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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 >> Leeds City Council v Secretary of State for Communities & Local Government & Anor [2009] EWHC 1014 (Admin) (07 April 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1014.html Cite as: [2009] EWHC 1014 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		7 April 2009

1. 1.1. MR JUSTICE SALES: This is a challenge under section 288 of the Town and Country Planning Act 1990 to a decision (in amended form) of the Secretary of State's Inspector in a decision letter dated 29 October 2008, in which he allowed an appeal by the second and third defendants against the refusal by the claimant Council to grant retrospective planning permission in relation to the use of property at numbers 1 and 1A Birfed Crescent, Kirkstall, Leeds.
2. 2.1. The Inspector's formal decision was set out in paragraph 9 of the decision letter as follows:

"9. I hereby allow this appeal and grant planning permission for the use of the 2-storey extension to No 1 Birfed Crescent, Kirkstall, Leeds, LS4 2QF, as a separate 2-bedroom dwelling, in accordance with the application (Ref: P/07/04861/FU) dated 13 July 2007 and the plans submitted therewith, subject to the following condition:

Within one month of the date of this decision, a fresh car parking scheme shall be submitted to the local planning authority, for their approval. The scheme shall make provision for three parking spaces in a defined area at the front of the site. The parking spaces shall be marked out within one month of the scheme's approval. Thereafter the parking spaces shall be permanently retained for use by the occupants of Nos 1 and 1A Birfed Crescent, and shall not be used for any purpose other than the parking of vehicles."

3. 3.1. The background to the application is set out in paragraph 2 of the decision letter:

"No 1 Birfed Crescent is a 2-storey semi-detached house. In June 2006 planning permission was granted for the erection of a 2-storey extension at the side of this building. The extension was subsequently erected and is now occupied as a separate 2-bedroom dwelling, known as No 1A Birfed Crescent. The present application seeks retrospective authorisation for the formation of this separate dwelling."

4. 4.1. The application plan is of importance. It shows the area surrounding numbers 1 and 1A divided up in this way. To the front of number 1 there is a front garden. To the front and side of number 1A there is an area covered in tarmac, with a parking space shown in front of number 1A for a vehicle, and the rest shown as an access route to the rear of the property. At the rear of the property, what was originally a large and spacious garden area for number 1 has been sub-divided: a much smaller rear garden for number 1 of some 8m x 4.7m has been marked out; a very small patio area has been created at the rear of number 1A; and most of the former garden area is then taken up with a laid-out area, apparently covered in tarmac, comprising an access route and turning area for cars, two parking spaces set aside for number 1, and a further parking space set aside for number 1A. Behind this tarmac area for cars, in the far corner of the original garden, a garden area for number 1A is marked out. It is located a substantial distance away from number 1A, across the area dedicated for use by cars. On any view, this was an unusual layout of garden arrangement for the benefit of number 1A.
5. 5.1. Since this was an application for retrospective planning permission, it should be emphasised that the application plan set out what was already physically in place at the property and also set out the arrangement for which planning permission was sought by the application. The plan showed the access route from the front to the rear of the property narrowing to two metres only at one point.
6. 6.1. The application for retrospective planning permission in accordance with the application plan was refused by the Council on 22 May 2008 for these reasons:

"(i) The local planning authority considers that the proposal fails to provide an adequate level of private amenity space for the occupiers of both 1 and 1A Birfed Crescent in terms of the size and possible use of the spaces given their topography and relationships to the dwellings. The inadequacy of private space provision together with the arrangement of the side and rear access and parking will result in poor levels of amenity for the occupiers of both dwellings but particularly occupants of 1A. The proposal is therefore contrary to policy GP5 of the adopted UDP (Review 2006) and to guidance contained within Supplementary Planning Guidance Neighbourhood for Living.

(ii) The Local Planning Authority considers that the proposal would result in an unworkable arrangement to provide off-street parking as a result of the narrow width of the side access, its gradient and the difficulty of turning vehicles within the site. Overall therefore it is not considered that a satisfactory arrangement has been shown as to how adequate provision can be made for parking for two dwellings close to the junction with the A65 and the proposal will therefore have a detrimental impact on highway safety and be contrary to policies T2 and T24 of the adopted UDP (Review 2006)."

