Your case is unique, but you are not alone.
About 41,000 new cases are filed in U.S. courts every weekday. Behind each one is a person trying to understand what happens next. Here’s what the public record can tell you about this matter — and about the people deciding it.
Is this judge more likely to rule for the plaintiff or the defendant in cases of this type?
How has your attorney actually performed in front of this judge?
AICasePredict surfaces patterns from public court records. We don’t predict outcomes and we don’t recommend changing your attorney — that’s a conversation for you and them. We just show you what the record already says.
Full Analytics Report
- Complete case narrative
- Judge details and rulings
- Case disposition and outcome
- Related cases and filings
$20
One-time purchase
Case Information
Filed
2023-05-05
Docket
71 entries
Disposition
form of order
Parties
Plaintiff
Robert Hunter
Defendant
(1) Secretary Of State For Levelling Up, Housing & Communities
(2) Buckinghamshire Council
Lawyers
Docket Entries
- This claim is a challenge by the Claimant to an appeal decision by one of the First Defendant's Planning Inspectors. The Second Defendant, Buckinghamshire Council ("the Council"), is the local planning authority to whom the Claimant submitted the planning application that led to the appeal in question.
- On 22nd April 2020 the Claimant submitted a planning application to the Council seeking permission to change the use of some agricultural land at Hillhead Farm, near the hamlet of Pitchcott ("the Land"), to allow the siting of a temporary dwelling. The Land is farmed by the Claimant with a herd of over 60 breeding cows. He proposes to increase the size of his herd to over 100 cows within a three year period. His application stipulated that the dwelling was intended to house a rural worker – namely the Claimant himself and his family – and permission was sought for a temporary period of 3 years.
- The Council failed to determine the application within the permitted period and the Claimant appealed against this deemed refusal of the application to the First Defendant.
- The appeal was heard by Mr Patrick Whelan ("the Inspector"), a Planning Inspector appointed to decide the appeal on behalf of the First Defendant. The appeal was conducted according to the hearing procedure on 20th July 2021. It was heard remotely. The hearing took up the majority of a day and the Inspector undertook a site visit on the following day.
- Following the hearing the Inspector dismissed the appeal. His decision letter ("DL") was dated 23rd August 2021.
- The Claimant challenged the Inspector's decision under section 288 of the Town & Country Planning Act 1990. He cited five grounds of challenge.
- On 14th June 2022 permission to proceed with the claim was refused by Choudhury J on all five grounds.
- On 21st June 2022 the Claimant renewed his claim for statutory review on two of the five grounds. The oral renewal application came before James Strachan QC (sitting as a Deputy High Court Judge) on 16th August 2022. He refused permission to proceed on the Claimant's renewed Ground 1 but granted permission to proceed on renewed Ground 2. Further details of the successful ground are given below but, in brief summary, the ground relates to whether it was lawful for the Inspector to conclude that the Claimant had failed to establish the financial viability of his business as the relevant planning policy required.
- The substantive hearing of the claim took place before me on 28th March 2023. The Claimant appeared in person. Mr Fry appeared for the First Defendant. The Council (as Second Defendant) did not appear and was not represented.
- In advance of the hearing the Claimant made two applications and the First Defendant made one further application.
- The First Defendant's Detailed Grounds of Resistance were technically filed outside the time permitted by the Court's Order following the grant of permission, and hence the First Defendant's application was for an extension of time to file his Detailed Grounds of Resistance. I heard brief oral argument on this at the outset of the hearing. The application was not resisted by the Claimant, who had seen and commented on the Detailed Grounds as part of his case, and as no party could be said to be prejudiced by the short extension, I granted the application and accepted the First Defendant's Detailed Grounds of Resistance.
- The Claimant's first application was for permission for Mr Goodson, a vet engaged by the Claimant, to give evidence at the hearing remotely. I refused that application by my Order dated 24th March 2023. In my reasons I noted that it would be very unusual for any oral evidence to be given in a judicial review hearing, whether in person or remotely.
