Planning permission — Caravan for agricultural holding — Whether accommodation essential for agricultural need — Whether inspector properly applied functional, financial or viability considerations
The appellant
occupied a holding on which he operated a piggery business. He sought to
increase the number of sows from 30 to 45 including three boars, and he would
work full time. He was refused planning consent to station a residential
caravan on the holding to enable him to carry out his agricultural tasks. On
appeal the Secretary of State for the Environment, by his inspector, upheld the
decision of the local planning authority to refuse planning permission on the
grounds, inter alia, that the appellant had failed to demonstrate the
functional need and the economic viability of the enterprise. The court below
upheld that decision. The appellant appealed that decision on the grounds that
the inspector: (1) had not properly dealt with functional considerations; (2)
failed to consider the financial viability of the enterprise and; (3) failed to
consider the possibility of allowing the appeal and granting planning consent
for a limited period to test the enterprise’s viability.
consideration.
The inspector
had failed to consider whether agricultural need and the appellant’s financial
position justified a caravan. He also failed to consider the viability of the
enterprise. The inspector’s letter did not meet the required standard of
reasoning: see p46 et seq. The inspector failed to consider and take
into account the possibility of imposing a time condition to test the
enterprise’s viability.
to in the judgments
Bolton
Metropolitan Borough Council v Secretary of
State for the Environment (1990) 61 P&CR 343; [1991] JPL 241
Top
Deck Holdings Ltd v Secretary of State for the
Environment [1991] JPL 961
Appeal against
the decision of Judge Rich QC (sitting as a judge of the Queen’s Bench
Division)
This was an
appeal brought by Paul Brightwell against a decision of Judge Rich QC (sitting
as a judge of the Queen’s Bench Division) dismissing his application under
section 288 of the Town and Country Planning Act 1990 to quash a decision of
the Secretary of State for the Environment upholding the refusal of the local planning
authority to allow him to station a caravan on to a site.
Ouseley QC and David Pugh (instructed by Emmet & Tacon, of Norwich)
appeared for the appellant, Paul Brightwell.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment.
respondents, Broadland District Council, did not appear and were not
represented.
following judgments were delivered.
LORD WOOLF
MR: Mr Paul Brightwell appeals against a decision of
Judge Rich, sitting as a High Court judge, when he dismissed the application of
Mr Brightwell, made under section 288 of the Town and Planning Act 1990, to
quash a decision of the Secretary of State for the Environment. That decision
was taken by an inspector on written submissions on an appeal by Mr Brightwell
against the refusal of the local planning authority to allow a caravan to be
cited at The Piggeries, The Turn, Hevingham, Norfolk. The Piggeries is situated
at the edge of a small settlement just to the west of the main village of
Hevingham.
There are two
separate parts to this appeal. The first part refers to the decision of the
judge only to grant leave to Mr Brightwell to amend his application if he gave
an undertaking to pay into court the costs of any adjournment, which was a
necessary consequence of the application. The second was as to the merits of
the decision of the judge.
So far as the
first part is concerned, Mr Brightwell is legally aided. The intention of the
judge in requiring the undertaking was that the lawyers should be responsible
for ensuring, if the undertaking was given, that it would be complied with. The
appellant disputes that the requirement of the undertaking was something which
could properly be demanded by the judge as a condition of leave to amend the
application.
I have some
sympathy with the approach of the judge. The application to amend was made at a
very late stage, after the commencement of the hearing. The judge was concerned
that the consequence of giving leave to amend would necessarily involve an
adjournment. He came to that view because the second respondents, the local
planning authority (Broadland District Council), had taken no part in the
proceedings. However, the application before the judge was being opposed by the
Secretary of State for the Environment, the first respondent. This is the usual
situation when a decision of this nature is being challenged. The Secretary of
State takes upon himself the responsibility of defending the decision which was
taken on his behalf.
