Case No: CO/1036/2012
Neutral Citation Number: [2012] EWHC 2794 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ

Date: Wednesday, 22nd August 2012

Before:

HIS HONOUR JUDGE WAKSMAN QC

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Between:

	The Queen on the Application of
NUTTALL

 
Claimant	
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CHORLEY BOROUGH COUNCIL

Defendant	
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(DAR Transcript of 
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Mr Barrett appeared on behalf of the Claimant.

Mr Easton appeared on behalf of the Defendant.
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Judgment

His Honour Judge Waksman QC:  
introduction
1.	This is the claimant’s application for judicial review of a decision of the defendant local planning authority, Chorley Borough Council (“the council”) on 8 November 2011, by which it granted planning permission to the interested parties, Mr and Mrs Nolan, for the conversion of a barn for residential use. The precise description of the permission was for “the conversion of a redundant agricultural building to residential use including ground floor rear extension and demolition of detached agricultural/storage building to rear, at Lane Side Farm, Brown House Lane, in Chorley”.  The claimants, Mr and Mrs Nuttall, live close by.  The relevant site is in the Green Belt.  
2.	The defendant council appears by counsel today to resist this claim, but the interested parties neither appear nor are represented. The challenge is made on two grounds, both of which allege non-compliance by the council of its own planning policies forming part of the local plan, itself part of the development to which it must have regard.  
background
3.	As is well known, section 72 of the 1990 Act requires the planning authority to have regard to the provisions of the development plan so far as material, and to any other material considerations.  Section 38 (6) of the 2004 Act requires that if regard is to be had to the development plan, and it is here, the determination must be made in accordance with it, unless material considerations indicate otherwise.
4.	The two key policies are part of the local plan as indicated, dealing with development in the Green Belt.  The underlying principle is that development shall not be permitted save in certain exceptional cases which are themselves then defined within the rubric of the local plans.  It has not been suggested by the claimants, nor could it, that over and above compliance with the particular provisions, a yet further case of exceptionality would have to be made out.  
5.	The first relevant local plan is DC-1, saying that planning permission will not be granted except in very special circumstances, other than, among other things, (d): 
	“The re-use of existing buildings providing it is in accordance with policy DC7A.”
6.	So one then turns to that policy.  This provides that: 
	“…the re-use of existing buildings will be allowed providing all the following criteria are met:”
	Two of the numerous are relevant to the issues before me.  (b) states: 
	“The re-use of the building must not be likely to result in additional farm buildings which would have had a harmful effect on the openness of the Green Belt;”
	And after (h) it provides as follows: 
	“Proposals for residential use will only be permitted providing the applicant can demonstrate that the overall housing requirement of the Structure Plan for Chorley Borough would not be materially exceeded… and that one or other of the following criteria apply.”
7.	The relevant one here is (i): 
	“The applicant is able to demonstrate that a suitable business re-use cannot reasonably be secured and the application is supported by a statement of the efforts that have been made.”
8.	Further material considerations are then provided in the supplementary planning guidance, although not part of the local plan.  Notwithstanding that, it is clearly an important document and it has not been suggested otherwise.  The material parts of paragraphs 5.3 and 5.4 state as follows: 
	“if applications are submitted for such schemes, in compliance with the adopted windfall housing SPG [supplementary planning guidance] the Council will also still look for evidence of:
			• lack of employment demand and proof of marketing;
• other evidence as to the unsustainability of the building for business use”
9.	Then in 5.4:
“If lack of demand is put forward as the reason that the building cannot be used for employment purposes the Council will require a statement of the efforts that have been made to market the premises for such a use (Statement of Efforts and Proof of Marketing). A suitably qualified person (e.g. Chartered Surveyor) should prepare the statement of efforts made to market the premises and certify that it has all been done as stated. The statement should include a record of all expressions of interest/offers received and should conform with all of the following:”
10.	I recite a number of the bullet points: 
	“The property has been widely marketed through an agent/surveyor dealing in commercial property at a price that reflects its value for employment purposes for at least 9 months and that no reasonable offer has been refused.”
11.	There is then a reference to regular advertising.  Then: 
