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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Fidler v Secretary of State for Communities and Local Government [2010] EWHC 143 (Admin) (03 February 2010) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2010/143.html Cite as: [2010] EWHC 143 (Admin), [2010] 6 EG 115, [2010] NPC 15

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		3rd February 2010

B e f o r e :

SIR THAYNE FORBES
Sitting as a Judge of the High Court
____________________

Between:

	ROBERT FIDLER	Appellant
	- and -
	SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT	First Respondent
	- and -
	REIGATE AND BANSTEAD BOROUGH COUNCIL	Second Respondent

____________________

Stephen Hockman QC (instructed by Wright Hassall LLP) for the Appellant
Paul Brown QC (instructed by the Treasury Solicitor) for the First Respondent
Rupert Warren (instructed by the Borough Solicitor) for the Second Respondent
Hearing date: 17th November 2009
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

Sir Thayne Forbes :

1. Introduction. This is an appeal brought under section 289 of the Town and Country Planning Act ("the 1990 Act"), permission having been granted by Wyn Williams J on 26^th January 2009. In these proceedings, the appellant ("Mr Fidler") challenges the decisions of an Inspector ("the Inspector"), duly appointed by the First Respondent ("the Secretary of State"), as set out in his decision letter dated 7^th May 2008 ("the decision letter"), in respect of three out of the twelve appeals under section 174 of the 1990 Act that the Inspector determined on that date (i.e. Appeals 1, 2 and 3), whereby he dismissed (inter alia) the Claimant's appeal against enforcement notices issued by the Second Respondent on 16^th February 2007 in relation to (i) a new dwelling, together with (ii) its associated conservatory and (iii) the patio that Mr Fidler had constructed on his land at Honeycrock Farm, Axes Lane, Salfords, Surrey RH1 5QL ("the land"). The Second Respondent is the Local Planning Authority ("the LPA") for the area in which the land is situated.
2. It is common ground that the central aspect, indeed the key to the outcome, of these proceedings is the appeal against the Inspector's decision in respect of Appeal 1 (i.e. the section 174 appeal against the enforcement notice relating to the new dwelling, hereafter "Appeal 1"). On behalf of Mr Fidler, Mr Hockman QC very properly accepted that the challenge to the Inspector's decisions in relation to Appeals 2 and 3 (i.e. the section 174 appeals with regard to the enforcement notices directed at the new dwelling's associated conservatory and patio) could not succeed unless the appeal against the Inspector's decision in Appeal 1 were to be successful. For that reason, the submissions of the parties to these proceedings were almost entirely directed to challenging (in the case of Mr Fidler) and defending (in the case of the Secretary of State and the LPA) the Inspector's decision in relation to Appeal 1. The reason why this was clearly the appropriate approach to adopt will become readily apparent as this judgment proceeds.
3. The breach of planning control alleged in the enforcement notice with which Appeal 1 was concerned ("the enforcement notice") is expressed as follows (see paragraph 3 of the enforcement notice): "Without planning permission, the erection of a dwellinghouse in the approximate position on the attached plan". The reasons for issuing the enforcement notice include the following (see paragraph 4): "It appears to the Council that the above breach of planning control has occurred within the last four years. The building in question was substantially completed less than four years ago …" The requirements of the notice are as follows (paragraph 5): "(1) Demolish the dwellinghouse and remove all the resultant materials. (2) Reinstate the land to its former condition." The time for compliance is stated to be: "Twelve months from the date this notice takes effect."
4. So far as material, Section 174 of the 1990 Act provides as follows:

"174 Appeal against enforcement notice

(1) A person having an interest in the land to which an enforcement notice relates … may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.

(2) An appeal may be brought on any of the following grounds –

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted …

…

(d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters.

…

(f) that the steps required by the notice to be taken … exceed what is necessary to remedy any breach of planning control which may be constituted by those matters …"

5. Before the Inspector, Mr Fidler relied upon each of grounds (a), (d) and (f) in support of his section 174 appeal in Appeal 1 and, in due course, the Inspector dismissed the appeal on all three grounds. However, the section 289 proceedings before me are concerned only with the Inspector's decision in relation to ground (d), which was itself founded upon the provisions of section 171B of the 1990 Act (often referred to as "the four year rule") which, so far as material, provides as follows:

"171B – (1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under the land, no enforcement action may be taken after the end of the period of four years, beginning with the date on which the operations were substantially completed."

