Sinclair & Anor v Secretary of State for the Environment, Transport and the Regions & Anor [2002] EWHC 424 (Admin) (15th March, 2002)

Neutral Citation Number: [2002] EWHC 424 (Admin) Case No: CO/3368/2001 IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL 15th March 2002 B e f o r e : THE HONOURABLE MR JUSTICE RICHARDS ____________________ Between: 1. ANTHONY JOHN SINCLAIR 2. KAREN PATRICE SINCLAIR Claimants - and - 1. THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND THE REGIONS 2. NEW FOREST DISTRICT COUNCIL Defendants ____________________ (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ____________________ Mr Stephen Hockman QC and Mr Kevin Leigh (instructed by Jennings Son & Ash) for the Claimants Ms Nathalie Lieven (instructed by The Treasury Solicitor) for the Defendants ____________________ HTML VERSION OF JUDGMENT AS APPROVED BY THE COURT ____________________ Crown Copyright © Mr Justice RICHARDS: This is a challenge under s.288 of the Town and Country Planning Act 1990 to a decision dated 16 July 2001 of an inspector appointed by the Secretary of State to determine an appeal under s.78 of the Act against refusal of planning permission. The proposed development is a new toilet and changing room extension to an existing enclosed swimming pool at a residential property known as Spyholms, Bisterne Close, Burley, a village in the New Forest near Ringwood in Hampshire. The application for planning permission was made on 4 January 2000. The local planning authority refused permission. An appeal to the Secretary of State was dismissed by an inspector’s decision dated 3 July 2000. That decision was quashed by the High Court (Thomas J) on 15 December 2000. What lay behind that challenge was that the inspector had dealt with the case on the basis that the site lay within the Green Belt and had found that this was inappropriate development that would cause harm to the Green Belt which was not outweighed by the existence of any very special circumstances. It emerged, however, that the site had been taken out of the Green Belt as a result of recent changes to the development plan. It was held that failure to give consideration to that change vitiated the decision. Following the quashing of the first decision there was a re-determination by a new inspector, whose decision is the subject of the present challenge. Policy framework I shall start with Green Belt policies since a theme of the submissions on behalf of the claimants is that in the new decision the inspector has been erroneously influenced by what was said in the first decision in the context of Green Belt policy. PPG2: Green Belts states in paragraph 1.4 that the fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Paragraph 1.5 states that there are 5 purposes in Green Belts: to check the unrestricted sprawl of large built-up areas; to prevent neighbouring towns from merging into one another; to assist in safeguarding the countryside from encroachment; to preserve the setting and special character of historic towns; and to assist in urban regeneration by encouraging the recycling of derelict and other urban land. It is provided a little later that: “3.4 The construction of new buildings inside a 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) … 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 inspector observed in the decision that the removal of the Green Belt designation followed a government announcement in September 1999 that the New Forest Heritage Area was to become a National Park. He also referred to an earlier government announcement that the same planning principles apply to the New Forest Heritage Area as to a National Park. A general statement of government policy towards such an area is to be found in PPG7: The Countryside: Environmental Quality etc, at paragraph 4.5: “Conservation of the natural beauty of the countryside, and of its wildlife and cultural heritage, should be given great weight in planning policies and development control decisions in the National Parks, the Broads and the New Forest Heritage Area. Due regard should also be had to the economic and social well-being of local communities. Special considerations apply to major development proposals …” A point made by Mr Hockman QC on behalf of the claimants is that the thrust and purposes of that policy are materially different from those of the Green Belt policies and, in particular, openness is not identified as a specific attribute of National Park policy, let alone the most important attribute. The inspector proceeded on the basis that the policies contained in the New Forest District Local Plan offered equivalent protection to National Park status. He therefore concentrated on the Local Plan. That in itself is not a matter of complaint. There are a number of policies of the Local Plan of particular relevance to the inspector’s decision. Policy NF-H1 provides that in the New Forest residential development will only be permitted where it is, inter alia, an extension to an existing dwelling and/or an outbuilding in accordance with Policy NF-H5. Policy NF-H5 provides: “Outbuildings incidental to the use of dwellings will be permitted within residential curtilages providing they would be appropriate to the existing curtilage and would not be detrimental to the character of the New Forest by reason of additional impact, visual intrusion or other adverse environmental impact.” The accompanying text states that there are limited permitted development rights for this type of development; however, the local planning authority will carefully control those proposals which by reason of size and/or siting require planning permission. Such proposals will usually be for large buildings, which may be visually intrusive or detrimental to the character of the New Forest. I should also refer to the policy of the Local Plan relevant to new development in Conservation Areas, namely Policy DW-E19 which provides: “Development, including alterations and extensions, shall not detract from, and shall preserve or enhance the character and appearance of Conservation Areas. Particular regard shall be given to: … b. the plot coverage characteristics of the historic area; and … d. the protection of open spaces important to the character and historic value of the Conservation Area, including those within individual curtilages; and e. the protection of important views into and out of the Conservation Area …” The first decision There are certain aspects of the first decision to which it is necessary to refer. In the context of Green Belt issues, and plainly reflecting paragraph 3.6 of PPG2, the inspector stated at paragraph 10: “10 I must consider the cumulative impact of all the extensions and additions at this property, as to do otherwise would result in new buildings being incrementally constructed over the years, thereby defeating the purpose of Green Belt protection. On a strictly statistical basis, I consider that this property has already increased significantly in size, beyond what I would consider to be a reasonable interpretation of this aspect of PPG2 policy. Although small in its own right, this proposal would add to these already substantial additions and would, together with the existing extensions, additions and outbuildings, be disproportionate to the original building.” In relation to the second main issue, namely the effect of the proposal on the character and appearance of Burley Conservation Area and the New Forest Heritage Area, he stated at paragraphs 18 to 20: “18. Public views of the proposal would, as I have said be obtained from Bisterne Close to the west. However, this would be over a relatively short distance, and a tall laurel hedge would hide much of the extension – only the roof would be seen. 19. This is an area of residential properties of varying sizes and designs positioned alongside a narrow country lane, which is itself enclosed by tall hedges and trees. In the vicinity of the extension, the house (Spyholms) and stable block are directly alongside the road, providing a pleasing built contrast to the rural appearance of the area. In this visual context, the proposal would not adversely impact upon the area due to its small size, its closeness to the existing building complex (with which it would visually merge) and the screening effect of the roadside hedge. The proposal would not intrude into any visually important open space or views in the area. The proposed design would be acceptable, and would complement the existing swimming pool building. 20. I conclude on this issue that the proposal would preserve the character and appearance of the Burley Conservation Area and the New Forest Heritage Area. It would therefore comply with the relevant policies in the Local Plan that I have mentioned.” Before moving to the second decision, it is convenient to mention here a point made about certain observations of Thomas J in quashing the first decision. He stated at paragraph 45 of his judgment: “It is clear, in my view, that in any future disposition of this planning appeal it will be a matter for the inspector closely to consider the proposed designation as a national park and whether that really in practice makes any difference, bearing in mind the importance of openness in the national parks. That may be a view he will form; it may not be a view he will form. It is entirely a matter for him. He may take the view that as regards the objective of the national park, it does not have the consequence that is the same as the Green Belt. On the other hand he may. It is for him to decide, if I remit the matter to him, that particular issue.” Mr Hockman submits that the judge erred in expressing the view that openness is a relevant feature of national park policy and that this misled the inspector, who mentioned the judge’s observations at paragraph 4 of the second decision letter. I disagree. Looking at the judge’s observations as a whole, it is plain that he was not expressing any concluded view on the content of national park policy but was leaving this for the new inspector. Whether the new inspector went wrong in his consideration of the relevant policies needs to be examined by reference to the specifics of his reasoning. The claimants’ case is not advanced by reference to the judgment of Thomas J and I do not accept that the inspector was misled in any way by the judge’s observations. The second decision I therefore move to the second decision. It is common ground that the inspector had to assess the matter de novo. In so doing he referred back to the first decision. I will need to consider whether he acted lawfully in so doing. It is also common ground that the inspector correctly identified the main issues as the effect of the proposed extension on the New Forest Heritage Area and the Burley Conservation Area. Given the nature of the challenge, it is necessary for me to set out the main paragraphs in which the inspector’s reasons are given: “11. Dealing first with whether the extension would be appropriate to the existing curtilage, Spyholms is set in a large garden which stretches away to the south but the buildings, including the house, a large garage conversion, the enclosed swimming pool and a further separate garage with accommodation above, are all situated near the road. The proposed extension to the swimming pool can be considered appropriate to the existing curtilage inasmuch as it would be part of the group of residential buildings. Having said that, it is apparent from the evidence to the first hearing, which was recorded in the Inspector's letter, and my site visit, that there has been a very significant amount of addition to and extension of this property. I concur with the finding of the first Inspector that, although the proposed extension would be small in its own right, it would add to the already substantial additions and would, together with