Certificate of lawful use — Caravans — Whether caravans ‘structures’ — Whether immune from enforcement after four years’ residential use — Whether real risk of bias on part of inspector
The
appellant and his wife owned a motel standing in 10.5 ha of grounds. On the
site were 15 caravans occupied by various people. The appellant’s application
for a certificate of lawful use for the stationing of six mobile and 12 touring
caravans was refused in May 1995 by the second respondent local planning
authority. The second respondents then issued enforcement notices in respect of
the use of the land for those uses. The appellant appealed against the refusal
of the certificate and the enforcement notices. In dismissing the appeals, the
inspector decided that the relevant period for taking enforcement under section
171B of the Town and Country Planning Act 1990 was 10 years and that, on a
balance of probability, there was no settled and definable use of the land for
stationing caravans 10 years before the date of the application or the
enforcement notices. The appellant appealed that decision contending that the
caravans were structures, and therefore buildings, within the 1990 Act and that
there was a real danger of bias or procedural unfairness by reason of the
inspector’s previous knowledge of the site.
The
approach to the definition of ‘building’ is now well settled. It should be
considered, as a matter of fact and degree, in the light of the factors considered
in R v Swansea City Council, ex parte Elitestone Ltd [1993] 2 PLR
65. There were ample grounds for the inspector to conclude that the caravans
were not buildings. The provisions of section 336(1) of the 1990 Act do not
require the application of the definition of ‘caravan site’, which itself
involves a consideration of whether any particular ‘structure’ is a caravan, to
the definition of ‘building’: see p99A. The inspector reached his conclusions
on a consideration and appraisal of the evidence and in the light of his
impression of the witnesses called before him. There was no warranty for
inferring that his appraisal or approach was biased or influenced by some
private or independent knowledge: see p106F.
referred to in the judgment
Barvis Ltd v Secretary of State for
the Environment (1971) 22 P&CR 710, DC
Cardiff Rating Authority v Guest Keen
Baldwin’s Iron & Steel Co [1949] 1 KB 385; [1949] 1 All ER 27; 65 TLR
159; 47 LGR 159, CA
Gravesham Borough Council v Secretary
of State for the Environment (1982) 47 P&CR 142; [1983] JPL 307
Ministerial Planning Decision [1996] JPL
435
R v Gough (Robert) [1993] AC 646;
[1993] 2 WLR 883; [1993] 2 All ER 724, HL
R v Inner West London Coroner, ex
parte Dallaglio [1994] 4 All ER 139
R v Secretary of State for the
Environment, ex parte Kirkstall Valley Campaign Ltd [1996] 3 All ER 304; [1997] 1 PLR 8; [1996] JPL 1042, QB
R v Swansea City Council, ex parte
Elitestone Ltd (1993) 66 P&CR 442; [1993] 2 EGLR 212; [1993] 46 EG 181;
[1993] 2 PLR 65; [1993] JPL 1019, CA
Application
under section 288 and an appeal under section 289 of the Town and Country
Planning Act 1990
This
was an application by Terence Charles Measor under section 288 and an appeal
under section 289 of the Town and Country Planning Act 1990 in respect of a
decision of the first respondent, the Secretary of State for the Environment,
Transport and the Regions, to dismiss appeals by the appellant against decisions
of the second respondents, Tunbridge Wells Borough Council, to refuse to grant
a certificate of lawful use and to issue enforcement notices.
Willers (instructed by Stephen Fidler & Co) appeared for the applicant,
Terence Charles Measor.
Hobson (instructed by the Treasury Solicitor) represented the first respondent,
the Secretary of State for the Environment, Transport and the Regions.
appear and were not represented.
MR
ROBIN PURCHAS QC: In this application Terence
Charles Measor applies under section 288 of the Town and Country Planning Act
1990 to quash the decision of the first respondent, dismissing his appeal from
a decision of the second respondents refusing a certificate of lawful use for
the stationing of six mobile caravans and 12 touring caravans for residential
use at Post Boys Motel, Hastings Road, Flimwell, and appeals under section 289
of the 1990 Act from the decision of the first respondent dismissing his appeal
against enforcement notices issued by the second respondents in respect of the
use of the land for those purposes.