6. In brief, the basis of Mr Fidler's appeal on ground (d) was that the new dwelling house had been substantially completed by about June 2002, whilst it was still concealed within a shield of straw bales, the top of which was covered with a tarpaulin, that he had deliberately erected in order to conceal the construction of the new dwelling and to take advantage of the four year rule. The new dwelling was revealed when the straw bales and tarpaulin were eventually removed in July 2006, by which time the four year period from substantial completion of the new dwelling had expired. Accordingly, it was Mr Fidler's case on ground (d) that, although he readily accepted that the building operations involving the construction of the new dwelling constituted development for which he had not been granted planning permission, the time limit for taking enforcement action had expired long before the LPA came to issue the enforcement notice on 16^th February 2007.
7. Stated broadly, the Inspector dismissed Mr Fidler's appeal on ground (d) on the basis that the overall building operations relating to the construction of the new dwelling included the erection and removal of the straw bales and tarpaulin that had been deliberately put in place to conceal the construction and existence of the new dwelling in order to take advantage of the four year rule. The Inspector then went on to decide that, when considered as a whole, the building operations were not substantially completed until the removal of the straw bales in July 2006. The Inspector therefore concluded that the four-year time limit for taking enforcement action had not expired by February 2007 and dismissed the appeal on ground (d) accordingly.
8. The Statutory Framework. In addition to the material terms of section 171B and section 174, quoted respectively in paragraphs 5 and 4 above, the 1990 Act also contains the following relevant provisions:

"55 – (1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, "development," means the carrying out of building, engineering, mining or other operations, in, on, over or under land, or the making of any material change in the use of any buildings or other land.

(1A) For the purposes of this Act "building operations" includes –

(a) demolition of buildings;

(b) rebuilding;

(c) structural alterations of or additions to buildings; and

(d) other operations normally undertaken by a person carrying on business as a builder.

(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land –

(a) the carrying out for the maintenance, improvement or other alteration of any building of works which –

(i) affect only the interior of the building, or

(ii) do not materially affect the external appearance of the building,

…

…

57 – (1) Subject to the following provisions of this section, planning permission is required for the carrying out of any development of land.

…

171A – (1) For the purposes of this Act –

(a) carrying out development without the required planning permission …

…

constitutes a breach of planning control.

(2) For the purposes of this Act –

(a) the issue of an enforcement notice …

constitutes taking enforcement action.

…"

9. The Facts. In his decision letter, the Inspector gave the following succinct account of the main relevant factual circumstances, as part of his findings of fact relating to the new dwelling and its construction:

"148. The new dwelling is sited on what was the north-western corner of the western yard. It is constructed of stone and brickwork with some oak framing and a second-hand clay tiled roof. Two redundant grain silos have been used to form the casing for the stone/brickwork which creates two castellated features at the north-eastern and north-western corners. There is a stain-glass lantern feature over a central hall/gallery area. The house comprises kitchen, living room, study, shower room/WC and separate WC on the ground floor and 4 bedrooms on the first floor, and another room which the appellant said was still to be fitted out as a bathroom. The windows are uPVC double glazed units set within stained timber sub-frames. To the south of the house is a gravelled forecourt whilst to the north is the new patio and conservatory at the north-western corner.