- The Claimant's second application was for permission to rely on additional witness evidence. This application was resisted by the First Defendant. I had adjourned that application to hear oral argument at the outset of the hearing on 28th March. I reminded the parties of the single ground of claim for which permission had been given and of the fact that this set the boundaries for the arguments I was able to hear. Mr Fry for the First Defendant maintained his objection to the application. I concluded that in the circumstances it would be appropriate and proportionate to admit the additional evidence but in doing so I made clear that, to the extent it introduced evidence beyond the confines of the single permitted ground of challenge, I would not have regard to it. On that basis I granted the Claimant's second application.
- The development plan for the purposes of the appeal was, at the time, the emerging Vale of Aylesbury Local Plan ("the Local Plan"). It was subsequently adopted in September 2021, shortly after the decision letter the subject of this claim. The policies relevant to the appeal and to this claim were unchanged.
- The Land falls within an area that the Local Plan designates as an "Area of Attractive Landscape". As such policies BE2 and NE4 of the Local Plan are engaged.
- Policy BE2 provides as follows:
- Policy NE4 provides as follows:
- As a proposal for a temporary rural worker's accommodation Policy H3 of the Local Plan is also engaged. It provides as follows:
- Supporting text below the policy wording notes, in relation to the financial viability element of policy H3, that:
- Paragraph 79 of the National Planning Policy Framework ("NPPF") was also relevant. The NPPF has since been updated, with the result that some of the paragraph numbering has changed, but at the date of the Council's consideration of the decision paragraph 79 from the then current version of the NPPF (March 2012) provided as follows:
- In June 2018 the Claimant had submitted a planning application to the Council in relation to the Land, for "Change of use of land for siting of temporary mobile home for a period of 5 years and new internal access track".
- The Council obtained advice on this 2018 planning application from specialist consultants Bourne Rural Planning Consultancy Ltd ("Bourne Rural") who carried out an agricultural appraisal of the application. The appraisal assessed the application against the various criteria in Local Plan policy H3.
- Having regard in particular to criterion (f) of policy H3 the advice from Bourne Rural to the Council was as follows:
- Faced with an unfavourable report from Bourne Rural the Claimant then commissioned a rebuttal report from his own consultants, Acorus Rural Property Services ("Acorus"), but this did not persuade the Council of the acceptability of the proposals. The planning application was therefore refused by the Council. There were two grounds of refusal. The first ground included the following passage which is germane to the later planning application and to this claim:
- Thereafter on 22nd April 2020 the Claimant applied to the Council a second time for planning permission, this time for "Change of use of land for siting of temporary mobile home for a period of 3 years" ("the Application"). The Application again related to the Land.
- In view of local plan policy H3 the Application was accompanied by a Planning Report prepared by Acorus and dated April 2020. It included various submissions in support of the Application including section 7.3 "Evidence the business is financial sustainable". That section referred in turn to a series of financial projections in Appendix 1 to the report. One such table was headed "Annual Gross Margin & Profit Projection" which, it is relevant to note:
- The Council did not determine the application within the statutory period. The Claimant therefore appealed against this failure to determine.
- After the appeal was made the Council considered what its decision would have been had it had the opportunity to determine the application. The analysis by the Council's planning officer was contained in a delegated officer report. That report contained this passage:
- The Council resolved that it would have refused the application on three grounds, as follows:
- As part of his appeal the Claimant submitted the required Statement of Case. Of relevance to the issues the subject of this claim the Statement of Case stated as follows:
- The Council once again engaged Bourne Rural to assist its case at appeal. The Council's Statement of Case for the appeal included the following passage:
- In advance of the appeal hearing the Inspector circulated a draft agenda to the parties which, the Inspector records in his witness statement in these proceedings, the hearing then followed. It included the following agenda item:
- As I note above the appeal hearing took place remotely using the Microsoft Teams video platform. Participating in the hearing for the Claimant were Mr Jonathan Goodson (a vet) and Mr Michael Harris (whom the Claimant described to me as a "safety adviser") as well as the Claimant himself. Participating for the Council were Mrs Rebecca Jarratt (a senior planning officer) and Mrs Jill Scrivener (of Bourne Rural).
- The Inspector took a contemporaneous hand-written note of the evidence. He has put this in evidence as an attachment to a witness statement. Although hand-written it is tolerably clear what the notes record. In particular I see that in the section of his notes headed "Financial Forecasts" the Inspector has recorded the following:
- The DL was issued on 23rd August 2021.