Mr
Marc Willers, who appears for the appellant, relies upon two main grounds of
challenge: that the first respondent should have determined the appeals on the
basis that the use was one that became immune from enforcement four years after
the breach in accordance with section 171B(2) of the Act; and, second, that in
the circumstances there was a real danger of bias or procedural unfairness,
having regard to the inspector’s past knowledge of the site.
Background
Post
Boys Motel consisted of a motel standing in about 10.5 ha of grounds on the
south side of the A21. The appellant and his wife purchased it in 1984. On
January 3 1995 the appellant made an application
was refused on May 30 1995.
The
enforcement notices were then issued on July 13 1995. The appellant appealed
and a joint inquiry was held in November 1996.
In
his findings of fact, the inspector recorded:
19.9
Within the south-westerly wooded area of the area shown edged red on plan A1,
and also within the sector of the blue edged area between the pond and the
western boundary, were 15 caravans, including two static units, which were in
the approximate positions shown marked 3 and 4 on plan A1 at the time of my
inspection.
19.10.
The caravans were sited haphazardly and mostly well screened by trees. The
majority were small touring types of considerable age, with no services
connected, and light and heat provided by gas cylinders, car batteries, and in
two cases log stoves.
19.11
Twelve of the caravans were said to belong to the site owner, and two were
owned by Mr Day who lives in London and used them only at fruit picking time.
One is owned by a Mrs McCarthy who also lives in London. Eight were said to be
occupied, all by single people, one by a security guard. Occupants indicated
they had been living on the site between 3–4 years and 2 months.
At
para 20.5 the inspector concluded that the relevant period for taking
enforcement under section 171B was 10 years, and at para 20.29 that on the balance
of probability there was no settled and definable use of the appeal sites for
the stationing of permanent residential caravans or as a touring caravan site
10 years before the date of the application was made or the notices were
issued. He recommended that the appeal should be dismissed.
By
letter dated August 19 1997 the first respondent accepted the inspector’s
conclusions and recommendation and dismissed the appeals.
Relevant period
Statutory provisions
Section
55 of the 1990 Act provides, so far as relevant:
(1)
Subject to the following provisions of this section, in this Act, except where
the context otherwise requires, ‘development’, means the carrying out of
building, engineering, mining or other operations in, on, over or under land,
or the making of any material change in the use of any buildings or other land.
(1A)
For the purposes of this Act ‘building operations’ includes —
(b) rebuilding;
(c) structural
alterations of or additions to buildings; and
(d) other operations normally undertaken by a
person carrying on business as a builder.
Section
171B of the 1990 Act provides, so far as relevant:
(2)
Where there has been a breach of planning control consisting in the change of
use of any building to use as a single dwellinghouse, no
beginning with the date of the breach.
(3)
In the case of any other breach of planning control, no enforcement action may
be taken after the end of the period of ten years beginning with the date of
the breach.
Thus,
if the breach falls within subsection (2) as a breach of planning control
comprising the change of use of any building to use as a single dwellinghouse,
the relevant period for enforcement is four years from the breach. If not, for
the present purposes, the period will be 10 years.
By
section 191(2), for the purposes of the Act:
uses
. . . are lawful at any time if —
(a)
no enforcement action may then be taken in respect of them (whether because
they did not involve development or require planning permission or because the
time for enforcement action has expired or for any other reason); and
(b)
they do not constitute a contravention of any of the requirements of any
enforcement notice then in force.
Section
336(1) of the Act provides:
In
this Act, except in so far as the context otherwise requires . . .
‘building’
includes any structure or erection, and any part of a building, as so defined,
but does not include plant or machinery comprised in a building.
‘Dwelling
house’ is not defined under the Act.
Inspector’s conclusions
At
para 20.2 he concluded that the whole site was a single planning unit. At para
20.5 he continued in respect of all three appeals:
The
considerations are identical, but it is necessary to differentiate between
permanent residential, and touring caravans. The first issue is whether the
four year immunity period can be applied to the permanent residential caravans
in the way suggested by Mr Titterell. None of the mobile homes or caravans on
the site has been adapted in such a way as to lose its fundamental
characteristics as a caravan, as defined in S29(1) of the Caravan Sites and
Control of Development Act 1960 and S13(1) of the Caravan Sites Act 1968, and
the siting of caravans is a use of land. Caravans are not the same as chalets,
and the fact that there have been cases whereby long term caravan dwellers have
been said to have the same rights as householders when it came to selling their
homes. [It], does not mean that residential caravans are buildings for the
purposes of the planning legislation. The decision reported at [1996] JPL 435,
quoted on behalf of the Planning Authority, applies to the present case, and
the appeals should be determined on the basis of the 10 year immunity period in
S171B(3) TCPA 90.
