[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Vallen International Ltd & Anor v Secretary of State for Transport Local Government and the Regions & Anor [2002] EWHC 1107 (Admin) (16 May 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/1107.html Cite as: [2002] EWHC 1107 (Admin)

[New search] [Printable RTF version] [Help]

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

		The Royal Courts of Justice The Strand London
		16 May 2002

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector appointed on behalf of the first defendant, contained in a decision letter dated 28 September 2001.
2. In that decision letter the inspector dealt with ten appeals, appeals A-K, all relating to development at Fairtrough Farm, Fairtrough Road, Orpington, Kent. The first claimant had acquired the farm in June 1999 and was using it as a stud specialising in quality dressage horses. The applications for planning permission sought to regularise that position and to enable the erection of some additional buildings in connection with that equine use. Appeal A sought planning permission for the use of the farm as a stud farm and equestrian centre for the training of dressage horses. The remaining applications, save for appeal F, sought permission for buildings such as hay barns, stables and yard, sand school and the retention of a mobile home to be used in conjunction with the stud farm/equestrian centre. Appeal F sought planning permission for the demolition of the existing dwelling and erection of detached five-bedroomed house and detached double garage. The proposed double garage was withdrawn to avoid harm to trees covered by a tree preservation order, although the inspector noted that a garage would eventually be required somewhere within the site if appeal F was allowed. The claimant explained to the inspector that it was intended to sell the site of appeal F with the benefit of planning permission for the replacement dwelling, in order to raise funds for the equestrian enterprise. The farm is set in the metropolitan Green Belt.
3. In paragraph 6 of the decision letter the inspector identified two main issues. Unsurprisingly, the first of those was whether the proposals amounted to inappropriate development in the Green Belt and, if so, whether there were any very special circumstances to overcome the presumption against such development. The inspector dismissed all ten appeals, concluding that the proposals were inappropriate development and that no very special circumstances which justified the grant of planning permission existed. This challenge is confined to the inspector's decision to dismiss appeal F and to refuse planning permission for the proposed replacement dwelling. There is no challenge to his decisions in respect of the remaining appeals. It follows that the argument advanced on behalf of the claimant at the inquiry that the sale of the site of the replacement dwelling, with the benefit of planning permission, would be used to raise funds for the equestrian enterprise, is no longer applicable. The inspector described the appeal sites and their planning history as follows:

"18. Fairtrough Farm is located in attractive, rolling countryside approximately 4 km south of Orpington and 1 km south of the village of Pratts Bottom. It comprises a roughly rectangular area of some 45 ha, of which 4 ha or so are woodland. The farm buildings are grouped together towards the centre of the land, mostly on the southwest corner of the 'T'-junction between Fairtrough Road, which runs northwards, and Budgins Hill/Port Hill, which runs east-west.

19. The main group comprises the shell of the former farmhouse, a modern Atcost portal frame barn which has recently been repaired and [a] Kent barn .... There are also a small shed that may have been used as a stable, and a derelict garage. A Dutch barn is situated to the northeast of the complex ....

20. Prior to the mid 1980s the farm, which was then slightly larger, was run as a dairy unit. Following a change of ownership a non-agricultural tenant occupied the house and the Kent barn was used for non-agricultural purposes. Although the land and Atcost barn were let on short-term licenses to neighbouring farmers, the holding deteriorated. The farm changed hands again in about 1997. The land and Atcost barn were used for grazing and lambing of sheep, but the other buildings were largely unoccupied. Planning permission was granted on 24 September 1998 for change of use and conversion of the Kent barn and stable to provide six craft/studio units with parking and service area, but that permission has not been implemented.

21. The farmhouse was extended in 1969. An appeal in respect of an outline application for a replacement dwelling was allowed on 21 May 1992 but subject to an agricultural occupancy condition. That permission was not taken up, but a further application was made in 1998. The Council resolved on 27 August 1998 to grant planning permission subject to the prior completion of a planning obligation tying the dwelling to the holding. No such agreement was completed and no permission has been issued. Sometime between June 1996 and late 1998 the farmhouse was extensively damaged by fire."

4. The inspector recorded that the first claimant had acquired the land and buildings in June 1999.
5. Pausing there, paragraph 1 of the claimant's Part 8 claim form explains:

"The house in question had been destroyed by fire. The First Claimant had acquired the land subsequent to the fire, and had entered into a contract agreeing to sell the house to the Second Claimant."

