Enforcement notice — Inspector dismissing appeal against notice — Application for leave to appeal against inspector’s decision — Allegation that inspector erred in law — Whether court entitled to refuse leave if satisfied no substantial wrong or miscarriage thereby occasioned — Civil ‘proviso’ in RSC Ord 55, r7(7) — Whether application of proviso excluded by RSC Ord 94, r13(7)
RSC Ord 55, r1
applies to every appeal ‘which by or under any enactment lies to the High Court
from any court, tribunal or person’. By r1(4):
The following
rules of this Order shall, in relation to an appeal to which this Order
applies, have effect subject to any provision made in relation to that appeal
by any other provision of these rules or by or under any enactment.
By Ord 55,
r7(7):
The Court
shall not be bound to allow the appeal on the ground merely of misdirection, or
of the improper admission or rejection of evidence, unless in the opinion of
the Court substantial wrong or miscarriage has been thereby occasioned.
Ord 94,
r13(7), dealing specifically with appeals under section 289 of the Town and
Country Planning Act 1990, provides:
Where the
Court is of opinion that the decision appealed against was erroneous in point
of law, it shall not set aside or vary that decision but shall remit the matter
to the Secretary of State with the opinion of the Court for rehearing and
determination by him.
PG Vallance
Ltd stationed a collection of aircraft on a green-belt site in the gap between
Gatwick Airport and the nearby village of Charlwood. An appeal against an
enforcement notice requiring cessation of the use was dismissed by the
inspector, who held that the use was inappropriate in the green belt and
seriously harmful to the rural character and appearance of the locality. The
company sought leave to appeal to the High Court against the decision under
section 289 of the 1990 Act.
dismissed.
Although the
wording of certain sentences in one paragraph of the decision letter was open
to criticism and left room for argument, there was no misdirection such as
would amount to an arguable point of law: see p 79C.
Per curiam:
Even if there was a misdirection, it was a proper
case for the application of the ‘proviso’ under Ord 55, r7(7). That subrule was
not disapplied by Ord 94, r13(8), nor was it effectively ousted by Ord 94,
r13(7). Where a case was fit for the grant of relief, the court had to remit in
accordance with Ord 94, r13(7), but if the court was satisfied that no
substantial wrong or miscarriage was occasioned by any misdirection then the
court, acting under Ord 55, r7(7), need not remit but was entitled not to give
any relief: see pp 79D-80A. There was no reason why the proviso could not be
applied by the single judge at the leave stage: see p 80B-C.
referred to in the judgement
Application
for leave to appeal under section 289(6) of the Town and Country Planning Act
1990
This was an
application under section 289(6) of the Town and Country Planning Act 1990 (as
substituted by section 6(5) of the Planning and Compensation Act 1991) by P G
Vallance Ltd for leave to appeal against a decision of an inspector appointed
by the first respondent, the Secretary of State for the Environment, who
dismissed an appeal against an enforcement notice issued by the second
respondents, Mole Valley District Council.
George QC (instructed by Burstows, of Crawley) appeared for the applicants, P G
Vallance Ltd.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment.
respondents, Mole Valley District Council, did not appear and were not
represented.
following judgment was delivered.
HENRY J: The applicants, P G Vallance Ltd, apply for leave to appeal against
a decision on an enforcement notice under section 289 of the Town and Country
Planning Act 1990 (as amended). They have stationed a collection of aircraft in
a green-belt site in the gap between Gatwick Airport and a nearby village.
The matter
came before the planning inspector between January 21 and 24 and March 2 1992,
though not all of that time was taken up with this application.
For leave to
be granted the applicants have to satisfy me that there is a point of law
involved. In what the inspector had to consider were, first, ordinary planning
considerations, the considerations that would normally apply in a rural site,
and, second, green belt considerations, the additional constraints imposed by
the fact that this was within the green belt.
The point of
law I have to consider is not unduly complicated. The starting point for the
green belt considerations relevant to matters that I have to decide is in the
paper PPG2, in particular paras 12 and 13 of that. That can be shortly summarised.
First, that the general policies
applications naturally; additionally, there is a general presumption against
inappropriate development in the green belt; and, within the green belt,
approval should not be given, save in special circumstances, for the
construction of new buildings or for changes of use of others except for a
number of uses generally appropriate to a rural area, including in that the
uses associated with institutions standing in extensive grounds.
The next
constraint is in the development plan policy for Surrey (policy C4). That
states that developments outside settlements in the green belt are not
permitted, save for the essential requirements of agriculture or forestry, or
they are not normally permitted. Certain other developments may be appropriate
or necessary, and among those developments are included private institutional
developments within extensive grounds, but such developments will not be
considered acceptable as of right.
That, in
essence, was the law the inspector had to apply; and in his decision letter,
which also had to deal with another issue, he effectively dealt with the points
with which I have been concerned between paras 49 and 60. He identified in para
49 the two main issues that he had to consider. He said:
The first
issue is whether or not the stationing of aeroplane bodies should be allowed to
continue as an exception to the policies of restraint applicable to the green
belt, and the second is whether or not the development is seriously harmful to
the character and appearance of the locality.