As
I have indicated, the first respondent accepted those conclusions.
Submissions
Mr
Willers accepts that, to succeed in establishing a four-year period,
he must demonstrate that: (1) the caravans in question constituted buildings;
and (2) there was a change in use of the particular building to use as a single
dwellinghouse.
For
the purposes of the present application, Mr John Hobson, who appears for the
first respondent, accepts that if the caravans constituted a building for the
purpose of the Act, potentially it could also comprise a dwellinghouse for that
purpose: see Gravesham Borough Council v Secretary of State for the
Environment (1982) 47 P&CR 142.
Thus,
the issues argued before this court turned on whether the inspector’s
conclusion that the caravans were not buildings was sustainable in law.
Mr
Willers points out that the inspector gave three main reasons for his
conclusion that the caravans were not buildings: (1) they had not been adapted
in such a way as to lose their ‘fundamental characteristics’ as a caravan as
defined in section 29(1) of the 1960 Act and section 13(1) of the 1968 Act; (2)
the siting of caravans was a use of land; and (3) the decision reported at
[1996] JPL 435 [ministerial planning decision] applied.
He
submits that on those conclusions it can be seen that the inspector accepted
that the caravans met the definition in the 1960 Act. That provided as follows:
‘Caravan’
means any structure designed or adapted for human habitation which is capable
of being moved from one place to another (whether by being towed, or by being
transported on a motor vehicle or trailer) and any motor vehicle so designed or
adapted, but does not include:
(a) any railway rolling stock which is for
the time being on rails forming part of a railway system, or
(b) any tent;
The
definition is imported into the 1990 Act in that section 336(1) of that Act
defines ‘caravan site’ as having the meaning given in section 1(4) of the 1960
Act, which, in turn, adopts the definition given in section 29(1) of the same
Act. The inspector can therefore, he submits, be seen to have concluded that
the caravans were structures for the purposes of that definition. There is no
good reason, Mr Willers submits, to adopt a different approach to the meaning
or application of the term ‘structure’ to a caravan for the purposes of its
definition under those two Acts or, indeed, for different purposes under
section 336(1) of the 1990 Act. It therefore follows that, notwithstanding
their ability to be moved, the caravans would constitute structures and as such
come within the definition of ‘building’ for the purpose of the 1990 Act. Thus,
the fundamental step in the reasoning of the inspector was flawed in that, by
virtue of the caravans meeting that definition for the purpose of the 1960 Act,
they constituted buildings, and not the contrary as the inspector and the first
respondent concluded.
It
cannot, therefore, be asserted, he submits, that the siting of caravans is
necessarily a use of land. The decision reported at [1996] JPL 435 (which
concluded that the definition of caravan in the 1960 and 1968 Acts was to be
used for the purpose of planning control) did not address the point on
which Mr Willers relies in this appeal. In any event, the ultimate conclusion
in that case, that it did not involve use as a single dwellinghouse, depended
upon its ‘facts and other evidence’. In the present case the inspector and the
first respondent treated the definition as effectively conclusive.
So
far as the general approach to the meaning of ‘building’ is concerned, both
counsel accepted the approach set out at para P55.10 in the notes to section
55(1) of the 1990 Act in the Encyclopedia of Planning. Those notes refer
to the Divisional Court decision in Barvis Ltd v Secretary of State
for the Environment (1971) 22 P&CR 710 and its reliance upon the
decision of the Court of Appeal in the earlier rating case of Cardiff Rating
Authority v Guest Keen Baldwin’s Iron & Steel Co [1949] 1 KB
385, where Jenkins J, at p402, identified three primary factors as being
relevant to the question of what was a ‘building’: (1) size; (2) permanence;
and (3) physical attachment.
I
would add that the relevant law has been recently reviewed by the Court of
Appeal in R v Swansea City Council, ex parte Elitestone Ltd [1993]
2 PLR 65. That case concerned the demolition of a chalet. At p71 Mann LJ
referred to the earlier Divisional Court authorities including Barvis.