The first
matter, therefore, which has to be considered in assessing the appropriateness
of the course taken by judge is whether an adjournment would have been
necessary if the application to amend had been granted. The judge took the view
that the local planning authority would have to be notified of the proposed
amendment and, because they were not a party to the proceedings, an adjournment
would be necessary. However, I take a different view from that of the judge on
this matter, although I am very conscious of his very considerable experience
in this area.
If the local
planning authority had decided to leave the matter to be dealt with by the
Secretary of State, they could not possibly have had any objection to not being
notified as to the proposed amendment. It was a desirable amendment, but one
which raised no different issue which would affect the local planning authority
over and above the case already being made.
This case
involved an allegation that the decision letter of the inspector disclosed that
no proper consideration had been given by him to one or more of the material
issues which were before him. The new allegation of a failure to give adequate
reasons was a natural accompaniment to the allegation of the failure to give
proper consideration to the issues. I cannot conceive that the second
respondent would seek to intervene because of a leave to amend being granted.
That is, therefore, sufficient to dispose of the first ground of appeal. There
was no need for an adjournment; if there was no need for an adjournment there
would be no additional costs incurred as a result of an adjournment, and the
requirement of the undertaking was unnecessary and inappropriate.
Having come to
that conclusion, it is unnecessary to deal in detail with the suggestion that,
in any event, such a requirement of an undertaking would be improper. However,
I confess that I have real reservations as to its propriety. The Secretary of
State did not seek to suggest before this court that it was a proper
requirement, and it interferes with the position of a legally aided litigant
under the Legal Aid Act. It also bypasses the requirements that have to be
considered by a court before it imposes a wasted costs order which, as the
appellant contended, was, in effect, the result of requiring such an
undertaking having regard to Mr Brightwell’s needs.
Having dealt
with the first part of the appeal, I turn to the second ground which concerns
the merits. Mr Duncan Ouseley QC, who appeared on behalf of Mr Brightwell on
the appeal, but did not appear in the court below, divided his case into three
sections. He submitted that the inspector, in coming to his conclusion, had not
properly dealt with the functional consideration which arose out of the
application, nor had the inspector dealt with the financial or viability
considerations. Finally, he submitted that the inspector had failed to deal
with the possibility of allowing the appeal and granting planning permission
for a limited period of time.
Mr Ouseley
included as part of his contentions, on the assumption that Mr Brightwell’s
appeal with regard to the leave to amend point would succeed, an alternative
allegation that if the inspector had properly considered the matter then he had
not explained it by giving adequate reasons.
The matter was
dealt with before the inspector on written submissions. The applicant relied on
letters written by his legal advisers and a report by an expert. The local
planning authority put in a written submission. It was an essential part of the
application that the judge, and the inspector on the appeal to him, would weigh
the evidence which was relied upon by the applicant and the local planning
authority against the numerous planning policies which applied to an
application of this sort.
An application
for planning permission in a rural area for the siting of a caravan is clearly
a matter which can give rise to planning considerations of an important nature.
There were local and national policies which had to be taken into account. The
written submissions of the local planning authority set out the local policies
to which I should refer. The first of these was the general policy statement H6
which was applicable. This provided:
Outside towns
and villages planning permission for new residential development will not be
given unless it is justified for agriculture, forestry, organised recreation or
tourist facilities … and the need for the development could not be met within
an existing settlement and there are no overriding environmental objections.
The district
council had adopted a policy H11 of the previously approved structure plan
which was also relevant. That deals with the fact that we are not concerned
with the normal residential development but a caravan. It is relevant because
it states:
Applications
for mobile homes, including residential caravans, will be determined as if they
were for permanent housing.
The third
policy to which I must refer is H8 of the rural parish policies, which
provides:
Outside the
villages, planning permission for new residential development will not normally
be given. However, permission may be given for dwellings connected with
agriculture, forestry, organised recreation or tourist facilities … if it can
be demonstrated that the need for the proposed development could not be met
within an existing settlement. In the case of dwellings for agricultural
workers, planning permissions will normally be granted where there is a proven
agricultural need and when such dwellings are sited in close proximity to
existing agricultural buildings.