I am satisfied
that he asked himself effectively the right questions in law on the matters
raised before him.
Dealing with
the first issue, the green belt issue, ‘Should this development continue as an
exception to the policies of restraint applicable to the green belt?’, he
answered that with a resounding negative. He found that this rural green belt
site was not an acceptable place to station this collection of aircraft because
of the importance of what he described as the vulnerable gap separating the
village of Charlwood from the airport. He said that it was not acceptable
because these aircraft were visually very conspicuous; they were at odds with
the rural surroundings and they compromised the village’s separation from the
airport by the gap already referred to; they harmed the character of the
surrounding area. He accepted that this was a valuable collection, of public
interest as well as private interest, but he said this was not an acceptable
place for it. He found that the serious harm the development would cause the
green belt was not off-set by the value of the collection, which he recognised.
In those
findings on the green belt issue, in my judgment, he clearly answered the
question, ‘Was this use appropriate for the green belt?’, in the negative. He
also by implication fairly answered the question, ‘Was it necessary?’. There
again, he clearly approached these questions in the context of viewing this
display as a quasi-museum, effectively, an outdoor museum, so to that extent an
institution. He considered in his reasons
rural area.
He then went
on to consider issue 2, whether the development was seriously harmful to the
character and appearance of the locality. Again he found that the site was an
important part of the setting of Charlwood and of the airport, hence the
importance of the gap. He found it would cause very serious harm to the rural
character of the site.
From those
factual findings it will be seen that the applicants face a high hurdle in
satisfying the court that any point of law can arise here. However, the
applicants have focused on para 50 of the inspector’s decision. The scheme of
the decision letter is this. In para 49 the inspector, correctly in my
judgment, identifies the issue, and para 50 is an introduction to the detail in
which he goes on to consider the matters over the next few pages of his
decision. There are five sentences in para 50 that have been subjected to
detailed textual criticism before me. I read together the first of two:
It was not
argued in support of your client’s case that the stationing of aeroplane bodies
is an appropriate use within the green belt but that it should be permitted as
an exception to the relevant policies. The claim that the collection of planes
is akin to an open-air museum and hence an institutional use of the type which
may be permitted in the green belt was not vigorously pursued.
Now, in
relation to that the applicants say that that does not properly represent their
case. Sitting in this court, granting leave, sanctioning and entertaining
applications for leave in section 289 cases — one gets a number of them in the
course of any working week — an increasingly common feature of them is the
submission that the point of law is based on either the applicants’ case being
misunderstood or contentions that there was no evidence on which the inspector
could make the findings that he did. Such allegations are difficult to meet in
proceedings of which there is no necessary form of contemporaneous notes,
certainly not any official court transcript. I view them, in those
circumstances, with a certain reserve. Here, as a response to the criticism
made of them, and unusually the inspector has sworn an affidavit justifying his
summary of the case, the inspector says with reference to the ground of appeal
that criticises his first two sentences:
. . . Mr Roy
Vandermeer QC, instructed on behalf of the Applicant Company, stated in opening
that the aircraft should be treated as a ‘potential exception to Green Belt
Policies whilst akin to other uses . . .’. In his closing submissions he said
that it was ‘fair to say that, whilst Mr Elsom (the Planning Consultant [that
he had called]) made reference to institutions in large grounds, he did not
make that point with any great force. I do not urge that this is an appropriate
Green Belt use, but one for special circumstances’.
The inspector
says that he has refreshed his memory from a verbatim note taken down at the
inquiry and is in no doubt that this is what Mr Vandermeer QC submitted.
If parties
think that they, through their advocates, have not made their point clear, the
remedy for them is plain. If they give the inspector a skeleton argument before
they make their addresses, there can be no room for argument. As things are in
this appeal, I accept the inspector’s note. It seems to me that the first two
sentences of para 50 accurately reflect the way counsel had put the case, and I
do not think that any point of law arises in relation to them.
When one comes
to the third sentence in para 50 the inspector said:
Policy C4 of
the structure plan does not define institutional uses but states that such uses
will not be considered acceptable development as of right.
The second
part of that sentence is accepted, but criticism is made of the first part on
the basis that while it is perfectly true to say that policy C4 does not set
out an exclusive definition of institutional uses, there is some further help
in policy C8, which deals with where a large country house is no longer
suitable for occupation by a single family in the note on 3.27 under ‘redundant
institutional buildings and land’. That sends you on to Class 2 of the Town and
Country Planning Use Classes Order 1987 and there one has a list of
non-residential institutions including museums.
It is
perfectly clear that the inspector had in mind the land use classes order when
dealing with the matter of museums. It will be obvious that Mr Vandermeer
referred him to all relevant matters in law. He had those matters well in mind.