6. In paragraph 25, the inspector said:

"The dwelling covered by Appeal F would replace the present derelict structure. It would be of a similar size and within the original domestic curtilage, although located further to the southwest. It was stated that it was intended to sell that site, with planning permission, in order to raise funding for the equestrian enterprise."

7. The inspector dealt with the Green Belt aspects of appeal F under the subheading "Green Belt - Appropriateness" in paragraphs 67-75 of the decision letter, which read as follows:

"67. The former farmhouse was a residential property unencumbered by any formal tie to any holding or by an occupancy condition. The Appellant argued that a similarly unfettered replacement dwelling should be allowed, despite the fact that only the shell of the house remains. The residential use had not been abandoned.

68. UDP Policy G4 permits a replacement dwelling 'where a building is in established residential use'. Counsel for the Appellant accepted, and I agree, that the structure is not currently in such a use. It therefore appears to me that the UDP would allow the proposed house only if it satisfied Policy G2. Unless very special circumstances applied, it would need to be for one of the specified purposes, such as agriculture, but none of those purposes is proposed.

69. PPG2 indicates that the construction of new buildings inside a Green Belt is inappropriate unless for various purposes that include 'replacement of existing dwellings'. The Appellant argued that the fact that the building was not lived in or capable of being lived in did not prevent it from being an existing dwelling, and that the Council had misinterpreted PPG2 in that respect. However, it does not seem to me that a dwelling exists at the moment. There is only the shell of a building, which has been derelict for between 3 and 5 years. I do not consider those remains amount to a dwelling, whether or not the use has been abandoned.

70. Emerging UDP (Review) Policy G1 is couched in similar terms to PPG2. Review Policy G6 refers to a 'building in residential use'. Against that background, I believe that the proposal would constitute inappropriate development in the Green Belt."

8. Then, under the heading 'Green Belt - Special Circumstances', the inspector said:

"71. As referred to in paragraph 39, it was claimed that the proceeds from the sale of the plot with unfettered planning permission for a dwelling, were essential to the success of the equestrian business. That was especially the case now that an investor had pulled out, as the proceeds would be needed to leverage further funding. However, I intend to dismiss the stud farm and equestrian centre related appeals for the reasons given earlier in this decision. In that light, I do not consider the proposed use of the sale proceeds can now be of any significance. Furthermore, there can be no guarantee that the funds would be used for that purpose whatever the outcome of the other appeals.

72. A replacement dwelling was permitted by the Inspector who determined the earlier appeal mentioned in paragraph 21 above, but the situation was very different in 1992. There is no suggestion that the building was derelict at that time. Certainly it had not been damaged by fire. There was then a dwelling to replace. While it was contended that the Inspector misdirected herself in imposing an agricultural occupancy condition, I do not see that as germane to the current appeal, which is against a refusal of planning permission, not against the imposition of an occupancy condition.

73. The council has previously been willing to grant permission for a replacement dwelling, but only subject to it being tied to the land. I note also that the 27 August 1998 Committee report refers to an existing dwelling. It may well not have been fire damaged at that time."

9. I interpose to say that it would appear on the information presently available, but not available to the inspector at the inquiry, that the fire preceded the committee report of 27 August 1998, but it is not clear whether the author of the report was aware of the fact that there had been a fire, since it is not referred to in the report.

"74. An appeal decision in respect of a site at Bunkers Hill, Ashley-cum-Ridley was submitted in support of the Appellant. The inspector who decided that appeal rescinded an agricultural occupancy condition imposed on a replacement dwelling in the Green Belt. However, he appears to have decided that there had been a habitable dwelling to be replaced in that instance, which is not the case here.

75. Inappropriate development in the Green Belt is, by definition, harmful. That harm is not, in my opinion, outweighed by any of the circumstances put forward in support of the proposal."

10. Having dealt with the effect of the replacement dwelling on the character and appearance of the area of special landscape character and concluded that it would not be adversely affected to any material extent by the new dwelling, and also considered a number of other matters, the inspector concluded in paragraph 80:

"I do not consider that the site contains either a building in established residential use or an existing dwelling. As such, the proposal conflicts with the UDP, its emerging replacement and PPG2. The new house would constitute inappropriate development in the Green Belt. In my opinion neither the planning history of the appeal site nor the intended use of the funds raised from its sale, which in any event is now impossible as a consequence of the dismissal of the other appeals, justify the proposal. No evidence was put forward that would support a grant of planning permission subject to an occupancy condition. While I do not feel that the impact on the character and appearance of the area would be significantly detrimental, that finding does not outweigh the unacceptable conflict with Green Belt policy."

