Material considerations — Planning appeal — Appeal conducted by written representations — Appeal allowed — Inspector’s decision inconsistent with earlier appeal decision — Previous decision not referred to by inspector — Whether previous appeal decision a material consideration — Whether local planning authority prejudiced — Whether relevant that decision not relied on by council in their representations
In 1989 the
second respondents, Mr and Mrs Clover, applied to North Wiltshire District
Council for planning permission for the erection of a house and garage on land
within the walled garden of Notton Lodge, a Grade II listed building in the
village of Notton, Wiltshire. The application was refused for the reason, inter
alia, that the proposal was contrary to a policy in the West Wiltshire
Structure Plan 1981 providing that ‘only very limited residential development
within the physical limits of the village will normally be permitted. Such
development will be acceptable only if it is in scale and harmony with the
character of the settlement and provided there is no adverse effect on the
local environment.’ An appeal against
the refusal to the Secretary of State for the Environment was dealt with by
written representations. The inspector allowed the appeal, concluding, in
effect, that the appeal site was within the physical limits of Notton and that
the proposed dwelling was acceptable. He made no reference to a decision in
1982 by another inspector who, in considering the same structure plan policy,
had dismissed an appeal against an earlier refusal of permission for a house on
a larger site, but which included the 1989 application site, holding that the
site lay outside the physical limits of Notton. In their written
representations the council referred to the 1982 decision as part of the
planning history and enclosed a copy of the decision letter, but they did not
rely on it or mention its contents.
On an
application by the council to quash the decision, the deputy judge, Mr Lionel
Read QC, held that it was insufficient for the inspector to have reached a
conclusion different from his predecessor on essentially the same facts without
explaining why he disagreed with the earlier decision: [1991] 2 PLR 67. The
Secretary of State appealed on the grounds that there was, in the circumstances
of the case, no need for the inspector to have given any reason for reaching a
different conclusion from that reached earlier, and that if there was, any
deficiency in reasons had not caused substantial prejudice to the council.
1. A request
for reasons is implicit in the acceptance by parties of the
2. When making
his determination an inspector is obliged to have regard to the matters
specified in section 70(2) of the Town and Country Planning Act 1990, which
include ‘other material considerations’. If an inspector fails to have regard
to what, in the circumstances of the case, is a material consideration which
has been placed before him, his determination is exposed to challenge on the
ground that it is not within the powers of the Act. Where the inspector’s
reasons do not indicate whether he has had regard to a material consideration
which was placed before him, there must usually be substantial doubt whether
the decision taken was within the powers of the Act. In that circumstance the
interests of an applicant will have been substantially prejudiced by the
deficiency of reasons, for he is left in doubt as to his ability to challenge
on that ground: see p 122C-E.
3. A previous
appeal decision is capable of being a material consideration. One important
reason why previous decisions are capable of being material is that like cases
should be decided in a like manner so that there is consistency in the
appellate process. It would be wrong to suggest that like cases must be
decided alike: an inspector must always exercise his own judgment, but before
disagreeing with the judgment of another, he ought to have regard to the
importance of consistency and to give his reasons for departure from the
previous decision: see p 122F-H.
4. If the
earlier decision was distinguishable in some relevant respect, it would usually
lack materiality by reference to consistency, although it might be material in
some other way. Where it was indistinguishable then ordinarily it had to be a
material consideration. The inspector should ask whether, if he decided the
case in a particular way, he was necessarily agreeing or disagreeing with some
critical aspect of the earlier decision. The areas for possible agreement or
disagreement could not be defined but would include interpretation of policies,
aesthetic judgments and assessment of need. Where there was disagreement, the
inspector must weigh the previous decision and give his reasons for departing
from it: see pp 122H-123B.
