Planning permission refused on appeal for new premises for existing poultry-dressing business–Decision proceeded on erroneous basis that business should be transferred to more suitable site–Owner’s appeal allowed
This was an
appeal by Walter Hermanns & Sons Ltd, of East Markham, Retford,
Nottinghamshire, against a decision of the respondent, the Secretary of State
for the Environment, dated May 29 1973, confirming the refusal by
Nottinghamshire County Council on March 8 1972 of planning permission for
construction of new premises for the appellants’ poultry-dressing business.
Mr A de Piro
QC and Mr N F B Jarman (instructed by Shaen, Roscoe & Bracewell, agents for
Clay, Allison & Clark, of Retford) appeared for the appellants, and Mr I D
L Glidewell QC and Mr G Slynn (instructed by the Treasury Solicitor)
represented the respondent.
Giving
judgment, WILLIS J said: This is an appeal against a decision of the Secretary
of State for the Environment under section 245 of the Town and Country Planning
Act 1971, dated May 29 1973 and dismissing an appeal by Walter Hermanns &
Sons Ltd against a refusal of planning permission dated March 8 1972 by the
Nottinghamshire County Council. The decision is challenged on the usual
grounds, that it was not within the powers of the Act and that the relevant
requirements were not complied with, but before me Mr de Piro conceded that
ground 2 of the notice, which asserted that rules 12 and 13 of the Town and
Country Planning (Inquiry Procedure) Rules 1969 had not been complied with, was
not pursued; and further, that in ground 5 the allegation that the inspector
took no, or no proper, note of the evidence called by the applicants was
abandoned. It is plain, as Mr de Piro agrees, that there is no possible
criticism which can be made either of the conduct of the inquiry or of the
inspector’s report so far as the rules are concerned. The gravamen of the
complaint is that the decision of the Secretary of State was made contrary to
the rules or requirements of natural justice. I shall return to that later.
Application
was made to the local planning authority for permission for the erection of a
single-storey building for poultry dressing and storage in connection with an
established business on the adjoining land, the floor area of the building
being some 5,700 sq ft, for which an industrial development certificate had
already been granted. It is to be observed, without going into detail, that
among the grounds for refusal of the application was, as it was stated, that
the application was for a major extension of an industrial type of operation.
The facts of the matter can be stated quite shortly, and involve some
historical notice of the activities of Mr Hermanns and his son over the last
few years. Mr Hermanns senior was a refugee from Nazi Germany before the war,
and came to this country and settled in the area of East Markham, which is an
attractive village in the countryside of Nottinghamshire, as an agricultural
worker at first. About 12 years or so ago he started a poultry business on land
adjoining the appeal site, and again without going into details, over a period
of years between 1961 and 1969 he built one house and occupied another, and he
got permission for certain buildings and uses in connection with this poultry business
which he built up over the years. Briefly the position was that starting in
1961 with two 16-year-old girls in a very small poultry business, by 1969 he
had 40 employees with a large turnover and a higgledy-piggledy collection of
buildings and uses which necessitated his employees working in very cramped and
unsatisfactory conditions. So in 1971, when it was apparent that more working
space under cover was needed, he made an application for an extension of the
killing and dressing building by an area of some 1,200 sq ft. Before that could
be dealt with, he was able to buy the field which contained the appeal site, of
about four acres, which was used intermittently for rough grazing.