	“The property has been included on the agent’s website, in the agent’s own papers and lists of commercial/business premises. Copies of sales particulars should be sent to the Development Control Section of the Council at the onset. A record of all enquiries/offers should be supplied to the Development Control Section.”
12.	Then dealing with advertising: 
	“…and also to include within the council’s central list of sites and premises database, which is a free service listing available commercial sites.”
13.	Then mail shots requiring demand for the premises, and particulars to local businesses to see if they could decide whether they can make use of the building or part of it, and exploring those possibilities with local landowners.
14.	It is plain to me from a reading of those bullet points, though they are not of course a statute, that the paradigm case of marketing assumed by those bullet points is a sale; I do not mean by that that in an appropriate case leasehold offers would not be a proper way forward in relation to marketing as well, but the underlying assumption must be given considerable weight in my judgment.  At least as it seems to me, if it is to be said that sale is not the way forward, contrary to the assumption in that guidance, one would expect a clear explanation from the sales agent as to why that is, and a clear consideration of that by the local planning committee.  
15.	I then turn to what happened in this case, and at this stage I simply deal with the Planning Officer’s report, and the addendum to it. There is no other statement of the reasons for the grant of permission here, and therefore one assumes that they can be found in the Officer’s and the addendum.  First of all, at paragraph 20 the author of the report, the then current Planning Officer, Mr Mellan, said that in terms of criteria (b) the county land agent has advised that there is no indication that the applicant will revert back to an increase in agricultural activity.  However, while he continues to own agricultural land, the need for new agricultural buildings cannot be completely ruled out.”
16.	In paragraph 30 he stated that: 
	“A Statement of Efforts and Proof of Marketing has been submitted on behalf of the Applicant by P Wilson Company Surveyors.  Among other things the barn has been marketed as available for rent for commercial use for a period of 12 months.  While it is considered that the barn could have been advertised as ‘for sale’, it is noted that the marketing efforts were agreed with the Counsel prior to them being carried out and a refusal on insufficient marketing would be unreasonable.”
17.	Paragraphs 31 to 34 deal with what is described as the only offer in relation to the letting proposal which had been made from a neighbour.  It was rejected, and at the end of paragraph 34 the Planning Officer says: 
	“For these reasons it is considered that the offer was not a reasonable one.  As this was the only offer, it has therefore been demonstrated that commercial use cannot be secured.”
18.	In paragraph 43 he concluded by saying that: 
	“Whilst a finely balanced decision, it is considered that the proposal complies with policy and is recommended for approval, subject to appropriate conditions and a signing of a section 106 agreement.”
19.	There then followed an addendum whose purpose was to deal with certain objections or comments that arose subsequent to the Planning Officer’s report.  They are set out in ordinary text, and then the Planning Officer’s response is set out in both.  At page 66 of the bundle, he responds to comments about the prospect that additional buildings of an agricultural nature would be sought in the future by saying this: 
	“The need for additional buildings is not guaranteed.  Any future application must be treated at its own merits at that time and a decision cannot be made based on what might happen.”
20.	Then at page 67: 
	“The council has assessed the steps taken to market the property and has considered the need to make a decision in accordance with the development plan and weighed that consideration against other material considerations.  The case for the objector is material, has been considered but a judgment of the balance has been reached that on the evidence put forward that the development proposed is acceptable.”
21.	Mr Easton for the council says that in making those various points, the Planning Officer in essence is confirming the views that he expressed in the original report.  
the issues 
22.	I now turn to the grounds.  Ground one alleges that in granting the permission, the council failed to observe (i) of DC7A, and to follow the guidance set out in the paragraphs of the supplementary planning guidance, the SPG, to which I have referred.  Ground two, which was the old ground three, because the original ground two has not been pursued, alleges breach by the council of subparagraph (b) of DC7A in relation to the likelihood or otherwise of a need for further agricultural buildings.  In considering both of those grounds, I remind myself that a claim for judicial review is not to be an opportunity to unsuccessful objectives simply to revisit the planning permission on its merits, nor is it for the court simply to second guess what are essentially matters of planning judgment.