11. Before turning to the submissions of Mr Fooks on behalf of the claimants, it is helpful to set out the terms of policies G2 and G4 of the UDP and the relevant paragraphs in PPG2. Policy G2 in the UDP is as follows:

"Within the Green Belt, approval will not be given, except in very special circumstances, for the construction of new buildings or for the change of use of existing buildings for purposes other than agriculture and forestry, outdoor sport, cemeteries, institutions standing in extensive grounds, or other uses appropriate to a rural area."

12. Policy G4 says:

"Where a building is in established residential use, the Council will usually permit its replacement by a new dwelling including garage, provided that in normal circumstances the proposal does not result in a net increase in floor area of more than 10% above that of the existing dwelling as ascertained by external measurement."

13. For completeness I should read paragraph 7.14, which explains:

"The Council wishes to ensure that there is no undue intensification or enlargement of residential uses within the Green Belt that collectively may jeopardise the open nature of the countryside. Where development is permitted, it will be subject to the Environmental Policies which are concerned with the design and landscaping of proposals in the countryside."

14. In PPG2, under the heading "New buildings", the following passages are relevant:

"3.4. The construction of new buildings inside the Green Belt is inappropriate unless it is for the following purposes .... limited extension, alteration or replacement of existing dwellings (subject to paragraph 3.6 below)".

15. Paragraph 3.6:

"Provided that it does not result in disproportionate additions over and above the size of the original building, the extension or alteration of dwellings is not inappropriate in Green Belts. The replacement of existing dwellings need not be inappropriate, providing the new dwelling is not materially larger than the dwelling it replaces. Development plans should make clear the approach local planning authorities will take, including the circumstances (if any) under which replacement dwellings are acceptable."

16. The claimants challenge the inspector's decision on three grounds. Firstly, that he misunderstood and misapplied policy G4 of the UDP; secondly, that he misunderstood and misapplied the policy guidance in respect of replacement dwellings in the Green Belt in paragraphs 3.4 and 3.6 of PPG2; thirdly, that in deciding whether or not there were very special circumstances which outweighed the harm due to inappropriateness, the inspector failed to have regard to a material consideration, namely the fact that the former farmhouse was in its present derelict condition because it had been damaged or destroyed by fire. The residential use on the site had nevertheless not been abandoned.

Ground 1

17. Mr Fooks submitted that policy G4 permitted an exception to the presumption against development in the Green Belt where the building that is to be replaced is a building with a lawful residential use. The issue of whether the building is in occupation or is habitable at the material date is not determinative of that question. The lawful use of the building for residential use depends upon whether or not such a use was permitted, either because it could not be enforced against or because a planning permission had been granted. In the present case, both the fact that the use could not be enforced against, and the planning permission of 1969, conferred lawful residential use in the absence of any evidence of abandonment. The mere fact of interrupted occupation, whether by fire, sale or illness, did not go to the question of use. Occupation and use are entirely distinct concepts in planning law: see North Devon District Council v SSE [1998] 4 PLR 45.
18. The concession made on behalf of the claimant referred to in paragraph 68 of the decision letter was simply to the effect that the dwelling was not currently inhabited nor habitable in its present fire-damaged condition. Mr Cheshire, the claimant's solicitor at the inquiry, explains, in paragraph 7 of his witness statement:

"What was accepted on behalf of the Claimants was that the dwelling was not in use nor was it currently capable of being used for residential purposes as a result of the fire damage. Submissions were made on behalf of the Claimants which were not disputed at the Inquiry that there had been no abandonment of the existing residential use of the dwelling."