At p73A he concluded:
In
the light of those observations Mr Thom accepts that incorporation in the
realty is but one factor, and it is not determinant either way. I think that he
is right in so accepting. I also think he is right in accepting that the degree
of permanence is a highly material factor. Other significant factors are, size
and composition by components: see by way of analogy the discussion in Cardiff
Rating Authority v Guest Keen Baldwin’s Iron & Steel Co Ltd
[1949] 1 KB 385, at pp402 to 403.
The
other members of the court agreed.
Mr
Hobson contests this ground of challenge both in principle and on its facts. He
submits that the approach to the meaning of ‘building’ for the purposes of
section 55(1) and section 171B(2) should be the same for caravans as in any
other case. It should be considered in the light of the definition of
‘building’ in section 336(1) and the relevant case law summarised in the note
to the Encyclopedia of Planning. Relevant factors included permanence
and attachment.
Mr
Hobson submits that it is apparent from the inspector’s conclusions that he
concluded that these caravans remained mobile or potentially mobile within the
meaning of the 1960 and the 1968 Acts. On that conclusion he and the first
respondent were entitled to conclude that the caravans were not buildings. That
approach was not affected by the use of the term ‘structure’ for the purposes
of the 1960 Act definition; albeit incorporated into the 1990 Act for the
purpose of defining a caravan site. The definitions had to be applied in
context. It would be absurd to suppose that all caravans were buildings for the
purposes of building operations under section 55 of the Act or Part VII in
respect of planning enforcement.
Decision
In
my judgment, Mr Hobson is correct in his submissions. The approach to the
definition of ‘a building’ for the purposes of development control is now well
settled. It should be considered, as a matter of fact and degree, in the light
of the factors identified by the Court of Appeal in Elitestone and
helpfully summarised at para 55.10 of the Encyclopedia of Planning.
Generally, a mobile caravan would not satisfy that definition, having regard to
factors of permanence and attachment.
On
the findings of fact of the inspector in the present case, there were ample
grounds for his conclusion that they did not constitute ‘buildings’ in the
light of that guidance.
The
definition of ‘caravan’ in section 29(1) of the 1960 Act is applied to the
definition of ‘caravan site’ under section 336(1) of the 1990 Act. That
requires consideration of whether a particular ‘structure’ is mobile or
potentially mobile in the context of that legislation. It would, in my
judgment, offend the purpose of section 55(1) and the other provisions of Parts
III and VII of the Act for the control of development to conclude from that
that all caravans are structures and, therefore, buildings within the
definition of ‘building’ in the 1990 Act. The provisions of section 336(1) do
not require the application of the definition of ‘caravan site’ to the
definition of ‘building’. It would be contrary to the well established approach
on the authorities to determination of what is a building.
In
my judgment, it would also conflict with the purpose of the Act and common
sense to treat mobile caravans as buildings as of right. While I would be wary
of holding that, as a matter of law, a ‘structure’ that satisfied the
definition of, for example, a mobile home under section 13(1) of the 1968 Act
could never be a building for the purpose of the 1990 Act, it seems to me that
the conclusion of the inspector, by reference to the definitions in the 1960
and the 1968 Acts and the decision at [1996] JPL 435, makes it clear that he
considered that in the present case the caravans lacked that degree of
permanence and attachment to constitute buildings.
In
my judgment, those reasons were adequate and the first respondent was not to be
faulted in accepting them. This ground accordingly fails.
Bias
Background
A
primary issue before the inspector was when the breach of planning control in
the change of use of the site to a use partly for the stationing of caravans
had occurred. In his affidavit sworn on May 4 1998, the appellant stated:
3.
I must say that I gained the impression at the outset of the planning inquiry
that the Inspector had already made up his mind that he would give little
weight to my case and would refuse my appeal. The fact that the Inspector
indicated that he had some independent knowledge of the planning history of the
site on a number of occasions throughout the course of the inquiry only served
to exacerbate my concern that the Inspector might be prejudiced against my
case.
5.