149. Mr Fidler made it quite clear that the construction of this house was undertaken in a clandestine fashion, using a shield of straw bales around it and tarpaulins or plastic sheeting over the top in order to hide its presence during construction. He stated that he knew he had to deceive the Council of its existence until a period of 4 years from substantial completion and occupation had occurred as they would not grant planning permission for its construction. …

150. As an observation, it is evident from the documentary evidence provided that he house was in existence in some form at the time Mr Morden made his inspection in May 2002. The photographs from that period do show the presence of a large stack of straw bales covered in blue plastic sheeting – which it is accepted were actually straw walls with a void inside in which the house was constructed. …

…

156. … [Mr Fidler] produced a substantial number of bills and invoices concerning the purchase of building materials. There are also letters and statements from tradesmen who worked on the construction of the house and from friends who visited during the building period and those living at Honeycrock Farm. Taken together, along with the evidence of Mr Fidler and his family, I consider this is sufficient to show that, on the balance of probability, the house as a building was constructed by June 2002 and had been lived in for some time prior to that date. …

…

162. … In this case, the weight of evidence before me indicates that at the date the notice was served (16/02/07) the dwelling had been built and in occupation for over 4 years (i.e. by 16/02/03). Some internal decoration may have been outstanding and there is still no bathroom upstairs but a shower room was said by Mr Fidler to have existed by that time, and this was not contested by the Council. …

163. The main point at issue is whether the presence or otherwise of the straw bales encasing the dwelling are of relevance in terms of the consideration of the matter of substantial completion. There is no dispute that they were not part of the structure of the dwelling and would not have required the skills of a builder for erection or demolition/removal. Nevertheless, they were without doubt put there for a purpose and that was to conceal the dwelling whilst under construction and until it was considered that the legal argument on the 4 year rule would succeed. The walls of straw were not placed there by chance but were fundamentally related to the construction of the dwelling. I accept that the act of concealment does not in itself provide a legitimate basis for the Council to succeed as hiding something does not take away lawful rights that may accrue due to the passage of time. However, the ultimate intention as to whether the walls of straw were to remain or be removed is, in my view, material having regard to the authority in Sage.

164. Mr Fidler was questioned by the Council's advocate on whether it was his intention to live behind a wall of straw bales with no outlook other than at a wall of straw and very limited amounts of natural light. He said he could have gone on living that way if need be but I consider this answer to be disingenuous. From his own evidence and submissions it was always his intention to remove the bales once he thought that lawfulness had been secured. It is therefore quite obvious he never intended to continue to live within a straw stack and until the straw was removed he could not enjoy a reasonable level of residential amenity, consistent with normal expectations of what a dwelling house should provide. It might be argued that people choose to live in caves or enclosures with little or no light or outlook. That may be so, but that was not Mr Fidler's intention. He built a house in a traditional form with large numbers of windows in the walls. If he had intended to look out on straw bales 3m away then it begs the question as to why one would go to the trouble of inserting windows at all. The presence of these windows demonstrates his intentions for outlook, not least the tall picture window in the northern elevation at both floor levels which lights the central hall/gallery area.

10. In paragraphs 169 to 171 of his decision letter, the Inspector went on to express his conclusions with regard to the section 174(2)(d) ground of appeal in Appeal 1 in the following terms:

"169. … it was never Mr Fidler's intention to build a house which remained encased within walls of straw covered in sheeting. It was always his intention to remove the straw walls thus revealing his edifice once he thought that sufficient time had passed for the lawfulness of the construction to be secured. The day-to-day existence within the dwelling when encased by straw was seen as a temporary situation which would be endured for as long as it took to secure lawfulness. It was not a normal living environment (limited, if any, natural light; no outlook; poor ventilation) or one which was intended as a final outcome. Rather it was a situation that would be tolerated for the time being.

170. As a matter of fact and degree, I therefore find that the straw bales were part of the totality of the operations and it was necessary for them to be removed before the point of substantial completion was reached. The matter of substance is not that the bales hid the dwelling (although they certainly did) but that they formed part of the totality of the operations in the holistic sense accorded by the authority in Sage. The situation that existed prior to the removal of the straw bales fell short of what the appellant contemplated or intended to carry out and his intentions were not realised until removal had occurred. As this did not happen until July 2006, substantial completion did not occur until that time and this is well within the 4 year period from the date of the service of the notice.

171. I appreciate that this is a most unusual case and I am not aware of any clear authority that I can draw on which is directly comparable. Sage is a valuable authority on the matter of legal principles but differs in terms of the actual facts. I have interpreted and applied these principles to the best of my judgement. Having regard to the circumstances of the case, I consider that it is right to find against the appellant because the case of lawfulness is not made out on the balance of probability. Unless this test is met the appeal should not be allowed. Accordingly, having regard to the wording of s171B(1), the appeal on ground (d) fails."