7. 7.1. In its case before the Inspector, the Council summarised the relevant policy background so far as concerned Policy GP5 and the Supplementary Planning Guidance as follows:

"2.4. Policy GP5 of the UDP states that development proposals should resolve detailed planning considerations (including access, drainage, contamination, stability, landscaping and design). Proposals should seek to avoid problems of environmental intrusion, loss of amenity, pollution, danger to health or life, and to promote energy conservation and the prevention of crime.

2.5. Supplementary Planning Guidance Neighbourhoods for Living - A Guide for Residential Design in Leeds was formally adopted in December 2003 following public consultation and can also therefore be given considerable weight. The sections which relate to this appeal are:

a. Private amenity space

Private gardens for family homes should have a minimum area of 2/3 of total gross floor area of the dwelling excluding vehicular provision.

b. Designing for parking

Car parking for developments should be useable, safe and secure for both people and vehicles."

8. 8.1. Mr Honey, for the Secretary of State, accepts that Policy GP5 provided the relevant policy framework for account to be taken of the detrimental impact in terms of amenity for number 1A inherent in the odd arrangement to the rear of the property and the substantial distance between number 1A and its garden area. He points out that, so far as concerns the Supplementary Planning Guidance in relation to private amenity space, the only aspect of the guidance highlighted by the Council as relevant to the appeal was that dealing with the minimum area for private gardens and family homes.
9. 9.1. In light of Mr Honey's acceptance that the odd layout at the rear of the property gave rise to significant amenity issues falling within Policy GP5 so far as number 1A and its garden were concerned, this latter point is not a significant matter in the context of this judgment. However, it may be noted that the Supplementary Planning Guidance states that its key objective is "to provide well designed private and semi-private space for all dwellings ..." and, in the body of the guidance, it deals with "overall quality" of provision of private open space and the issue of the "usability" of such space. In my view, therefore, the Supplementary Planning Guidance was also relevant to the amenity issues regarding the layout of the garden for number 1A, even though not specifically identified as so relevant by the Council in its written submissions to the Inspector.
10. 10.1. In those written submissions, the Council stated its case on the amenity issues as follows:

"6.2. Impact on amenity

The adverse impact of the proposal is considered to be two-fold with regard to amenity. The general layout of the site is considered contrived for both the dwelling houses with turning heads, parking spaces and amenity space fitted in around this.

1 Birfed Crescent's amenity space has been reduced significantly in size. The approximate gross floor area for 1 Birfed Crescent is 94sqm, the proposed amenity space is approximately 42sq m, well below the guidance level in Supplementary Planning Guidance - 'Neighbourhoods for Living', which is considered an unacceptable level for the amenity of occupiers.

The amenity space to 1A is split into two areas, one is located immediately to the rear of the dwelling which comprises a patio area and a small garden area. The second garden area and the largest in size of the two is located at the rear of the site in the right-hand corner. This general layout, the separation of amenity areas to one house is unusual and not appropriate to the amenity of future occupiers. 1A Birfed Crescent has approximate gross floor area of 38sqm and the two areas of amenity space proposed together are 71sqm in total, admittedly in excess of the guidance. However the amenity space to the rear as stated is the largest of the two spaces and is a good distance away from the main house and it is considered that the space would not be used. The amenity space immediately to the rear of the site of 1A is considered, due to its size, topography and location adjacent to the access road and driveway to the main parking area for the site to be too small for the dwelling house and would be detrimental to the amenity of the occupiers.

In addition the turning head and parking spaces surround all the amenity spaces. This adds to the adverse impact upon the amenity of all future occupiers, potentially 24 hours a day, and is considered even more significant on 1A than 1.

Additionally, concern is raised that if the appeal is allowed that in time, the amenity space to the rear of the site for 1A will not be retained for intended use.

Overall it is considered that the general layout, size, topography and location of the amenity spaces are detrimental to the amenity of future occupiers of the site, contrary to Leeds UDP policies and Supplementary Planning Guidance."

11. 11.1. The Council also addressed the issue of the impact of the parking arrangements shown in the application plan upon the local highway network. In particular, the Council stated:

"6.3 Impact on highway network

The access, driveway and parking spaces are considered unworkable and once again contrived for two dwelling houses, taking into account the narrow access, the narrow driveway along the boundary wall, the gradient change and the amount of hard-surfacing just to facilitate 3 parking spaces to the rear.