Ground 1
23.	It can be seen from the passages of DC7A and the SPG that I have recited, that an extensive and proper marketing exercise must be conducted to see if the building in question could be used for business purposes, and I have already noted the apparent underlying assumption within the SPG as to sale.  In fact, in this case there was no attempt to market the building for sale; instead, it was advertised on a letting basis only. What happened was this: the agent’s originally wrote to the council to see if marketing was necessary at all.  This appears in their letter of 16 September 2009.  The question as to whether any marketing was needed at all was because there appeared to have been in some other application a more relaxed attitude taken by the council.  But he went on to say that, assuming the council insisted on a full marketing procedure, he would suggest the following, which he said would be in line for requirements.  He then said they would offer the building to let for a minimum period of nine months, and in the light of the letting then went on to set out a procedure dealing with advertising and marketing, saying that they believe that “in conforming with the requirements, could you confirm the council regard the above as a marketing program capable of satisfying the requirements or any modification?” 
24.	The council replied by the then Planning Officer, Mr Wigget on 9 October 2009, stating that marketing would be necessary and the council would require the property to be marketed for a commercial use, and the proposed marketing scheme was acceptable.  In accordance with the proposal, the marketing scheme took the form that was suggested, but it knew of no interest or at least no offer was properly capable of being accepted.
25.	The marketing exercise finished on 17 November 2010, and then the applicant proceeded to enquire of the council whether it would give a pre-planning application advice, as is commonly sought.  There was a pre-planning advice letter on 27 May.  It is not before the court, but the response to it is, and it is a letter from the chartered surveyors dated 5 August.  The Planning Assistant who was dealing with the matter by now was Mr Mellan.  At page 111, Mr Mellan’s response is summarised by the surveyor, and it is not suggested it is an inaccurate summary.  The relevant passages read as follows: 
	“Marketing Scheme  
	I note your comments voicing concern that the property was marketed ‘to let’ only and not ‘for sale’ and that therefore the marketing undertaken did not, in your opinion, fully comply with policy.  At the start of this matter, I was aware that marketing the property ‘to let’ could be questioned in terms of Chorley Planning Policy but I was equally aware that this approach had been deemed acceptable by the Council in other similar applications/circumstances. Hence I sought approval from the Council for the marketing scheme prior to commencing the marketing. 
	It is clear from the letters from Mr Wiggett that the Council approved the proposed marketing scheme on a ‘to let’ only basis prior to us commencing with marketing.  As a then employee of the Council (Principal Planner), I feel that my client’s have a right to rely on the advice/confirmation given by Mr Wiggett.  Therefore should the Council choose to refuse this application on the grounds that the marketing scheme was insufficient in not advertising the property ‘for sale’, I will be forced to advise my clients that they should seek recovery of all the costs they have incurred in marketing the property and in this application by taking an action for maladministration against Chorley Council before the Local Government Ombudsman.”
26.	What the surveyor does not say there is that it is clear that what was done did comply in fact with the relevant policy.  Rather, what he was clearly stating was that whether it complied or not, the council was giving the green light to this applicant to proceed with marketing in that way, and that the applicant and his surveyor relied upon that green light.  Hence the threat to report the matter to the Ombudsman if permission was refused on that basis.  The date of that letter, as I have said, is 5 August. The date of the final version of the marketing report is 3 August, but it is obvious that there must have been some earlier version of it, or at least a summary of it, provided to Mr Mellan; otherwise he would not have been able to comment on the marketing in his pre-planning application advice.  
27.	So far as that is concerned, Mr Easton has drawn my attention to the concluding paragraphs of that report.  They state as follows: 
	“Having followed the comprehensive marketing campaign agreed with Andy Wiggett on behalf of the council, we believe the property has been fully exposed to the market and it has been conclusively proven the property does not lend itself well to commercial use, and a suitable business use cannot reasonably be secured.  In the light of the results of the marketing campaign, we believe that in the light of the requirements of the local plan, council should now look favourably upon the residential reuse.”
28.	Mr Easton submits that therefore it follows that in truth, the surveyor was taking the view that there was full compliance with the policy.  