- In the DL, having identified the "main issues" in the case as:
- In relation to the first of the main issues the Inspector concluded that the proposed development would be contrary to policy, both saved policies of the former local plan and policies in the Local Plan (which in his DL he abbreviated to "eLP" to signal that it was at that stage still an emerging Local Plan). In relation to the latter he concluded as follows (DL14):
- On the same issue the Inspector concluded that the proposals would also be contrary to paragraph 174 of the NPPF.
- Turning to the second main issue the Inspector analysed the proposals against the criteria in Local Plan policy H3. He found that two of the criteria in policy H3 were not met – (d) and (f).
- The Inspector's conclusion on criterion (d) was as follows:
- In relation to criterion (f) the Inspector's conclusions were as follows:
- The appeal was therefore dismissed.
- The Claimant brought a challenge against the appeal decision on five grounds. All five grounds were rejected by Choudhury J and he refused permission to proceed by his Order dated 14th June 2022. (I note in passing that Choudhury J's Order was amended under the Slip Rule on 11th August 2022 but nothing turns on that fact).
- The Claimant renewed his application on two of his five original grounds. The case came before Mr James Strachan QC (sitting as a Deputy High Court Judge) on 16th August 2022. Permission to proceed was refused on Ground 1 (described as "Location and Siting") but permission was granted on Ground 2 (described as "Financial Sustainability"). The recitals to the Order of Mr Strachan QC dated 31st August 2022 included the following words:
- It was on this basis that the case came before me.
- There is no dispute between the parties about the relevant legal framework.
- Section 288 of the Town & Country Planning Act 1990 provides as follows:
- The approach of the Courts when reviewing Inspector's decision letters is as summarised by Lindblom LJ in St Modwen Developments Limited v Secretary of State for Communities and Local Government [2018] PTSR 746 at [6]-[7]:
- At the outset of the hearing I reminded the parties of the Court's narrow remit in the case, as follows: firstly that only the Claimant's renewed Ground 2 had been granted permission to proceed and hence I would not hear argument that was relevant only to other grounds; secondly that in granting permission to proceed with Ground 2 Mr Strachan QC had accepted no more than that there was an arguable case to be heard on the point; and thirdly that it was not the role of the Court to second-guess the conclusions of the Inspector and hence that the Claimant needed to do more than persuade me that his enterprise was economically viable, he had to persuade me that the Inspector's contrary conclusion was wrong in law.
- The Claimant presented his own case. He did so passionately and capably. If at times his submissions strayed beyond the ambit of the sole ground on which he had been granted permission to proceed then that is perhaps understandable, nevertheless I made clear that these were not submissions I could accept.
- The Claimant had prepared and exchanged a written skeleton argument. He developed these submissions orally. The elements of the Claimant's complaint about the Inspector's findings against him on criterion (h) of Local Plan policy H3, distilled from both his written and oral case, were as follows:
- For the First Defendant Mr Fry submitted that the Claimant's true complaint was that the Inspector had simply not agreed with him. This, he submitted, did not reveal any error of law. The burden was on the Claimant to persuade the Inspector that the Council was wrong not to grant him planning permission and he had failed to discharge that burden. The conclusions reached by the Inspector were conclusions that he was able lawfully to reach on the strength of the evidence before him.
- Mr Fry added that the arguments about procedural unfairness were new, had not been pleaded, and had certainly not been given permission to proceed.
- Finally Mr Fry relied upon the recital to the Order of Mr Strachan QC granting permission for Ground 2 to proceed to a substantive hearing. This, he submitted, revealed that Ground 2 was considered to be arguable because of the lack of information then before the Court about what the Inspector had available to him on the financial viability of the Claimant's business plan. Mr Fry noted that there now was evidence before the Court introduced by the Inspector's witness statement filed following the grant of permission to proceed.
- I agree with Mr Fry that the burden of proving his case to the Inspector fell on the Claimant as appellant in the appeal.
- There was ample information available to show the Claimant the importance of demonstrating the financial viability of his business. The wording of Policy H3(f) made it clear that this was one of several essential criteria having to be met. The advice from Bourne Rural to the Council on the Application was that the Claimant's financial information was "not sufficiently robust". The Council's confirmation of the grounds on which it would have refused the Application made clear through ground 1 that it considered financial viability not to have been shown. The refusal of the Claimant's 2018 application, judged against the same policy framework, was also partly on the basis of a lack of demonstrable financial viability for the business. And the Inspector's agenda circulated in advance of the hearing identified "viability re business plan" as one of the areas to be discussed at the hearing.