At the side of the two-storey extension the narrowest part of the gap is 2m, well below the standard width requirements: a minimum requirement is 2.6m generally, 3m preferably as this would allow access to both sides of the vehicle. The applicant has stated in point 4 of their grounds of appeal that 'most' vehicles can access the site at the narrowest point. This is not considered appropriate as it should be accessible to all. It is considered that the narrowness of the access will deter vehicles from using the parking to the rear of the site where the main parking area is located and to park on the road which is not considered acceptable would be detrimental to highway safety, especially in such close proximity to the junction with the A65.

The parking layout to the rear of the site is not considered workable due to lack of aisle depth and turning area.

The difference in levels from the front of the site to the rear is significant and it is considered that it is not possible to achieve an acceptable gradient for its use.

Additionally, concern relating to the site layout; indicating that the boundary wall is to be realigned to accommodate a wider access; this would mean encroaching onto the adjacent highway verge which is considered unacceptable.

Overall it is considered that the access, driveway, turning head and parking areas are not acceptable or workable and have an adverse impact upon highway safety."

12. 12.1. The Council's submissions concluded:

"8.1 It is considered that overall, taking into account the contrived layout of the site which is dominated by hard-surfacing to facilitate the parking requirements for the two single family dwelling houses and a turning head, that the amenity space with regard to its location is disjointed, especially in relation to the dwelling house, specifically in the case of 1A Birfed Crescent, adversely affecting the amenity of the dwelling houses.

8.2 In addition, the access to the side of 1A is very narrow and unlikely to be used. This will result in the hard-surfaced parking area to the rear being unusable, resulting in on-street parking, detrimental to highway safety.

8.3 The Inspector is therefore respectfully asked to dismiss the appeal."

13. 13.1. At the end of its written submissions, the Council proposed certain conditions if (contrary to its primary case) the Inspector was minded to allow the appeal:

"1. Within one month of the date of decision, details of car parking layout shall be submitted to and approved by the local planning authority and implemented and retained thereafter.

In the interest of highway safety

2. Within one month of the date of decision, details of the position, design, materials and type of all walls and/or fences or boundary treatments, whether or not shown to be erected on the approved plans shall be submitted to and approved in writing by the local planning authority and shall be retained as approved.

In the interests of amenity and visual amenity

3. Notwithstanding the provision of the Town and Country Planning (General Permitting Development) Order 1995 (or any orders revoking or re-enacting that Order with or without modification) planning permission shall be obtained before any insertions of windows, garages, extensions or conservatories are erected.

As the local planning authority wish to keep control over alterations and extensions to the buildings."

14. 14.1. It was clear from the Council's submissions that a major part of its case related to the contrived layout of the rear of the site, and in particular the disjointed nature of the garden arrangement for number 1A which affected its amenity.
15. 15.1. The Council also put in submissions in its capacity as Highway Authority. These repeated the point about the difficulty of access for cars to the rear of the property, and the likely detrimental impact upon the local highway system. Those submissions concluded with the following note:

"Since the application was refused, the applicant has laid out parking to the front and side of 1A Birfed Crescent. This arrangement is acceptable to the Highway Authority. However, at no time did this form part of the planning application which is the subject of the appeal."

16. 16.1. In his decision letter, the Inspector accurately summarised the main issues at paragraph 1 as follows:

"I consider the main issues in this case to be first, the adequacy of the proposed car parking arrangements; and second the adequacy of the provision of outdoor amenity space."

17. 17.1. He dealt with the issue of parking at paragraphs 3 and 4 of the decision letter:

"3. The application plan shows three parking spaces at the rear of the extended building. Access to these would be by means of a driveway with a steep gradient. The driveway passes between the southern flank of the extended building and a wall that separates the appeal site from Kirkstall Road (A65). It has a minimum width of about two metres. It seems to me that many family cars would be too wide to use this access. Policy T2 of the Leeds Unitary Development Plan (UDP) requires that new development should make adequate provision for easy, safe and secure parking. In my view, off-street parking provision would be necessary to serve Nos 1 and 1A Birfed Crescent. This street has a relatively narrow carriageway, and kerbside parking in such close proximity to its junction with the A65 would give rise to a traffic hazard.