The
appellants’ case before the inspector was that, contrary to the way in which
the local planning authority expressed themselves in the first ground of the
refusal, the proposal was not for an extension of the business in a new
building, but for a reorganisation of the existing jumble of buildings and
uses. What was proposed was that the machinery, which was inadequately housed
and operated in
the open at times, should be put under cover in the new building on the
adjacent site, the existing buildings being used for storage and packing, all
of which would effectively concentrate the operations of the company on one
side of the road. The position on the ground was that there was a complex of
buildings and uses comprising this undertaking, which carried on the
collecting, killing, plucking and dressing of poultry. Within the area of
business activities which was being considered by the inspector were buildings
and uses, some of which were permitted under planning permission, some of which
had not been authorised and some of which might or might not have been deemed
to be authorised if the matter were tested. At all events, there had been no
enforcement proceedings in respect of anything which the appellants had done
upon the land up to the time of the appeal, although the local planning
authority indicated, dependent upon the result of the appeal, that they would
decide whether or not, and to what extent, any enforcement proceedings might be
taken at a later date. It was quite clear that between the application and the
hearing of the appeal the local authority became increasingly concerned at what
they found had occurred between the first permission and the situation that
they were considering at the time. It was apparent that there were upon this site,
or collection of sites, a very vigorous and enterprising father and son, who
from very small beginnings had built up a thriving business employing largely
female labour. Their attitude, I think, can be judged from paragraphs 25 and 26
of the inspector’s report. In view of the submissions which have been made I
think it right that I should record these in full:
25. The site
occupies almost a quarter of the field of which it is a part and this field has
always been in agricultural use, proposals for other forms of use having been
refused planning permission. The proposed development would adversely affect
the appearance of the area and would expose the remainder of the field to
successive pressures for similar industrial activity. The adverse effects of the
existing factory due to noise, smell, flood-lighting and the generation of
traffic would be likely to be increased in a manner quite unsuited to a rural
residential village and on a scale which could no longer be termed ‘small,’
‘light,’ or ‘cottage’ industry.
26. The
proposed development may be welcomed by the public health inspector as an
improvement, but the appellants’ manager says that conditions were not very
good when he came three years ago. A major expansion and capital investment has
taken place since, when thought should have been given to rationalisation and
the prevention of the present unsatisfactory situation. The energy and
enterprise of the appellants is admirable and there is no suggestion of forcing
them out of East Markham, but employment in their business has expanded from
two in 1961 to over 40 in 1971. At present employees come from quite a wide
area, and because of its subregional role the enterprise could operate with
equal success and could expand more appropriately if it were to be located at
Tuxford or at Retford, where there is suitable land allocated for industrial
use and presently available. A large degree of unauthorised use by the existing
concern has emerged during consideration of the current proposal and the
appeal, and this disregard of planning legislation, while it may have been due
to ignorance rather than wilfulness, does not diminish concern at the
possibility of further encroachment. Any enforcement action will be dependent
upon the result of the appeal.
It seems to me
that the case for the authority was being presented not only on amenity grounds
but on the likelihood of further applications to expand the business if the
appeal were to be allowed. To eliminate that risk, it was argued that although
it was not the council’s intention to compel the appellants’ removal from East
Markham, it would be better for the business to be established in an industrial
area elsewhere where it would be appropriate and could expand as required.
I come,
therefore, to the findings of fact, to the earlier paragraphs of which I should
make a brief reference before I come to the all-important paragraph 36. The
inspector, Miss Albery, refers to the attractiveness of East Markham. She finds
that the site can hardly be seen from any roads except Beckland Hill, which
divides the property owned by the appellants; that the present enterprise
employs between 50 and 60 people and has a throughput of some 20,000 birds a
week collected from 100 to 150 customers; that the employees come from a number
of areas, from East Markham, from Tuxford, from Ollerton, Elkesley and from
Retford; that collections are made from areas within a radius of 60 miles, and
deliveries are made to Nottingham and Derby, and in some weeks to Smithfield.
That finding, of course, justifies the categorisation of this as a subregional
business applied to it by the local planning authority. In view of the
submissions of Mr Glidewell, which I shall refer to in a moment, it is
necessary, I think, that I should refer in more detail than otherwise I would
to the following paragraphs in the findings of fact:
8. In 1960
planning permission was granted for a private garage now used as a cold store.
In 1961 planning permission was granted for a shed for handling and dressing Mr
Hermann’s own poultry in connection with a one-acre smallholding owned by him,
which was used at the time of the appeal for the preparing and packing of
poultry. In 1963 part of the house was being used as an office and permission
was obtained for conversion of an integral garage to a dining-room and for the
erection of a new garage on to which sanitary accommodation has since been
built in addition to an unauthorised canteen building. In 1966 and 1968
permission was obtained for the erection and extension of a shed about 40 ft by
45 ft for storing crates ancillary to the existing use, and that has always
been used to house the killing and processing machinery.