The national
policy which is applicable is PPG 7 annexe E which is headed, Agricultural and
Forestry dwellings. E1 states:
One of the
few circumstances in which isolated residential development in the countryside
may be justified is when accommodation is required to enable farm or forestry
workers to live at or in the immediate vicinity of their place of work.
Normally it will be as convenient for such workers to live in nearby town or
villages as it will be for them to live where they work. This may have domestic
and social advantages as well as avoiding potentially intrusive development in
the countryside.
E2: There
will be some cases, however, in which the demands of the farming or forestry
work concerned may make it essential for one or more of the people engaged in
this work to live at or very close to the site of their work. Whether this is
essential in any particular case will depend on the needs of the farm or
forestry enterprise concerned and not on the personal preferences or
circumstances of any of the individuals involved.
E3 refers to
the need for strict controls and then goes on to say:
It is,
therefore, essential that all applications for planning permission for new
agricultural or forestry dwellings are scrutinised thoroughly with the aim of
detecting attempts to abuse the concession that the planning system makes for
such dwellings.
E4. In
particular, it will be important to establish that stated intentions to engage
in farming or forestry are genuine, are reasonably likely to materialise and
are capable of being sustained for a reasonable period of time. It will also be
important to establish that the needs of the intended enterprise require one or
more of the people engaged in it to live nearby. In assessing applications for
new agricultural or forestry dwellings local planning authorities may therefore
find it useful to apply functional and financial tests.
E5 sets out
the functional test, which includes:
Such a
requirement might arise, for example, if workers are needed to be on hand day
and night:
— in case animals or agricultural processes
require essential care at short notice;
— to deal quickly with emergencies that
could otherwise cause serious loss of crops or products, for example by frost
damage or the failure of automatic systems.
E6. The
protection of livestock from theft or injury by intruders may contribute on
animal welfare grounds to the need for an agricultural dwelling, although it
will not by itself be sufficient to justify one.
E7. In
determining whether a functional requirement exists it will be reasonable to
consider not only the requirements of an enterprise as it exists at present but
also its likely future requirements, provided there is clear evidence of a firm
intention and ability to develop the farming or forestry business concerned.
Annex E clears
the distinction between the functional requirements and the financial or
viability requirement.
Turning to the
written submissions which were before the inspector, the starting point is a
letter of October 26 l994 written on behalf of the applicant. That letter
includes a background information as to Mr Brightwell’s activities. Among other
things it states:
Until six
months ago, Mr Brightwell lived at 31 Haslip Close with his family [in
Norwich]. At that time he had only approximately 30 sows and was constantly
running back and forth from his home and site to look after them. he would have
to be on site at all times of the day especially when they were farrowing, and
quite simply, Mr Brightwell had little time to spend with his family. We
understand that he had a very small touring caravan, which he would stay in
when he had to be on site at night.
Mr Brightwell
wished to increase the number of sows to the current number of 45 plus 3 boars
so that he could run the piggery as a full time occupation. To look after that
number of sows, he would have to be constantly on site, at all times of the day
and therefore, the only way he could do that would be to live in site with his
family. There was no other way that he could do the job properly.
If one
accepts that, then there is certainly no other property where Mr Brightwell
could live, as certainly he cannot afford another property, and we believe
there are no properties available, either to buy or to rent nearby.
The letter
continues by dealing with the environmental considerations. It was followed by
a letter which indicates that the approximate number of animals on site are
between 45 and 50. The matter is then taken further by a later letter which
indicates that the number of sows on the site had been increased to 60.