4. However, the area in front of the extension has now been surfaced, and could accommodate at least 3 parked cars. I understand that, in accordance with the UDP guidelines, two parking spaces would be required for the original house and one parking space would be required for the new 2-bedroom dwelling. It seems to me that this requirement could be met by utilising the area in front of the extension. I note that such an arrangement would be acceptable to the highway authority. However, it would be necessary to impose a condition to ensure that the parking spaces would be provided for these two dwellings in perpetuity. Subject to the imposition of such a condition, I consider that the parking requirements of the UDP could be satisfied."

18. 18.1. Two points should be made on those paragraphs. First, the Inspector did not conclude that use of the rear of the property by any cars in accordance with the layout shown on the application plan would be impossible. Indeed, given that the applicants for planning permission had actually laid out the property at the rear with car parking spaces and had maintained that "most" vehicles could gain access to that space, it appears that active use was being made of the car park areas to the rear of the property. The Inspector simply concluded that many family cars would be unable to make use of the access. So the factual position on the case presented and the Inspector's findings was that some but not all cars would make use of the car parking areas at the rear of the property.
19. 19.1. Secondly, the Inspector himself considered that it was necessary to impose a condition to require use of the front area of the property as car parking spaces. The condition was formally set out in paragraph 9 of the decision letter. That was not a condition which the applicant for permission or the Council had proposed. The Inspector did not adopt any of the conditions proposed by the Council. On the basis of the condition devised by the Inspector, the highways objection to the application fell away. There is no appeal against that part of the decision.
20. 20.1. The Inspector then dealt with the question of the amenity objections by the Council under the heading "Private open space", at paragraphs 5 and 6 of the decision letter:

"5. Supplementary Planning Guidance issued by the Council indicates that each family house should have a private garden of a size equivalent to two-thirds of the dwelling's gross floor area. The Council argue that the residual private amenity space for No 1 Birfed Crescent, as shown in the application plans would not meet this standard. Furthermore, although the private amenity space proposed for No 1A Birfed Crescent would exceed the standard, that space would be split into two parts, separated from one another by parking and turning areas. The larger part would be some distance from the house. The Council fear that it would not be used.

6. However, it seems to me that if off-street parking provision were concentrated at the front of the site (as suggested [in the earlier part of the decision letter]) there would be ample room to provide adequate garden space at the rear. In any event, the residual back garden to No 1 Birfed Crescent, as shown on the application plans, measures about 8m by 4.7m. In addition, that property has a front garden measuring about 6m by 4.7m, making an aggregate garden area of about 66m². This does not seem to me to be inadequate for a house with a gross floor area of approximately 94m²."

This is the part of the Inspector's decision which is challenged by the Council.

21. 21.1. The Council makes three submissions. First, it says that the Inspector misapplied the Supplementary Planning Guidance so far as concerns the private amenity space in respect of No. 1 Birfed Crescent. Second, it says that the Inspector acted irrationally in failing to specify or consider an additional condition to prevent the layout and use of the rear of the property for and by cars in accordance with the arrangements shown in the application plan. It is said the Inspector failed properly to address the legitimate planning concern identified by the Council regarding the disjuncture between No. 1A Birfed Crescent and its garden, and the detrimental impact on the amenity of number 1A and its garden area which that entailed. Third, it is said that the Inspector failed to give adequate reasons to explain his decision in relation to both the issues identified above.
22. 22.1. I remind myself of the proper approach to scrutinising an Inspector's decision letter, set out in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, HL, at [36]:

"36. 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 matter 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."

23. 23.1. I reject the Council's first submission, to the effect that the Inspector misunderstood and misapplied the Council's Supplementary Planning Guidance in relation to the private open area for number 1. The relevant part of the Guidance provides:

"Private Amenity Space

As a general guide private gardens for family homes should have a minimum area of 2/3 of total gross floor area of the dwelling excluding vehicular provision ..."