19. In the context of Green Belt policy, the claimants submit that the words "in established residential use" refer to a lawful residential use rather than current occupation. The words "established use" in the context of the UDP refer to the well-established concept in planning law of established, now lawful, use, and this is supported by the fact that the word "intensification" is used in paragraph 7.14, and this too is a word which has a distinct meaning in the context of planning law.
20. The leading case on abandonment of use for residential purposes is Hughes v SSETR and South Holland District Council [2000] 1 PLR 76. That case was concerned with whether a replacement for an existing dwelling could be permitted where the authority followed the practice of only permitting dwellings to be replaced where residential use had not been abandoned. Similarly, in MH Services Ltd v SSETR [2002] EWHC Admin 283, a countryside policy permitted the reconstruction of buildings if they were to be rebuilt for residential use, and evidence was provided that residential was the lawful use of the building immediately prior to its destruction. The Secretary of State conceded that the question of abandonment was central to the applicability of that policy. The origins of policy G4 were referred to, as was the second defendant's resolution in 1998 and its apparent acceptance, at least at that time, of the proposition that a replacement dwelling was acceptable whether or not the farmhouse was at that time capable of occupation.
21. In the North Devon District Council case, the court was concerned with whether there had been a recurring breach of an occupancy condition where a dwelling remained in use for the purposes of holiday letting for the whole year, notwithstanding the fact that it was not occupied by holiday-makers for six months of the year. Mr Christopher Lockhart-Mummery QC, sitting as a deputy judge of this division, held at page 53 that the Secretary of State had confused the concepts of occupation and use. Use could continue, even though a property was not occupied throughout the year. It was submitted that a residential use could be lost only by operation of law or by abandonment. Thus in the present case, in the context of policy G4, a residential use was capable of existing despite the absence of a habitable building. The inspector's conclusion was merely that the existing building was not in occupation, not that it was not in residential use. He therefore misapplied policy G4 and should not have been considering the proposal under policy G2. Since the residential use of the farmhouse began prior to the first appointed day on 1 July 1948, the residential use will continue to be its existing use until it is lost by operation of law in one of three ways: by abandonment, by the formation of a new planning unit, or by way of a material change of use. None of these matters had been canvassed before the inspector and he had failed to have regard to such matters. In substance, it was submitted that policy G4 applied regardless of the extent to which the building on the site had been destroyed, provided only that the residential use of the site had not been abandoned.

Ground 2

22. Ground 2 raises essentially the same issues. It is submitted that the reference to an existing or an original dwelling in paragraph 3.4 of PPG2 means a lawfully erected dwelling with a lawful use as a dwelling. An existing or an original building in planning terms is one which existed on the first appointed day, 1 July 1948. This dwelling existed as a farmhouse on that day. The inspector erred in law in failing to interpret the words "existing dwelling" as including such a building. In essence, it is said, the inspector adopted the same erroneous approach to PPG2 as he adopted to policy G4 in the UDP. "Existing dwelling" does not meant the farmhouse as it is now, but as it was on 1 July 1948 plus any lawful extensions. Mr Fooks submitted that this was the position even if the "existing building" had been completely destroyed, whether by fire or due to any other cause. It was submitted that "original" and "existing" in paragraph 3.6 of PPG2 meant the same, and support for this proposition was sought to be derived from the guidance as to PPG2 given in the emerging development plan, the First Draft Deposit of the UDP (March 2001).
23. What the inspector had done was to take the word "dwelling" as meaning a dwelling in a fit state for occupation. That was erroneous. In Gravesham Borough Council v SSE (1984) 47 P&CR 142 McCullough J had to consider the extent to which occupation was an essential element of a dwelling house. He said this at pages 145-146:

"So the intention to use one's house, or the practice of using it throughout the year, is not essential.

If a house is empty pending its sale or because the owner cannot, or does not want, to let it, it is still a dwelling-house. So emptiness is not fatal.

If it cannot be occupied because it is flooded, or is undergoing extensive repair, it is still a dwelling-house. So, too, a second home in a remote mountainous district, cut off by snow every winter. So an ability to use it whenever one wants to is not an essential either.

... ...

Leaving aside extraordinary events like floods and national emergencies and repairs so extensive that the occupant has to move out, is it a characteristic of every dwelling-house that the owner or occupier could live in it permanently if he wanted to? I think not."

24. It was submitted that it is not necessary for a dwelling-house to be capable of being inhabited in order for it to remain as a dwelling-house. In The Trustees of the Earl of Lichfield's Estate v SSE and Stafford BC [1985] JPL 251 the court was concerned with a dwelling-house that had suffered substantial damage as a result of trespass. Extensive works were proposed and the question was whether the owners were entitled to benefit from the provisions in the General Development Order which permitted alterations or extension to a dwelling-house. McNeill J cited a passage from the judgment of Lord Widgery in Larkin v Basildon District Council [1980] JPL 407. Lord Widgery, dealing with the question whether or not there was mere improvement of an existing dwelling house and no more, said:

"... whether or not a particular activity was justified on that basis or not was entirely a question of fact and degree."

25. In the Earl of Lichfield's case, McNeill J concluded that there had been a muddle. The Secretary of State had decided that the building was not a dwelling-house simply upon the basis that it was uninhabitable in its present condition. He accordingly quashed the decision. Mr Fooks submitted that the inspector in the present case was wrong to regard the word "existing" as meaning "in the present" and to interpret "existing dwelling" as though that meant that the dwelling was in a fit state now for habitation.

