Respondents seeking to use land for permanent mooring of boats – Inspector quashing enforcement notice and granting conditional planning permission for mooring at site – Appellant seeking to quash inspector’s decision – Whether decision unreasonable – Appeal allowed
The second respondents sought to use land at Swinford Farm, Oxfordshire, for unrestricted, permanent mooring of boats. The site lay within an area of high landscape value, adjacent to the River Thames and Swinford Bridge, a Grade II listed building and scheduled ancient monument. A certificate of lawful use had been granted by the appellant council for one permanent mooring, two temporary moorings and an indeterminate number for navigational use. The appellants served an enforcement notice on the second respondents, against which the second respondents appealed. By decision letter of 12 August 1998, the first respondent’s inspector quashed the enforcement notice and granted planning permission pursuant to section 177(5) of the Town and Country Planning Act 1990 for the mooring of boats, subject to conditions that “boats shall not include house-boats and the number of boats moored at any one time shall not exceed 20”. In relation to the boats, the inspector stated “what I have to assess is the difference made by having unrestricted permanent moorings. It has to be borne in mind that permanent moorings do, from time to time, move up and down the river in other words, the boats should not be regarded as permanent features”.
The inspector concluded: (1) that the boats would not detract from the “openness of this part of the Green Belt” and did not constitute inappropriate development; and (2) that the use would not “detract from the special quality of this part of the countryside” and was acceptable in planning policy terms. The appellants challenged the inspector’s decision pursuant to sections 288 and 289 of the 1990 Act on the grounds that: (1) the decision that the proposal was not inappropriate development was Wednesbury unreasonable; (2) the inspector failed to have proper regard to the development plan and emerging plan policies; and (3) the inspector failed to consider the effect of the proposal on Swinford Bridge, as required by the Planning (Listed Buildings and Conservation Areas) Act 1990.
Held: The appeal was allowed.
1. A comparison needed to be made between the lawful use and the proposed use before the inspector could reach a conclusion as to the effect of the proposal on the openness of the land. The inspector failed to make such a comparison. A mere observation that the boats might be taken out from time to time was not sufficient to conclude that it would not detract from the openness of the area. Consequently, the inspector’s reasons regarding the issue of openness and the green belt were insufficient.
2. The inspector’s conclusion was at odds with the underlying purpose of the relevant plan policies to protect and enhance the special environmental qualities of the landscape. He effectively subverted the policies by imposing his own generalised view and failed to take into consideration the policies he purported to apply. The approach adopted by the inspector in respect of Swinford Bridge was also vitiated by that same error.
Peter Village (instructed by the solicitor to Vale of White Horse District Council) appeared for the appellants; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondent appeared in person.
Sarah Addenbrooke, barrister
