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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Waltham Forest, R (on the application of) v First Secretary of State & Anor [2005] EWHC 3335 (Admin) (03 October 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/3335.html Cite as: [2005] EWHC 3335 (Admin)

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

		Royal Courts of Justice Strand London WC2
		3rd October 2005

Monday, 3rd October 2005

1. THE DEPUTY JUDGE: This is an application under section 288 of the Town and Country Planning Act to quash the decision of an inspector appointed by the First Secretary of State. The Inspector's decision is dated 18th April 2005. In it he determined the appeal by Stanley Racing Limited (the second respondent) under section 78 of the Act, against the refusal by the London Borough of Waltham Forest to grant planning permission for the change of use of the ground floor of 569 - 571 Lea Bridge Road from use as a retail shop (within use Class A1) to use as a betting office (use Class A2). The Inspector decided to allow the appeal and he granted planning permission for the change of use applied for.
2. The appeal shop stands in a small parade of some five shop premises on Lea Bridge Road between Stanley Road and Hoe Street. The Bakers Arms pub is at the north end of the parade at the corner of Lea Bridge Road and Hoe Street. It is worth noting that this little parade is not isolated. Other parades and other shopping make up the district centre. The appeal premises are flanked by what, at least at first sight, look like retail shops. From the photographs I have been provided with, I see that the shop to the north advertises itself as a baker and confectioner, although, of course, there is an issue in this case as to whether the existence of a cafe in such a shop means that it is not properly classified as a retail (A1) use. I also note that there are some market stalls situated on the broad pavement just outside the parade itself.
3. I say no more about the matter by way of description of the site. I pause only to observe that in a case where the main issue is, as the Inspector identified it in this case, whether or not the proposed change of use would significantly harm the vitality and viability of the shopping centre, the impression of vitality and viability that the Inspector derived from his site visit must be a matter of some considerable importance to his decision.
4. The development plan at the time was the Waltham Forest Unitary Development Plan 1996. The relevant policy was policy SHP4. Since the issues in this case turn upon the consideration that the Inspector gave to each of the criteria that the policy raises, I shall set the policy out. It reads as follows:

"IN THE MAIN SHOPPING FRONTAGES OF WALTHAMSTOW AND THE PRINCIPAL CENTRES (AS DEFINED ON THE PROPOSALS MAP), THE COUNCIL WILL SEEK TO ENSURE THAT RETAIL USES (USE CLASS A1) PREDOMINATE ON GROUND FLOORS.

OTHER USES WILL NORMALLY BE PERMITTED WHERE ALL THE FOLLOWING CRITERIA ARE MET:

(i) THE USE PROPOSED PROVIDES A SERVICE DIRECTLY RELATED TO A SHOPPING TRIP (SUCH AS BANKS, BUILDING SOCIETIES, CAFES); AND

(ii) THE PROPOSAL WILL NOT NORMALLY RESULT IN THE EQUIVALENT OF A GROUP OF THREE OR MORE ADJOINING STANDARD SIZE SHOP UNITS IN NON-RETAIL USES; AND

(iii) THE PROPOSAL WILL NOT NORMALLY RESULT IN THE PROPORTION OF NON-RETAIL USES IN THE RELEVANT FRONTAGE EXCEEDING 30% OF ITS TOTAL LENGTH."

The rest is not important to this case.

5. In paragraphs 5.33 and 5.34 the explanatory text draws attention to a number of matters. In particular it focuses upon the levels of pedestrian activity that different sorts of use in shopping centres generate. It makes it plain that the aim of the policy is the preservation of the character and vitality of the centre.
6. I should record that the shopping parade in question certainly lay, and probably lies, under policy SHP4 within both a principal shopping centre and a main shopping frontage as defined on the proposals map, as I see from the, albeit rather smudgy, copy of the proposals map that is before me. So the proposed development fell to be tested against the criteria in that policy and the application fell to be decided in accordance with that policy, insofar as it applied, unless material considerations indicated otherwise.
7. The emerging Waltham Forest Unitary Development Plan first review had reached its second deposit draft stage at the time of this appeal. It had been through the local plan inquiry but the local planning inspector had not, at that stage, reported yet. Thus, that plan had reached the stage where it was deserving of weight, as the Inspector records. The policy, formally SHP4, becomes in the new plan TRL3, with very little change. There is more change to the explanatory text, which now includes a number of factors against which new uses are to be assessed. The changes that followed the review were explained in some detail in the Council's written representations on the planning appeal.
8. The second respondent, Stanley Racing, appealed to the First Secretary of State against the refusal of planning permission for their change of use. That appeal could have been dealt with in one of three different ways under the rules. Either party could have asked to be heard in person, and if that had been granted it would have taken the form either of a more informal hearing or a local planning inquiry. However, neither the London Borough of Waltham Forest nor the second respondent asked to be heard in person at any stage and were content for the matter to be dealt with by written representations. I say "at any stage" because it is common ground that the rules do allow a party who realises, perhaps having seen the opposing written representations, that complicated issues arise that could only be fully explored at a hearing or an inquiry, to ask the Secretary of State to order that the hearing or inquiry procedure is followed instead. Examples of that happening are by no means unknown. Nor, indeed, does the decision to hold an inquiry or hearing, even after starting by the written representation road, depend upon the request of the parties. The Town and Country Planning Act, schedule 6, paragraph 6, provides that:

"(1) Whether or not the parties to an appeal have asked for an opportunity to appear and be heard, an appointed person -

(a) may hold a local inquiry in connection with the appeal; and

(b) shall do so if the Secretary of State so directs."

9. So the Inspector may, of his own volition, decide to hold an inquiry whereupon the written representations regulations will cease to apply. The written representations procedure is, in its turn, governed by the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000. I note that regulation 7 lays down a strict timetable for the written representations and the Secretary of State has given notice in Circular 05/00, paragraph 3, that written representations received after the due date will normally be disregarded. That firm line is backed up by regulation 10(1) which provides:

"The Secretary of State may proceed to a decision on an appeal taking into account only such written representations as have been submitted within the relevant time limits."

10. In this case the timetable appears to have been adhered to. The Inspector was armed with written representations and, of course, I have read them. The Inspector visited the site on 12th April 2005 and the decision letter was dated 18th April. The decision that the Inspector provided was, depending upon the view one takes of it, either commendably concise, or so terse as to be ambiguous and inadequate. That is one of the issues between the parties. I will recite it:

"1. The main issue is whether the proposed change of use would significantly harm the vitality and viability of this part of the Bakers Arms District Centre.

"2. The most relevant development plan policy is SHP4 of the 1996 Waltham Forest UDP. The new policy TRL3 in the First Review of the UDP also has weight in this case. The aim of both policies is to ensure that the particular shopping centre in question continues to fulfil its primary role of providing convenient and accessible shopping. [I interpose in the reading of the decision letter simply to note that no issue is taken with either paragraph 1 or paragraph 2 insofar as they identify, first of all, the main issue and, secondly, the aim of the policies.]

"3. There is no dispute that the appeal premises lie in a main shopping frontage. The Council points out that these premises are in the middle of a short terrace of shops running along Lea Bridge Road from the Bakers Arms. From the site inspection it would seem that Bakers Arms District Centre is trading well with a good range of local independent traders.

"4. Using the criteria in SHP4 and TLR3, the first is concerned with providing a service directly related to a shopping trip. Evidence on this is ambiguous. Surveys and statistics on this sort of subject are best tested at an inquiry or hearing and not in written representations. In the context of ensuring that Bakers Arms District Centre provides convenient and accessible shopping facilities, the Council's claim that betting shop use is not directly related to a shopping trip is not made out from the written evidence.

"5. The second criterion in SHP4 and TLR3 does not apply in this case. There are not 3 non-retail units in a group in this location.

"6. The third criterion in SHP4 and TLR3 concerns non-retail uses in relevant frontages exceeding 30% of its length. Relevant frontage is not defined in SHP4. For TLR3 there are bracketed lists of properties identified as relevant frontage. In this location this criterion would lead to a 40% total length of frontage - including the Bakers Arms - being non-retail if the appeal is allowed. However this is a dubious criterion for ensuring the vitality and viability of this centre in this particular location or the achievement of the policies' main aim. Firstly as the Council points out, in this case, the relevant frontage contains only a short terrace of shops - just 5 in number, plus the Bakers Arms. This is not representative at all of the whole shopping centre and would not therefore be particularly relevant to any assessment of vitality and viability or the policies' main aim. The District Centre contains a lot more than just 5 shops. Secondly, the inclusion of the extensive Bakers Arms frontage in such a short terrace of shops effectively prevents any change of use in these 5 shops - this cannot be reasonable. Thirdly, there is no obvious reason why the Bakers Arms frontage is excluded from the Hoe Street main shopping frontage as set out in Schedule 9 for policy TRL3. These complicated matters would be much more properly explored in an inquiry or hearing. However on the basis of the written arguments and my site inspection the third criterion cannot be relied [upon] to assess the appeal scheme in terms of the identified main issue.

"7. In short, there is insufficient evidence to show that betting offices harm the viability and vitality of main shopping frontages. There is insufficient evidence to show that allowing this betting office would materially conflict with relevant development plan policies and would specifically harm the vitality and viability of Bakers Arms District Centre."

The Inspector, for those reasons, concluded that the appeal should be allowed.

11. The basis for a challenge under section 288 is very well-known. I have been referred in the skeleton arguments to the classic summary in Seddon Properties v Secretary of State for the Environment [1981] 42 P&CR 26. It is not necessary for me to set it out. This basis has been helpfully expanded upon by Mr Reed and Miss Lieven in their respective skeleton arguments.
12. I have particularly noted those authorities that set out the proper approach to the giving of reasons. It seems to me worthwhile to record one or two of those in this brief judgment. I particularly rely upon what was said by Lord Brown in the case of South Bucks District Council v Porter (No 2) [2004] UKHL 33.
13. At paragraph 36, Lord Brown, having carefully examined all the relevant authorities, summarised the law in this way:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matters or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

14. It is part of the claimant's case that the Inspector, having found the evidence "ambiguous", should have exercised his discretion to order an inquiry to clarify matters. With that in mind, I also note the decision of Richards J in the case of West v First Secretary of State [2005] EWHC 729 (Admin). At paragraph 42 Richards J endorses the "general rule" as he describes it. Then he sets it out thus:

"... it is incumbent on the parties to a planning appeal to place before the inspector the material on which they rely. Where the written representations procedure is used, that means that they must produce such material as part of their written representations. The inspector is entitled to reach his decision on the basis of the material put before him."

15. The judge goes on to consider the case of Dyason and the circumstances in which there may be an inquisitorial burden thrust upon the Inspector. He goes on to say at paragraph 45:

"There will be exceptional cases where, on the particulars facts, fairness requires the Inspector to do something more, for example by requesting further information or by departing from the written procedure and holding an oral hearing. The Regulations can accommodate such cases without difficulty."

16. He identifies two cases which, in slightly different ways, involved something approaching those circumstances and which, he says, are cases which turn on their own facts and are readily distinguishable, neither of them casting doubt on the general rule that he has set out.
17. Another case that I was referred to in this context is the case of Taylor v Secretary of State for Wales [1985] JPL 792. This was a case in which the reasons given by an inspector for his decision were carefully examined and the appeal was in fact allowed because the Inspector did not make it plain how he had dealt with two issues that had been raised by the appellant. That, of course, was sufficient to dispose of this appeal. But in the course of argument the judge records the extent to which it was debated whether an inspector should himself initiate inquiries, where he deems such inquiries necessary, before he could come to a fair conclusion. About that the judge said this:

"It was not possible to lay down any general rules. An inspector had no duty to seek to put the parties' own representations in order to give them assistance. However, if an inspector came to the conclusion that he was unable to come to a fair decision on an issue on the basis of the material before him he did not think he was necessarily entitled to sit back and hold that, because of a lacunae which could easily be filled, a party has failed to fulfil a burden placed upon him."

18. I read that passage as being entirely consistent with what Richards J said in West. I for my own part entirely accept that there may be extreme circumstances in which the principle Hodgson J sets out will indeed come into play.
19. With that I turn to the grounds that Mr Reed has put forward in challenge to this decision letter. Mr Reed's ground 1 really relates to the choice of procedure in the determination of this appeal. He draws attention to the words in the decision letter at paragraph 4 and in particular to the reference that the Inspector makes to the "evidence on this", that is the question of providing a service directly related to a shopping trip being "ambiguous".
20. In essence Mr Reed says that this means that the Inspector was unable to reach a clear, or perhaps any, conclusion on it. He was in a position where, it being unclear, there was an obligation on him to make it clear by either asking questions of the parties or examining the matter in some detail at an inquiry.
21. After dealing with "evidence on this is ambiguous", the Inspector goes on to say:

"Surveys and statistics on this sort of subject are best tested at an inquiry or hearing and not in written representations."

Indeed it is the combination of the fact that the evidence is ambiguous and that these sorts of surveys and statistics are best tested at an inquiry that Mr Reed particularly relies upon. I should make that plain. It is both those things together that, he says, indicate that the Inspector was in a situation where he could not decide, because the matter was too unclear, and that that indicates that clarity might have been resolved in the course of an inquiry.

22. Therefore, Mr Reed goes on, either the Inspector must have considered referring the matter to some sort of inquiry or hearing but decided not to, or he must have considered asking the parties about his concerns and did not do so. Either that, or he must have decided that he could not so proceed. If the latter, if he decided he could not so proceed, he was manifestly wrong in law. If he decided that he could proceed but he would not, then that decision was contrary to natural justice and/or perverse and irrational and failed to take account of material considerations.
23. Those submissions, it seems to me, of course, depend upon how one reads paragraph 4. Therefore I turn to the matter with the words of Lord Brown very much in the forefront of my mind. What is said in the decision letter has to be read in the light of the circumstances and the knowledge of the parties. The circumstances were that this was an appeal where both parties had agreed to the written representations procedure and there had been a full exchange of representations. Nobody was prevented from submitting any representation that they wished to submit.
24. Amongst the things that the parties relied upon were previous decisions. Of course, and to nobody's surprise, it could be said that all these decisions turned upon their own facts, but some of them exhibited facets that might indeed have been helpful to the Inspector. Some broad conclusions might well have been drawn from them. For example, several decisions examined a contrasting statistical approach from the Council on the one hand and the appellants on the other. One of the most recent decisions did this in the context of the very policy, SHP4, that is relevant to this case. It is instructive to see that, in one of the decisions put forward by the Council, the Inspector made it plain that he too found the surveys and the statistical approach of little relevance and assistance.
25. In a much more recent decision, slightly less than a year before the decision in question (a decision put forward, unsurprisingly perhaps, by the second respondents) another inspector had examined the surveys against policy SHP4 and found the Council's statistical approach to be of little assistance to him.
26. It seems to me, therefore, that part of the circumstances are that when the Council agreed to the written representations procedure they did so in full knowledge that their statistical survey arguments might be treated with a degree of scepticism. They knew, therefore, that if the difficulties that these arguments had faced in the past were to be surmounted, it might be prudent to seek to develop them rather more thoroughly at an inquiry or even an informal hearing. It is against that background that the local authority's choice of written representation procedure has to be given some weight.
27. In the written representations both parties relied upon this sort of survey evidence. I merely say about these surveys that the purpose of the Council's survey, as it seems to me, was to demonstrate that only a very low percentage of the totality of the visitors to a shopping centre included a visit to a betting shop, whereas, on the other hand, the purpose of the second respondent's surveys was to demonstrate that, of those who actually went to a betting shop, a very high proportion also went on and visited some shops in the rest of the centre, and, they would continue, that compared with certain individual shops, a betting shop attracts quite a reasonable number of visitors.
28. Of course, a number of points could be made. Questions might be asked about the surveys, the methodologies that were used, the reliability of the results, and the conclusions that should be drawn from them. I note that in the Council's representations a number of questions were raised that could only really be asked in cross-examination and dealt with there, such as the suggestion that the second respondent may have had a much wider selection of surveys than they had put in front of the Inspector and they had merely cherry-picked the best.
29. For my part, I see nothing necessarily or inevitably inconsistent about the surveys. Both broad propositions that I have outlined may well be right. It would seem to me that it would only be if the second respondent's argument was demonstrated to be clearly wrong that it could be said that the betting shop use does not provide a service that is "directly related to a shopping trip", depending upon how one reads those words and what is meant by "directly related".
30. If both sets of surveys may be broadly true, it is really a matter for the Inspector's planning judgment, doing the best to make reasonable sense of the words of the policy, to decide if he thinks that the proposed use is or is not within those words. As I have said, the words of the policy themselves seem capable of more than one reading and more than one shade of meaning. A very sensible approach, in those circumstances, is to look at the underlying aim and purpose of the policy and that is what the Inspector did in a way that is not criticised at all.
31. It seems to me that Mr Reed's underlying point is that those passages that I have identified in paragraph 4 of the decision letter should be read as meaning that the Inspector could not reach a proper decision on the evidence; at least not when it was presented in the form of written representations. I should not overlook that the same thought occurs again in paragraph 6 when, considering the third criterion, the Inspector says, "These complicated matters would be much more properly explored in an inquiry or hearing."
32. I myself read paragraph 4 in this way. It starts by identifying the correct and relevant criterion and the proper policies. I do not think, particularly taken immediately in context, that the phrase, "Evidence on this is ambiguous" means anything more than saying that the evidence on this is inconclusive. It can go either way. Simply pausing there, my comment would be that it would be perfectly possible for both comments to be correct and for the position that the Council are arguing for not to be supported at all. It is a perfectly possible view.
33. Then the Inspector goes on and says that surveys and statistics on this sort of subject are best tested at an inquiry or hearing and not in written representations. Again, I do not read that as meaning that the Inspector is saying that he cannot reach a conclusion for the purposes of determining this appeal on the basis of the written representations. He is not saying that these surveys and statistics can only be tested by way of planning appeal, still less that that is the only way in which a decision can be reached about them. He is saying that they can be best tested that way. That might be thought to be an uncontentious statement.
34. It seems to me that the correct way to read that sentence is that it is a comment intended to be helpful, rather than a declaration by the Inspector that he is unable to reach a conclusion. On the contrary, it seems to me that it is quite plain that he is able to reach a conclusion. He goes on to say that, in the context of ensuring that the Bakers Arms District Centre provides convenient and accessible shopping facilities, the Council's claim that betting shop use is not directly related to a shopping trip is not made out from the written evidence.
35. This is another sentence that Mr Reed particularly points to. Amongst other things, he says that this seems to raise some notion of the Council having a burden of proof to discharge. Again, it might have been worded in a way that would put the matter beyond doubt, but the question really is, reading it with an informed mind and with a reasonable degree of generosity, is it possible to understand what is actually being said? It seems to me that what the Inspector is simply saying is, "The Council assert that betting shop use is not directly related to a shopping trip, but the written evidence that they put in front of me does not back that up."
36. That is the sense of what he is saying, not that he believes that the Council is under any particular burden of proof. No burden, that is, beyond the burden that lies upon any person who makes an assertion to back that assertion up with some cogent evidence if they expect it to be accepted. The Inspector, to my reading, is going no further than that.
37. I am conscious that it may sound as though I am dealing with the reasons challenge. In fact I am quite clear that I am dealing with ground 1 which relates to various forms of illegality. I must start with a reading of the paragraph. If the paragraph can be read, as it seems to me it can, in a way that is fair and does not involve the Inspector throwing his hands up or feeling that the matter must be tested at an inquiry, but nonetheless for some undisclosed reason deciding not to hold an inquiry, then the first point disappears.
38. I firmly reject any notion that the Inspector, on a written representations appeal, is under any obligation to notify either party, still less to order a hearing or an inquiry, just because he finds that the written representations put forward for his consideration are unpersuasive, or the evidence relied upon does not justify the assertions made. He is entitled to determine the appeal on the basis of the written representations provided that he does think properly about them, setting one argument against the other.
39. This is what it is tolerably clear that the Inspector did. He is entitled to say that some evidence is persuasive and determinative and to say of the rest that some of it is of little or no help. Of course I do not wish, as I said, to deny that there may be extreme circumstances where the Inspector could not just simply sit back, but I do not for a moment think that this case approaches those circumstances. Not until the Inspector appreciates that he is getting to such an extreme situation can it be said that he is under an obligation to consider whether or not to order an inquiry or hearing to sort out the deficiencies in the evidence.
40. It is not possible to infer any conclusion about the need for an inquiry from the Inspector's evidence on the point. The Inspector did not approach a situation where he ought to have considered whether or not a different form of procedure was required. Reading that paragraph in that way, it does not seem to me that the Inspector acted in a way that was either irrational or unfair. He acted in a way that was perfectly rational and perfectly fair.
41. Ground 2 relates to the reasons challenge under criterion (i). The essence of Mr Reed's first point is that the Inspector did not sufficiently grapple with the evidence, he simply said it was ambiguous. I think I have effectively dealt with this. In some ways I am not without sympathy for Mr Reed's submission. It is true that the Inspector does not attempt any analysis of the survey evidence. On the other hand, he had decisions of previous inspectors. He had very full written representations. With statistical evidence of this nature it may be difficult to find a sensible balance between a very short rejection of its utility and a long and tedious analysis which eventually comes to the same conclusion.
42. In all the circumstances, giving the decision letter a fair and straightforward reading, I think that the way that he expresses himself is sufficient to show that he did take the points into account sufficiently on that issue and that an informed party, having read the reports and the decisions, would understand why the Inspector found that evidence was, as he put it, "ambiguous" or inconclusive.
43. As for the second point on the reasons challenge, again I think I have effectively dealt with that. I reject the notion that the words appear to put a burden on the Council. I think the words mean no more than "the Council claim this; but their evidence does not come up to it".
44. That point, in effect, also includes Mr Reed's ground 3. I do not think there is any misinterpretation of policies, for those reasons.
45. Ground 4 relates to a reasons challenge on criterion (ii). Again, it is important to read the very short passage that gives rise to ground 4, in context, and to do so with a reasonably sympathetic eye. What it says is this:

"The second criterion in SHP4 and TLR3 does not apply in this case. There are not 3 non-retail units in a group in this location."

46. Mr Reed says that the Inspector is not looking at the right question. He says, using the present tense, that there are not three non-retail units in a group in this location. That is not what he is looking at. What he should be looking at is whether the proposal would result in three non-retail units in a group in this location.
47. Mr Reed is absolutely right that what the Inspector should be looking at is whether or not the proposal would result in three non-retail units in a group in the location or the equivalent thereof. I am sure that that is what the Inspector was actually considering. I am not prepared to read the decision letter as if the Inspector who starts off by referring to the correct part of the correct policy has forgotten the words of the policy by the time he reaches his next sentence. I would not willingly conclude that unless I felt compelled to do so. And I do not feel compelled to do so. I am sure that when the Inspector, in context, says, "There are not 3 non-retail units in a group in this location", he means there would not be if the proposal went ahead.
48. Secondly, Mr Reed says that the reasons are unclear because they do not make it apparent that the Inspector is thinking of standard size shop units. He may, he says, have forgotten that the premises are a double unit. He may have forgotten that, next door, the bakery is, on the Council's evidence, possibly (and the Council do not put it higher than that) in a composite use.
49. Since the Inspector clearly had the policy open in front of him, or at least present to his mind, when he wrote the first sentence of paragraph 5, I am not prepared to assume that he had completely forgotten what it said by the time he turned to the last and only other sentence in paragraph 5. Anybody reading the decision letter with a fair eye with the knowledge of the parties would be well aware that we are talking about standard size shop units and that the shop in question is a double unit.
50. Equally, I cannot accept that the Inspector had forgotten the point about the bakery next door; the Inspector inspected the bakery next door. He was in a perfectly good position to decide whether or not he thought that the possibility that the composite use might amount to an non-retail use was something that he should take seriously or not. He was entitled to conclude that the bakery with a café in it was sufficiently a retail use to satisfy the policy. In my opinion that is what he means in the last sentence of paragraph 5, when he says that there would not be three non-retail units in a group in this location. It seems to me that, given a fair reading, the reasons that the Inspector gives are adequate.
51. Grounds 6 and 7 are tied up with ground 1, particularly the reasons challenge of ground 1. Ground 6 says that the Inspector failed to give proper reasons as to why there was insufficient evidence to show that allowing the appeal would harm the vitality and viability of the Bakers Arms District Centre. He only dealt with why it was that he thought that SHP4 and TLR3 did not apply. He did not provide any analysis as to why there was no harm to vitality and viability.
52. Ground 7 particularly turns to the question of the applicability of paragraph 4.50. Again, it seems to me that this has largely been dealt with. The Inspector does not have to mention every material consideration. He clearly had TLR3 in mind. He does not have to mention paragraph 4.50 specifically as well. Reading his decision letter, short as it is, it seems to me quite possible to spell out, first of all, that he thought that the centre in question was, or showed the signs of, one that was sufficiently vital and viable. He records from his site inspection that it was trading well with a good range of local independent traders. He is quite clear about how this particular frontage fits in with the rest.
53. The Inspector examines ways of considering the vitality and viability of the centre. Although he certainly does not go into much detail, he sufficiently shows the reasons why he does not accept that betting offices must harm the viability and vitality of main shopping frontages in general and, in particular, why the proposed betting office would not harm the vitality and viability of the Bakers Arms District Centre. I do not think, therefore, that there is anything in those grounds either.
54. For all those reasons then, this challenge to the Inspector's decision fails.
55. MISS LIEVEN: My Lord, in those circumstances I obviously ask for an order dismissing the appeal and a summary assessment of costs for the First Secretary of State in the sum of £4,406, which I believe is agreed.
56. MR REED: My Lord, there is no objection to that sum.
57. THE DEPUTY JUDGE: Thank you. Very well, the appeal is indeed dismissed and the claimants will pay the first respondent's costs of £4,406.
58. MISS LIEVEN: Thank you, my Lord.
59. MR REED: My Lord, I am grateful for that. My Lord, may I just ask for two or three minutes, so I can take some instructions?
60. THE DEPUTY JUDGE: Yes, you can have two or three minutes, certainly, as long as it is only two or three minutes.
61. MR REED: It will be.
62. THE DEPUTY JUDGE: Right, well, I will rise for two or three minutes.
(Short Adjournment)
63. MR REED: My Lord, I am grateful for that two or three minutes. My Lord, I do ask for permission to appeal on two bases. The first basis is the question of the fairness of taking the approach which the Inspector took. The relevance of that, my Lord, is that the judgment of Richards J in West set out what he considered was the basis upon which an inspector could be required to go further than simply deciding a matter on written representations and ask the parties or require the parties to attend an inquiry. My Lord, simply I say this: it is importance in the fact that this case is a new situation which the Council says fits into that exceptional test of Richards J and so ought to be determined at a higher level. The second basis is the importance that the decision would have to the Council and the application of its policies.
64. My Lord, those are the two bases upon which I put it.
65. THE DEPUTY JUDGE: Thank you, Mr Reed. I do not think I am going to give you leave. I do not think that this is a matter that has any reasonable prospects of success in front of the Court of Appeal. As I have said, I think the facts of this case are a long way from the criteria that Richards J refers to. It is a matter that turns upon the interpretation of rather a short decision letter and is not a matter of general importance. In so far as it is a matter of importance to your clients, then they have many other opportunities and ways of dealing with it. So, if you want to interest the Court of Appeal in it, by all means do so, but not with my leave.
66. MR REED: I am grateful your Lordship.
67. THE DEPUTY JUDGE: Thank you both very much for your help to me and your arguments.