24. 24.1. Miss Parry, for the Council, submits that the term "private gardens" used there refers only to the rear garden of a property, and not to the front garden. She says that the Inspector fell into error in paragraph 6 of the decision letter by including both the front and back gardens for number 1 in the relevant calculation. I do not accept this argument.
25. 25.1. In my judgment, reading the Supplementary Planning Guidance as a whole, the concept of "private gardens" includes both front and back gardens. Both types of garden are dealt with in the Guidance, which is entitled "Private spaces". The guidance is stated to be directed to "Assessing private space provision". That plainly includes front gardens as well as back, albeit at some points front gardens are referred to as semi-private open spaces. At other points in the Guidance, however, they are included in the general term "Private areas" (under the heading "Boundary treatment" and under the heading "different spaces"; see also the fourth and eight principles identified in the document).
26. 26.1. As a matter of general language, "private gardens" includes both front and back gardens, and in the context of the Guidance it is clear that that is what is meant. Accordingly, having regard to the ration of the combined garden area to the floor area of No. 1 Birfed Crescent, the Inspector did not fall into error on this point. He also gave adequate reasons in paragraph 6 of the decision letter for his conclusion on this issue. It was not incumbent on him to spell out in further detail that the provision of open amenity space in relation to No. 1 Birfed Crescent was in accordance with the Supplementary Planning Guidance.
27. 27.1. Turning to the second submission for the Council, concerning the failure of the Inspector to specify or consider an additional condition to deal with the current use and layout of the rear of the property, I consider there is force in this complaint. Mr Honey submits that the Inspector dealt sufficiently with this issue in the first sentence of paragraph 6 of the decision letter. However, in my view, he did not.
28. 28.1. Three points should be made about that sentence. First, by his use of the word "However", the Inspector indicated that he accepted the validity of the point made by the Council about the undesirability, from the point of view of amenity, of No. 1A Birfed Crescent being separated from its garden by parking and turning areas. I think he was right to do so. On any view, this was a legitimate planning concern in relation to the application.
29. 29.1. Secondly, the Inspector plainly considered that this planning concern would be met by the off-street parking being located at the front of the house, as provided for in the condition indicated by him in paragraph 4 (and also paragraph 9) of the decision letter. In paragraph 6 he used the word "concentrated", but the clear logic of the position he adopted was that the parking should be confined to the front of the property.
30. 30.1. Thirdly, this impression is underlined by his conditional observation that, if off-street parking provision were concentrated at the front, "there would be ample room to provide adequate garden space at the rear". In the context of his decision letter, this could only realistically mean that the problem about the disjuncture between No. 1A Birfed Crescent and its garden, which rendered the provision of garden space for that property less than adequate, would be addressed by locating the parking at the front of the property, leaving the rear of the property undisturbed by provision for use by cars.
31. 31.1. In my view, there is a clear flaw in the Inspector's decision here. The imposition of the condition he set out regarding the use of parking at the front of the property plainly did not, by itself, address the current layout and use of the rear of the property for and by some (albeit not all) cars. Therefore, the condition did not adequately meet the legitimate planning concern which the Council had identified and the Inspector had accepted.
32. 32.1. Absent some further condition, as the Council submits should have been considered, the Inspector could not properly have concluded that that planning concern had been sufficiently dealt with, nor that there would be ample room to provide adequate garden space for No. 1A Birfed Crescent. Against this, Mr Honey submitted that there is no obligation on an Inspector to cast about to identify further planning conditions. He relied on the judgment by Ouseley J in Hann v Secretary of State for Local Government, Transport and the Regions [2002] EWHC 507 (Admin), in particular at [37] and [42]. At [37], Ouseley J said this:

"In [Top Deck Holdings Ltd v Secretary of State for the Environment [1991] JPL 961] the court had to deal with a submission that the inspector had failed to consider whether an objection to planning permission for additional buildings on a rather untidy site could be mitigated by the imposition of a condition requiring the demolition of all, rather than just some, of the existing structures on the site. This proposal was not something which the appellant had put before the inspector at the appeal. Mann LJ said at page 964:

"The Local Planning Authority's representations before the Inspector made no reference to such a condition, albeit others were proposed. Far more significantly, in his (Mann LJ's) judgment, the appellants' representations were silent upon the point. There was no mention of a condition or of willingness to enter into what would then have been a section 52 agreement. He would have expected the developer to proffer such a condition particularly as they were aware of the Planning Officer's recommendations, contained in his report, which they had troubled to annex to their own representations.

What was the Inspector to do in regard to a condition which was neither requested nor, more significantly, offered? Upon that question the court was referred helpfully to the decision of Forbes J in Marie Finlay v Secretary of State for the Environment and London Borough of Islington [1983] JPL 802. The issue before the court, was described by Forbes J as follows:

'The notice of motion took two broad points. The first was that the Secretary of State failed to take into account a material consideration being, in effect, the possibility of attaching conditions to any planning permission which might get rid of some or all of the objections raised to this particular change of use.'