9. Making-up
of packing-cases and storage in conjunction with the appellants’ poultry
business now take place on their small-holding land, where they own a second
house, on the west side of Beckland Hill. About eight of their employees park
cars there, and no application for planning permission has been made in respect
of these uses.
10. The site
is about 200 ft wide and varies from 150 to 200 ft in depth, and the appellants
have laid down on it a concrete slab and erected a cold store, intended to form
part of the building subject to appeal, and no planning permission for this has
been granted.
In paragraph
14 there is a reference to the view of the parish council, and I only refer to
it to point out that that council put forward as one of their grounds of
objection the probability of expansion. There is a finding in paragraph 15 that
there is suitable land allocated for industrial use and available at Tuxford
and Retford. That brings me to the crucial paragraph in this case and
ultimately to the crucial words. Paragraph 36 is headed ‘Inspector’s
Conclusions’ and reads:
Bearing in
mind the above findings of fact, I am of the opinion that if suitably designed
the proposed building would not materially affect the attractive appearance of
East Markham, on account of its low-lying and relatively unobtrusive situation,
but the scale and intensity of activity combined with the intrinsic nature of
the appellants’ business are already unsuited to its location in a residential
area on the outskirts of a quiet country village. Nuisance from noise and smell
would be somewhat reduced by the removal of the machinery to the proposed new
building, but the amount of traffic generated would not be reduced, and I am
not persuaded that there would be no likelihood that the business would
continue to grow. I conclude that alleviation of the present unsatisfactory
working conditions should be achieved by removal to a suitable site elsewhere.
In giving his
decision the Secretary of State has dealt with the matter concisely, and in
paragraph 2 attaches a copy of the inspector’s report, refers to the facts set
out in paragraph 35 of the report, some of which I have referred to, and quotes
verbatim the inspector’s conclusion in paragraph 36. The decision letter goes
on: ‘The inspector recommended that
conclusions and accepts her recommendation.’
Since, therefore, the Secretary of State has based himself, so far as
one can see, entirely upon the findings of fact in paragraph 35 and the
conclusion in paragraph 36, it is important to consider what seem to be the
bases for those conclusions.
Mr de Piro
submits that so far as the first part of paragraph 36 is concerned, he has a
finding in his favour on the merits; that contrary to the local planning
authority’s submissions, the inspector (and so the Secretary of State) took the
view that there would not be any amenity objections to a suitably-designed
building, because it would hardly be seen; that it would in fact reduce the
noise and smell coming from the present activities; and that although the
amount of traffic generated would not be reduced, it at all events would not be
increased. Therefore, from a planning point of view, Mr de Piro submits that
his clients should have succeeded in the appeal. He says that the inspector,
very understandably, has fallen into error in two ways. He draws attention
first to the phrase, ‘I am not persuaded that there would be no likelihood that
the business would continue to grow,’ and submits that this is really putting
the onus the wrong way round. It is not a submission which he presses very
heavily, and I do not think it is sustainable as an objection on its own.
Secondly, and this is the nub of his complaint, he criticises that part of the
conclusion which reads, ‘alleviation of the present unsatisfactory working
conditions should be achieved by removal to a suitable site elsewhere.’ He concedes, of course, that alleviation of
the present unsatisfactory conditions could be achieved by removal to a
suitable site elsewhere, but submits that the inspector has so expressed
herself as to base the decision to dismiss the appeal upon the conclusion that
the whole enterprise should be removed to a suitable site elsewhere. What Mr de
Piro submits, in a nutshell, is this, that the inspector, who is not to be
criticised on any other grounds at all, has fallen into error in taking the
view that the proposal to alleviate the existing unsatisfactory conditions by
erecting a new building upon the land which had been acquired was being compared
with an ideal situation, where it was to be assumed that the existing
enterprise was not there at all.
