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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Faradene Ltd v Secretary Of State For Environment, Transport & Regions & Anor [1999] EWHC Admin 807 (20th August, 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/807.html Cite as: [1999] EWHC Admin 807 |
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1. MR
ROBIN PURCHAS QC: In this application Faradene Limited applies under Section
288 of The Town & Country Planning Act 1990 to quash the decision of the
Inspector on behalf of the First Respondent dismissing the Applicant’s
appeal on the refusal of planning permission for the use of land as a retail
market and public car park and the erection of a building for holiday and
leisure related uses at the former Cavendish Hotel site, Felixstowe, Suffolk.
Mr John Taylor Q.C. who appears for the Applicants challenges the decision on
grounds that it was perverse, that it failed to have regard to material
considerations and that the reasons given were inadequate.
2. The
appeal site was as its name implies, the site of a former hotel on the seafront
at Felixstowe. It is some .6 hectares in extent and was hard surfaced with a
small block of lock-up garages in one corner. Sea Road on the Eastern side of
the road separated the site from the sea and was used for parking and access to
the sea front and other tourist facilities. The appeal site adjoins
residential areas to the West and South. There are a number of seaside
activities in the area, including the Mannings Amusement Park to the North and
the Winter Market site to the South. The appeal site had been used as a market
since the early 1980’s pursuant to a series of temporary planning
permissions culminating with a permission granted on 28
th
July 1995 until the 20
th
September 1997 for use as a market on Sundays between April and December and on
Wednesdays between 15
th
July and 15
th
September. On 12
th
February 1997, the applicant supplied under Section 73 of the Act to vary those
conditions by removing the temporary condition and the restriction to parts of
the year. On 9
th
May 1997, the application was partially allowed extending the period to 31
st
December 1998. On 19
th
November 1997 the Applicants made a further application, the subject of the
present challenge for redevelopment of the site. It was in outline with all
matters reserved illustrative plans supporting the application showed a
two-storey building with kiosks on the ground floor and a restaurant and
amusements on the first floor on the Sea Road frontage with car parking on the
remainder of the site to be used as a market on Sundays and Bank Holidays with
a more limited use on Wednesdays and Saturdays. That application was refused
on 5
th
march 1998. The applicants appealed both decisions. The Suffolk Coastal local
plan adopted in December 1994 contained policies for the protection of
residential amenity and the promotion of tourism. Policy LP183 sought to
promote the Sea Road frontage area for tourist purposes, including the frontage
of the appeal site, Policy LP184 dealt with an area of land owned by the Second
Respondents, known as the South Sea Front land. The policy provided for its
comprehensive development for ‘recreation/leisure orientated use’.
In March 1998 the Second Respondents placed on deposit alterations to the local
plan. Those alterations proposed policy LP1838 which positively encouraged
recreation/tourist uses on the Sea Road frontage. In respect of the South Sea
front land at paragraph 11.213A, it provided:
3. The
reference to the current use of the site for a market was to the appeal site.
The Applicants objected to those provisions of the deposit alteration. The
First Respondent’s policy in PPG1 on prematurety objections is also
relevant to this challenge. So far as is relevant, it provided as follows:
4. A
joint enquiry into the applicants appeals held on 30
th
September, 1
st
October 1998. According to the affidavit of Neil Alfred Ward, the
applicant’s planning consultant, the Second Respondents’
development plans officer accepted in evidence at the enquiry “that if
the inspector found that there was no material adverse effect upon amenity at
the present site, there would be no need to relocate the market; but the market
is not a vital component of draft policy 104A as it in no way affects the other
uses proposed for the sea front land.....”. The applicants called expert
noise evidence and produced a report which concluded that the market use would
not cause a loss of amenity to nearby residents having regard to the guidance
of ppg.24 and the relevant British Standard. By a decision letter dated 20
th
October 1998, the inspector partially allowed the first appeal (“Appeal
A”) by extending the use until 31
st
December 1999 and allowing the use on Sundays throughout the year, but dismiss
the second appeal (‘Appeal B’). The present challenge is only in
respect of Appeal B, but the issues that arise require consideration of the
whole decision letter.
6. In
paragraph 7 he dealt with the development plan. He noted that there was no
major strategic context for the purpose of the structure plan and referred to
the policies in the local plan with which I have dealt above. In paragraph 8
he referred to the deposit alterations which he regarded as a material policy
consideration. He summarised those policies as follows: “it identifies
the appeal site as an areas preferred for leisure, holiday and retail uses and
as South Sea Front land had a site for comprehensive leisure development which
could include a market to replace the one present operating on the appeal
site.” He dealt with Appeal A in paragraphs 9-17of the decision letter.
