Discontinuance order — Confirmation — Section 102 of Town and Country Planning Act 1990 — Whether criteria for confirmation akin to confirmation of powers of compulsory purchase — Whether ulterior motive — Whether certain uses wrongly included
Following the recommendation of his inspector, the Secretary of State confirmed a discontinuance order, made under section 102 of the Town and Country Planning Act 1990, in respect of the claimant’s uses of certain land. The claimant’s family had lived and worked on the land since it was purchased in 1929. One of the buildings on the land was listed. The claimant challenged the Secretary of State’s decision on the grounds that: (i) the Secretary of State had not correctly addressed the burden of proof to be satisfied in relation to the conformation of a discontinuance order since the power under section 102 was akin to a power of compulsory purchase; (ii) in the making of the discontinuance order, there was the ulterior motive of protecting the listed building; (iii) the Secretary of State had failed to consider the exclusion of unobjectionable agricultural uses from the order.
Held The application was dismissed.
(1) The local planning authority and the Secretary of State do not have to do any more than establish that the statutory test of expediency is met: see [42]. Both the inspector and the Secretary of State applied the correct statutory test, and there was ample material upon which they were entitled to conclude that it was expedient in the interests of the proper planning of [the area] to confirm the order: see [47]. (2) The operative words of section 102(1): “it is expedient in the interests of the proper planning of their area (including the interests of amenity)”, are sufficiently broad to embrace the desirability of preserving the character of a listed building and or its setting. It is plain from the reference in parenthesis “including… amenity” that the interests of the proper planning of an area go wider than questions of amenity alone. Preservation of a listed building, and/or its setting is quintessentially one of the interests sought to be achieved by “proper planning”. Thus, the planning authority’s purpose in serving this order fell squarely within the terms of section 102: see [50]. (3) The inspector had considered whether the|page:101| agricultural use of the site was acceptable, and he was entitled to conclude that it was not: see [57].
Cases referred to in the judgment
Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 WLR 433; [1971] 1 All ER 1049; (1971) 22 P&CR 417; [1971] EGD 427; 218 EG 1163, CA
R v Secretary of State for Transport, ex parte de Rothschild [1989] 1 All ER 933, CA
Application under section 288 of the Town and Country Planning Act 1990
This was an application, under section 288 of the Town and Country Planning Act 1990, by the claimant, John Chant, to quash a decision by the first defendant, the Secretary of State for Transport, Local Government and the Regions, confirming a discontinuance order made under section 102 of the Act by the second defendants, South Somerset District Council.
David Fletcher (instructed by Thring Townsend, of Bath) appeared for the claimant, John Chant.
Philip Coppel (instructed by the Treasury Solicitor) represented the first defendant, the Secretary of State for Transport, Local Government and the Regions.
The second defendants did not appear and were not represented.
The following judgment was delivered.
SULLIVAN J:
[1] This is an application, under section 288 of the Town and Country Planning Act 1990 (the Act), to quash a decision by the Secretary of State to confirm a discontinuance order, made under section 102 of the Act, by South Somerset District Council. Section 102 provides, so far as material:
.– (1) If, having regard to the development plan and to any other material considerations, it appears to a local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity) (a) that any use of land should be discontinued, or that any conditions
should be imposed on the continuance of a use of land; or
(b) that any buildings or works should be altered or removed,
they may by order –
(i) require the discontinuance of that use, or
(ii) impose such conditions as may be specified in the order on the
continuance of it, or
(iii) require such steps as may be so specified to be taken for the
alteration or removal of the buildings or works, as the case may be.
(2) An order under this section may grant planning permission for any development of the land to which the order relates, subject to such conditions as may be specified in the order.
[2] Section 103(1) provides:|page:102|
An order under section 102 shall not take effect unless it is confirmed by the Secretary of State, either without modification or subject to such modifications as he considers expedient.
[3] Compensation is payable under section 115 of the Act where an order is made under section 102.