5. The 1982
decision was plainly a material consideration in the determination of the later
appeal. It had been placed before the inspector in the sense that it was
referred to by the council in the planning history, enclosed with their
submissions and referred to in a letter from a resident which had been
forwarded to him. The fact that a party did not rely on such a consideration
did not affect the need to perform the statutory duty to have regard to it. The
inspector’s decision gave no indication that he had taken the 1982 decision
into account, let alone why he disagreed with it. This deficiency in his
reasons substantially prejudiced the interests of the council in that they were
left in doubt as to empowerment and their ability to challenge on that ground:
see pp 123E-124D.
Per curiam: The court was not attracted by the argument that the deficiency of
reasons gave rise to prejudice because of consequent uncertainty as to how the
council should treat applications in respect of other land. Even if reasons had
been given, the council would have been
differing opinions: see p 124D-E.
Decision of Mr
Lionel Read QC [1991] 2 PLR 67 affirmed.
to in the judgments
Cranleigh
Aerials Ltd v Secretary of State for the
Environment, [1992] JPL 1047 CA
Launchdeal
Ltd v Secretary of State for the Environment
[1991] JPL 1036
Poyser
and Mills’ Arbitration, Re [1964] 2 QB 467; [1963]
2 WLR 1309; [1963] 1 All ER 612; sub nom Poyser v Mills [1963]
EGD 421; (1963) 185 EG 609
Save
Britain’s Heritage v Number 1 Poultry Ltd
[1991] 1 WLR 153; [1991] 2 All ER 10; sub nom Save Britain’s Heritage v Secretary
of State for the Environment (1991) 62 P&CR 105; [1991] 3 PLR 17, HL
Seddon
Properties Ltd v Secretary of State for the
Environment (1978) 42 P&CR 26; 248 EG 950, [1978] 2 EGLR 148; [1978]
JPL 835
Top Deck
Holdings Ltd v Secretary of State for the
Environment [1991] JPL 961
Wells v Secretary of State for the Environment [1992] 1 PLR 51
Westminster
City Council v Great Portland Estates plc
[1985] AC 661; [1984] 3 WLR 1035; (1984) 50 P&CR 34; [1985] JPL 108; sub
nom Great Portland Estates plc v Westminster City Council [1984] 3
All ER 744, HL
Appeal against
decision of Mr Lionel Read QC
This was an
appeal by the Secretary of State for the Environment against the decision of Mr
Lionel Read QC (sitting as a deputy judge of the Queen’s Bench Division) on
February 26 1991 ([1991] 2 PLR 67) whereby he granted an application by North
Wiltshire District Council under section 245 of the Town and Country Planning
Act 1971 (section 288 of the Town and Country Planning Act 1990) to quash a decision
of an inspector appointed by the Secretary of State who had allowed an appeal
by the second respondents, Mr and Mrs Keith Clover, against a refusal by the
council to grant planning permission for the erection of a dwelling and garage
on land at Notton, Chippenham, Wiltshire.
Richards (instructed by the Treasury Solicitor) appeared for the appellant, the
Secretary of State for the Environment.
Straker (instructed by Sharpe Pritchard, agents for the solicitor to North
Wiltshire District Council) appeared for the first respondents.
respondents, Mr and Mrs Keith Clover, did not appear and were not represented.
MANN LJ: This is an appeal by the Secretary of State for the Environment
against a decision of Mr Lionel Read QC when sitting as a deputy judge of the
High Court on February 26 1991 [[1991] 2 PLR 67]. By his decision the learned
deputy judge allowed an application by North Wiltshire District Council under
section 245 of the Town and Country Planning Act 1971 and quashed a decision of
an inspector appointed by the Secretary of State dated June 5 1990. By his
decision the inspector had allowed an appeal by Mr and Mrs Keith Clover against
a decision of the district council dated October 30 1989 whereby they
had refused planning permission for the erection of a dwellinghouse with garage
on 0.11 ha of land within the walled garden of Notton Lodge, Notton, Wiltshire.
Although parties to the proceedings, Mr and Mrs Clover have played no part in
them in either the court below or this court.