At paragraph 9, he stated “the council did not contest an extension of
the permitted market use until the end of 1999. It supported the principle of
the market and acknowledged that the spending it bring to the town is an
important part of the local economy. The key questions are whether the winter
respite period should be relaxed or extended and whether the temporary
conditions should be removed altogether.” He dealt with noise and
disturbance at paragraphs 10-12. In paragraph 10 he commented on the noise of
setting up the market “vehicle manoeuvring was kept to a minimum and
although there was some clanking of the steel frames and banter, it did not
find the noise excessive or unreasonable. The sounds of trading were not
especially noticeable outside the site. My perceptions appear to be confirmed
by the noise surveys and calculations.” He continued at paragraph 112
“most market visitors parked in Sea Road in other nearby roads parking
was busier than during the previous week and there was some circulation of cars
which led to a few tricky passing moments. More people were about the streets.
It was difficult to gauge to what extent this was attributable to the appeal
market alone, because the Mannings Market was operating and the amusement
centres were open. There was also a brownie meeting in the church hall in
Langer Road. By notice no illegal parking or access obstructions. 12.
Undoubtedly these events effect local amenities and the objectives of policy
PL36 which I consider to be relevant to the appeal, the market has however been
regarded as acceptable for nine months of the year since 1992 and during the
Summer over a much longer period. Whilst I understand the difficulties
explained by residents, it seems to me that in the winter there is a reasonable
expectation that the impact will be less, stall-holder numbers normally fall by
about a quarter and I guess that visitor numbers are also reduced because of
fewer market attractions and less hospitable weather conditions, although I
surmise that the noise climate of the surrounding area is not much different
from the Autumn. On this topic therefore, my conclusion is that the scale of
noise and disturbance directly related to the Cavendish Market on the
additional days sought, would not be significantly greater than that arising
from the development for which permission has been granted at other times of
the year. I think that this does not represent a sound and convincing reason
for withholding permission for trading between January and March”. In
paragraph 16 he concluded that the use did not give rise to concern on highway
safety grounds. In paragraph 17 he dealt with tourism and the Sea Road policy
as follows:
9. Mr
Taylor submits and I accept, that from these parts of the decision letter
dealing with PKA, the inspector can be seen to have accepted that the Sunday
market use could operate throughout the year without unacceptable detriment to
residential amenity, but that he was not proposed to make that use permanent
because at times when the market was not operational, the vacant site would
conflict with the objectives of policy LP183. He was however prepared to
accept the used on a temporary basis until the end of 1999 to coincide with the
determination of the emerging alterations which in accordance with his
conclusion on Appeal B to which I refer later in this judgment, would enable
the policy context for the future use of the site to be determined (decision
letter paragraphs 24 and 26). The Inspector dealt with Appeal B, paragraphs
18-23 of the decision letter. At paragraph 18 he noted “the council
indicated that it had no objections in principle to the building proposed or
the public parking facility. I note that market days would be as at present
with the options of more limited markets on Wednesdays and Saturdays if
viable”. In respect of amenity and traffic he concluded at paragraph 19,
“the market area would be rather less than currently occupied and I see
no reason to conclude that the amenity or traffic affects would be
significantly more detrimental than the existing long-standing operation,
whilst accepting that it is in practice less than satisfactory. I think the
benefits to the town are sufficient to swing the scales in the market’s
favour”. In respect of planning policy he continued,
12. Mr
John Hobson who appears for the first Respondent does not contend that the
Inspector concluded that there was any objection based on impact to a
residential amenity to the redevelopment proposal or in particular the market
use. That part of Mr Taylor’s submissions was conceded. Moreover, as is
apparent from a comparison with the consultation draft of the alterations which
contained a specific proposal for the market use on the South Sea Front land.
Mr Hobson accepted that the emerging policy 184A did not seek more than to
identify the market use as a possible use that could be accommodated on that
land (see LP184A(a)(ii)) if associated with the termination of the
applicant’s use on the appeal side. He submits that the inspector
plainly had that in mind – see his summary at paragraph 6 of the decision
letter. The land identified its accommodation on the South Sea Front land as
having overall benefit giving ‘the opportunity to accommodate the Sunday
market away from residential property’ (para 11.213A). While the
Inspector did not consider the degree of impact on residential amenity was such
as to constitute a planning objection to the use, Mr Hobson submits that the
Inspector recognised that there was some adverse effect from the present use
(see paragraph 23) and that therefore there could be advantage in relocating
the use onto the South Sea Front site without that adverse effect. That
supported the objectives underlying the emerging alterations. Paragraph 22 of
the decision letter demonstrated the inspector had the advice on prematurity in
ppg.1 well in mind, the Inspector concluded and was entitled to conclude as a
matter of planning judgment, that by allowing the appeal the opportunity of
relocation would be lost, thus prejudging or prejudicing the outcome of the
development plan process (paragraph 23). The Inspector had concluded that the
‘right forum’ for that decision to be taken was as part of the
local plan process and that the appeal should accordingly be dismissed because
of maturity. Thus the Inspector’s reasoning was entirely clear. He had
had regard to the material considerations including the guidance in ppg.1. It
was a matter of planning balance which was for the Inspector and not this
court. Mr Taylor submits that once this Inspector concluded that there was no
relevant planning objection to the present use, it was not open to the
Inspector in the context of emerging policy 184A to conclude that there would
or could be relevant prejudice to the plan process in the sense of demonstrable
harm for planning purposes (ppg.1 paragraph 40). The policy was not an
allocation, the grant of permission for the appeal proposals did not affect the
terms of the policy which remain valid whether or not the market was in fact
relocated, as was accepted or at least not challenged by the first Respondent.