[4] The order in the present case related to Home Farm, West End, Somerton, Somerset. It required that, within six months of the date of its taking effect, the use of the land for storage, for business and industrial use and for agricultural use should be discontinued. The order provided that, from the date upon which it took effect, the land should have the benefit of outline planning permission for residential development.
[5] The Secretary of State appointed an inspector to hold a local inquiry. The inspector’s report described the order land and surroundings as follows:
4. Home Farm lies some 600m to the west of the centre of Somerton, a small market town in rural Somerset. Home Farm comprises three dwellings and a yard with buildings. Home Farmhouse together with the adjoining barn is a Grade II listed building. Northumbria… and The Homestead are chalet bungalows built in the 1970s. The three dwellings are occupied by members of three generations of the Chant family and the yard is the base for their businesses.
…
6. The order land encompasses the yard area and extends to some 0.5 hectares. It excludes Home Farmhouse and its front garden and a small rear yard adjoining the rear entrance. It excludes Northumbria and The Homestead and the adjoining land shown to be associated with these two properties when planning permission was granted in 1972.
7. The entrance to the site from West End is a wide opening without gates and there were parked vehicles each side of the entrance and there was a pile of chippings near the entrance…
8. In the north-west corner of the order land, there is the listed barn that adjoins the listed farmhouse.
[6] The inspector then described, building by building, what he saw on the site inspection. Thus, there were buildings containing vehicles and machinery and three bays of bailed hay, and equipment, including building materials, abandoned vehicles and excavating machinery were parked in the open areas adjacent to buildings. There was a workshop used for the repair and testing of electric motors and alternators. There were stacks of bailed hay and of bean-straw bales and a large pile of building stone, together with abandoned vehicles and machinery. Some of the buildings were roofless. There were van bodies and a group of disused pigsties. Vehicles and building materials stood in open areas alongside the various structures, and so forth.
[7] The inspector described the surrounding area, which, in broad terms, may be characterised as residential, and then set out, in chronological order, the investigations and actions taken by the council under various enactments in relation to Home Farm over the years since|page:103| 1972.
[8] The council explained that there had been a history of environmental problems relating to Home Farm since 1969, and they described the nature of those problems. In summarising the case for the local planning authority, the inspector noted that the council had explained that enforcement action would tackle unlawful uses only, and that there was doubt about the planning status of some of the current activities. Non-conforming lawful uses would remain.
[9] Paragraph 32 records that the council had considered whether compulsory purchase action would be appropriate.
At present a CPO of Home Farmhouse under section 47 of the [Planning Listed Buildings and Conservation Areas] Act would only secure a limited area of yard as relevant or associated land. The majority of the yard uses would remain and would blight the resale value of a restored Home Farmhouse making the exercise unviable… The Somerset Building Preservation Trust, who take on listed buildings, repair them and sell them on, advised that they were not prepared to tackle the farmhouse because of the proximity of the commercial activities.
[10] Paragraph 33 records:
No single measure would resolve the difficulties; a range of steps is proposed of which the Discontinuance Order is the first. It would take away harmful uses, take away uses inconsistent with their residential surroundings and take away uses incompatible with the setting of the listed building. The Discontinuance Order would address the condition of the yard and would facilitate the successful (and viable) CPO of the farmhouse and barn, if that proves necessary.
[11] The inspector then set out, in summary form, the council’s justification for the discontinuance order on the planning merits, looking, inter alia, at the provisions of the development plan and at the council’s response to the contentions made on behalf of the claimant that the order would infringe the family’s rights under the Human Rights Act 1998.
[12] Having set out the submissions supporting the council, the inspector turned to the objections made on behalf of the Chant family. The nub of their case was that the site was the last surviving farmyard in Somerton. It had been established over several centuries and the family, in essence, wished to keep it that way. Paragraph 55 recorded:
55. The Chant family live and work as a unit or commune. Their way of life is the time-honoured co-habitation of an extended farming family with a shared form of employment. Three generations live at Home Farm, the retired grandparents (Leslie and Winifred) are cared for by their son’s family (John and Sylvia) and their daughter (Marjorie). Two grandsons (Matthew and Ben) and a granddaughter (Alison) also contribute to the enterprise.