The district
council’s notice of motion dated June 13 1990 raised a number of grounds of
challenge, but it was on only one ground that they succeeded before the learned
deputy judge. It was a ground to the effect that the inspector had failed to
give any reason for reaching a decision which was inconsistent with an earlier
appeal decision. The Secretary of State appeals on the grounds that there was
in the circumstances of the case no need for the inspector to have given any
reason why he had reached a conclusion different from that reached earlier, and
that if there was, then any deficiency in reasons had not caused substantial
prejudice to the district council.
Notton is
within an area which is covered by the approved West Wiltshire Structure Plan
1981, the adopted Chippenham Local Plan 1987 and the emerging North Wiltshire
Local Plan. Policies in the structure plan and in the emerging local plan were
relevant to Mr and Mrs Clover’s application for permission. Policy H14 of the
structure plan provided that in villages which lack certain specified
facilities (as does Notton) ‘only very limited development within the physical
limits of the village will normally be permitted’. Policy H8 of the emerging
local plan provides that in villages not shown on the proposals map (as Notton
is not) ‘only very limited residential development within the physical limits
of the village will normally be permitted’. Both of the policies state that
development within the physical limits of a village is acceptable only where it
would be in scale and harmony with the character of the settlement and without
adverse effect on the local environment. Policy H6 of the adopted local plan is
more restrictive than the policies of both the structure plan and the emerging
local plan, but for reasons which are now unchallenged the inspector who
determined Mr and Mrs Clover’s appeal attached greater importance to policies
H14 and H8.
In 1980 or
1981 a Mrs J M Holliday submitted an application to the district council for
planning permission for the erection of a dwellinghouse with garage on a site
within the walled garden of Notton Lodge which was larger than, but included,
the site of Mr and Mrs Clover’s proposal. The application was refused. Mrs
Holliday appealed to the Secretary of State who appointed an inspector, Mr W S
C Redpath RIBA, to determine the appeal. He held an inquiry into the appeal and
dismissed it on February 4 1982. This is the earlier appeal decision to which I
have referred and it has the departmental reference T/APP/5408/A/81/09959/62.
Mr Redpath
identified the main issue before him as being whether the proposed development
could be regarded as ‘infilling within the physical limits of an existing
settlement and, if not, whether or not there is adequate justification for
permitting the development as an exception to the normal requirements of the .
. . structure plan’ (decision letter para 2). After an analysis of the fabric
and character of Notton, he concluded ‘that the appeal site lies outside the
physical limits of Notton
Redpath then considered whether there was any adequate justification for
exceptional treatment and found no adequate argument favouring a proposal
‘which would consolidate existing sporadic development and erode the open rural
character of the locality contrary to the policies of the . . . Structure Plan’
(the same, para 6). He accordingly dismissed the appeal.
Mr and Mrs Clover
made their application on September 1 1989. It was refused on October 30 1989.
The reasons for refusal were those which had been recommended by the district
council’s planning officer in his report upon the application. They related to
policies H14 and H8, to the site being outside the physical limits of Notton,
to detriment to character and amenity, to injurious effects on the garden wall
(which is a listed building) and to a highway objection by Wiltshire County
Council. There was no reference to the 1982 decision either in the refusal
notice or in the planning officer’s report, but he did refer to a
representation by Lacock Parish Council which indicated ‘they are unaware of
any change in the structure plan which would make this a viable application’.
The emphasis is mine. It is at least possible that the parish council had in
mind the absence of change since the decision of 1982. This was
certainly in the mind of Mrs P A Hawkins, a local resident, who wrote to the
district council on October 31 1989 expressing her objection to the proposal
and stating her belief that the ‘area should remain as open countryside’. She
concluded ‘a similar application was refused in 1981/1982 (Refer
T/APP/54508/A/81/09959/62). The reasons for refusal have not changed since that
date’.