11. Sage ~v~ Secretary of State for the Environment, Transport and the Regions and another [2003] 1 WLR 983 ("Sage"). As can be seen from the terms of paragraph 171 of his decision letter, the Inspector sought to interpret and apply the legal principles stated in Sage, whilst acknowledging that the facts of that case were very different. In Sage the local planning authority had served an enforcement notice alleging that the erection of a dwelling house constituted a breach of planning control. No building work had actually been carried out on the structure during the four years preceding the service of the notice. However, the dwelling itself was not fit for habitation because the ground floor consisted of rubble, there were no service fittings or staircase, the interior walls were not plastered and the windows were unglazed.
12. The landowner appealed against the enforcement notice on the ground that (inter alia) the building operations were substantially completed more than four years before the local planning authority had taken any enforcement action (i.e. relying upon sections 171B and 174 (2)(d) of the 1990 Act). The Inspector dismissed this ground of appeal on the basis that the time limit of four years did not begin to run until the building operation involving the construction of the dwelling was substantially completed and that, as a question of fact and degree, the dwelling in question was still in the course of construction and was not "substantially completed".
13. The landowner appealed to the High Court on the ground that, for the purpose of determining the starting point of the four-year period under section 174B of the 1990 Act, "what have to be substantially completed are those operations and works which amount to a breach of planning control and that operations and works which do not amount to development because they fall within section 55(2)(a) are not to be taken into account"; since all the work remaining to be done on the dwelling in question was either internal work or work that did not materially affect the external appearance of the building it was, pursuant to section 55(2)(a), work that did not amount to the development of land for which planning permission was required and that the building operation falling within the compass of section 174B(1) must therefore have been completed more than four years before enforcement action was taken by the local planning authority. The judge allowed the appeal on those grounds and the Court of Appeal upheld that decision.
14. In allowing the local planning authority's appeal, the House of Lords rejected the argument summarised in the previous paragraph in favour of a holistic approach. Thus, at paragraph 24, Lord Hobhouse said this:

"24. The same holistic approach is implicit in decisions on what an enforcement notice relating to a single operation may require. Where a lesser operation might have been carried out without permission or where an operation was started outside the four-year period but not substantially completed outside that period, the notice may nevertheless require the removal of all the works including ancillary works. …"

Agreeing with Lord Hobhouse, Lord Hope put the matter in this way at paragraphs 6 and 7:

"6. … it makes better sense of the legislation as a whole to adopt the holistic approach which my noble and learned friend has described. What this means, in short, is that regard should be had to the totality of the operations which the person originally contemplated and intended to carry out. That will be an easy task if the developer has applied for and obtained planning permission. It will be less easy where, as here, planning permission was not obtained at all. In such a case evidence as to what was intended may have to be gathered from various sources, having regard to the building's physical features and design.

7. If it is shown that all the developer intended to do was to erect a folly, such as a building which looks from a distance like a complete building … but was always meant to be incomplete, then one must take the building when he finished it as it stands. It would be wrong to treat it as having a character which the person who erected it never intended it to have. But if it is shown that he has stopped short of what he contemplated and intended when he began the development, the building as it stands can properly be treated as an uncompleted building against which the four-year period has not yet begun to run."