56. The Chant family, as a group, said that Home Farm and the 18 acres were acquired in 1929. It now extends to 80 acres. They live in the three dwellings known as Home Farmhouse, Northumbria and The Homestead. They have no other sources of employment. If the Order is confirmed, they will have no place to live in conjunction with their work nor will they be able to manage the agricultural land without the farmyard as a base.|page:104|
[13] The inspector described the businesses that the family carried out on the order land. He also referred to the modifications that they suggested should be made to the order:
67. The Order should be modified to meet the Council’s concerns as provided for in section 102(1)(a) of the Act. Conditions could be imposed on the uses of the Order land to mitigate their impact. They would require that no vehicles shall be parked or items stored on the eastern finger of land. Solid entrance gates should be erected across the access and as in photograph 19.3B, with no parking outside. The entire site should have a 2m high fence erected around it as shown in the view from Chantry Court in photograph 19.2B. Buildings visible from surrounding houses should be clad to hide the stored materials.
68. If every Council was allowed to serve a Discontinuance Order on anyone who chose to continue an historical, legitimate and established use of land, human rights would be set at nought and dictatorship, not democracy, would prevail. The Council has to show that there are compelling reasons for it to succeed and there are none in this case.
[14] Some local residents are recorded as opposing the council’s case, and, from para 72 onwards, the inspector set out his own conclusions:
72. The discontinuance powers in section 102 of the 1990 Act, as amended, are little used by local planning authorities. However, in my view, that does not impose any extra burden on the Council in making the case for the Order to be confirmed. The Order requires the cessation of a group of activities on land at Home Farm and the removal of waste materials and refuse from the land and grants outline planning permission for the residential development of the same land.
73. Section 102(1) provides that “If, having regard to the development plan and any other material considerations, it appears to the local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity) that any use of land shall be discontinued… they may by order require the discontinuance of that use…”
74. I need therefore to consider first whether the development plan and relevant considerations support the cessation of the uses of the land at Home Farm in the interests of amenity and the proper planning of Somerton. I then turn to appraise the objections to the Order and look at the Human Rights implications of the Order. I will then examine the Objectors’ suggested modifications to the Order.
[15] The inspector dealt first with the development plan. He noted that there were a number of policies in the development plan that encouraged the retention of business and industrial uses, but they were all subject to those uses being acceptable in environmental terms. So he considered whether or not the commercial activities on the order land were acceptable in environmental terms. He said, in para 77:
The untidy and cluttered appearance of the Order land and the adverse effect of the activities on the living conditions of those living closest were remarked on by those who spoke at the inquiry and in the letters. I found the appearance of the site to be more of an engineering enterprise than an agricultural one… I consider that the current state of the Order land is a|page:105| blemish on the attractive appearance of this residential area in Somerton. The evidence also indicates to me that the activities there have an adverse impact on the amenities of those living closest to the site.
[16] He turned to consider the question of listed buildings, since policy 9 of the structure plan aimed to safeguard historic buildings and their settings, and, in that respect, followed the national advice in PPG 15. He said:
78. The Order land is part of the setting of Home Farmhouse. I accept that the setting of farmhouses often includes modern machinery and utilitarian agricultural buildings. However, in this case it is the close proximity of the stacked materials, steel structures and machines under repair to Home Farmhouse that reduces, rather than safeguards, its historic interest.
79. If an application was made for the mixes of uses cited in the Order to be located in this residential area next to a listed building, I consider that it would be contrary to the provisions of the development plan. The storage, industrial and agricultural activities at Home Farm are not acceptable in environmental terms and so lack the support of the development plan.
[17] He summarised his response to the objections to the order, starting from paras 82 onwards. Paragraph 82 says, in part:
The Objectors are eight members of the Chant family. The nub of their objection is that this is an agricultural activity of longstanding and it has diversified to other enterprises to meet modern circumstances. Living and working in the same place is a sustainable and traditional way of life for farmers and should be recognised as such. Taking away the activities on the Order land would cause difficulties and inconvenience. There would be no place to live and work and no farmyard for their holding.