On November 21
1989 Mr and Mrs Clover’s agents lodged an appeal to the Secretary of State on
grounds which, in effect, traversed the reasons for refusal. The appeal was one
of a class of appeals which has been transferred for determination to
inspectors appointed by the Secretary of State: see Town and Country Planning
(Determination of Appeals by Appointed Persons) (Prescribed Classes)
Regulations 1981 (SI 1981 No 804). Mr and Mrs Clover and the district council
each had a right to a hearing by an inspector (Town and Country Planning Act
1971, Schedule 9, para 2(2)(b), now Town and Country Planning Act 1990,
Schedule 6, para 2(4)), but each of them waived that right in favour of the
very widely used written representations procedure.
The written
representations procedure is regulated by the Town and Country Planning
(Appeals) (Written Representations Procedure) Regulations 1987 (SI 1987 No
701). Under that procedure: (i) the notice of appeal and any documents are
treated as the appellant’s representations; (ii) the planning authority are
required to submit an appeals questionnaire together with any documents
referred to in it; and (iii) the planning authority may elect to treat the
completed questionnaire and its documents as their representation but, where
they do not do so, they may submit representations on which the appellant is
entitled to make further representations: see regulations 6 and 7. The district
council submitted a completed questionnaire together with the documents
referred to in it, which included the letters from the parish council and Mrs
Hawkins as being ‘relevant correspondence concerning
22 1990 submitted what were described as ‘Concluding Submissions and Comment’.
On March 26 Mr Steven Smallman, who is a chartered surveyor and town planner,
submitted further representations for the appellants. These contained Mr and
Mrs Clover’s substantive case. The district council commented on those further
representations in a letter dated April 3 1990.
The
representations by both parties were very largely concerned with whether the
proposed development accorded with policies H14 and H8. An important issue to
be decided in that regard was whether the appeal site was (as the appellants’
surveyor and planner asserted) or was not (as the district council asserted),
within the ‘physical limits’ of Notton. I would have expected the district
council to rely in support of their view upon the decision of Mr Redpath.
Surprisingly they did not do so, although in their ‘Concluding Submissions and
Comment’ under the heading ‘Planning History’, there is the entry
‘Dwelling-house with garage and vehicular access dismissed at appeal 4 February
1982 (copy letter enclosed)’. The decision letter was enclosed but nowhere is
there any mention of its contents. Mr Smallman in his submissions (para 5.1)
did refer to the 1982 decision, but only to remark that it was taken in the
light of the Chippenham Local Plan. The district council made no comment on
this remark in their letter of April 3.
The inspector
appointed to determine the appeal was Mr Denis McCoy ARIBA FRTPI. His decision
letter of June 5 1990 was addressed to Mr and Mrs Clover’s agents and contained
the following passages:
(i) (1) . . . I have considered the written
representations made by you and by the council . . . I have also considered
those representations made directly to the council which have been forwarded to
me.
(ii) After referring to policies H14 and H8:
(3) From my inspection of the site and its
surroundings, and from the representations made, I am of the opinion that the
main issue in this case is whether or not, taking account of those policies,
the proposed house would amount to intrusive development harming either the
rural amenity of the local scene or the setting of Notton Lodge which with its
former outbuildings and boundary walls is a listed building.
(iii) (4) . . . I am drawn to the conclusion that
it would be unrealistic not to regard the former garden, the group of
associated historic buildings and the more recent dwelling of somewhat suburban
design immediately to the south as one part of a village to whose character
fields penetrating its core are of great importance. Accordingly, though undoubtedly
not infill in the usual sense of that word, it is my opinion that the addition
of a further dwelling within this group need not in principle conflict with the
council’s policies. I am in no doubt that the proposal cannot be regarded as
the sort of sporadic or haphazard development in open countryside which those
policies very properly aim to prevent.
The inspector
went on to conclude that there would be no injurious impact on the listed
buildings. He therefore allowed the appeal and granted planning permission
subject to conditions. Mr McCoy’s assessment of the physical limits of Notton
and of the impact of a
assessment of Mr Redpath in 1982 but Mr McCoy made no reference to the earlier
decision.
