon the society dated May 19 1989. It required
the discontinuance of the use of the lake for angling purposes and of course it
necessarily involved the discontinuance of the use of Newgate as a means of
access to the lake.
The society,
through its secretary and trustee Mr John Turner, challenged the enforcement
notice and at the same time sought planning permission for the use of the lake
for recreational angling. In the initial stages the point was taken that there
had been no material change of user that amounted to development, but that
point has now been abandoned. The society did not seek a local inquiry and the
decision was taken in a planning context on behalf of the Secretary of State
for the Environment by one of his inspectors, Mr G Mercer JP BA MCD MRTPI. By a
decision letter dated February 7 1990 Mr Mercer, having found that the activity
did involve development, dismissed the society’s appeal against the enforcement
notice, upheld that notice and refused to grant planning permission on the
application deemed to have been made under section 88B(3) of the Town and
Country Planning Act 1971.
Mr Turner, on
behalf of the society, appealed that decision and the appeal came before Sir
Graham Eyre QC sitting as a deputy High Court judge. On October 2 1990 Sir
Graham Eyre dismissed the appeal to him and it is against that judgment that
the matter is brought before this court.
There are
really two bases upon which this appeal has been argued. Before the inspector
and before this court there has been provided a copy of the Cheshire Structure
Plan and accompanying statement, which, so far as counsel have been able to
ascertain, came into existence in or about 1985. Para E.9 of that structure
plan provides:
Water
Recreation
Proposals for
the development of all forms of water-based recreation facilities will be
encouraged provided that proposals incorporate provision for multiple use of
water resources wherever considerations such as ease of management and safety
allow.
Alongside that
statement and under the heading ‘Reasons and Explanation’ there appears the
following passage:
It is
particularly important that no group of users should be excluded from access to
water recreation sites. Cheshire’s water resources are under-
ease. Multiple use offers the prospect of providing for the maximum number of
people and minimising the practical conflicts between them. However, the
character of some areas of water makes them more suitable for management as a
Nature Reserve and on these water sports may be prohibited or rigidly
controlled.
It is common
ground that the application for planning permission and the enforcement notice
related to an activity within para E.9. It is further common ground that
Rossmere is within the green belt.
In the
decision letter, to which I have earlier referred, the inspector, Mr Mercer,
made two oblique references to the policy to be found in the structure plan. In
para 14 of the letter the inspector said:
From the
representations of all parties and from my visit, I consider that the issues in
this case relate to the traffic generated, to the effect of this on safety and
on the amenities of local residents and of the locality and on parking
requirements. It is not disputed that recreational angling is itself an
acceptable Green Belt use.
Later, in para
17 of the letter, the inspector said:
Whilst
recreational fishing as an activity is not opposed by the Council as contrary
to Green Belt in itself, the traffic and parking on the scale generated by the
facility are in my view detrimental to this pleasant country locality.
The only other
features of the factual background to which I need refer are contained in that
same paragraph. The inspector recorded that the average daily number of motor
vehicles travelling along Newgate in connection with angling activity at
Rossmere was between six and 12 cars. That was subject to an exception on
competition days, the number of which is not specified in the decision letter,
nor is it said what increased numbers are occasioned on such competition days.
The impression I get, reading the letter as a whole, rightly or wrongly, is
that competition days did not account for many days during the year.
It is to be
observed that the phraseology used by the inspector is not in accordance with
para E.9. I remind myself, of course, that one should not construe decision
letters, such as the one with which this planning application is concerned, as
if the letter was a statute deserving of minute dissection as to the meaning
and significance of phrases. But that said, the submission which finds favour
with me is that, judging from the terms of the letter, the inspector seems to
have given insufficient weight to para E.9. This is not a case of a development
being ‘acceptable’ to the planning authority and to the minister. It is a case
of such development being deserving of encouragement. The two concepts, in my
view, are different; and once one reaches the stage where it can be said that
the exercise of weighing up the advantages against the objections is flawed by
an inaccurate use of a phraseology apt to cover one side of the exercise, then
inevitably the whole process of determination becomes an unbalanced one. That,
perhaps inelegantly expressed, is how the first
submits that the absence of any specific reference to E.9 in the decision
letter creates at least the risk of an improper approach by the inspector and
one which flaws the decision because the balancing exercise has become flawed.
We were
helpfully referred during the course of that submission to the case of Pehrsson
v Secretary of State for the Environment (1990) 61 P&CR 2661.
That was a case where development within a green belt had been refused. There
had been a planning appeal which had dismissed the developer’s appeal and
ultimately the matter had come before a judge, who had dismissed the
application for the decision below to be reviewed. The Master of the Rolls,
Lord Donaldson, said at p 2672:
The first
issue was what was described as the ‘onus of persuasion’. This stems from the
Secretary of State’s Circular No 14/85, which provided:
‘The planning system, however, fails in
its function whenever it inhibits or delays development which could reasonably
have been permitted. There is therefore always a presumption in favour of
allowing applications for development, having regard to all material
considerations, unless that development would cause demonstrable harm to
interests of acknowledged importance.’
The emphasis
is that of the author of the circular, which later points out that development
plans are one, but only one, of the considerations which must be taken into
account in dealing with planning applications.