The second \Respondent’s evidence was that the redevelopment of the
second Respondent’s land did not depend upon relocation of the market.
If the Inspector had rejected that evidence, he would have been bound to say
so. There is no suggestion of that kind in the decision letter. Moreover, Mr
Taylor submits, this was a case where the proposals accorded with the
development plan (see decision letter paragraphs 19 and 20. Whatever
‘less than satisfactory’ (para 19) and ‘creates
difficulty’ and ‘adverse effects’ (para 23) may in context
mean it was accepted that they did not make the proposed market use
unacceptable in planning terms as part of Appeal B. In these circumstances, he
submits, the Inspector’s conclusion that the local planning enquiry was
the right forum was arbitrary and could not be reconciled with the advice in
ppg.1, paras 47 to 49. The decision letter did not set out the
\Inspector’s reasoning in that respect, thus Mr Taylor submits that the
Inspector’s conclusion was either perverse or reflected a failure to
understand that advice or alternatively the reasoning was such as to give rise
to a substantial doubt in that respect.
13. I
remind myself that the statutory duties of the Inspector was to make his
decision in accordance with Section 70(2) and 54A of the Act and under the
regulations to give reasons for that decision. The principles guide the
court’s approach in both these respects are well established and do not
need to be repeated here. Whilst materiality is a matter of law, weight is
entirely for the decision-maker. Two features of the present case do however
require particular attention. The first that on the face of the decision
letter, the only reason that the Inspector identified by way of objection to
Appeal A was its conflict with adopted policy LP123 in that the land would
remain vacant and unused when the market was not in active operation. That
ground for objection was on the conclusions of the Inspector, overcome by the
Appeal B proposal in that when the market was not in operation, public parking,
together with the proposed building would be ‘an advantage’ to
which the Inspector saw no objection (decision letter, para 20). Thus on the
conclusions of the Inspector, the proposed development on the appeal site would
accord with the development plan for the purposes of Section 54A and would not
itself appear to be otherwise objectionable. Second, the emerging policy in
the alterations does not express itself as a proposal for a market use which
continuance of that use on the appeal site might frustrate. Market use on the
South Sea Front land was contingent and sited as a possible but not necessary
use. Without more, it is not easy to appreciate why continuance of the
unobjectionable use on the appeal site would conflict with the policy for the
South Sea Front land as drafted. It is not challenged and I accept that the
evidence before the Inspector was that the market use was not ‘a vital
component’ of draft policy n184A, as it would not affect the other uses
proposed for that land. Certainly, there is no finding of the Inspector and
evidently no evidence to the effect that he failure to relocate the market
would prejudice the realisation of the proposals for that land. There is no
recorded suggestion that the policy in the alteration should be modified to
require relocation of the market use. As against that, as Mr Hobson submits,
the permanent permission for the market as part of the re-development of the
appeal site, would inevitably make relocation or substitution of a market use
on the South Sea Front land, less likely. However, it seems to me that the
policy contemplates the situation in that the market use is identified under
policy LP184A as an option and contingent on termination of the current use.