the existing extensions, additions and outbuildings, be disproportionate to the original building.PRIVATE  12. I also agree with his assessment of the additional impact and I have adopted his description. The proposed extension would be on the northern side of the existing swimming pool, between it and the nearby tall laurel hedge which abuts the road. In public views from Bisterne Close, the proposed pitched roof over the extension would be seen from the west as the road is at a slightly higher level. The extension would also be seen from the 4 dormer windows of Pear Tree Cottage directly opposite. Within the grounds of Spyholms, the extension would be largely hidden by the bulk of the swimming pool extension, but it would be seen from some of the house windows and from the garden area immediately to the west. 13. The laurel hedge is now higher but the ridge of the roof would be visible and the proposal would still be seen from Pear Tree Cottage and from within the site. The extension would visually add to the existing bulk and mass of the swimming pool building which itself adds to the mass of the nearby house. 14. The previous Inspector concluded that the proposal would harm the open appearance of the Green Belt but I consider that these findings are equally applicable to the new Forest Heritage Area. To my mind, the integrity of the landscape character of the National Park is heavily dependent on the delicate balance between built development and the open countryside. The settlements are part of the landscape character which means that development in a settlement should be subject to the rigorous policies which protect the National Park. Bisterne Close is a loose collection of mainly residential buildings and the extensions and outbuilding at Spyholms have taken place near to the house and close to the road where they are most noticeable. The extension of the swimming pool building towards the road within a group of buildings which are already disproportionate to the original house would, in my opinion, damage the character of this locality within the wider landscape. It would be seen as further intensification of built development to the point where the balance between buildings and open countryside is threatened. 15. On the question of visual intrusion, I take this to mean that there would be an obvious mismatch between the appearance of the proposed building and its immediate surroundings. Although I understand the finding of the previous Inspector that the proposal, in a visual context, would not adversely impact on the area because of its small size, its closeness to the existing building complex (with which it would visually merge) and the screening effect of the roadside hedge, I consider that these qualities are outweighed by the harm from the further intensification of built development on the site. This reasoning also applies to the effect on the Conservation Area. 16. I realise that the previous Inspector did not find harm on the matter of character and appearance which he dealt with in relation to policy NF-H5. However, it seems to me that he addressed the criteria of appropriateness to the existing curtilage and the additional impact under the Green Belt issue and so did not deal with this in the section on character and appearance, although these criteria are part of policy NF-H5. The overall decision was however to refuse planning permission.” The inspector then made reference to an appeal decision relied on by the council, which he considered to be distinguishable. He moved to his overall conclusions, set out as follows at paragraph 19: Overall, whilst the appearance of the extension itself would not cause significant harm within the Conservation Area, I conclude that the proposal, as additional development within this curtilage, would be detrimental to the character of the New Forest Heritage Area contrary to Policy NF-H5. It was for those reasons that he dismissed the appeal. Issues Mr Hockman for the claimants raises issues that can be considered under five heads: (1) whether the inspector erred in his consideration of the first limb of policy NF-H5, i.e. the question whether the proposed development was appropriate to the existing curtilage; (2) whether he erred in his consideration of the second limb of policy NF-H5 in so far as it relates to additional impact; (3) whether he erred in his consideration of the second limb in relation to visual intrusion; (4) whether his conclusions on policy NF-H5 were inconsistent with his conclusions on the Conservation Area policy; and (5) whether he erred in his attempt to reconcile his reasoning with that of the inspector in the first decision. I shall consider each of those issues in turn. (1) Appropriate to curtilage The claimants' case is that the inspector went wrong in two respects in his consideration of the first limb of policy NF-H5, in paragraph 11 of his decision. It is submitted first that in finding that there had been "a very significant amount of addition to and extension of this property", the inspector made an erroneous finding of fact for which there was no sufficient supporting material. The evidence put before this court in the witness statement of a planning consultant, Mr Silson, is that two of the buildings referred to by the inspector, the "garage conversion" and "separate garage", were not additional buildings at all; one was a renovation of a former stable block and the other was a replacement for a barn. There was no material upon which he could properly reach a contrary conclusion. I have no hesitation in rejecting that submission. The inspector expressly bases himself on the evidence at the first hearing, recorded in the first inspector's decision, as well as on his site visit. The first decision letter states in terms at paragraph 8: “It was agreed at the hearing that the original dwelling amounted to some 330 square metres with an existing outbuilding of 72 square metres. A