Upon that point the learned judge said this:

'It was one thing to say that where the question of conditions was being canvassed it might be sensible for the Secretary of State to consider making a slight alteration to the condition if that would deal with the problems that might arise: MJ Shanley Limited v Secretary of State and South Bedfordshire District Council [1982] JPL 380. It was a wholly different thing to suggest that where there had been no canvassing of any possible condition, the Secretary of State was bound to look around and consider whether there was or was not some possible condition which might be attached which might save this planning application.

If the Secretary of State were to consider attaching a condition, the possibility of which had never been canvassed at the inquiry, he would be accused of doing something without giving the appellant a chance of making representations about it. Clearly, if the Secretary of State were minded to adopt any kind of policy of this character, he would have to re-open the inquiry in those circumstances in order that the appellant should have a chance of dealing with the imposition of a condition which had never been canvassed at the inquiry.

If a party to an appeal wanted the appeal to be considered on the basis that some condition could cure the planning objection put forward, then it was incumbent on the appellant to deal with that condition at the inquiry. Unless such a condition has been canvassed the Secretary of State was not at fault in not imposing such a condition. For those reasons, it seemed to him (Forbes J) that the attack on this decision on the grounds of failure to consider the application of conditions failed.'

He (Mann LJ) respectfully agreed with the view expressed by Forbes J. Such an approach had to work sensibly in practice. An Inspector should not have imposed upon him an obligation to cast about for conditions not suggested before him. He emphasised 'obligation'. If, of his own motion, he wished to impose a condition, then, as Forbes J suggested, different considerations would arise, including perhaps the reopening of the appeal. He (Mann LJ) expressed no view upon such a situation. In his judgment, in this case the Inspector was under no obligation, such as Mr Cochrane had suggested he was, and he would reject that argument also."" [Emphasis added]

33. 33.1. At [42], Ouseley J continued:

"The final case to which I need refer is a further decision of the Court of Appeal, Brightwell v Secretary of State for the Environment and Broadland District Council [1997] 73 P&CR 418. In this case the inspector had failed to deal with whether a time limited condition should be imposed on a pig farm in order to enable its viability to be tested. The question of whether such a condition should be imposed had been raised in front of the inspector but he had not considered it. Lord Woolf MR, having referred to Top Deck Holdings and fully accepted that there was no obligation on an inspector, in the absence of any reference to an appropriate condition, to search for a condition which might be used to assist an appellant, said this at page 427:

'A time condition was obviously a possibility and was relevant, as is recognised by the specific reference by the local planning authority. Again, I would say that the appellant is not being unreasonable in making a criticism of the inspector for not making any mention of that possibility. That is another factor that I would put into the balance. One does not know whether the inspector has considered it but not mentioned it, or whether it is a case of his failing to consider it. In either event, he could be criticised to a minor degree in that regard. Whilst that is not a consideration with which I would have interfered with the decision of the judge, I think it is a matter to be taken into account on the general approach.'"

34. 34.1. In my view, what is emphasised in these passages is that the Secretary of State or his Inspector is not obliged to cast about to think up conditions to save a planning application which is otherwise objectionable. He is only obliged to consider matters raised before him. But as Mann LJ observed in the passage from Top Deck Holdings, quoted by Ouseley J in Hann at [37], if the Inspector of his own motion wishes to impose a condition, then different considerations would arise. The present case is such a case. The Inspector would have refused the application as it was put forward by the applicants. The applicants did not propose the condition set out by the Inspector at paragraph 9 of the decision letter (and it is no criticism of the Council that it did not anticipate and address such a condition; indeed, the Council it made clear in its note set out at para. [15] above that it did not understand this to form any part of the application for permission). The Inspector devised that condition himself. He regarded it as meeting both the highway and the private open space planning objections. It certainly was a sensible condition which adequately met the highway objection. It went part way to meeting the private open space objection. But, in my view, it clearly did not go far enough by itself to meet that objection.
35. 35.1. In my judgment, where an Inspector considers of his own motion that a particular objection to a planning application can be met by condition or package of conditions not proposed by the applicant for permission, it is incumbent on him to ensure to a standard of rationality that such condition or conditions are indeed adequate to meet the particular objection. In the present case, the Inspector met that standard so far as the highway objection was concerned, but not so far as the private open space objection was concerned.
36. 36.1. Mr Honey also relied on the judgment of Silber J in R (Ayres) v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 295 (Admin), in particular at [34] to [43]. At [43], Silber J summarised the position in this way:

"43. The legal position relevant to this case is that:-

(a) subject to considering and applying to the extent considered appropriate the policy guidance in the 1995 Circular, an inspector does not have an obligation in the absence of any reference to an appropriate condition to cast about for conditions not suggested before him (Top Deck);

(b) where a specific condition raised by the party would be a possibility, then the Inspector should consider it, but if he does not, that is not automatically a sufficient irregularity to justify interference with the decision made (Brightwell);

(c) if an Inspector wishes to raise a new point which might be overcome by a condition, natural justice would require him to reopen the inquiry so that the parties, if they are so minded, could suggest conditions to him that he would then be obliged to consider ([Penfold v Secretary of State for the Environment (1996) P & CR 398])."

37. 37.1. This passage reaffirms that an Inspector has no obligation to cast about for a condition not suggested to him to save an otherwise objectionable application for planning permission. The Council in this case is not suggesting that there was any such obligation. This passage purports to summarise, not restate, the law derived from Top Deck Holdings. As I have already indicated, Top Deck Holdings does not provide a good answer for the Secretary of State in the present case.
38. 38.1. Mr Honey also emphasised that the threshold of irrationality in a planning context is a high one for a claimant to overcome. I agree, but in the circumstances of this case I consider that the Council has made good its submission of irrationality on this part of the decision. In my view, therefore, the application must be remitted for further consideration.
39. 39.1. In light of that conclusion, it is not necessary to address at length the complaint regarding the Inspector's reasons insofar as they relate to the part of the application concerning No. 1A Birfed Crescent. In my view, the Inspector's reasons in the first sentence of paragraph 6 of the decision letter were defective, since they did not deal sufficiently with the planning objection identified by the Council and accepted by him as valid.
40. 40.1. MISS PARRY: My Lord, I am grateful. There is an application for the claimant's costs in the sum of £6,060. Can I hand up a schedule?
41. 41.1. MR JUSTICE SALES: Yes. Has proper notice of this been given to Mr Honey?
42. 42.1. MISS PARRY: My Lord, yes. My Lord, the one point that I perhaps anticipate controversy on is that the costs relate to both of the section 288 applications, although perhaps I can just indicate at the moment the only additional costs in relation to the first section 288 application, which is superseded, is the additional court fee which is £400. So all of the other costs, in essence, relate to the second application; the one that you have decided on today. I do not know if my learned friend takes a point on that. I can deal with why we say that those additional costs should be --
43. 43.1. MR JUSTICE SALES: Let me ask Mr Honey; do you take a point on --
44. 44.1. MR HONEY: My Lord, given that it is £400, no, I do not. I am prepared to accept the costs as they stand, both principle and quantum.
45. 45.1. MR JUSTICE SALES: Very well.
46. 46.1. An application is made by the Council for its costs on a summary basis. No objection is taken, either in principle or to the amount claimed, and therefore I order that the Secretary of State pays the Council's cost in the sum of £6,060.
47. 47.1. MR HONEY: My Lord, there is one point in relation to the judgment. It is an issue potentially which may have wider implications arising from the judgment, which is the extent to which an Inspector considers of his own motion that a point can be met by a condition, then the extent to which he has to consider that and deal with it in the decision letter. My Lord, I am not going to ask you for permission to appeal today, but it is something that I will need to take instructions on from the Inspectorate. I was minded to ask that we could have 14 days from the date of the transcript being made available to make an application in writing if we consider it necessary. I mentioned that earlier to my learned friend, and I do not understand it would opposed. The reason I do that is because -- simply the need to reflect on it and take instructions on the way that point was put. I cannot say at the moment that we do want to appeal, but I would ask for that order, if you were minded to make it.
48. 48.1. MR JUSTICE SALES: If there is no objection, I am happy to make the order. It might be sensible if counsel could draw up a minute of order just to make sure that we have captured that in a form that you are happy with, and submit it to the associate.
49. 49.1. MR HONEY: I am grateful, I will do that.
50. 50.1. MR JUSTICE SALES: Is there anything else that we need to deal with no.
51. 51.1. MR HONEY: No, my Lord.
52. 52.1. MR JUSTICE SALES: Very well. I will rise.