Dyason v Secretary Of State For Environment, Transport & Regions & Anor

On a statutory planning challenge under the Town and Country Planning Act 1990, the court will not substitute its view for an inspector’s findings of fact or planning judgment. Intervention requires a misdirection, perversity or other error of law. An inspector need not expressly mention every item of evidence if the decision shows that the material issue was considered. Procedural fairness does not require permission to elicit expert evidence through leading questions where the party could give the evidence personally. PPG7 is practice guidance, not subordinate legislation. Proposed Convention grounds concerning acts before the Human Rights Act 1998 came into force were not sustainable.

Mr Dyason sought permission to appeal Scott Baker J’s dismissal of his statutory planning challenge to an inspector’s refusal of permission for two-storey agricultural barns and a temporary dwelling. He also challenged an earlier refusal to amend his grounds to raise arguments under the Human Rights Act 1998 and the Convention. The issues included functional need, financial soundness, treatment of evidence, comparison with another barn, procedural fairness in questioning an expert, and the legal basis and timing of the proposed human-rights grounds.

1. Planning merits and error of law. Permission to appeal was refused. The inspector’s conclusions on the size reasonably required for ostrich rearing, drainage and storage needs, and the suitability of a temporary dwelling involved fact-finding and planning judgment. The judge was entitled to conclude that no error of law had been shown.
2. Functional need. The functional test in PPG7 required it to be essential to the proper functioning of the enterprise that a worker be readily available at most times. The inspector was entitled to distinguish between a worker’s presence being desirable or advisable and being essential. The son and daughter-in-law lived about one and a half miles away, could attend within about six minutes, and could supervise the holding frequently and conveniently. Remote alarms were also available but had not been installed.
3. Financial basis. The inspector was entitled to find that the enterprise was not planned on a sound financial basis. There was no current or future business plan, the previous plan had been optimistic, separate accounts were not kept, and the business had generated little income. The inspector had considered market depression, volatility in demand and possible marketing savings, and gave intelligible reasons.
4. Evidence and comparators. The absence of an express reference to Mrs Gibbs’s written evidence did not show that it had been ignored, since the decision appeared to reflect part of it. The assessment of harm to the character and appearance of the countryside was principally for the inspector. The inspector was also entitled to regard Cox Barn as not comparable because of differences in length, eaves and ridge height. These were matters of fact and judgment.
5. Fairness and amendment. It was not unfair to prevent leading questions designed to obtain Mr Unwin’s opinion on what “essential” meant, particularly as Mr Dyason could give evidence of his own understanding. The proposed human-rights amendments concerned different earlier events. The challenge to PPG7 was misconceived because it was practice guidance, not subordinate legislation; the alleged conflict with the Convention was fanciful; and the acts complained of pre-dated the Human Rights Act 1998. The judge’s refusal to permit amendment could not be challenged.

• Court of Appeal (Civil Division): On 19 July 2001, Dyson LJ refused permission to appeal.
• Administrative Court, Queen’s Bench Division: Scott Baker J dismissed the planning appeal under section 288(1)(b) of the Town and Country Planning Act 1990 on 18 January 2001. He had earlier refused permission to amend the grounds to add Human Rights Act points.