29.	But I do not see that; first of all, even the conclusions make the point that it was a marketing campaign agreed with Andy Wiggett.  Again, as if to say here was the green light.  And secondly, insofar as this was suggesting that there would be no question of non-compliance with the policy, that is simply at odds with the paragraphs of the letter written two days later to which I have referred.
30.	Pausing there, one then reminds oneself that in paragraph 30 of the report prepared by Mr Mellan, he again made a reference to sale, and said that he considered that the barn could have been advertised for sale.  On an objective basis, it is very hard to see how there could possibly have been compliance, when there was no sale marketed or proposed, and no reasons given why that would not be appropriate here.  The acceptance of the council of letting only was, in my judgment, clearly not a matter of planning judgment, but because the council appreciated that it had to some extent backed itself into a corner as the result of an assurance given by a former Planning Officer, and it appreciated the difficulties it might then face if it refused planning permission on that ground.  Really, that is what Mr Mellan was saying in the second part of paragraph 30.  He considered that the barn could have been advertised for sale.  He does not say why it would have been appropriate not to advertise it for sale, but noted that marketing efforts were agreed with the council, and that a refusal on insufficient marketing would be unreasonable; that, in my judgment, permits of only one interpretation, which is: we are stuck with this.  That is not compliance with the planning policies.  Nor could the fact that the council have made previous assurances from which it should not depart amount to a material countervailing consideration to compliance with the policy.  Mr Easton says that paragraph 34 is important, because the Planning Officer said that only offer that was made was likely rejected.  That may be so as far as it goes, but it is only concerned with the marketing campaign on the basis of letting; the position may have been entirely different if it had been offered for sale.
31.	On that basis it is plain to me that the council was in error because there was no compliance with DC7A, and insofar as the Planning Officer was suggesting in paragraph 43 that there was, that was materially misleading.  This is not a technical matter, because this part of the policy is directly relevant to those exceptional circumstances in which conversion to residential use would be permitted in a Green Belt.  Nor could it possibly be suggested that if the council were to consider the matter properly, it would inevitably have come to the same result.  The position might be entirely different if the property was marketed for sale, and at least if not the council would have to give clear consideration as to why sale was, despite the terms of the SPG, an inappropriate way of proceeding.  
32.	For all of those reasons, the planning permission must be quashed.  
Ground 2 
33.	That renders it strictly unnecessary for me to deal with ground two, but in deference to the arguments made to me I will give my observations on that ground as well.  As already noted, this is concerned with the requirement that the reuse of the building must not be likely to result in additional farm buildings, which would have a harmful effect on the openness of the Green Belt. The rationale behind the policy is that the council should avoid a situation where (a) an agricultural building is converted to residential use, but (b) what then happens is that as a result of other or renewed or different agricultural use on the same site, the landowner then seeks, either as part of permitted development rights or by a separate application, permission to erect a further agricultural building, which he says is necessary because the existing agricultural building is now no longer available.  That is because it has been converted to residential use.  The mischief there would be the erection of further buildings on the site within the Green Belt. 
34.	It is plain from subparagraph (b) that what has to be shown is the absence of that as a likely outcome if permission were granted.  What happened was that the Planning Officer made enquiries of Lancashire County Council in relation to that matter, among other things.  In a letter dated 23 September 2011, Mr Robertson, the land agent, responded as follows, having discussed the matter with the applicant and his agents and a site visit.  He said this:  
“…whereas the application site has been a working farm in the past, it appears that the applicant no longer runs any form of commercial agricultural business from the unit, and instead the scale of agricultural activities undertaken on the site are of small scale and limited to personal use..
In relation to the building that is proposed to be converted, it was evident from my inspection, that the building appears to no longer be used for the purposes of agriculture but rather is used for minimal storage purposes… I would however make the point that there is little evidence to show that the building has ever served a justifiable functional need…  
Due to the applicant’s decision to scale down his agricultural activities, he accepted the need for the farmstead area had ceased…”