The contents
of the letter were supported by the report of the expert, Mr Smith, who made an
agricultural appraisal of what was involved. Among the matters to which Mr
Smith drew attention, was the history; that Mr Brightwell’s business had
started off with a casual involvement in pig keeping. It stated that he
intended at that time to expand to 60 sows and makes various comments about the
informality of the business’s approach, but it does refer to the fact that
during Mr Smith’s visits to the site building work was taking place, blockwork
walls were being erected and a pole barn was nearing completion, the intention
being to use that for straw storage. There is also reference to security and
the fact that there had been one incident about 18 months previously when there
had been intruders and damage caused.
Mr Smith makes
an assessment of the financial viability of the project. He deals with the
matter by looking at general statistics which are available, and then makes
allowances for the particular manner in which the applicant was carrying on his
business, the most important aspect of which was the fact that he could obtain
pig food on very attractive terms which meant that his feed costs were much
less than the average. On the basis of that examination, he came to the
conclusion that a herd of 45 sows would yield a margin of £12,749 pa whereas a
herd of 60 sows would yield just under £17,000. Mr Smith expressed the opinion
that, given the number of sows already at the piggeries, which was 45, there
should be someone close at hand at all times in the interests of pig welfare,
security and general efficiency. That report is followed by a letter of March 3
1995 where he says:
In my opinion
this would be technically possible but I believe it would be very foolhardy,
particularly in a commercial situation … for Mr Brightwell to run the existing
pig unit from a Norwich address.
He then
explains why that is so.
The local
planning authority in their written submissions dealt with the situation when
the herd was 50. Having referred to the relevant policies, the local planning
authority stated in para 4.3:
The issue in
this case is whether there is sufficient justification for the retention of a
caravan for residential purposes on the appeal site, which otherwise would
clearly be contrary to established planning policies and which would constitute
an undesirable isolated development in the locality, which would be detrimental
to the visual appearance of the rural area.
They then go
on to say:
From the
information submitted with the application it would appear that there are under
50 animals on the site at any one time. It is the opinion of the Local Planning
Authority that this number of stock does not require a person to live on the
site in order to provide good husbandry for the animals.
That is
expanded at para 4.6 where they said:
The Local
Planning Authority takes the view that the number of animals on the site does
not require the attention of a person permanently residing on the site. Whilst
it is acknowledged that the good husbandry of the animals does require someone
to visit the site on a regular basis, this could be done quite adequately from
a property in the nearby vicinity.
The local
planning authority then state that they are aware of the history and that the
property in which the appellant lives is:
… in the
centre of Norwich some 9 kilometres from the site and obviously indicates that
a business has been operated on a similar scale to that of the present day
without the requirement of the Appellant to live any closer than 9 kilometres
from the appeal site.
Finally, in
their conclusions, the planning authority indicate that the development
proposed is unacceptable and add:
If, after
consideration of these representations, the Inspector is inclined to allow the
appeal, Local Planning Authority (in accordance with the requirements of
Circular 16/86) requests that the Conditions outlined on the attached appendix
should be imposed.
and those
conditions are for a limited time period for the condition to be applied.
On the basis
of those written submissions, the inspector gave a decision on May 2 1995 when
the herd was 60 in number, the relevant paragraphs of which, nos 6 and 7,
stated:
Until early in
1994 your client managed the site from Norwich. He then moved onto the site and
increased the number of pigs to about 45. From the evidence, the management of
this enterprise appears to be so informal as to cast doubt on the functioning
and viability of what is, according to your client’s expert, a DIY/low cost
enterprise. You indicate a generalised concern that someone should be close at
hand at all times in the interest of pig welfare, security and general
efficiency as well as emergencies. However, your client has managed about 30
pigs on site from his home in Norwich, and I have seen no evidence to suggest
that it is necessary to live on site to manage what is still a relatively small
enterprise.