number of extensions and outbuildings have been constructed over the years, which together amount to about 367 square metres. This represents a 111% increase in size based on the original dwelling, or a 91% size increase based on the original dwelling and outbuilding taken together.” I read that as a record of the agreed position. It was not disputed in the first application to this court, though numerous points were taken on that application, and was not challenged until the present proceedings. There was nothing in the material before the inspector to cast doubt on it. In my judgment the inspector was entitled to rely on the first decision letter as a record of the agreed position of the parties despite the fact that the letter had been quashed by this court and therefore had no continuing legal effect. If the claimants wanted to go back on what had previously agreed, it was incumbent on them to do so by way of material placed before the inspector. Having failed to do that, they cannot seek to undermine the inspector's decision by raising the point for the first time in a witness statement before this court. I would add, though it does not affect my decision on this point, that the witness statement of Mr Silson is in other respects a highly unsatisfactory document, containing a great deal of inadmissible opinion and argument. The second submission on this issue is that the inspector misdirected himself in comparing the proposed development with the original building rather than with the existing curtilage. The approach adopted would have been proper in the context of Green Belt policy, which is the context where the first inspector dealt with this matter (at paragraph 10 of the first decision). It is not appropriate in the context of the relevant policy of the Local Plan, which requires in terms that the proposed development be assessed against the existing curtilage. In reply Mr Hockman put forward an additional point, contending that specific issues of scale fall to be dealt with under the second limb of the policy (detriment to the character of the New Forest) whereas under the first limb it is the general question of appropriateness that must be considered; and that the inspector erred in focusing here on scale. In my judgment the question of proportionality to existing buildings within the curtilage falls squarely within the area of judgment properly open to an inspector in determining whether development would be appropriate to the curtilage. I reject the submission that scale is irrelevant, or of only subsidiary relevance, in considering appropriateness to the existing curtilage. Further, I see nothing in the policy to preclude consideration of the relationship between the proposed development and the original building, provided that account is duly taken, as it was in this case, of the other extensions, additions and outbuildings already within the curtilage. "Appropriateness" is a broad expression that can properly encompass consideration of matters such as the incremental effect of the development and the relationship between it and other structures within the existing curtilage. I think it clear that the inspector, although agreeing with the finding of the first inspector on the issue of proportionality to the original building, fully understood that he was concerned with a different policy context. He appreciated that the first inspector's finding arose in the context of Green Belt policies (see e.g. paragraph 16 of the new decision letter) whereas the new inspector was concerned with the terms of policy NF-H5. The middle sentence of paragraph 11 of the second decision ("the proposed extension ... can be considered appropriate to the existing curtilage ...") is a plain indication that he was addressing policy NF-H5. For the reasons I have given, he was in my judgment entitled to make the findings he did within the context of that policy. On the other hand, I accept Miss Lieven's submission that the inspector did not reach a final conclusion on whether the development would be contrary to the first limb of the policy. He pointed to matters cutting both ways ("can be considered appropriate ...", "... disproportionate to the original building"), but based his overall decision not on breach of the first limb of the policy but on breach of the second limb concerning detriment to the character of the area. That is why in paragraph 19 he concluded that "the proposal, as additional development within this curtilage, would be detrimental to the character of the New Forest Heritage Area contrary to Policy NF-H5". That put the decision squarely on the basis of the second limb of the policy. Accordingly, even if I had been with the claimants on the first ground of challenge, I would not have regarded it as a sufficient basis to quash the decision. (2) Additional impact Mr Hockman submits that the introduction of the concept of openness into the inspector's assessment of additional impact, in paragraph 14 in particular, involved a misdirection. Openness is an aim of Green Belt policy, not of National Park policy. What it is necessary to consider under Policy NF-H5 is the effect on the character of the New Forest Heritage Area. On analysis, what the inspector says contains no comprehensible view about the effect on the character of the area in this location. The only point he makes is that there will be a diminution of openness as such. But that is circular and does not provide an answer to the question raised by the policy. Any outbuilding will diminish openness, but the policy permits outbuildings provided they are not detrimental to the character of the area. One must therefore go on to examine the character of the area and the effect upon it. The inspector does not do that. In truth, it is submitted, he is unduly influenced here too by the incremental approach of Green Belt policy. Moreover there is a specific reliance here too on the extension being disproportionate