Conclusions on grounds 1 and 2

26. It is convenient to deal with grounds 1 and 2 together before considering ground 3. It will be a question of fact and degree in each case whether what can be seen on the ground can fairly be described as either"a building ... in established residential use" or "an existing dwelling": see the Earl of Lichfield's case (above) and Runnymede Borough Council v SSETR and Montague [1999] PLCR 253.
27. I accept the submission that use and occupation are not the same. A holiday home or a weekend cottage may be in established residential use even though it is not occupied for much of the year, or even if it remains empty for a number of years. But Mr Fooks seeks to read policy G4 as though it permits "replacement" by a "new dwelling-house" on any site with an established residential use, regardless of whether or not the building on the site has been destroyed. In short, on his approach, a "replacement" dwelling is permitted under policy G4, even though there is nothing on the site, save perhaps some ruins, to be replaced. This does not give effect to the wording of the policy. There has to be a building, and that building has to be in established residential use. The use of the word "established" is readily understandable. If the building was not in established or lawful residential use, there would be no reason to permit its replacement. But there must be something on the site to be replaced, there must be a building, and it must be in use. The building need not be occupied, but it must be in residential use. Even though buildings have been damaged by fire, they may nevertheless continue to be in residential use. But it does not follow that every ruin which was once occupied as a dwelling can sensibly be described as a "building in established residential use".
28. Accepting Mr Cheshire's evidence as to the extent of the concession he made on behalf of the claimants at the inquiry, the question for this court is: was the inspector entitled to conclude, as a matter of fact and degree, that this shell of a building, which had been derelict for three to five years and which was not capable of being used for residential purposes as a result of extensive fire damage, was not properly described as either a "building ... in established residential use" or "an existing dwelling"? On the facts found by the inspector it would have been remarkable had he reached a different conclusion to the one set out in his decision letter.
29. Planning policies are intended to be read in a commonsense and not a legalistic way, and as a matter of common sense, a derelict shell which is incapable of residential use would not normally be described as an "existing dwelling" or as a "building ... in established residential use", whether or not the residential use of the site had been abandoned. There are, of course, degrees of dereliction and ruination. A derelict building may still be described as a "dwelling", but whether it is more properly described as a dwelling or as a ruin will depend upon the nature and extent of the dereliction. Abandonment is a separate concept.
30. The cases cited by Mr Fooks illustrate the point that local planning authorities may choose to frame their policies in terms of the concept of abandonment. In Hughes the council had applied a policy of allowing replacement dwellings where the residential use of the site had not been "abandoned". In MH Services the relevant policy expressly contemplated that reconstruction of buildings would be permitted, even though the earlier building on the site had been destroyed, "if it is to be rebuilt for residential use, then evidence is provided that residential was the lawful use of the building immediately prior to its destruction". Those policies are in very different terms from policy G4. The North Devon case was not concerned with whether a derelict shell could be said to be an existing dwelling, but with whether a house which was used for short-term holiday lets from May to September was in residential use throughout the year in breach of an agricultural occupancy condition. In Gravesham McCullough J was concerned with whether a weekend and holiday chalet was still a dwelling-house for the purposes of the General Development Order, even though it was not occupied all the year round. None of these cases provides any basis for the submission that a derelict shell of a former farmhouse is either a "building ... in established residential use" or "an existing dwelling".
31. I reject the submission that the inspector's approach is a novel one. It is very well established that if a dwelling is so damaged by fire that it cannot be repaired but must be rebuilt, planning permission is required. Depending upon the applicable policies, planning permission for a replacement dwelling may or may not be granted. It is to be noted that PPG2 leaves it to local planning authorities to decide to what extent, if at all, replacement dwellings should be permitted in the Green Belt:

"Development plans should make clear the approach local planning authorities will take, including the circumstances (if any) under which replacement dwellings are acceptable."

32. In deciding in any particular case whether planning permission should be granted for a replacement dwelling, full weight would of course be given to Article 8 of the European Convention on Human Rights, which deals with respect for private and family life and home. Thus, the family whose home in the Green Belt is destroyed by fire will be able to argue that to refuse planning permission for its replacement would be a disproportionate interference with their rights under the Convention. Such an argument would not necessarily prevail, but a very careful balancing exercise would have to be carried out in accordance with Article 8.2. That is a sufficient answer to the spectre raised by Mr Fooks of"serious repercussions for homeowners and their insurers" in respect of properties situated within the Green Belt.