15. The Parties' Submissions. On behalf of Mr Fidler, Mr Hockman QC stressed that the breach of planning control alleged in the enforcement notice was "… erection of a dwelling house …". He also emphasised that the construction (i.e. the erection) of the dwelling house in question was complete by the beginning of June 2002, having been occupied since October 2001.
16. Mr Hockman submitted that the Inspector had fallen into error in deciding that the erection and removal of the straw bales formed part of the overall building operations relating to the erection/construction of the new dwelling house. It was Mr Hockman's submission that "building operations" in section 55(1A) of the 1990 Act is exhaustively defined in subparagraphs (a) to (d) of that subsection, that the erection and removal of the straw bales was not covered by any of those subparagraphs and that, therefore, those activities were neither building operations in their own right nor did they form any part of the building operations involved in the erection/construction of the new dwelling. Mr Hockman also submitted that nothing in the speeches of their Lordships in Sage was authority for the proposition that you can take into account an activity that is not a building operation as defined (i.e. the erection and removal of the straw bales not forming part of the building), as forming part of the actual building operation itself (i.e. the construction of the dwelling house in question).
17. In support of his submission that the expression "building operations" is exhaustively defined in section 55(1A), Mr Hockman referred to Dilworth v Commissioner of Stamps [1899] AC at page 106 and contended that the context of the 1990 Act shows that the word "includes" in section 55(1A), that precedes the activities identified in subparagraphs (a) to (d), is not merely used for the purpose of adding to the natural significance of the expression "building operations" but should be construed as equivalent to "means and includes", thus affording an exhaustive explanation of the meaning of that expression for the purposes of the Act.
18. Mr Hockman submitted that the Inspector should have directed himself by reference to the statutory definition of "building operations", but that he had singularly failed to do so. Mr Hockman referred to the second sentence of paragraph 163 of the decision letter (see above) and submitted that the Inspector's findings of fact in that sentence showed that the straw bales formed no part of the actual structure of the dwelling house and that this clearly placed the erection and removal of the bales outside the exhaustive definition of "building operations" in section 55(1A), because such an activity would not normally be done by a builder (as the Inspector acknowledged). Mr Hockman suggested that the approach adopted by the Inspector, in which he had failed to apply the discipline of the statutory definition of "building operations" to the material facts, necessarily led to uncertainty and arbitrariness, both of which undesirable outcomes are avoided if the statutory definition is strictly applied to the factual circumstances of the case.
19. In the alternative, Mr Hockman submitted that if, contrary to his primary submission, the erection and removal of the straw bales did form part of the relevant building operations, then the Inspector erred in law in concluding that those operations were not substantially completed until the removal of the bales. In support of that submission, Mr Hockman relied, in particular, upon the following matters:

(i) the terms of the enforcement notice (see paragraph 3 above);

(ii) the terms paragraph 156 of the decision letter (see paragraph 9 above);

(iii) the fact that the dwelling house had been built and occupied for over 4 years before enforcement action was taken (see paragraph 162 of the decision letter); and

(iv) the fact that the straw bales did not form any part of the structure of the actual dwelling house (see paragraph 163 of the decision letter).

20. On behalf of the Secretary of State, Mr Brown QC (supported by Mr Warren on behalf of the LPA) submitted (correctly, in my view) that Mr Fidler's case was entirely dependent upon the submission that, as a matter of law, the erection and removal of the straw bales could not amount to or form any part of building operations within the meaning of the Act. For the reasons developed below, Mr Brown and Mr Warren both argued that this submission was wrong.
21. Both Mr Brown and Mr Warren readily accepted that the erection and removal of the straw bales was not itself a building operation when considered in isolation. However, they submitted that such an activity could nevertheless, as a matter of fact, be found to form part of building operations, when the totality of the operations as originally contemplated and intended is considered (applying the Sage holistic approach). I agree with that submission.
22. As it seems to me, the question whether section 55(1A)(a)-(d) is an inclusive or exhaustive definition of "building operations" is not critical to the outcome of these proceedings, although I incline to the view that Mr Brown and Mr Warren are right in their submission that the expression is not exhaustively defined in and thus limited to those matters set out in subparagraphs (a)-(d). In my view, there is nothing in the context of the 1990 Act that would justify construing "includes" in that subsection as meaning "means and includes".

23. More to the point and as Mr Brown observed, on analysis it is clear that the essence of Mr Hockman's crucial submission, that the activity of erecting and removing the straw bales did not and could not form part of the overall building operations (in this case, the clandestine construction of a dwelling in breach of planning control that would have the benefit of the 4-year rule), is that the activity in question had itself to be a building operation within the meaning of the Act. As Mr Brown submitted, there is nothing in the Act or in the authorities to justify such a conclusion that is, in my view, plainly wrong. I agree with Mr Brown that there can be a number of ancillary activities on a construction site that, if considered in isolation, would not be a building operation within the meaning of the Act (e.g. the provision of temporary canteen facilities) but which could nevertheless form part of the contemplated and intended building operations when considered as a whole (in line with Sage). In each case, it is a matter of fact and degree as to whether such an activity does form part of the overall building operations. In this context it is significant, in my view, that the definition of development in section 55(1) of the 1990 Act includes (inter alia) the term "operations" (a term that is capable of covering a wide range of activities relating to the actual work of building) as opposed to, say, "works" (a term that is obviously more restricted in meaning when linked to the expression "building").