- I now have in evidence the Inspector's hand-written notes of the hearing. In his written skeleton argument the Claimant suggested that he had not seen the Inspector taking any notes of the evidence during the hearing and he alleged that "there is no evidence that [the notes he has exhibited] were written on the day of the hearing". That complaint was not pursued before me orally, nor could it credibly have been in light of the Inspector's witness statement (signed under a statement of truth) confirming that the notes he appended were "contemporaneous".
- One of the Claimant's central complaints was that the figure of £16,500 suggested as the input wage for an agricultural worker had only been volunteered as part of the Council's oral evidence at the hearing, that it had been unheralded in the written evidence exchanged before the hearing, and that the Claimant had therefore been given no opportunity to rebut it. This, he claimed, amounted to procedural unfairness.
- In response to this complaint Mr Fry submitted that an allegation of procedural unfairness was an impermissible reformulation of the Claimant's one permitted ground. That is fair comment, but in any event I do not regard the adopted procedure to have been unfair for the following reasons.
- Financial viability was identified as a key issue by the Inspector in advance of the hearing and the Claimant was therefore on notice that it would be discussed. It is in the nature of an appeal conducted by the hearing procedure that there will be an Inspector-led discussion of the issues. The discussion is dynamic. Within the broad framework of the Inspector's agenda evidence is introduced by the parties in real time as part of the discussion. The evidence from the Bourne Rural witness about average farm wages was an example of this. The Claimant contends that Mrs Scrivener, the witness from Bourne Rural, did not have the requisite expertise to offer an expert opinion. I reject that submission. From the content of her evidence, her recorded professional qualifications, and her knowledge of the Land from this application and the previous 2018 application, I am left in no doubt that it was reasonable for the Inspector to conclude she had expertise upon which he could rely.
- The Claimant maintains that he had no opportunity properly to respond to that evidence. I do not accept that submission. The Claimant was able to choose whom would represent his case at the hearing. He was accompanied by two professional witnesses. It is known from the Application that the Claimant also had access to specialist expertise in the form of Acorus. From what I have seen, Acorus would certainly have been equipped to offer a view on the provenance of the £16,500 average agricultural wage suggested by Bourne Rural. When I asked the Claimant whether he had considered engaging Acorus to present evidence with him at the appeal hearing he said that he had not done so because the costs were "considerable". That, of course, is the Claimant's prerogative. But there is a material difference between not having the opportunity to rebut the Council's evidence and not having the requisite expertise to be able to rebut the Council's evidence. The Claimant did have the opportunity. His real complaint is that he did not have on his side the expertise to rebut it persuasively. That was his choice. It does not amount to procedural unfairness for the Council to deploy expertise which the Claimant could have matched but chose not to.
- On a correct reading of policy H3 it is clear that the criteria in paragraphs (a) to (e) have to be satisfied for all rural dwelling proposals and that proposals for temporary dwellings – as this one was – must also satisfy both the criteria in paragraphs (f) and (g).
- The focus of this claim has been criterion (f). I agree with Mr Fry that the test of financial viability as described in the policy must be an objective one, otherwise it would be open to applicants for planning permission to distort the analysis with specific contentions that could prove difficult to verify. An objective test also imposes the requisite degree of consistency to decision-making in this policy area. The objective nature of the assessment was not seriously disputed by the Claimant. He preferred instead to advance the argument that even on an objective basis the Inspector's conclusion was without foundation.
- In my judgment the Inspector has carefully recorded and analysed the evidence from both sides which led to his conclusion about the lack of financial viability in the business plan. He noted the evidence about the number of workers likely to be needed to service a herd of the size the Claimant projected it would become within the three year period. He correctly summarised the conclusions from the financial tables in the Acorus Statement. He acknowledged the evidence about the average farm wage, about how in practice the Claimant would expect to bring in any additional labour he may need, and about the allowance made by the Claimant in the financial projections for paying occasional labour whom he could not call upon to work for free. The Inspector has not gainsaid the evidence of the Claimant as to whom in practice he pays and whom he does not have to pay for agricultural labour, nor even whether this might be customary in farm businesses of his size. Instead the Inspector has concluded that on an objective basis a business plan which assumes little or no costs attributable to additional agricultural labour is not a viable one.