Annex E of
Planning Policy guidance 7 requires a robust justification to establish whether
a dwelling of any sort is essential in the countryside for the proper
functioning of an agricultural enterprise. I consider that there is no clear
evidence to show that the enterprise is likely to be sustained for a
reasonable period of time. As the provision of a dwelling in the countryside is
not subject to personal preference, but to the needs of the enterprise, I
conclude the caravan would not be necessary for agricultural purposes. Neither
would the proposal satisfy the aims of current and emerging countryside
policies. It would consolidate the buildings presently on the site and would
help to extend the ribbon of development along The Turn. Thus, even though you
say the site is well screened, the caravan constitutes an unwarranted intrusion
in the countryside. therefore, I
consider that the proposal would harm the open countryside which should be
protected for its own sake. Furthermore, if the appeal were allowed, it would
be difficult for the Council to resist further similar applications.
In his
judgment, the judge examined the arguments advanced on Mr Brightwell’s behalf
with care. In rejecting those arguments, he adopted what could be described as
a generous approach to the interpretation of the inspector’s letter. Because
the application to amend had not been granted, he was not required to consider
the quality of the reasoning, which is a matter which arises for consideration
on this appeal.
Under the
relevant legislation, the inspector is under a statutory obligation to give
reasons for his decision. Those reasons must be intelligible and deal at least
with the primary issues which are before him. The general approach which I
would adopt is indicated in a speech of Lord Lloyd in the case of Bolton
Metropolitan Borough Council v Secretary of State for the Environment
(1990) 61 P&CR 343 at p352. This is a case which is now generally referred
to on appeals of this nature and on applications before the single judge. I
must confess some surprise that the case only appears in specialist reports.
While the
standard now has been laid down in a number of cases, including that to which I
have just referred, I would emphasise that the approach to the reasoning of an
inspector on a decision of this nature must be pragmatic. One must take into
account the extent and the nature of the issues which are before the inspector.
One should not be too astute to find defects in his reasoning.
It is clear
that the inspector clearly had in mind the distinction between the financial or
viability consideration that he had to take into account as well as the
functional aspect. Para 6 deals with the financial or viability aspect and,
clearly, the inspector formed an adverse impression of its future viability,
notwithstanding that there was material before him which he does not mention
indicating that Mr Brightwell was investing in the piggery and seeking to put
it on a sound basis. So far as the financial consideration is concerned, I
would not criticise the inspector for coming to his conclusion that there was
some doubt as to the viability.
Turning to the
other aspect, the criticisms of Mr Ouseley focused on the phrase: ‘I have seen
no evidence to suggest that it is necessary to live on site to manage what is
still a relatively small enterprise’. If one reads that phrase as referring
strictly to the requirement to actually live on site, then I can understand how
the inspector came to make that comment.
The case which
had to be answered by the inspector, and indeed by Mr Brightwell’s lawyer, was
one which was capable of being met by an ability
nearby settlements. But, as I understand the case which was being put forward,
it was clearly making the point that the herd could not be looked after
properly from Norwich.
While the
inspector was entitled to draw attention to the fact that Mr Brightwell had
managed 30 pigs on site from his home in Norwich with difficulty, it seems to
me that there was no justification for him not considering the point which was
being made about the need for someone close at hand. He expresses no conclusion
on that point. He had it in mind because just above the phrase which I have
cited he actually he uses the words ‘close at hand’, but he does not deal with
it. What was being said on Mr Brightwell’s behalf is that he could not obtain
any alternative to the site where he carried on his agricultural activities.
There was nothing within his means or, as far as was known, available close by
and, therefore, he had no alternative but to live on site or to live some
distance away, for example in Norwich.
In addition,
it is not clear from the inspector’s letter as to whether he was aware, or
whether he had failed to appreciate, the fact that there were now 60 pigs on
site. He refers to 45 pigs, but nowhere appears to have in mind that there has
been another substantial increase, proportionately, to 60 pigs. To contrast the
position which relates to 30 pigs to that which now existed on site, might be
unfair to the case which Mr Brightwell was putting forward.