[18] he was not persuaded that Home Farm was essential to the activities that were taking place there:
Nor was it evident that carrying out the activities at Home Farm required the presence of the three homes occupied by the family members. The farmland is located to the northwest of Somerton and customers of the business do not appear to me to be concentrated near to Home Farm. It is certainly a convenient arrangement but not an essential one for the business.
[19] The inspector then considered the arguments under the Human Rights Act 1998, noting that full compensation would be payable under section 115, and concluding:
The Order to discontinue the uses at Home Farm is sought to enhance the amenity of the area for the benefit of neighbours and to secure the protection of an historic building. Given that compensation is payable, it seems to me to be a proportionate action in the public interest.
[20] He considered the modifications to the order suggested by the objectors, saying|page:106|:
90. The Objectors suggest that conditions should be imposed on the land uses on the Order land to remedy any harm caused to amenity by the activities at Home Farm. The conditions would limit parked vehicles, require boundary screen fencing and gates and the cladding of the visible signs of barns. The Council opposed the modifications on the ground that they would be carried out at public expense and would not solve the amenity problems or safeguard the listed building.
91. The suggested modifications would probably screen low-level views into the site but views from the windows of bedrooms that overlook the site would not be screened. The nuisance and disturbance of the mechanical activities would not be reduced by the modifications. The setting of the listed building would remain impaired. I consider that the modifications would fall short of securing the proper planning of this part of Somerton, including the interests of amenity.
[21] The inspector set out his overall conclusions in paras 92 to 94:
92. The basis for the Discontinuance Order is to alleviate environmental harm and the objections are based on retaining a compact, family-run enterprise. Is it expedient in the interests of amenity and the proper planning of the area of Somerton to confirm the Order? In my view, the adverse visual amenity and other amenity effects do not override the objection alone. The harm to the setting of the listed building does not outweigh the objection alone. The prospect of tackling the repair of the listed building, if the Order is confirmed, is a matter of some considerable weight. On past performance, there seems to be little prospect of its repair by the present owner, despite the owner’s stated intentions.
…
94. These factors, namely the damage to visual amenity, the harm to the living conditions of 25 neighbouring households, the statutory duty to give priority to the preservation of the setting of the listed building and preparing for the restoration of Home Farmhouse, combine in my view, to outweigh the objection to the Order by the Chant family.
[22] He accordingly recommended that, subject to certain corrections and amendments, which are not material for present purposes, the order be confirmed by the Secretary of State.
[23] The Secretary of State’s decision letter is dated 9 January 2002. In para 3, he agrees with the inspector’s conclusions and accepts his recommendation. Paragraph 5 sets out the statutory test:
An order under Section 102 can be made by a local planning authority if they are satisfied that it is expedient in the interests of the proper planning of the area (including the interests of amenity, which includes present, past and in particular future amenity).
[24] The Secretary of State said, in para 7, that, having regard to para 74 of the inspector’s report, he was of the view that the main considerations in the case were:
(i) whether the relevant policies and provisions of the adopted Joint Structure Plan and Langport and Somerton Local Plan, the objectives of national policy guidance in PPG 1, PPG 4 and PPG 15 and any other material|page:107| considerations support the discontinuance of the uses of the land at Home Farm in the interests of the proper planning and amenity of Somerton; and
(ii) whether there are any material considerations that indicate the uses should continue.
[25] The Secretary of State then dealt with those matters, concluding, in respect of the first issue, that all material policies in the development plan would oppose the grant of permission if an application were to be made in respect of the mixed uses set out in the first schedule to the order, and which it was proposed to discontinue.
[26] Turning to the second issue, he has:
Very carefully considered whether there are any material considerations which indicate that the uses should continue.