- The Inspector reached a conclusion on the evidence that the Claimant had not demonstrated his business plan to be financially viable. This was a conclusion that he was entitled to arrive at on the evidence. I see nothing in there which was irrational. The Claimant maintains his vehement disagreement with the Inspector's conclusions on the evidence but that does not make them unlawful. His argument amounts to a challenge to the planning merits assessed by the Inspector, and in doing so it is an invitation to the Court to trespass upon the "exclusive jurisdiction" of the Inspector as decision-maker (cautioned against by Lindblom LJ in [6(3)] of his judgment in St Modwen).
- In deference to the patient arguments made by the Claimant I respond to two of his central concerns about the Inspector's reliance upon the £16,500 agricultural wages figure and what that means for the wider agricultural industry.
- Firstly the Claimant submitted that in granting permission for his Ground 2 to proceed Mr Strachan QC had accepted that the figure of £16,500 had no foundation. That is not correct. The hurdle the Claimant had to clear at the oral renewal hearing was lower than the hurdle in a substantive hearing. All he had to show there was that there was an arguable case to proceed to hearing. The recitals to the Order make clear that Mr Strachan QC's conclusion about arguability was influenced heavily by the absence of information available to the Court about what evidence the Inspector had before him. The evidential gap has now been filled by the Inspector's witness statement which has allowed me to reach a reasoned conclusion on the one ground of challenge that has permission to proceed.
- Secondly the Claimant expressed a concern that the Inspector's conclusions amounted to an endorsement of £16,500 as the minimum agricultural wage when that should be a matter to be determined by Parliament. Whether the prescription of a minimum agricultural wage is within the purview of Parliament in any event is not for me to decide but it is plain that this is not the effect of the Inspector's decision, still less of the decision of this Court. The Inspector accepted evidence from the Council on the facts of the case that £16,500 was an "average" agricultural wage and that it should be used as a reasonable proxy to input into the Claimant's viability assessment. He already had evidence from the Claimant as to what figures the Claimant said should be used. The Inspector preferred the evidence from the Council and it informed his findings and conclusions. This is a permissible exercise of the Inspector's judgement on the facts of the case before him. It has no wider implication than that.
- A subsidiary argument made by the Claimant is that an adverse conclusion on the financial viability of his business plan represents a low risk for the Council because he has only applied for a three-year temporary permission and hence if the business has not proven to be viable after three years he can then be required to vacate the Land. But that argument ignores several factors. The wording of the policy has been constructed so as to require a forward-looking estimation of future viability, and the demonstration of likely future viability is a precondition to allowing the erection of dwellings in the countryside that would otherwise be unacceptable in policy terms. The presence of a rural dwelling associated with an unsustainable business in an otherwise unacceptable location, even for the balance of three years, is contrary to the interests of good planning. It is therefore legitimate for the Council to draft and apply policies aimed at avoiding such an outcome.
- These conclusions alone are sufficient to dispose of the claim on the narrow basis on which it has been allowed to proceed. I note in passing, though, that the criteria to be satisfied in policy H3 are cumulative and that the Inspector had already concluded that policy criterion (d) was not met either. The Inspector also found the proposals to be contrary to Local Plan policies NE4 and BE2 and NPPF policy in paragraph 174. Those facts alone, which are unchallenged before me, would have been sufficient justification for the Inspector to dismiss the Claimant's appeal. Mr Fry's alternative submission to me - that even success in this claim would have made no difference to the overall result - is therefore a powerful one but it is unnecessary for me to reach a conclusion on it in view of my conclusions on the ground of challenge I have heard.
- It follows that for the reasons I have given above this claim is dismissed.
Get Free Case Details
Enter your email to receive case information including parties, docket entries, and status updates.
By submitting you agree to our Privacy Policy.
Need this case removed? Enter your email above — the confirmation email includes a case removal link.
Full Analytics Report
- Complete case narrative
- Judge details and rulings
- Case disposition and outcome
- Related cases and filings
$20
One-time purchase
Legal Analytics Has Been Featured In