23. I therefore agree with both Mr Brown and Mr Warren that the Inspector was quite right to consider the evidence and make appropriate findings of fact with regard to the totality of the building operations which Mr Fidler originally contemplated and intended to carry out. In this particular case, crucial to the Inspector's later findings were his initial conclusions of fact that Mr Fidler knew perfectly well that he would not be granted planning permission for the new dwelling, that his intention was to construct it in a clandestine fashion, using a shield of straw bales to conceal it during construction and in order to deceive the LPA of its existence until he believed that he was in a position to take advantage of the 4-year rule: see paragraph 149 of the decision letter.
24. It is true that the Inspector went on to make findings that the new dwelling was constructed and occupied by June 2002 (paragraphs 156 and 162 of the decision letter) and that the straw bales did not form part of the actual structure of the dwelling (paragraph 163 of the decision letter). However, as it seems to me, the Inspector's findings of fact that are crucial to the outcome of these proceedings appear in the following sentences of paragraphs 163, 164 and 169 of his decision letter which, although already quoted, bear repetition:

"163. … [the bales] were without doubt put there for a purpose and that was to conceal the dwelling whilst under construction and until it was considered that the legal argument on the 4 year rule would succeed. The walls of straw were not placed there by chance but were fundamentally related to the construction of the dwelling. …

164. … From [Mr Fidler's] own evidence and submissions it was always his intention to remove the bales once he thought that lawfulness had been secured. It is therefore quite obvious he never intended to continue to live within a straw stack and until the straw was removed he could not enjoy a reasonable level of residential amenity, consistent with normal expectations of what a dwelling house should provide. …

…

169. … it was never Mr Fidler's intention to build a house which remained encased within walls of straw covered in sheeting. It was always his intention to remove the straw walls thus revealing his edifice once he thought that sufficient time had passed for the lawfulness of the construction to be secured. …"

25. The Inspector's foregoing findings of fact were clearly ones that he was entitled to reach on the evidence and, as it seems to me, were findings that fully justified his critical conclusion that the erection and removal of the straw bales formed part of the totality of the building operations in question (see paragraph 170 of the decision letter), i.e. that this particular activity formed part of the totality of the building operations that Mr Fidler originally contemplated and intended to carry out: see paragraph 6 of the speech of Lord Hope in Sage (supra). As Mr Brown observed, in the light of his findings of fact, the Inspector was fully entitled to find (as he, in effect, did) that there was such a close and intimate connection between the erection/removal of the straw bales and the construction of the dwelling as to lead to the conclusion that the former was a necessary part of the overall building operations relating to the latter. In my view, the Inspector's findings of fact make it abundantly clear that the erection/removal of the straw bales was an integral, indeed an essential ("fundamentally related"), part of building operations that were intended to deceive the LPA and to achieve by deception lawful status for a dwelling built in breach of planning control. In my view, the approach adopted by the Inspector in this case cannot be faulted and I have no hesitation in rejecting Mr Hockman's submissions to the contrary effect.
26. So far as concerns Mr Hockman's alternative submission (see paragraph 18 above), I am satisfied that there is nothing in this particular argument. In the light of his findings of fact, it was a matter of judgment on the part of the Inspector as to whether substantial completion of the operations did not occur until the removal of the straw bales. Nothing that Mr Hockman submitted about this aspect of the matter persuades me that the Inspector's judgment is even arguably wrong. In fact, as it seems to me and in all the circumstances of this case, the Inspector was plainly right to reach the conclusion that he did.
27. Conclusion. For all the foregoing reasons I have come to the firm conclusion that this appeal must be and is hereby dismissed.