[27] Having analysed the arguments on behalf of the Chant family, he concluded that there were no such considerations. He referred to the arguments raised on behalf of the Chant family under the European Convention on Human Rights. In para 14, the Secretary of State said:
The Secretary of State has also carefully considered whether the purpose for which the Discontinuance Order has been made sufficiently justifies interfering with the Objectors’ rights under Article 1 of the First Protocol and he is satisfied that it does so. Again, it is necessary to balance this interference against the identified wider issues of public interest. In this case the Secretary of State concludes that the discontinuance of the uses at Home Farm would secure both the protection of an historic building and environmental and amenity benefits for the occupiers of neighbouring properties…
[28] Paragraph 15 sets out the Secretary of State’s overall conclusion in these terms:
The Secretary of State therefore concludes that for the reasons given in paragraphs 8 to 10 above, all material policies in the development plan would oppose planning permission being granted in respect of the uses which it is proposed to discontinue in this case. Furthermore, for the reasons given in paragraphs 11 to 14 above he concludes that there are no material considerations which indicate that the uses should remain. The Secretary of State accepts, in agreement with the Inspector, that the combination of the following factors, namely the statutory duty to preserve the setting of the listed building; the harm the uses cause to the setting of the listed building; the prospect of restoring the listed building should the Order be comfirmed and the adverse effects the current uses cause to visual amenity and nearby residents’ living conditions all lead to the conclusion that it is expedient in the interests of the proper planning of the area (including the interests of amenity), that, having regard to the relevant policies of the development plan, the uses set out in the First Schedule to the Order should be discontinued.
[29] On behalf of the claimant, Mr David Fletcher challenged the confirmation of the order on three grounds. As expressed in the claim form and the claimant’s skeleton argument, ground 1 alleged that the Secretary of State:|page:107|
did not correctly address the burden of proof to be satisfied on an application under section 102.
[30] It was submitted that the little-used statutory provision in section 102 contained, in effect, a power of expropriation of lawful user and was therefore akin to a power of compulsory purchase. It was a general principle applicable to all powers of compulsory acquisition that the burden lay on the public authority seeking to exercise them to establish that the exercise of the power was indeed necessary. It was submitted that this principle was encapsulated in the following dictum from Sachs LJ in Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 All ER 1049 at p1054J:
When seeking to deprive a subject of his property and cause him to move himself, his belongings and perhaps his business to another area the onus lies squarely on the local council to show by clear and unambiguous evidence that the order sought for should be granted.
[31] It was submitted that the inspector had erred in saying, in para 72 of his report, that although the discontinuance powers in section 102 were little used by local planning authorities “that does not impose any extra burden on the council in making the case for the order to be confirmed”. The Secretary of State had adopted that erroneous approach of his inspector.
[32] The first issue for consideration, identified by the Secretary of State in para 7 of his decision letter, was whether the development plan and national policy guidance supported the discontinuance of the uses of the land at Home Farm. It was submitted that merely because a lawful use is inconsistent with current planning policies, that could not possibly be a sufficient justification for the making of an order under section 102. If that were the criterion, then any lawful use inconsistent with current planning policies could be discontinued in this way; what had to be demonstrated was a necessity for discontinuance. That was the burden of proof that had to be satisfied by the Secretary of State.
[33] During the course of his submissions, Mr Fletcher drew my attention to the decision of the Court of Appeal in R v Secretary of State for Transport, ex parte de Rothschild [1989] 1 All ER 933. In that case, it had been submitted, on behalf of the appellant, that the Secretary of State had applied a test that was wrong in law because a compulsory purchase order should be confirmed only if it were decisively in the public interest to do so. The court rejected that argument. Reading from the headnote:
There were no special rules beyond the ordinary rules relating to unreasonableness which fell to be applied by the court when considering a challenge to the confirmation by the Secretary of State of a compulsory purchase order. However, given the draconian nature of such an order, no|page:109| reasonable Secretary of State would be likely to confirm such an order in the absence of what he perceived to be a sufficient justification for his decision on its merits or to impose such an order…
[34] Slade LJ reviewed the relevant authorities at some length, and said at p938j:
In answer to counsel’s submissions as to “special rules”, I summarise my conclusions thus. First, I do not accept that any special rules beyond the ordinary Wednesbury/Ashbridge rules fall to be applied when the court is considering a challenge to the Secretary of State’s confirmation of a compulsory purchase order. Second, however, the Secretary of State, as counsel on his behalf accepted and submitted, must be satisfied that the compulsory purchase order is justified on its merits before he can properly confirm it. He must not exercise his powers capriciously. Given the obvious importance and value to land owners of their property rights, the abrogation of those rights in the exercise of his discretionary power to confirm a compulsory purchase order would, in the absence of what he perceived to be a sufficient justification on the merits, be a course which surely no reasonable Secretary of State would take.