While the alterations suggest that the objective behind relocation would be
removing the present market use away from residential property, Mr Hobson
accepts that this Inspector only expressed objection to permanent market use on
the appeal site, was the conflict with adopted policy LP183 to which I have
referred above. Certainly the alterations as drafted do not specifically
propose termination of the existing use on the appeal site or require
relocation as a proposal on the South Sea Front land. It is the emerging
policy as formulated in the deposit alterations which the Inspector identified
as a material planning consideration. In the absence of any manifest conflict
or actual and demonstrable planning detriment, this court is, in my judgment,
entitled to and should look with some care to ensure that the Inspector has had
‘regard’ to the advice in ppg.1, either applying it or explaining
why he has adopted some other basis for his decision. To apply the policy, it
is of course necessary that the decision maker should have understood the
policy and approached it on the evidence in a rational way. The decision
letter does not suggest that the Inspector made an exception to that advice,
indeed I accept from paragraph 22 where the Inspector has regard to the stages
reached in the plan preparation, and the importance of the South Sea Front land
for Felixstowe, that he had the advice in ppg.1 in mind. The underlying
premise of the advice in paragraphs 47-49 of pg.1 is that necessarily
applications should continue to be considered in the light of the current
policies in the development plan (para 48) – here the Inspector concluded
that the proposed development would accord with the policies in the development
plan (decision letter paragraphs 19 and 20). The corrections would, therefore,
‘not usually’ be justified other than in the paragraph 47
circumstances (paragraph 48. Paragraph 47 provides the test for objections on
prematurity grounds, that is whether the development proposal is so substantial
that to grant permission would prejudice the outcome of the planned process by
pre-determining decisions about the scale, location or phasing of new
development that ought properly to be taken in the development plan context. I
accept as Mr Hobson submits, that the Inspector here did conclude that the Sea
Front land proposal was so substantial that it should properly be considered
through the local plan process. However, in my judgment, when the guidance
refers to ‘prejudice the outcome of the plan process’ by
pre-determining decisions about scale and location of new development, it is in
my view concerned decision to be made as to the form of proposals or policies
in the plan and not their future implementation. I agree with Mr Taylor in
this respect that the form of the policy, notwithstanding the applicant’s
objections, did not require the market to be relocated onto the South side. I
do not see that continuance of the market on the appeal site would conflict
with the terms of the policy in any identified way. Moreover, on the face of
the decision letter, it does not seem to me that this Inspector has identified
any planning objection based on residential amenity to the permanent market use
as a part of the Appeal B proposals. In these circumstances, I find it
difficult to see why any decision on the form of policy LP184A as part of the
alterations would be pre-determined by he decision to grant permission for the
Appeal B proposals. Policy LP184A could remain unaltered enabling a market use
on he South Sea Front land to be included, should the existing use on the
appeal site terminate, should for example, a permission for the Appeal B
proposals not be implemented. Against that background, I turn to the decision
letter to consider the reasons given by the Inspector for concluding that there
would be unacceptable prejudice to the development plan process through the
grant of planning permission for appeal B. At paragraph 20 of the decision
letter, he concludes that retention of the market would be ‘at
odds’ with the emerging policy. In context that can only mean that the
option albeit contingent, would be less likely in implementation of the policy.
In paragraph 22, as I have indicated, he concludes that the right forum for
considering the policy and its implications would be at the forthcoming local
plan enquiry. In paragraph 23 he concludes that it would not seem
‘prudent planning’ to grant permanent permission for the appeal
market in the knowledge that it can ‘create difficulties’ without
full examination of the merits of the alternative which might contribute
equally to the economic well-being of Felixstowe without the same adverse
effects. It is the absence of ‘that policy analysis’ which he
concludes ‘could prejudice the outcome of the development plan
process’. Looking at the broad thrust of the reasons in the context of
the decision letter as a whole, it does seem to me that the Inspector is
concerned not so much with the form of the policy which I have indicated
expressly left open the possibility of a continuing market on the appeal site,
but with its future implementation and whether or not there might not be more
advantage as opposed to any detriment to an interest of acknowledged importance
through the continuance of the market on the appeal site as opposed to the
location of a market on the South Sea Front land. Thus, although the Inspector
has had regard to the policy in ppg.1 in the sense that he has reflected its
language in paragraphs 22 and 23 of the decision letter, I am not satisfied
that he has demonstrated ‘clearly how the grant of permission for the
development concern will prejudice the outcome of the development plan
process’, at least in the context of the proposed policies (ppg.1 para
49). Moreover, it does not seem to me that the Inspector has identified any
reason why continuance of the use as part of the PLP proposals on the appeal
site would be in planning terms, objectionable or, on what basis there would be
conflict with the proposed Policy LP184A. Given that the relevant policy
contemplates as one option continues the market use of the appeal site, in my
judgment it cannot be said that permission for Appeal B would necessarily
pre-determine decisions on the form of the policy that were properly matters
for the development plan process. In these circumstances, while I accept that
the approach of the Inspector, in paragraphs 20-23 of the decision letter
reflect matters of planning judgment which were for the Inspector and not this
court, it does not seem to me that the reasons given are consistent with an
understanding of the guidance of prematurity in ppg.1 or its rational
application on the facts of this case. Accordingly, I conclude that the
Inspector failed to have regard to a material consideration comprising the
advice in ppg.1 on prematurity projections, alternatively that he failed to
give adequate reasons of his approach in that respect. In my judgment if the
guidance in that part of ppg.1 was taken into account in the context of this
decision, there was a real prospect that a different conclusion would have been
reached on Appeal B. In these circumstances, the challenge succeeds and the
decision will be quashed.