There is no exclusive definition of institutional uses contained there, and the
broad inclusive definition he had in mind, viz the museum references.
The criticism of that sentence also fails.
The fourth
sentence reads as follows:
For my part,
I would not regard a private collection of aircraft stored in the open on
former agricultural land, albeit the public have been afforded occasional
access, as an institutional use which should necessarily or appropriately be
located in the green belt.
It is not
entirely clear from that sentence whether he was saying that it was not an
institutional use or, if an institutional use, that it was not one which would
necessarily or appropriately be located in the green belt. It seems to me that
in the final analysis it matters not, having regard to the way that Mr
Vandermeer put the case, namely that it was fair to say that while the planning
consultant made reference to institutions in large grounds he did not make that
point with any great force. If the inspector was there saying that this
institution did not come squarely within the reference of institutions in
extensive grounds in C4, that seems to be the way that the applicants were
putting their case to him, and he should not be criticised for that.
He clearly
dealt in the succeeding paragraphs with the question as to whether this use was
either a necessary or appropriate use within the green belt, and so it seems to
me that he clearly asked himself the right questions of law, going back to para
49, and gave appropriate answers to them.
The fifth
sentence also causes problems. It reads as follows:
Therefore I
consider it to be a development which falls to be assessed as an exception to
the normal presumption against inappropriate development in the green belt.
It seems to me
that that, in context, cannot be taken literally. I think the inspector was
there saying, it is plain from the context, that the development had to be
justified as a legitimate exception to green belt policies. I think he was
simply restating issue 1, albeit not in the clearest language.
It seems to me
that the important parts of his decision letter are para 49, when he defines
the issues, and the remaining paragraphs when he makes the factual finding as
to the issue in para 51 through to para 60.
I am not
satisfied that he has misdirected himself in law in any way in para 50, even
though the wording of some sentences, if studied, if read as though it were a
statute (which does not seem to me to be an appropriate way to read them) is
open to some criticism and leaves room for some argument. It is not the
clearest paragraph, but I do not think that any misdirection, such as would
amount to a point of law, arose. Even if I thought that such a misdirection
arose, on the facts of this case it is clear to me that what, in a criminal context,
would be called ‘the proviso’ would apply.
That would
come about in this way. RSC Ord 55, r1 applies to every appeal ‘which by or
under any enactment lies to the High Court from any court, tribunal or person’,
so it applies to this appeal. Ord 55, r1(4) states that, ‘The following rules
of this Order shall, in relation to an appeal to which this Order applies, have
effect subject to any provision made in relation to that appeal by any other
provision of these rules or by or under any enactment’.
That will take
us, as will be seen, to Ord 94, r13(7) and (8). Before we go there, there is
Ord 55, r7(7) which is effectively the proviso. That says, ‘The Court shall not
be bound to allow the appeal on the ground merely of misdirection, or of the
improper admission or rejection of evidence, unless in the opinion of the Court
substantial wrong or miscarriage has been thereby occasioned’. It seems to me
on the facts of this case, having regard to the planning findings made by the
inspector, that it could not be sensibly argued that a substantial wrong or
miscarriage has been occasioned.
It is
suggested to me that Ord 55, r7(7) does not apply in this case because of Ord
94, r13(7) and (8). That deals specifically with proceedings under section 289,
and r13(7) says:
Where the
Court is of opinion that the decision appealed against was erroneous in point
of law, it shall not set aside or vary that decision but shall remit the matter
to the Secretary of State with the opinion of the Court for re-hearing and
determination by him.
Then r13(8),
significantly, says, ‘Order 55, rule 7(5) shall not apply in relation to any
such appeal’.
Subrule (8)
does not disapply Ord 55, r7(7). The question then is
r7(7). In my judgment, it has not. Those two provisions can clearly live
together. Where the case is fit for the grant of relief, then the court must
remit in accordance with Ord 94, r13(7). But if the court would be satisfied
that no substantial wrong or miscarriage was occasioned by any misdirection,
then the court, acting under Ord 55, r7(7) need not remit but is entitled not
to give any relief.
It is an
undecided question, so I am told, as to whether that proviso should be applied
by the judge at the leave stage. In the criminal context, the single judge
granting leave under section 31 of the Criminal Appeal Act does not look to the
proviso. That might be some argument, by analogy, saying that the single judge
on a leave application should not. However, having regard to the great
differences between criminal appeals against a trial on indictment and appeals
against planning decisions, I am extremely doubtful as to whether that argument
would apply here. Nor do I see why the single judge granting leave would be
bound to grant leave even if it was in circumstances where it was plain to him
that, having regard to the decision as a whole, no substantial wrong or
miscarriage of justice had been occasioned by any misdirection in relation to
the law.
However, I do
not base my decision on that. I base my decision on the fact that, in my
judgment, where para 50 is concerned, no arguable point of law arises in
relation to it.
For those
reasons, this application must fail.
Application
dismissed with costs. Leave to appeal refused.