…
In making his decision, there are a multitude of different factors which the Secretary of State has to take into account. To mention only a few: questions of landscape and other amenity, feasibility, cost and delay. To talk of questions of onus of proof when so many competing factors have to be taken into the balance seems to me not only inappropriate but a somewhat difficult concept.
[35] Ralph Gibson LJ agreed, as did Croom-Johnson LJ. The latter added, at p943G:
I would like to add only one very short matter and it is this. In the suggestion that in what is a special rule in compulsory purchase order cases there has to be some form of discharge of an onus of proof, I entirely agree that the form of the inquiry and the form of the decision which has to be taken by the Secretary of State is hardly appropriate for the discharge of a burden of proof in such a form. At the end what the minister has to do is to investigate all the facts, the arguments and so forth and ultimately perform a balancing exercise. At the end he has to balance things against each other which are not at all compatible; they are not like each other and cannot be the subject of direct comparison.
[36] In the light of this decision, Mr Fletcher conceded that it was wrong to refer to the onus of proof, but submitted, nevertheless, that the Secretary of State had to show that there was “sufficient justification” for the order; this the Secretary of State had failed to do.
[37] He referred to De Smith’s Judicial Review of Administrative Action. The subheading dealing with “decisions infringing fundamental rights” contains para 13-059, which says, in part:
Statutes permitting compulsory purchase also fall into this category; it cannot be presumed that their “draconian” infringement of property rights is|page:110| not intended, yet a compulsory purchase order may be overturned for unreasonableness where the decision is not “sufficiently justified”.
[38] On the facts here, both the Secretary of State and the inspector had merely asked whether the present uses were in accordance with the development plan. That was not a “sufficient justification” for making an order under section 102.
[39] I am unable to accept those submissions. In para 72 of his report, the inspector was responding to the submission that had been advanced on behalf of the claimant, that the council “has to show that there are compelling reasons for it to succeed”. In the light of the Court of Appeal’s decision in de Rothschild, the inspector was plainly correct to reject that submission and to conclude that there was no “extra burden on the council in making the case for the order to be confirmed”. That formulation in itself recognises that it was for the council to make the case for the order. What did the council have to show in order to succeed? The answer is provided by section 102, which the inspector set out in para 73 of the report. The council had to persuade the inspector that it was “expedient in the interests of the proper planning of their area, (including the interests of amenity)” that the uses at Home Farm should be discontinued.
[40] I accept the submissions of Mr Philip Coppel, on behalf of the Secretary of State, that it is both unhelpful and inappropriate to attempt to rephrase that statutory test, whether in terms of “necessity”, “sufficient justification” or any other alternative wording. It is common ground that the local planning authority had to justify the discontinuance order; to do so they had to persuade the Secretary of State that it was indeed expedient, in the interests of the proper planning of its area, that these uses should be discontinued. To impose a more stringent threshold, as effectively contended for by Mr Fletcher, would be to place an unwarranted gloss upon the clear words of the Act.
[41] As Mr Coppel pointed out, the passage in Coleen Properties relied upon by Mr Fletcher turned very much upon the particular facts of that case, which were concerned with a compulsory purchase order for a slum-clearance scheme. A property that could, by no stretch of the imagination, be described as a slum had been included within the added lands to be acquired. The local authority promoting the compulsory purchase order called no evidence from any planning officer or architect before the minister’s inspector, but simply asserted that the acquisition of this modern property was reasonably necessary for the satisfactory development of the cleared area within the terms of section 43(2) of the Housing Act 1957. The inspector recommended that the property should be excluded, but his recommendation was not accepted by the Secretary of State, who confirmed the order as submitted. The landowner’s appeal was allowed on the basis that there was no evidence that the acquisition of the building was reasonably necessary. Understandably, the court said that, on those facts, the mere ipse dixit of the local authority was not enough.