Ground 3

33. That leads me on to the third ground of challenge. It is said that the inspector failed to take account of the fact that the farmhouse had been destroyed by fire and the claimants' contention that the residential use had not been abandoned, as part of his consideration of whether or not special circumstances existed so as to justify the grant of planning permission, notwithstanding the presumption against inappropriate development in the Green Belt.

Conclusions on ground 3

34. It is plain that the inspector was well aware of the claimants' argument that the residential use of the site had not been abandoned. He referred to that argument in the final sentence of paragraph 67. He returned to the point in the final two sentences of paragraph 69:

"There is only the shell of a building, which has been derelict for between 3 and 5 years. I do not consider those remains amount to a dwelling, whether or not the use has been abandoned."

35. At the inquiry the claimants did argue that there were a number of special circumstances which justified the grant of planning permission. They were, principally, the need to raise money for the equestrian enterprise, the earlier planning permission on the site and a planning permission granted on another site at Bunkers Hill, Ashley-cum-Ridley. The inspector dealt with each one of those matters in paragraphs 71-75 of his decision letter: see above. Mr Downes, the claimants' planning witness, did not raise the fact that the farmhouse had been destroyed by fire as a special circumstance warranting the grant of planning permission in his proof of evidence. His witness statement says this:

"It is my recollection that I said in evidence at the inquiry that the fact that the building had been damaged by fire could be a material consideration. I had in my mind that the matter could be relevant to the question of abandonment and to the special circumstances that may be required to justify development in the Green Belt."

36. That is as far as it goes. As I have mentioned, it is plain that the inspector was well aware of the argument that the residential use of the site had not been abandoned. He was also well aware of the fact that the farmhouse had been reduced to a derelict shell by the fire: see the passages from the decision letter which I have set out above. He mentioned the fire when dealing with whether the 1992 planning permission and the 1998 resolution to grant planning permission amounted to special circumstances. The fact that the farmhouse had been destroyed by fire was the background against which the parties were considering the merits of the ten appeals. The decision letter is addressed to the parties who are well aware of the issues. The inspector did not have to rehearse the obvious.
37. It was submitted by Mr Fooks that the logical result of the inspector's approach was that whenever a dwelling was substantially damaged by fire in the Green Belt its replacement would be inappropriate development, and the cause of its destruction would not be a very special reason for justifying a replacement. Whether the results of fire damage are so severe that there will no longer be an "existing dwelling" to be replaced will be a question of fact and degree in each case. Where the damage is so severe that the existing dwelling is destroyed so that there is for all practical purposes nothing on the ground to be replaced, the question of very special circumstances will then arise. In many cases, the fact that the previously existing building has been destroyed by fire will be a highly material factor when considering whether very special circumstances exist in order to justify the grant of planning permission, not least because in many cases, it will be possible to advance very powerful arguments under Article 8 of the Convention in terms of the impact of a refusal of permission on family life. It may be possible in other cases to raise convincing arguments as to the financial consequences if property destroyed by fire is not permitted to be replaced. No such evidence or arguments were mounted in the present case. This property was purchased by the first claimant after the fire in 1999. It was proposed that the site of the former farmhouse, together with the benefit of planning permission, would be sold in order to raise money for the equestrian centre. Once planning permission was refused for that proposal, the principal argument advanced under the special circumstances heading simply fell away. Beyond the mere fact that the farmhouse had been destroyed by fire, a fact of which the inspector was well aware and which he mentioned at numerous points in his decision letter, there was no further argument which was or could have been advanced under this heading before the inspector.
38. In the circumstances, the proposition that the inspector failed to have regard to the fire as a specific special circumstance is wholly unrealistic. That was the background against which the appeal was taking place, and both parties were aware of it.
39. For all of these reasons, this application must be refused.

MR COPPEL: My Lord, I ask for my costs, the first defendant's costs, in an amount to be assessed summarily. Your Lordship should have a statement of those costs which my learned friend has, and I do not understand to be in dispute.

MR JUSTICE SULLIVAN: I do not think actually I have seen a statement of your costs, Mr Coppel. If they are not in dispute you can just tell me the figure. Mr Fooks, are they in dispute; just the amount?

MR FOOKS: No.

MR JUSTICE SULLIVAN: If you just tell me the figure.

MR COPPEL: £8,842.25.

MR JUSTICE SULLIVAN: Thank you. Mr Fooks, do you resist in principle paying Mr Coppel's costs?

MR FOOKS: No, I cannot.