If that is
what the inspector has in fact done, Mr Glidewell concedes that she should not
have done so. He further concedes, as I understand him, that it would not have
been right to take into account that applications to expand at East Markham in
the future might be encouraged if the present appeal was to be allowed. In
support of his submission, Mr de Piro has referred me to a decision of the
Secretary of State in an appeal in the case of a development in the
Easthampstead Rural District. The decision is reported in the 1970 Journal
of Planning & Property Law at page 547, and it was a case where the
application was for an extension by way of an additional floor to office
accommodation in Bracknell. It would have been part of a depot which had a
number of planning permissions given by the local planning authority, who had
taken no steps to try to secure its removal, although they took the view that
it was unfortunate that the building was there at all. The inspector took the
view that one aspect of the matter was whether ‘it would undesirably intensify
or accentuate the activities carried on in the depot.’ The Minister, while agreeing with a great
deal of his inspector’s conclusions, thought that it would be wrong in
principle for the permission to be refused on the sole ground that it would
tend to consolidate an existing depot. The report goes on: ‘The suggestion that
the undertaking is basically in the wrong location and should move to a new
site raises a separate issue which the Minister has no jurisdiction to consider
in the context of the appeal.’ This is
not of course a decision which is binding upon me, but it is one which I find
helpful in approaching this particular matter, although Mr Glidewell
endeavoured to distinguish it from the facts of this case.
Mr Glidewell
seeks to support the Minister’s decision in this way. He says that what was
relevant at the inquiry was expansion, but expansion looked at in two different
ways; one, future expansion, which was in the inspector’s mind, and the other,
what one might call present expansion, which quite plainly was not in her mind
but is the basis now put forward for supporting the decision of the Secretary
of State. It is said by Mr Glidewell that parts of the company’s activities
were carried on in breach of planning control, or at all events without prior
planning permission; that there has thus taken place some unauthorised
expansion of the business over the years; that the permission sought was for a
building to house and consolidate this unauthorised expansion, and that this in
itself, if granted, constituted expansion. If this view of the matter be right,
Mr Glidewell submits that the Secretary of State was entitled to dismiss the
appeal albeit that such a concept was not present to the mind of the inspector,
or, so far as I can see, of anyone else at this inquiry. The extent to which
there had been infringements of planning control was not and could not have
been determined at the inquiry, which was not concerned with enforcement
procedure, nor could there have been, as it seems to me, anything but the most
approximate equation between infringement and the new building. I think the
short answer to Mr Glidewell’s argument should be that if the appeal has been
determined against the appellants on a view of the facts which was never a
ground of refusal, never discussed at the inquiry, except by way of historical
reference or in relation to removal of the business elsewhere, and never
apparently present to the inspector’s mind or a factor in her conclusions,
there has been unfairness to the appellants. Nevertheless, I recognise that
policy requirements can, and if necessary should, affect a decision, and that
there are of course many cases in which the Secretary of State is entitled in
his discretion to draw inferences and conclusions from the words which are used
in the inspector’s conclusions and findings of fact which may not be obvious at
first sight. It has been said many times that inspectors’ reports are not to be
construed strictly as if they were Acts of Parliament or legal documents, but
equally, it seems to me, the courts should not be astute to find a ground for
supporting a decision involving a construction which seems to it to be
over-subtle or smacking of semantics.
With great
respect to Mr Glidewell, I do not think it would be right to support this
decision, which on the face of it, as it seems to me, has proceeded on an
erroneous basis and which the Secretary of State has explicitly accepted, by
what I regard as an artificial gloss on perfectly clear words which really
admit of no other interpretation than the one contended by Mr de Piro, and
which I understand Mr Glidewell concedes involves an erroneous approach unless
his interpretation is found acceptable. Since I reject Mr Glidewell’s
interpretation, it follows either that the decision was based upon conclusions
which involved fundamental error, or if that were not so, upon a view of the facts
which was not an issue in the appeal nor, on the face of it, a factor in the
conclusion and so, as I think, irrelevant. In either event, therefore, it seems
to me, that the rules of natural justice require that the decision of the
Secretary of State should be quashed.
The
appellants were awarded costs