to the original building, which is specifically a Green Belt point. Miss Lieven submits that reference to the open appearance of the countryside is not necessarily impermissible in the context of the New Forest Heritage Area and policy NF-H5. What matters is whether adequate and intelligible reasons have been given for the conclusion reached in relation to detriment to the character of the area and whether the conclusion is a rational one. In this case the inspector has given such reasons. He expresses the view that the integrity of the landscape character of the National Park is heavily dependent on the delicate balance between built development and the open countryside. He goes on to examine the nature of the area, moving from settlements generally to Bisterne Close and to the claimants' property. He finds that the extension, within a group of buildings which are already disproportionate to the original house, would damage the character of the locality within the wider landscape, explaining that it would be seen as a further intensification to the point where the balance between buildings and open countryside is threatened. This is a reasoned and logical approach, identifying what the inspector considers to be important in terms of the character of the area and why in his view it would be harmed. I accept Miss Lieven's submissions. In my judgment it is open to an inspector to have regard to the openness of the countryside in the context of the Local Plan policy provided that he gives adequate and intelligible reasons for so doing. Although openness as such is a primary aim of national policy in relation to the Green Belt but not in relation to National Parks, it cannot be said to be an irrelevant consideration in the context of a National Park or area of equivalent status. Similarly, although the open appearance of the countryside is not specifically identified in the Local Plan policies relating to the landscape character of the New Forest (I refer especially to policy NF-E4, which I have considered but do not need to set out), it is not something that is excluded from consideration by an inspector in that context. In this case the inspector has explained why he considers it important and why he considers the proposed development would be detrimental to it. These are very much matters of planning judgment for him. There is no misdirection: he plainly directs himself by reference to policy NF-H5 and not by reference to Green Belt policies, but he gives reasons why the findings made by the first inspector in the context of Green Belt policies are in his view equally applicable in the context of policy NF-H5. His approach is sufficiently reasoned and rational. As to rationality, it neither defies comprehension nor proceeds by flawed logic (see R v. North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at 244 paragraph 65, upon which Mr Hockman relied). There is no error of law justifying interference by the court. It is not for the court to engage with the planning merits of the decision reached. (3) Visual intrusion Mr Hockman submits that the inspector correctly articulates a possible approach towards visual intrusion in the first sentence of paragraph 15 of the decision, but does not then go on to deal properly with the point. He makes no finding on whether there is an "obvious mismatch” between the appearance of the proposed building and its immediate surroundings. No explanation is given of the harm by way of visual intrusion that would arise from the further intensification of built development. That in itself is not a visual criterion in any event and no adequate reason is given for the adverse conclusion. Overall there is no rational or comprehensible articulation of the concern that gives rise to an adverse conclusion. Miss Lieven submits that the claimants' case on this is misconceived, since the inspector does not reach an adverse conclusion at all in relation to visual intrusion. What he does is to refer to the findings of the first inspector and to say, in effect, that even if they are accepted they are outweighed by the matter with which he has already dealt, namely the harm from further intensification of the built development on the site. Thus the overall conclusion on detriment is based not on adverse visual intrusion, but on the additional impact of the proposed development. Although I did not originally read the decision letter that way, I am persuaded by Miss Lieven that that is the correct reading of it. The statement that the various qualities relevant to visual intrusion are "outweighed by the harm from the further intensification of the built development on the site" reads more naturally as a reference back to the point on additional impact than to a fresh reference to visual intrusion. Moreover to read it in this way helps to explain why the inspector says at the end of paragraph 15 that "this reasoning also applies to the effect on the Conservation Area" yet concludes in paragraph 19 that the appearance of the extension "would not cause significant harm within the Conservation Area". The absence of significant harm within the Conservation Area is much more understandable if there is no adverse finding on visual intrusion. The adverse finding on additional impact is based on the balance between built development and open countryside and is much less obviously a Conservation Area issue. Once it is seen that the inspector has made no adverse finding on visual intrusion, the attack on his reasoning falls away. What is left in this part of the decision is a judgment that, even if one accepts what the first inspector said about absence of adverse effect in the specific context of visual intrusion, the harm done by the additional impact is sufficient to give rise to detriment to the character of the area and so to cause the development to be contrary to the policy. That is a rational approach and the reasoning is sufficient. (4) Inconsistency