1Also reported at [1990] 3 PLR 66.
2[1990] 3 PLR 66 at p 68C.
– Of course,
in the instant case it was incumbent upon the inspector to have regard to the
Cheshire Structure Plan pursuant to the clear obligation laid down by section
88B of the 1971 Act –
The same proposition
appears in identical words in paragraph 15 of PPG 1, which deals with general
policy and principles, as contrasted with PPG 2 which deals with green belts
and PPG 7 which deals with rural enterprise and development. However, paragraph
15 of PPG 1 ends with these words:
‘Except in the case of inappropriate
development in the Green Belt the developer is not required to prove the case
for the development he proposes to carry out; if the planning authority
consider it necessary to refuse permission, the onus is on them to demonstrate
clearly why the development cannot be permitted.’
PPG 2 paragraph 12 provides that:
‘The general policies controlling
development in the countryside apply with equal force in Green Belts but there
is, in addition, a general presumption against inappropriate development within
them.’
No one has
suggested in this appeal that the fishing of Rossmere by
green belt. What is said here, and what was said here by the local planning
authority, was that there were other considerations, namely traffic
considerations, which were so seriously against development that the normal
presumption in favour was displaced.
One turns,
therefore, to consider how the inspector had regard to traffic considerations.
I have already referred to his findings in relation to the user of Newgate. He
was invited to overcome any conceivable difficulty in relation to traffic by
imposing appropriate conditions as to the user of Newgate and as to the parking
of motor vehicles. In para 18 of the decision letter Mr Mercer said:
The Society
indicates that parking could be provided on a specific site, limited to 25 cars
at a time (apart from events days) and correspondingly prohibited along the
approach track. I understand that parking would take place on, or close to, an
area of land which juts out into the lake from the southern bank. (I assume
this land is within the Society’s control.)
The position is one of considerable prominence in any view of the lake
and its surroundings. I do not consider 25 cars at any one time is so small a
number that their coming and going would not disturb residents and footpath
users or that their parking would be so insignificant visually as not to damage
the amenity of the locality. Moreover I am not convinced that the Society would
find the limitation or the parking prohibition easy to administer any more than
the Council would find it practicable of enforcement. It is also suggested on
behalf of the Society that there could be a limitation imposed on intensity of
user. I am not clear as to whether this would be a separate condition to that
already discussed. Even so I fail to see that, unless the limit were so low as
might be thought to negate any permission, it would avoid detriment to amenity
and enable permission to be given. There are also, again, practical questions
relating to administration and enforcement.
The second
basic submission advanced by Mr Payton on behalf of the appellants is that in
the passage which I have cited the inspector wrongly declined to solve any
problem created by traffic by requiring the imposition of conditions subject to
which the planning approval would be granted.
The precise
nature and extent of the objections advanced on traffic grounds are not clear
from the decision letter save in the most general terms. We have before us,
though we have not read, a handful of letters received by the inspector from
local residents. Apparently there was no such objection registered in the years
that intervened between the earlier inquiry and the second inquiry. But be that
as it may, for my part I find it very difficult to understand why, with the
appropriate drafting skills, conditions could not be devised which would
strictly limit the parking of motor vehicles within the vicinity of this lake
and, by the same token, strictly limit the passage of vehicles up and down
Newgate. This is not an exercise which seems to me to be beyond the wit of
anybody experienced in the drafting of planning conditions and, indeed, some
attempt to draft appropriate conditions was advanced by the local authority,
though, let it be said at once, without prejudice to their principal objections
to the development taken as a whole.
The complaint
made by Mr Payton is that there are not identifiable in the decision letter the
reasons why the inspector came to the conclusion that conditions would be
difficult of administration and enforcement. For my part, I, too, find it
difficult to understand how appropriately drafted conditions would meet with
the difficulties that the inspector envisaged. Accordingly, just as with the
first basis on which this appeal has been argued, I find force in the
alternative complaint that was made in relation to traffic generation.
The court is
informed that if that view is taken here we do not quash the decision of the
inspector but we simply allow the appeal and remit the matter to the minister
for further consideration in the light of the observations recorded in this
judgment. That is the course that I would propose.
LEGGATT LJ: The inspector did not pay regard to para E.9 of the Cheshire
Structure Plan in that neither his reference to an acceptable green belt use
nor his reference to recreational fishing not being ‘opposed by the Council as
contrary to Green Belt in itself’ takes any account of the policy of
encouraging water-based recreation facilities. There was, therefore, nothing in
the decision letter to set against such traffic objections as the inspector
took into account. The inspector also failed to explain: (a) what reason there
is to expect more than a minimal number of cars arriving at the lake on any day
other than a competition day; (b) how low a limit on the number of parking
spaces ‘might be thought to negate any permission’; and (c) why it would not be
possible to impose a condition which would control the number of parking spaces
used.
I agree that
the appeal should be allowed and an order issued such as Russell LJ has
indicated.
SIR DONALD
NICHOLLS V-C: I also agree.
Appeal
allowed with costs; matter remitted to first respondent for rehearing and
determination; application for leave to appeal to the House of Lords refused.