It is
contended on behalf of the Secretary of State that that is not a fair criticism
of the inspector because of the use of the word ‘still’ before ‘relatively
small enterprise’. By using that word it is suggested that the inspector is
indicating that he has in mind a herd of 60 pigs rather than a smaller herd, as
had previously been referred to. I do not know whether that is a right
deduction or not; certainly the letter is not clear in that regard.
Looking at the
reasoning as a whole, bearing in mind in particular the approach the inspector
adopted in relation to the functional consideration, I am bound to say that the
letter does not meet the required standard of reasoning. Either the inspector
has failed to take into consideration the question of the possibility of the
site being served from close at hand, or he has not adequately set out his
conclusions in that regard.
In considering
a matter of this sort, the decision letter has to be looked at as a whole. It
is for that reason, and that reason alone, that I refer to the third
consideration on which Mr Ouseley relied, namely the failure of the inspector
to say anything about the possibility of granting permission but with a limited
time condition.
So far as that
is concerned, I fully accept, as has been made clear in the case of Top Deck
Holdings Ltd v Secretary of State for the Environment [1991] JPL 961
that there is no obligation on an inspector, in the absence of any reference to
an appropriate condition, to search for a condition which might be used to
assist an applicant who is appealing against the decision of a planning
authority.
However, in
this case, one of the matters which clearly influenced the
were signs that the operation was improving in its viability and that Mr
Brightwell was in fact making a success of it. On the other hand, it was only
viable on the basis that he devoted a very considerable amount of time
personally to the operation and if, for example, he became ill the position
could be transformed.
A time
condition was obviously a possibility and was relevant, as is recognised by the
specific reference by the local planning authority. Again, I would say that the
appellant is not being unreasonable in making a criticism of the inspector for
not making any mention of that possibility. That is a further factor that I
would put into the balance. One does not know whether the inspector has
considered it but not mentioned it, or whether it is a case of his failing to
consider it. In either event, he could be criticised to a minor degree in that
regard. While that is not a consideration with which I would have interfered
with the decision of the judge, I think it is a matter to be taken into account
on the general approach.
Looking at the
matter as a whole, which I have indicated to be the appropriate approach, the
decision I have come to is that the decision should be quashed. I do not think
there is any problem with Mr Brightwell establishing prejudice in so far as
that is required before a decision of this nature is quashed. Clearly, he is
entitled to know for the future management of his affairs the basis of the
decision and, in view of what I have indicated, it can be concluded here that
there is either a form of defect, failure of proper consideration, or there is
a failure of proper reasoning.
Accordingly, I
would allow the appeal and remit the matter to the Secretary of State so that
it can be reconsidered by an inspector.
ALDOUS LJ: I agree with the order that has been proposed and only wish to add
a few words on the merits. I have come to the conclusion that the inspector’s
decision on both the material issues did not provide adequate reasons.
Lord Woolf MR
has set out the evidence and submissions that were before the inspector in
detail. I therefore can turn directly to the decision letter of May 2 1995.
In para 3 of
that letter, the inspector said:
From all the
evidence, I consider that the main issue to be determined here is the effect of
the proposal on the open countryside near Hevingham.
I believe that
the inspector mis-stated the issue which was properly stated by the local
authority in para 4.3 of their submissions as:
The issue in
this case is whether there is sufficient justification for the retention of a
caravan for residential purposes on the appeal site, which otherwise would
clearly be contrary to established planning policies and which would constitute
an undesirable isolated development in the locality, which would be detrimental
to the visual appearance of the rural area.
The mis-statement
of the main issue by the inspector does not appear to have misled him as he
went on to consider the essential issues which were relevant having regard to
the local and national planning policies.
In para 6 of
the letter the inspector turned to the relevant considerations. He concluded
that the applicant’s appeal should be dismissed because he decided that it was
not necessary for the applicant to live on site, and he concluded in para 7
that there was no clear evidence that his pig breeding enterprise was viable.
His reasons
for his first conclusion were contained in the last sentence to para 6: first,
he concluded as fact that the applicant had managed about 30 pigs on site from
his home in Norwich and, second, he had seen no evidence to suggest that it was
necessary to live on site to manage what was a relatively small enterprise.
It is true
that the applicant had managed a pig breeding enterprise of about 30 sows while
living in Norwich, but it does not follow from that that it would have been
practical to do so after his herd had been increased to 60 sows. That was made
clear by Mr Smith, a consultant to the pig industry, in the conclusion of his
report. He said that somebody should be close at hand at all times in the
interest of pig welfare, security and general efficiency. He elaborated on that
in the letter of March 3 when he said that it was technically possible, but it
would be very foolhardy, particularly in a commercial situation, to manage the
enterprise from Norwich.
Therefore, the
applicant’s case before the inspector was that he needed to live in the
vicinity and, as stated in his solicitor’s letter, there was no accommodation
within the existing settlement. That was challenged by the local authority.
There was no evidence to suggest that the applicant needed to live on site
rather than in the vicinity. Thus, potentially there were two issues before the
inspector: namely did the increase of the herd from 30 to 60 sows require the
applicant to move nearer to the farm than Norwich and, if so, was there
accommodation available close by?
The inspector
rejected the applicant’s case, but failed to state how he had arrived at his
decision. He may have concluded that the 60-sow herd could be looked after by a
person residing in Norwich. If so, he rejected the evidence of Mr Smith. I
suspect that he accepted Mr Smith’s evidence on this part of the case and
therefore concluded that a herd of 60 sows could be looked after by a person
living within the existing settlement and also that there was suitable accommodation
to be found within the neighbouring villages. If so, I believe that he was
under a duty to say so. Lord Woolf MR has referred to Bolton and it
appears to me that one of the material issues in this case was whether there
was suitable accommodation in the surrounding area, there being no evidence he
needed to live on site. In my view, the inspector’s decision cannot be allowed
to stand as he does not make it clear why he concluded that the applicant need
not live on site.
The inspector
also held that there was no clear evidence to show that the enterprise was
likely to be sustained for a reasonable period of time. Mr Smith’s report
showed that, upon the facts as then known, the income which Mr Smith would
receive would show a margin exceeding the wages
However, the statement by the inspector must be read in the light of that
evidence. To arrive at his decision, the inspector had to have doubts as to
part of the report, or doubts as to the viability in the future. However, he
failed to give any reason why he concluded that there was no clear evidence. In
my view, he should have stated the reason why he had concluded that the
evidence was not clear. That was necessary to enable the reader to know what
was the issue that the inspector had in mind when he came to his conclusion.
For those
reasons, and the reasons given by Lord Woolf MR, I agree with the order
proposed.
BROOKE LJ: I also agree with the order proposed. We have been told by both
parties in this court that at the hearing before the judge counsel for the
Secretary of State raised no objection to the late amendment for which leave
was sought by the applicant; nor did he ask for an adjournment to give him or
his client the opportunity to respond to the new point for which leave was
granted. He was quite ready to deal with it there and then.
I agree with
Lord Woolf MR, that in the particular circumstances of this case there was
absolutely no need for the judge to make a conditional grant of leave to amend
on the terms Lord Woolf MR has described. Practitioners would, however, be
unwise to treat the decision of this court today as giving any sort of green
light for any late amendment of this kind. Late applications to amend will fall
to be treated by the judge at the hearing on its own merits, or lack of them,
in accordance with well established principles. In this particular case, I
agree with Lord Woolf MR that the judge was clearly wrong in the manner in
which he exercised his discretion on the application.
So far as the
substantive merits of the appeal are concerned, I have nothing to add to the
judgments given by Lord Woolf MR and Aldous LJ with which I agree.
Appeal
allowed.