between conclusions on policy NF-H5 and Conservation Area policy Mr Hockman points to the conclusion in paragraph 19 that the appearance of the extension would not cause significant harm within the Conservation Area and to the absence generally of any adverse finding in relation to the Conservation Area policy. He submits that the adverse findings in relation to policy NF-H5 are inconsistent with those conclusions on the Conservation Area. He makes a separate, more specific point as to the inconsistency between the last sentence of paragraph 15 of the decision and the conclusion with regard to the Conservation Area in paragraph 19. I have covered this sufficiently in dealing with the previous issue. The apparent inconsistency between the end of paragraph 15 and paragraph 19 is resolved if, as I have found, the inspector made no adverse finding on visual intrusion. As to the wider question of inconsistency, I can see that the finding of detriment under policy NF-H5 could conceivably have led as well to findings of incompatiblity with the Conservation Area policy, policy DW-E19, given its reference to the protection of open spaces and the protection of views. But it cannot be said that the favourable conclusion, or absence of adverse conclusion, on the Conservation Area policy is such as to create a logical inconsistency with the conclusion on policy NF-H5 or otherwise to vitiate the inspector's reasoning in relation to policy NF-H5. (5) Reconciliation with first decision Paragraph 16 of the decision is said by Mr Hockman to provide a further example of unlawful reasoning. He submits that the inspector is trying to find a reconciliation between his views concerning the detrimental effect of the development on the character of the area and the views reached by the first inspector. The inspector reasons the matter on the basis that because the first inspector addressed the criteria of appropriateness to the existing curtilage and additional impact in the context of the Green Belt, "so" he did not deal with them in relation to character and appearance. The inspector is simply wrong on that point. The reason why the first inspector did not include any such adverse points in the context of effect on character and appearance is that he did not have any adverse points to make in that context, not because he had covered them already elsewhere. That is clear from the passage of the first decision dealing with character and appearance. If the new inspector chooses to refer to the first decision letter, it is submitted, then he must do so rationally; and his error on this point should lead to the quashing of his decision, since his decision might have been different if he had appreciated the erroneous nature of his attempt to reconcile his views with those of the first inspector. It is clear that the first Inspector did deal, in the context of Green Belt policies, with points corresponding to those considered by the new inspector in the context of policy NF-H5 when considering the questions of appropriateness to existing curtilage and additional impact: see paragraphs 10-12 of the first decision. It is equally plain that the first inspector did not deal with those points in the context of the effect of the proposed development on the character and appearance of the Conservation Area or New Forest Heritage Area. It cannot be inferred that he omitted to do so because he had already covered the points in the context of the Green Belt; and if the new inspector thought otherwise, then he was mistaken. On the other hand I do not consider any such mistake to be material. It remains the case that the first inspector had formed adverse views in the context of the Green Belt similar to those formed by the new inspector in the context of policy NF-H5. If, as I have held to be the case, the new inspector was entitled to form those views in the context of policy NF-H5, then in my judgment his conclusion is not vitiated by the fact that the first inspector reached such views in a different context and did not apply them across to the context of character and appearance. Nor is his decision flawed by any mistaken belief that the reason why the first inspector did not deal with them in the context of character and appearance was that he had already dealt with them in the context of Green Belt. In any event, in the light of the second decision as a whole, I have no doubt that the new inspector would have reached the same conclusion in the absence of any error of this kind. In the circumstances it is unnecessary for me to consider a further issue raised by Miss. Lieven on behalf of the Secretary of State, namely that any misunderstanding by the new inspector of the reasoning in the first inspector’s decision would not vitiate the new decision because, as a result of the quashing of the decision, the reasoning of the previous decision letter was no longer extant. Miss. Lieven submitted that authorities such as North Wiltshire District Council v. Secretary of State for the Environment [1992] 3 PLR 113 concerning the need to address, as a material consideration, previous decisions in respect of the same site do not apply to previous decisions that have been quashed. It seems to me that examination of that question would arise only if the inspector had failed to consider the previous decision. As it is, he plainly did have regard to the previous decision. I think that he was entitled to do so (and the contrary contention has not been advanced on behalf of the claimants). If, having done so, he misunderstood the previous decision and that misunderstanding vitiated his own reasoning, then his decision would be liable to be quashed on that ground. For the reasons already given, however, I do not think that that is the situation here. Conclusion For the reasons given, each of the grounds of challenge fails and the claim is dismissed. © 2002 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII