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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Simmons v Mole Valley District Council [2001] EWCA Civ 1482 (8 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1482.html Cite as: [2001] EWCA Civ 1482

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Callman)

		Royal Courts of Justice Strand London WC2
		Monday, 8th October 2001

1. LORD JUSTICE RIX: This is an application for permission to appeal by Mr Roger Simmons, who is black. He complains that he has been discriminated against in comparison with his neighbours by the respondent to these proceedings/defendant in this action, Mole Valley District Council, in their dealings with him in connection with his ownership of and applications for planning permission in respect of 64 acres of land in Surrey situated about one mile beyond the Green Belt and about five kilometres west of Gatwick's runway. He complains that his neighbours' applications were allowed whereas his were not and, in particular, that one neighbour was allowed to build a golf course and develop his buildings in connection with that, whereas he was not and, on the contrary, he had his listed barn all but compulsorily acquired from him. In fact, in order to avoid compulsory acquisition after the issue of the order he transferred the barn to the Council for nothing.
2. Cases of allegations of racial discrimination need to be approached with particular sensitivity, and it is in that light that I approach this application.
3. In his notice of appeal Mr Simmons specifies, in particular, five grounds. The first is that most of the grounds of his claim were not dealt with in the judgment below. The second is that material evidence was ignored. The third is that there was a failure to deal with an application for discovery against the Council. The fourth is that the judge was wrong to have limited the case to one of discrimination on racial grounds. The fifth is that the single joint expert called, Professor Crow, gave untruthful evidence.
4. In addition to those formal grounds, it appears from Mr Simmons's lengthy but, if I may say so, very helpful submissions made in his appeal notice that his major complaints are as follows.
5. First, he says that he should have had sympathetic consideration, in exceptional circumstances, for the restoration of his listed barn in the light of the Council's policy ENV2.
6. Secondly, he says that he should not have been refused permission, in particular: (1) for new access to his land after the transfer of the barn; (2) for a number or even a single holiday cabin in buildings ancillary to the barn; and (3) for the use of his land as a golf course extension. So far as the holiday cabins are concerned, I think Mr Simmons submits that those ancillary buildings were "within the curtilage of" the listed barn and therefore should be treated as part of it under section 1(5) of the Planning (Listed Buildings and Conversation Areas) Act 1990. He therefore submits that permission to his neighbour, to whom the Council subsequently transferred the listed barn, to reconstruct the barn should have carried with it permission to him to reconstruct the ancillary buildings. As for the golf course extension, the complaint here, I think, is that a neighbour's land was preferred to his as providing an extension to a golf course, in circumstances where: (a) he was not properly notified of his neighbour's proposal, despite being an occupier on his land in his caravan and not a mere landowner to whom notice would not have to be given; (b) in any event the Council knew of his interest in having his own land used for the golf course extension; and (c) the neighbour's use of land for the extension was allowed in an area which required the felling of what he submits were thousands of mature trees, contrary to policy and contrary to the need for an environmental assessment.
7. His third main complaint is that third party applications for planning permission which were refused by the Council and were relied on by the Council as being comparators with Mr Simmons's applications were irrelevant and not comparable, whereas third party planning applications which had resulted in grants by the Council and which were comparators relied on by Mr Simmons showed the Council giving more favourable treatment elsewhere. They were relevant and comparable, but they were not taken into account as such.
8. I hope that that sets out, albeit in brief, the major areas of Mr Simmons's complaints.
9. The court, which was presided over by His Honour Judge Callman, albeit that he was sitting with two race relations assessors, Mr Bodey OBE and Mr Walker MBE, heard evidence from Professor Crow, whom I have already mentioned and who, as I said, was a single joint expert. It also read the evidence of Mr Robertson, a senior planning officer of the Council, whom Mr Simmons did not require to be called. Mr Robertson gave evidence about the general planning policies relating to the area and as to the general presumption against giving planning permissions in such open rural landscape. He also gave evidence about attempts to get Mr Simmons to remove a mobile home which he had brought upon the site, and how ultimately Mr Simmons was convicted in June 1990 for breach of an enforcement notice and fined £500.
10. Mr Robertson also dealt one by one with Mr Simmons's various planning applications and quoted the reasons given for their refusals. So far as the golf course is concerned, he pointed out that ultimately Mr Simmons never made an application for the use of any part of his land holdings as a golf course, but that he had been told that an application would be given favourable consideration if it was an application for an extension of the neighbouring golf course over his land. However, no such application was ever received. This morning Mr Simmons has told me that, while he was negotiating with the owners of the nearby golf course, his neighbour's separate application for use of his land supervened and made his position impossible.
11. Professor Crow in his evidence also considered independently all the applications which Mr Simmons had made to the Council and gave his own opinion as to whether they had been dealt with properly and whether the conclusions could be justified. With the exception of one or two criticisms, in particular that the application for new access was in his opinion wrongly decided and should have been allowed, his evidence was that the Council had acted perfectly properly and had come to the right conclusions.
12. He also considered, as did Mr Robertson, the various comparators which had been suggested by both parties, both comparators where permission had been refused and those where it had been granted. I think that in Professor Crow's case he was unable to visit one of the 21 sites. Mr Robertson gave evidence about all of them and Professor Crow gave evidence about 20 rather than 21. Professor Crow's evidence, which is important because it was independent, but also Mr Robertson's evidence, which of course was not independent but was not challenged, was that those comparators did not justify a case of discrimination and that each of the decisions in those comparators could be perfectly well justified on their own particular facts.
13. So that was the background against which the trial took place. In essence, the judgment of Judge Callman concentrates upon those comparators as being the basis upon which any claim for discrimination might be made out, while also having in mind Professor Crow's evidence and Mr Robertson's evidence about the way in which Mr Simmons's personal applications were dealt with. It was in those circumstances that Judge Callman found, and held, that no case of discrimination had been made out.
14. In a further submission Mr Simmons has pointed out some deficiencies, as he submits, in Professor Crow's evidence, particularly in relation to the issue of the curtilage of a listed building from section 1(5) of the 1990 Act which I have quoted; and also what appears to have been, at any rate on the material which Mr Simmons has put before me, a clear error on the part of Professor Crow as to whether EN2, a requirement for environmental assessment for any proposal for a golf course, was or was not part of the Surrey Structure Plan of 1994 and therefore something that was required as part of any such golf course proposal. It does appear to me, on the material which Mr Simmons has put in and which I have been prepared to look at, although it is new evidence for the purposes of this hearing, that Professor Crow was mistaken in that, and of course the judge at the time had to go on Professor Crow's evidence because that was the only evidence before him. So I bear in mind those criticisms of Professor Crow's evidence which Mr Simmons seeks to bring to my attention.
15. Turning back to Mr Simmons's five grounds of appeal, the first was that not all his grounds of claim had been dealt with in the judgment. I think that this is a reference to the other sections of the Race Relations Act 1976 which Mr Simmons relied upon, whereas the judgment concentrates on section 1 of the Act alone. But in my judgment the essential question for the court in this case was whether there was any evidence of discrimination at all, rather than whether any such discrimination was racial or by way of victimisation or whatever or whether it was to be found under a general provision such as section 1 of the Act or whether it was to be found under more special provisions such as those dealing specifically with discrimination in planning applications and so forth. So in my judgment, in the light of the evidence that was before the court - the challenged evidence of Professor Crow and the unchallenged evidence of Mr Robertson - it seems to me that, once the court found no case of discrimination at all, it would follow that all the various sections of the 1976 Act on which Mr Simmons relied were, if not as a matter of explicit reference, nevertheless effectively dealt with in the judgment.
16. Secondly, Mr Simmons complains that material evidence was ignored. I have mentioned the errors in Professor Crow's evidence which Mr Simmons has drawn to my attention. I bear in mind other matters of evidence which Mr Simmons sought to put before the court, such as whether his neighbour had destroyed thousands of mature trees in the construction of the golf course extension, as to which the evidence before the court was disputed; but I have no basis before me for saying that the judge was wrong in his conclusion, on the evidence that he heard, that there had been no factual foundation upon which discrimination could be found. It is therefore impossible for me on such an application as this to say that there is a realistic prospect (which is the test for the purposes of permission to appeal) of showing that a different factual conclusion would be reached on appeal.
17. Thirdly, Mr Simmons raises the question of his separate application for discovery, which he says was never dealt with. I asked Mr Simmons today what the background to that was. He very helpfully explained that he had made an application for discovery of documents against the Council but that it had been refused on the ground that it was in effect not proper disclosure but a "fishing" application. He was told apparently, he tells me, on the occasion of that refusal of his application that if he was to seek any further disclosure he would have to be much more specific about what he required. Mr Simmons tells me that pursuant to that indication he did make a more specific application for discovery, but he was met with a refusal from the Council on the basis of the judge's earlier ruling on his disclosure application. That matter does not appear to have been taken any further and it does not seem to me to be a valid ground of appeal.
18. Mr Simmons's fourth ground was that the court was wrong to have limited the case to one of discrimination on racial grounds. It appears, although I am afraid I have not been able to get to the bottom of it, that there had been some case management order by Judge Previte limiting the claim to certain issues rather than others because, at page 2, lines 11 and 12 of the judgment, there is a reference to such directions and to such a limitation. I am afraid I do not know the nature of that, but, be that as it may, I have already indicated by what I have said in reference to Mr Simmons's first ground that really the issue before the court was whether it could find any evidence of discrimination at all of one kind or another in the way the Council dealt with Mr Simmons's applications and other parties' applications. The court having concluded that there was none, it would follow that Mr Simmons's case would have to fall on all his grounds.
19. Fifthly, Mr Simmons complains that Professor Crow gave untruthful evidence. I think his complaint was intended to be more than that the expert gave inaccurate evidence in certain places. At any rate I see no basis at all for saying that Professor Crow gave other than the most helpful, independent, well-based expert evidence, and that if, in one or two places which Mr Simmons sought to criticise, he could be faulted, it is simply a matter of inaccuracy and nothing more. As to matters that Mr Simmons has specifically brought to my attention in the transcript of Professor Crow's evidence, which has been put before me and which I have read, I see no reason for thinking that they would affect the result of the case in any event.
20. So ultimately one comes back to the fact that this is a claim which depended upon showing discrimination. Apart from one or two minor blemishes, Professor Crow found that the Council's responses to Mr Simmons's planning applications were justified and correct. Mr Robertson's evidence was not challenged. Professor Crow and Mr Robertson also found that the comparator cases were all explicable on their own facts. In such circumstances, especially in the light of the ruling presumptions in the matter of planning and - a matter which I should stress - Mr Simmons's failure to take any single one of his planning applications on to appeal or further inquiry, and also in the light of the fact that the judge was assisted by two very experienced members of the Race Relations Assessment Committee, the assessors whom I have mentioned, in my judgment the judge was entirely justified in finding on the evidence that no case of discrimination was made out. I therefore see no possibility of a realistic prospect of success on appeal or other compelling reason which would justify me granting permission to appeal on this application.
21. One point of law has been raised in Mr Simmons's application: that is as to the meaning of "curtilage" in section 1(5) of the 1990 Act. But in my judgment, whatever may be the arguments about that, since his neighbour's application for planning permission for the barn did not deal with the ancillary buildings, I do not see the relevance of that. There is a separate question that under section 66(1) of the same 1990 Act the planning authorities "shall have special regard to" a listed building and its setting in any case involving a planning application for development of either a listed building or the setting of a listed building, but I see no real case for saying that the Council ignored that. I have in mind, for instance, the reasons given by the Council set out in Mr Robertson's statement at paragraph 3.12, subparagraph 3. In any event I see no reason for thinking that, even if they had failed to take that requirement specifically into account, they would have come to any different conclusion on the applications for the reconstruction of the ancillary buildings or, indeed, would have been justified in coming to any different conclusion.
22. For all those reasons, which I have considered in detail and with care out of deference to Mr Simmons's helpful submissions, both written and oral, and out of deference, as I said at the beginning, to the sensitivity of any case involving the issue raised by Mr Simmons's claim, I conclude that there is no realistic prospect of success on appeal and no other compelling reason to grant permission to appeal. Therefore, albeit with some sadness, because I recognise the importance of this matter for Mr Simmons, I must refuse this application.
Order: application for permission to appeal dismissed.