At the beginning of the planning inquiry the Inspector dealt with
various formalities; he introduced the participants and detailed the procedure
to be adopted during the hearing. The Inspector then spoke about the location
of the site. He said that he remembered the site when it had been used as an
antiques gallery and he particularly recalled that there had been one access to
the appeal site when it was used as an antiques gallery and that a ship’s
figurehead had been stationed near the entrance to the appeal site at that
time.
7.
I also recall that during the first day of the hearing of my appeal the
Inspector indicated that he lived locally to the appeal site, used the A21 road
on many occasions and was very familiar with the appeal site.
8.
On another occasion during the first day of the hearing the Inspector indicated
he had passed the site on numerous occasions and commented on the fact that he
was particularly familiar with the Area of Outstanding Natural Beauty which is
located nearby to the appeal site.
9.
I also recall that during the appeal inquiry the Inspector made a reference to
the fact that he had known the occupants of the property opposite the appeal
site known as Combe Well Priory, and had been familiar with the local Hunt.
10.
One other incident that I recollect might well serve to highlight the extent of
the Inspector’s knowledge of the appeal site and its surroundings. During the
course of the inquiry Mr Bringloe, the Second Respondent’s Planning Officer,
was called to give evidence. When Mr Bringloe gave evidence he referred to a
filling station located at the site of a Happy Eater restaurant which was
situated approximately three quarters of a mile away from the appeal site. Much
to my surprise the Inspector interrupted proceedings to correct Mr Bringloe and
stated that there had never been a filling station located on that site.
In
his affidavit sworn on July 20 1998, Christopher Russell, the inspector,
stated:
3.
At no time during the Inquiry did I indicate that I was local to the area. I
live near Folkstone, which is some forty miles and two Local Authority
Districts away from Frimwell. From 1961 and 1973 I was a solicitor in Ashford
Kent, and, over the years, I have had cause to drive many times along the A21;
I am, accordingly, reasonably familiar with one of the County’s main roads.
4.
During the Inquiry the only occasions on which I referred to knowledge of the
relevant sites were:
(a) in my opening statement when I said that
I had made a pre-Inquiry visit and was familiar with the main landmarks in that
part of the country. My reason for saying this was to avoid the parties
unnecessarily explaining the general features of the area;
(b) when examining the various buildings on
the rather complex plans, I said that I knew which building had been an
antiques gallery and remembered it being used as such. In fact, the gallery was
a well-known landmark on the A21. The business of the antiques gallery was,
however, prior to the Applicant’s purchase of the site, and has no relevance to
the planning history of this case, or the issues relating to the stationing of
caravans.
(c) I also recall saying that I was aware that
the site had not been a filling station and corrected a witness concerning the
location of a ‘Happy Eater’. This was because rating valuation lists from 1973
were
parties became obviously confused between the appeal site and the site at the
next crossroads to the South where there is indeed a ‘Happy Eater’.
In
his latest affidavit sworn on 28th May, the Applicant’s confusion is
demonstrated at paragraph 10. The important point is that there has never been
a filling station on the appeal site, not that there has never been a station
on the ‘Happy Eater’ site.
5.
I have no recollection whatsoever of saying anything about a ship’s figurehead
and two cannons. With regard to paragraph 8 of that Affidavit, I recall saying
that I knew where Bewl Water and Bedgeberry Pinetum were as both those features
were referred to in the context of the attractions in the area for tourists,
thereby justifying a claim that tourists may sometimes have parked caravans on
the site. Paragraph 9 of the Affidavit claims that I said that I knew the
occupants of the property opposite the appeal site known as Comb Well Priory
and had been familiar with the local Hunt. That comment is untrue. I recall
asking if the property was in private (as opposed to institutional) occupancy.
I said nothing about any local Hunt nor did anyone else mention one to me . . .
8.
In summary, the only ‘independent’ knowledge which I had of the site is from
passing, fairly often, along the A21 road and knowing that there was once an
antiques gallery there. The gallery closed before the Applicant bought the
site, or the relevant ten year period began to run. It is wholly incorrect, but
also consistent with inconsistencies in Mr Measor’s evidence, to say that I
appeared to have some indepedent knowledge of the site and its uses during the
relevant period.
Submissions
On
the evidence, Mr Willers submits that there was a real danger that the
inspector had independent knowledge of the history of the site and had used it,
consciously or unconsciously, on reaching his conclusions on the evidence. He
referred me to R v Robert Gough [1993] 2 All ER 724, R v Inner
West London Coroner, ex parte Dallaglio [1994] 4 All ER 139 and R v Secretary
of State for the Environment, ex parte Kirkstall Valley Campaign Ltd [1996]
3 All ER 304. In Dallaglio Simon Brown LJ, at p151f, set out certain
important propositions derived from the House of Lords’ decision in Gough
for the correct approach in cases of alleged bias including:
(1)
Any court seised of a challenge on the ground of apparent bias must ascertain
the relevant circumstances and consider all the evidence for itself so as to
reach its own conclusion on the facts.
(2)
It necessarily follows that the factual position may appear quite differently
as between the time when the challenge is launched and the time when it comes
to be decided by the court. What may appear at the leave stage to be a strong
case of ‘justice [not] manifestly and undoubtedly be[ing] seen to be done’,
may, following the court’s investigation, nevertheless fail. Or, of course,
although perhaps less probably, the case may have become stronger.
(3) In reaching its conclusion the court
‘personifies the reasonable man’.
(4)
The question upon which the court must reach its own factual conclusion is
this: is there a real danger of injustice having occurred as a result of bias?
By ‘real’ is meant not without substance. A real danger clearly involves more
than a minimal risk, less than a probability. One could, I think, as well speak
of a real risk or a real possibility . . .
(7)
It will be seen, therefore, that by the time the legal challenge comes to be
resolved, the court is no longer concerned strictly with the appearance of bias
but rather with establishing the possibility that there was actual although
unconscious bias . . .
(9)
It is not necessary for the applicants to demonstrate a real possibility that
the coroner’s decision would have been different but for bias; what must be
established is the real danger of bias having affected the decision in the
sense of having caused the decision-maker, albeit unconsciously, to weigh the
competing contentions, and so decide the merits, unfairly.
In Kirkstall
Valley Campaign Ltd Sedley J held that the principles in Gough and Dallaglio
applied in considering bias in planning decisions: see pp317 and 321.
Before
me both counsel accepted that, in considering the allegation of bias, the court
should follow the principles in Dallaglio. Moreover, Mr Willers accepted
that, on one view of his submissions, the appellant’s complaint was one of
procedural unfairness that the inspector was taking into account his past and
independent knowledge of the site in determining the issues of fact in
contention. Counsel for both parties agreed that for the purposes of this
appeal I should approach the question of possible procedural unfairness in the
same way as bias.
In
the light of Dallaglio, Mr Willers submits that the court can conclude
that there was a real danger of bias or procedural unfairness having regard to
the following:
1.
The affidavit evidence demonstrated that the inspector regularly travelled on
the A21 and thus consciously or unconsciously would have formed an impression
as to the use of the site from 1984 onwards. That would carry with it the
inherent risk that his approach to witnesses and other evidence would have been
coloured by the impression that he derived as a result.
2.
The risk of influence can be seen from the otherwise unexplained conclusions of
the inspector, accepting evidence from local residents that was
self-contradictory and inherently weak, while rejecting almost in its totality
the relevant evidence by or on behalf of the appellant.
In
particular, Mr Willers relied upon:
1.
A meeting with the Highways Agency in December 1983 to discuss potential
expansion of the use of the land for chalets and camping.
2.
The 1984 particulars of sale, which identified the site’s potential as a select
caravan and camping site.
3.
The grant of planning permission in 1990 and 1991 for shower and lavatory
facilities for caravanners and campers.
4.
The direct evidence from the appellant and witnesses on his behalf, including:
Christopher
Roffey, who was the transport manager in the family coach business and who
deposed that there had been between two and 12 caravans and mobile homes on the
land since October 1984.
The
appellant himself, who had given evidence, recorded at para 5.3 of the report,
of a meeting with Mr Bishop, a planning officer, and his planning consultant,
Mr Titterell, before he bought the site in 1984, where
site for more than four years and was immune from enforcement action. The
officer had inspected the site and was aware of the situation.
Mr
Titterell’s evidence, which is recorded at paras 6.1–6.12 of the report and
confirms both the presence of mobile homes and caravans on the site and the
meeting with the planning officer. Mr Titterell also gave evidence that he had
regularly seen caravans on the site since 1984.
Mr
Willers points out that, although the appellant and Mr Titterell gave sworn
evidence of this meeting, Mr Bishop was not called by the second respondents.
The only evidence in that respect was from Mr Bringloe, reported at para 15.6
of the report, that Mr Bishop had no recollection of either caravans on the
site or a meeting in 1984.
In
contrast, the high point of the residents’ evidence, Mr Willers says, was an
affidavit of Stewart Henley that, up until 1991, driving past on the A21 he had
not noticed any caravans close to the motel, and that in June 1991 there were
no caravans or mobile homes on the land, save for the mobile homes close to the
motel itself. Caravans started appearing in about 1993.
Mr
Graham Lower, whose evidence is recorded at paras 9.1 to 9.6 of the report,
gave evidence that ‘in the early years’ of the applicant’s occupation (after
1984) there were two caravans on the site, although Mr Lower said that to his
knowledge no one lived in them. Notwithstanding that, Mr Willers points out
that Mr Lower went on to maintain that there were no caravans on the site until
a much later date.
Mr
Willers also drew my attention to the report of the second respondents’ legal
services manager on the application dated May 22 1995, where the officer
described the supporting evidence for the application as ‘quite impressive’ and
pointed to a ‘number of discrepancies’ on the evidence relied upon by the
second respondents.
Mr
Hobson submits that it is manifest from the affidavit of the inspector that he
had no independent knowledge of the relevant past history of the site. There
had been no applications for cross-examination. Thus, he submits that this
court should be slow to reject that direct evidence from the inspector. In any
event, there was nothing in the points made by Mr Willers that would
individually or cumulatively justify its rejection. The conclusions of the
inspector were all supported on the evidence and can be seen to have been the
product of the normal decision-making process in the evaluation of evidence,
sometimes conflicting, on primary questions of fact. He referred me to the
relevant passages in the inspector’s report in which all of the matters raised
by Mr Willers had been addressed.
Decision
I
approach my decision on the basis of the test in Gough, that is, whether
there was a real danger of bias.
In
accordance with the propositions set out by Simon Brown LJ in Dallaglio,
it is for the court to determine that question in the light of all the evidence
before it.
I
will deal with the matters relied upon by Mr Willers with particular reference
to the inspector’s report.
In
doing so, I bear in mind the affidavit from the inspector. The factual content
of that affidavit is not in substance challenged by the applicant. Thus, the
inspector’s particular familiarity with the A21 was up to 1973, while he was a
solicitor at Ashford, since when he has been a planning inspector. The period
up to 1973 was, of course, before the period that is relevant to the factual
issues in the present case. That was consistent with the inspector’s statement
that he knew that the building on the appeal site had been an antiques gallery
prior to the appellant’s acquisition of the site. There is nothing
contradictory in the inspector saying that he was aware that the site had not
been a filling station in reliance on the rating records that were produced at
the inquiry. There is no direct evidence that the inspector had any other
‘independent’ knowledge of the site or its history.
Dealing
then with the matters relied upon by Mr Willers in turn:
1. Meeting
with the Highways Agency.
The
inspector dealt with this in para 20.9 of his report:
The
Highways Agency have a record of a meeting on 16 December 1983 when the
‘expansion’ of the site for chalets and camping/caravanning was discussed. This
does not appear to be a meeting attended by the appellant, since it was the
year before he was interested in the site. The mere reference to ‘expansion’
does not indicate that there was an existing use, it could just as well have
referred to an expansion of the existing motel use, (including the 6 holiday
chalets by then permitted in the erstwhile antiques gallery), into chalets,
camping and caravanning. This was what had previously been applied for, and
permission had been refused.
It
does not seem to me that there is anything in that conclusion of the inspector,
which was not supported on the basis of the evidence or that otherwise
indicated bias or prejudice.
2. The
1984 particulars of sale.
The
inspector dealt with this in para 20.8 as follows:
This
is consistent with the 1984 sale particulars, in so far as those refer at one
point to a caravan site. However the particulars say nothing about any
permission for a caravan site, and only refer vaguely to potential for further
development subject to planning. The glaring inaccuracy in the statement that
planning permission had recently been granted for the erection of 30
self-contained holiday homes, when in fact permission had been refused for any
development incorporating holiday . . . shows that these particulars are a
wholly unreliable document.
The
particulars were accepted to have been false in that material respect. The
inspector was, in my judgment, fully justified in concluding that the
particulars were wholly unreliable and to place little or no weight upon them.
3. The
grant of planning permission in 1990 and 1991, including shower and lavatory
facilities.
The
inspector describes these permissions in paras 4.6 and 4.7 of his report and
makes relevant findings of fact in that respect at para 19.23. The permissions
were not implemented. They are indirectly referred to at para 20.24 of the
report, where the inspector refers to washrooms or toilet blocks not being
provided until 1989 at the earliest. It is apparent that he did not consider
the permissions of particular importance in reaching his conclusions on the
principal issues that he had to determine. As they were granted at a relatively
late stage in the relevant period, I cannot see that there is anything in the
inspector’s approach in this respect that indicates bias.
4. Evidence
on behalf of the appellant.
Mr
Roffey’s affidavit is listed as an inquiry document as document 3(iii)(i). It
is recorded as part of the appellant’s case at para 18.6 of the report. At para
20.26 of the report, the inspector concluded as follows:
Nothing
in the other affidavits and letters supporting the appellant’s case provides any
specific evidence to counter that from the planning documents and photographs
that there was no significant use as a residential or touring caravan site
prior to about 1992.
That
was a conclusion that was open to the inspector on the evidence before him,
including that in the affidavit from Mr Roffey.
Appellant’s evidence
This
is recorded at length in section 5.2 to 5.19 of the report. No suggestion has
been made in this court that that record is not accurate and fair. The
inspector deals with the appellant’s evidence at various points in his
conclusions, including at para 20.12:
The
appellant’s case in any event was that the site had been used as a caravan site
for 5 years only prior to 1984. I find it inconceivable that Mr Bishop, an
experienced planning officer, would have agreed at a meeting that there was an
existing caravan site use either on the basis of a 5 year use or a 4 year
immunity period for residential caravans, when there was no record of any site
licence. Furthermore in the absence of any contemporary notes, or follow up
letter, I am left in some doubt as to whether the meeting ever took place. I
cannot believe that the appellant, with his previous experience of running a
caravan site of some kind, should have assumed from that meeting, without
further inquiry, that there was a lawful use as a caravan site, and proceeded
with his purchase on that basis. In any event caravans appear to have been only
a possible sideline, the main (lawful) uses referred to in the sale particulars
being the motel and restaurant.
He
continued in para 20.13:
Mr
Terry Measor said in his evidence that Units 1–4 did not move, yet Mr Russell
Measor said they were all moved at times.
That
appraisal of the evidence by the inspector was one, again, that was open to him
in his assessment of the appellant’s evidence and the other matters before him.
Mr Titterell’s evidence
This
is recorded at paras 6.1 to 6.12, in respect of which no complaint is made in
this court. The inspector considered that evidence in paras 20.13 and 20.14 of
the report, concluding:
These
various inconsistencies lead me to the conclusion that Mr Titterell’s evidence
on these matters was unreliable.
That,
again, was an assessment that was open to the inspector.
5. Evidence by
local residents
Stewart Henley
His
affidavit was inquiry document 6I. Otherwise it does not appear to have formed
any part of the inspector’s main conclusions.
Graham Lower
His
evidence is recorded at paras 9.1 to 9.6 of the report. The inspector gives his
conclusions on this evidence at para 20.18 of the report as follows:
The
absence of any caravans on the site in 1987 is corroborated by Mr Lower’s
evidence, and that of his wife’s contemporary letter and diary. She asked the
Council whether there would be any permanent caravans owned by the site owner
or others. She would not have written in that way if such caravans had already
been there. She also said she objected to a caravan site for tourists, as there
were already 2 within half a mile. It is inconceivable that Mrs Lower, living
almost opposite the site, would have written in this way if any identifiable
caravan site with permanent residents or a regular flow of touring customers
was already in being.
In
my judgment, considering the report as a whole, it can be seen that throughout
the inspector reached his conclusions on a consideration and appraisal of the
evidence and in the light of his impression of the witnesses called before him.
There is no warranty for inferring that the inspector’s appraisal or approach
was biased or influenced by some private or independent knowledge. In my
judgment, the evidence does not reveal any risk of bias or evidence of
unfairness. This ground, accordingly, also fails as do the appeals and the
application.
Appeals
dismissed.