MR NARDECCHIA: For the second defendant, I also apply for an order of costs in this case. I am well aware that in many cases the second defendant does not receive his costs. In this case, in my submission, the second defendant should because of the nature of the challenge and the particulars which have been used to support the grounds of challenge to this decision. The claimants' case has depended quite substantially on raising issues that dispute even what occurred at the public inquiry, the way in which the council's case was presented, what evidence was given by the council's witness, what evidence was not given by the council's witness, the way in which the inspector recorded this evidence and the evidence of the claimants; and it has been necessary for those purposes for the council to submit evidence in the form of a witness statement and indeed to produce notes of the cross-examination of the council officer who gave evidence, Mr Nunn, in order to put the matter fairly into context. Your Lordship will recall that one of the first things that is said by Mr Cheshire in his first witness statement was that the council did not dispute what was said by the claimants on the question of abandonment. In fact, once one reads the notes of the cross-examination Mr Cheshire made of Mr Nunn, which appear, I think, at the end of the bundle at pages 181 and 182 -- which, if I may say so, are very substantially borne out by the note of the inspector, which appears at pages 20 and 21 -- it is evident that Mr Cheshire's account of matters is, to put it at its least, so abbreviated as to be misleading. It was said -- indeed, it has been said again today -- that the council at the inquiry did not raise a case on policy G4, and reference has been made to Mr Nunn's proofs of evidence. In fact it is quite apparent from the notes that were kept by both the inspector and indeed myself during cross-examination that Mr Nunn added significantly to the written text of his proofs of evidence on these matters which formed so significant a part of the case for the claimants at the inquiry, and again have formed so significant a part of this challenge.

In my submission, for those reasons it is right that the council should seek separate representation, first of all to assist the court and to make sure that the record is straight, and, secondly, also to protect its own position as a local planning authority.

That brings me to the second point on which I apply for costs, which is that the council is entitled in this position to appear in order to seek to protect its own separate position on the matter. That applies generally and specifically: generally, because its policies and the interpretation of its policies are under challenge and the way in which they are to be interpreted -- both adopted and emerging policies -- and that is significant; and, secondly, specifically as regards this site because it must be anticipated that the council has not heard the last of applications for permission for development on this site in the future. Much of the case has been concerned with what the council said or did in the past, resolutions passed, officers' reports written, and so on and so forth. In particular, it has been said yet again that the council approved in principle this development in 1998, and it was said that Mr Nunn was incorrect in saying that the council had only resolved to approve it subject to an agricultural occupancy condition. If I may say so, the true position is to be found in Mr Nunn's proof of evidence at page 105 of the bundle at paragraphs 62 and 63 of that proof of evidence, and although much has been made of the officer's report, subsequently the council took advice, in particular from Reading Agricultural Consultants, mentioned in paragraph 62. Their advice is set out and it is quite plain that although the precise recommendation was to seek a legal agreement tying the replacement house to the land, this was to ensure that the replacement house would be available to meet any agricultural need for the unit in future - in other words, to reserve it for agricultural occupancy. The council would not like it to be thought that they are in principle in favour of giving permission to build new houses in the Green Belt which, at various times in the case, the claimants have asserted or come very close to asserting. Therefore, in my submission, in the particular circumstances of this case that is a further reason why the council should have its costs.

If I may also say so as a final point on this, the council has been able to add to the law on this matter and to bring it to the attention of the court, in particular on decisions concerned with the interpretation of policy in PPG2 and the way in which the High Court has approached those matters. Your Lordship mentioned the Runnymeade case in your Lordship's judgment. That case appears in my skeleton, it does not appear elsewhere.

For all those reasons I would ask for the council's costs. A schedule has been prepared. It has been served, as I understand it. I do not know whether there is any dispute as to the figure, which is £7,074.

MR JUSTICE SULLIVAN: Is there a copy of that for me? I would like to see. I have not seen it, I do not think I have seen it. (Handed) Thank you. I will tell you what I am thinking, Mr Nardecchia. It is this. Obviously I will hear Mr Fooks in due course, but there may be a stronger argument for the council going to the trouble and expense of putting in Mr Nunn's witness statement, for example, than -- I do not mean this in any sense discourteously -- having done so and, as it were, having provided all the necessary ammunition, then instructing counsel to come along and argue with the Secretary of State. I want to see whether it is possible to disaggregate the two stages. That is one thing I am thinking about: no disrespect intended. You provide evidential material that the Secretary of State did not have. Then it may well be queried whether the Secretary of State counsel would be able with that material to run with that particular ball: that is the point.

MR NARDECCHIA: Also, my Lord, subsequently the disputes went on in Mr Cheshire's witness statement and Mr Downe's second witness statement. Although it is fair to say that the inspector has put in a witness statement of his own, the fact of the matter is that it was quite possible that one could get a situation where Mr Cheshire was saying one thing, the inspector was saying another and the court might well be advantaged by having Mr Nunn's statement but also, in the circumstances, separate legal representation to make the point and to deal with any point that arose during the hearing today, which, if we were not present, we could not do.

MR FOOKS: On a general point, I resist the application for costs. The position of local authorities is not covered in the House of Lords Bolton judgment. I do not see why it should be any more advantageous than that of a developer. In fact, I think the rule always was that it was less likely.

MR JUSTICE SULLIVAN: That is certainly my recollection. The local authority was usually assumed to be rowing along with the Secretary of State.

MR FOOKS: I do not think that was accepted by the Bolton decision, but there are no rules. But if one were treating as a developer the question was the issue covered by the Secretary of State, was there a separate interest which required separate representation, I say, no, there is not. When I look at the claim, and I look very carefully at Mr Nunn's witness statement, I see nothing in the claim which required Mr Nunn to put in anything in addition to the Secretary of State's witness statement. I do not find anything in Mr Nunn's witness statement which actually takes the matter any further than the inspector's witness statement. But as I understand it, one of the reasons why the local authority does not get its second set of costs normally is because it is expected to provide the information, if information is needed, to the Secretary of State. In this particular case, I know you do not have it, but the summary assessment of the Secretary of State's costs which I have agreed includes items for attendance on others which, I have checked with my learned friend, Mr Coppel, was the Secretary of State's liaison with the second defendant. So I have already agreed to pay that element, and there is nothing that Mr Nunn really adds to what the Secretary of State said. As far as answering the latest witness statements from the two parties, well, there was no answer to them put in, so there cannot be any costs for answering those. So my answer is that, in so far as there was information required from the local authority, we have paid for the Secretary of State to get that information.

MR JUSTICE SULLIVAN: I thought -- forgive me, I do not know necessarily exactly -- I would have thought you paid for the Treasury Solicitor at one end of the telephone call speaking to his or her colleague at the local authority; you have not necessarily paid for the other end of the telephone call, which is the local authority sitting at the other end of the telephone, I would have thought, but I do not know. And maybe meetings and letters and so forth. But I have not seen the breakdown.

MR FOOKS: There are a number of hours charged for this, 3.6 hours for this information. What I am saying is that in the normal course the Secretary of State would get the information he needed from the Secretary of State. Presumably that happens in very many cases. It is not in every case that the judge is providing for being on the other end of the telephone. Everything has been dealt with by the Secretary of State. There are no different issues, not different interest, covered by the skeleton argument of Mr Nardecchia that are not covered by my learned friend, Mr Coppel. I went through them and I could not find anything different in them. Of course, in every planning inquiry there is going to be a question about the interpretation of planning policies for the Secretary of State, and therefore, if you say that the interpretation of a local authority's policies are in question, that is always going to the case on every single appeal, whether the inspector got the policy right or not. This is not a challenge to a local plan. That would be different, if there were a challenge to the policy itself. Interpretation is a matter for the Secretary of State. Therefore, for all those reasons, in principle I would resist the claim and in detail I would say that we have paid the right amount to the Secretary of State for that.

MR JUSTICE SULLIVAN: The order of the court is that this application should be dismissed, that the claimant shall pay the first defendant's costs, those costs to be summarily assessed in the sum of £8,842,25. So far as the second defendant's costs are concerned, the general rule is that there should not be ordered two lots of costs. In general terms it is not to be expected that local planning authorities will feel the need, as opposed perhaps to the desirability, of being separately represented, and while Mr Nardecchia's skeleton argument was very helpful, it does seem to me that this case is no different, so far as instructing counsel to appear in court, from many other cases where local authorities would seek to support the Secretary of State. However, I do think there is a difference here, given the extent to which assertions were made in the claimants' evidence about what had and had not been said on behalf of the local planning authority at the inquiry. This was material that the council was peculiarly well able to provide, and therefore I do think that there is a justification for giving a council a partial award of costs to cover their dealing with the matter, excluding the cost of instructing counsel and attending today. The overall costs of attendance upon counsel and counsel today in the statement of costs placed before me amounts to £4,085. The total figure is £7,074. Doing the best I can on the material available, I think that the council should have £2,500 of its costs paid by the claimants. So I so order, and summarily assess the council's costs partially awarded in that sum.

Anything else? Thank you all very much.