35.	He then said that he was aware of the history of the planning applications for the provision and use of the buildings at the farmstead had been made following decisions made by the applicant about how he manages the land he owns: 
“As such, whilst there is no indication that the applicant will revert back to an increase in agricultural activity, I am of the opinion that whilst he continues to own agricultural land, that need for agricultural buildings could not be ruled out in the future.”
36.	Pausing there, so far as I am concerned, as a matter of objective analysis, what the land agent appears to me to be saying is that it unlikely that there will be a need in the future for further agricultural buildings, because this agricultural activity has ceased and there is no indication that it is going to change.  Nonetheless, there is a possibility that that might happen while this landowner owns the agricultural land, and therefore that possibility cannot be completely ruled out.
37.	The Planning Officer appears to have been unclear as to what the land agent said, and therefore he wrote an email on 29 September which said this, among other things: 
	“Can you clarify if you think there will be a need for further agricultural buildings?”
38.	The answer came: 
“…my comments were based upon the applicant’s circumstances as existed at the time of this application but I drew your attention to the fact that in the past, the applicant has changed activities on site to demonstrate his need for the buildings and given that the land holding remains the same, the current situation, in respect for need for buildings, may change in the future.  In view of this, I have found it difficult to be categorical in respect of the need for building on the unit.”
39.	First of all, in my judgment, the land agent was not changing his opinion from that expressed in his letter. Secondly, again although the language is sometimes not as easy as it might be, what he is clearly saying is that he cannot say that there will never be a need for further agricultural buildings on the site, but effectively that is a matter of speculation.  He is simply not prepared to rule it out.  But it nonetheless seems clear to me that the underlying thrust was on the basis of his information was not likely.
40.	One then reminds oneself of how all of that was dealt with in the report.  I have read out paragraph 20 of the report, which says that the land agent had advised that that there is no indication that the applicant will revert back to an increase in agricultural activity; that, in fact, is accurate.  He then said: 
“However, while he continues to own agricultural land, the need for new agricultural buildings cannot be completely ruled out.”
41.	That is accurate.
42.	The problem, or the alleged problem, comes not with the report but with the addendum.  That is because in the addendum, the Planning Officer put it in a slightly different way.  Here, he said the need for additional building was not guaranteed.  And secondly, any future application must be treated on its own merits at that time, and a decision cannot be made based on what might happen.  Taken in isolation, I accept that to put the matter in terms of whether a future need is guaranteed or not misstates the test; the test is not to show that a future need for agricultural buildings is not certain, it is simply whether it is likely or not.  But on the other hand, one has to read that part of the addendum against the background of the underlying report, where the matter was put accurately.  Secondly, to say that any future application must be treated on its own merits at the time, and a decision cannot be made based on what might happen, is a misstatement of the test insofar as it indicates that there is to be no assessment at this stage of what is likely or not likely in terms of the use or need for further agricultural buildings.  But again, that expression, misleading though it is as to the test, has to be viewed against the original report, and in this context I accept Mr Easton’s submission that one must avoid treating parts of the report, or an addendum which is meant to be addressing particular observations or comments, as a statute.
43.	The further point is that if recognition had been made that taken in isolation, those matters had been put in a misleading way; the only course, in my judgment, that would have been open to the Planning Officer would have been to repeat something like what was said in paragraph 20, and if he was reminded about the fact that the test was one of likelihood to be considered now, it is inevitable that he would have said that it was not likely, because that is precisely what the observations of the land agent were.  Therefore, while taken in isolation, it is correct to say that the part of the supplemental report at page 66 does not accurately set out the test, I am quite satisfied that that would have made no material difference to the outcome in this case.
44.	It therefore follows that if ground two had been the only and freestanding ground of objection to this decision, I would not have quashed it.  
conclusion
45.	As it is, however, I do quash it on ground one for the reasons I have given, and that concludes my judgment.