[42] In that factual context, the observations of Sachs LJ are readily understandable, but it is plain from the decision of the Court of Appeal in|page:111| de Rothschild that there is no “onus” upon the local planning authority and they do not have to do any more than establish that the statutory test of expediency is met. The inspector set out the correct statutory test in para 73 of his report, and then, in the passage dealing with his overall conclusions, proceeded to ask himself: is it expedient, in the interests of amenity and the proper planning of the area of Somerton, to confirm the order?
[43] The criticism of the inspector and the Secretary of State, that they considered merely whether the present uses conflicted with the policies in the development plan, is wholly unwarranted. They did indeed consider whether there was any such conflict. They were obliged to do so by the Act, because section 102(1) requires regard to be had to the development plan and to any other material considerations.
[44] Having considered the question of conflict with the development plan as a first step, both the Secretary of State and the inspector went on to consider the effect of the present uses upon residential amenity and upon the setting of the listed buildings. The inspector looked carefully at all of the objections raised by the objectors, including their arguments under the Human Rights Act. It is plain from the terms of para 74 of his report that he concluded that the order was expedient for four reasons: (i) the damage to visual amenity; (ii) the harm to the living conditions at 25 neighbouring households; (iii) the statutory duty to give priority to the preservation of the setting of the listed building; and (iv) facilitating the restoration of Home Farmhouse.
[45] The Secretary of State followed, essentially, the same approach, somewhat amplifying those aspects that were of particular concern to him. He considered the development plan, the impact of the present uses upon local amenity and upon the listed building, and the case of the objectors, giving detailed consideration as to whether the interference with their rights under, in particular, Articles 1 and 8 of the First Protocol was justified. In para 14, he said in terms:
The Secretary of State has also carefully considered whether the purpose for which the Discontinuance Order has been made sufficiently justifies interfering with the objector’s rights under Article 1 of the First Protocol and he is satisfied that it does so. Again, it is necessary to balance this interference against the identified wider issues of public interest.
[46] Although set in the context of a consideration of the objectors’ rights under Article 1 of the First Protocol, the Secretary of State is, in substance, carrying out the same balancing exercise as is required under section 102 in deciding whether or not it is “expedient” to make the order in the public interest. Paragraph 15 of the decision letter says in terms:
The Secretary of State accepts, in agreement with the Inspector, that the combination of the following factors, namely the statutory duty to preserve the setting of the listing building; the harm the uses cause to the setting of the listed building; the prospect of restoring the listed building should the Order be confirmed and the adverse effects the current uses cause to visual amenity and nearby residents’ living conditions all lead to the conclusion that it is expedient in the interests of the proper planning of the area… that… the uses… should be discontinued.
[47] Thus, both the inspector and the Secretary of State applied the correct statutory test, and there was ample material, upon which they were entitled to conclude, that it was expedient in the interests of the proper planning of Somerton to confirm the order. It could not possibly be said, in the light of the inspector’s conclusions on the planning merits, that the Secretary of State’s decision was either unreasonable or in any way disproportionate.
[48] I turn, therefore, to the claimant’s second ground of challenge. It was submitted that the order was being sought by the council for an ulterior purpose, namely to secure the preservation of a listed building. This was a factor that the inspector regarded as being of great weight, as did the Secretary of State. However, it was submitted that there are adequate powers to secure the repair of listed buildings under the 1990 Acts, and it was plain that the discontinuance order was merely stage 1 of a plan to secure the repair and resale of the farmhouse with the assistance of the Somerset Building Preservation Trust: see para 32 of the inspector’s report, which I have set out above.
[49] The essential submission was that the purpose of section 102 is to deal with uses of land that are inappropriate, and not to secure the repair of listed buildings for which there are separate and perfectly adequate powers; thus, the use of the power under section 102 to secure this objective was improper.
[50] I accept Mr Coppel’s submission that the operative words of section 102(1), “it is expedient in the interests of the proper planning of their area (including the interests of amenity)”are sufficiently broad to embrace the desirability of preserving the character of a listed building and or its setting. It is plain from the reference in parenthesis “including… amenity” that the interests of the proper planning of an area go wider than questions of amenity alone. Preservation of a listed building and its setting is quintessentially one of the interests sought to be achieved by “proper planning”. Thus, the planning authority’s purpose in serving this order fell squarely within the terms of section 102.
[51] It is true that there are powers in the 1990 Acts to secure the repair of listed buildings, but the council’s underlying argument was that there would be little point in repairing the listed building if its setting continued to be marred by the existing uses. Indeed, the presence of such uses was so detrimental that it would make any restoration scheme unviable. The inspector accepted those arguments, as he was entitled to do, upon the evidence: see paras 92 and 94 of his report above.
[52] Both the preservation of the setting of a listed building and the creation of conditions favourable for its restoration are interests falling within the proper planning of an area. I can see no error whatsoever in the approach adopted by the inspector and the Secretary of State in this regard. The listed building issues were relevant; it is not suggested that they were not, or that they did not relate to the proper planning of the area. There is no|page:113| question of ulterior motive. The motive throughout has been to secure the proper planning of Somerton.
[53] I turn then to the third, and last, ground of challenge. The order, as made and confirmed, requires the discontinuance of all of the existing uses on the land: storage, business and industrial, and, in addition, the agricultural use of the farmyard. It was submitted that neither the inspector nor the Secretary of State addressed the question of whether a less draconian order, namely the discontinuance of the storage, business and industrial uses, leaving the agricultural use, would substantially achieve the objectives of preserving local amenities and the setting of the listed building. The inspector had not considered whether the agricultural element of the mixed uses was unacceptable, and therefore his response in terms of recommending the confirmation of the order on an all-or-nothing basis was disproportionate.
[54] The problem facing Mr Fletcher’s submission in this regard is that this argument was not raised before the inspector. The objectors clearly did suggest that certain modifications could be made to the order in order to reduce the impact of the existing uses on the surrounding area: para 67 above. The inspector dealt with those suggested modifications and concluded, for the reasons that he gave in paras 90 and 91, that they would not be adequate. It is plain from the inspector’s report that the objectors did not suggest that the order could be modified so as to leave the agricultural use of the farmyard. As part of their arguments, they submitted that the setting of the listed building was best served by retaining the farmhouse in an agricultural context, but a suggestion that the agricultural use alone should remain would have been wholly inconsistent with the way in which the family was putting its case. I have set out the relevant passages above. The family were arguing that the long-standing agricultural activities had diversified to meet modern conditions and:
The Chant family live and work as a unit or commune. Their way of life is the time-honoured co-habitation of an extended farming family with a shared form of employment.
[55] The various family-run business activities were then described. There was no suggestion that it would be possible to disentangle the agricultural use from the other uses that were taking place on a communal basis, much less was there any suggestion that leaving an agricultural use alone would be viable from the family’s point of view.
[56] The inspector did consider the environmental impact of the agricultural activities that were taking place on the site. In para 79, he concluded:
The storage, industrial and agricultural activities at Home Farm are not acceptable in environmental terms and so lack the support of the development plan.|page:113|
[57] Moreover, in para 83, he considered whether or not the farmyard was necessary from the point of view of managing the family’s farmland. He noted that the farmland was located to the north-west of Somerton, thus there was here a convenient arrangement, but not one that was essential for the business, the business being the composite of the various commercial activities (including agriculture) that were being carried on by this family on a communal basis. Thus, the inspector, so far as it was necessary for him to do so, given the way the case was presented to him, did consider whether the agricultural use of the site was acceptable, and concluded that it was not.
[58] For these reasons, there is no substance in any of the three grounds of challenge, and this application must be dismissed.
Application dismissed.