The learned
deputy judge held that the inspector had failed to comply with the requirement
to give reasons for his decision and on this ground quashed the decision. He
said [[1991] 2 PLR 67 at p 75C]:
. . . I do not
think it is enough for him to reach and express a conclusion which is different
from that of his predecessor on essentially the same, if not identical, facts
without any overt or necessary recognition that he has addressed that previous
decision and without some comprehensible explanation of why he disagrees with
it.
The reality
of the matter is that the council are left with two diametrically opposite
decisions on appeal without any explanation of which they should, in reason and
in justice to other applicants for planning permission, follow. I do not agree
that in the face of the 1982 decision, on apparently identical facts, it was
enough for the inspector in the appeal under challenge to give reasons for his
decision without in any way addressing the reasoning of his predecessor. That
does not adequately deal with the substantial issue raised by the council in
the form of a decision directly in point which supports their contention.
Mr Stephen
Richards, who appeared for the Secretary of State, drew our attention to the
contrast between the phrase ‘substantial issue raised by the council’ in this
passage and the judge’s earlier remarks that the 1982 decision was ‘not the
subject of any comment by the council in their representations and appears in
those representations only as an item of planning history’ [[1991] 2 PLR 67 at
p 73G]. The district council’s application to quash was made under section 245
of the Act of 1971 (now section 288 of the 1990 Act). The application was, so
far as is now material, on the ground that a ‘relevant requirement’ had not
been complied with in relation to the decision. On such an application the High
Court ‘if satisfied . . . that the interests of the applicant have been
substantially prejudiced by a failure to comply with [a relevant requirement]
in relation to [the decision] may quash [it]’: section 245(5) of the 1971 Act,
now section 288(5) of the 1990 Act. The ground of the council’s application is
one available in regard to determinations by inspectors: 1971 Act, Schedule 9,
para 2(3), now Schedule 16, para 2(6) of the 1990 Act.
It was the
common assumption of counsel in the court below and in this court that there is
a ‘relevant requirement’ which requires the inspector to give reasons for his
decision on an appeal which is disposed of on the basis of written
representations. The requirement was not, however, identified. The term
‘relevant requirement’ is defined to mean any applicable requirement of the
1971 (now 1990) Act or of the Tribunals and Inquiries Act 1971 or of any order,
regulation or rule made under either of those Acts: section 245(7) of the 1971
Act, now section 288(9) of the 1990 Act. Although there are rules which require
the giving of reasons for a decision on an appeal after a local inquiry (Town
and Country Planning (Inquiries Procedure) Rules 1988 (SI 1988 No 944) rule
17(1); and Town and Country Planning (Determination by
there is no such rule in relation to a decision on an appeal disposed of on the
basis of written representations. In such cases the requirement to give reasons
is derived from section 12(1) of the Tribunals and Inquiries Act 1971 [section
10(1) of the Tribunals and Inquiries Act 1992]. That subsection provides so far
as material:
12.– (1) . . . where — . . .
(b) . . . any Minister notifies any decision . . . taken by
him in a case in which a person concerned could . . . have required the holding
. . . of a statutory enquiry,
it shall be
the duty of the tribunal or Minister to furnish a statement, either written or
oral, of the reasons for the decision if requested, on or before the giving or
notification of the decision, to state the reasons.
Para 7(1) of
Schedule 9 to the Town and Country Planning Act 1971 (now para 8(1) of Schedule
6 to the 1990 Act) provided that section 12(1) of the Tribunals and Inquiries
Act 1971 was to apply to hearings before appointed persons and was to apply as
if it referred to determinations by appointed persons. I have already said that
the parties waived their right to a hearing. I doubt whether there was any
express request for reasons, but reasons have in practice invariably been given
on the written representations procedure and in that circumstance I regard a
request as implicit in the acceptance of that procedure.
The duty to
give reasons imposed by section 12 of the Tribunals and Inquiries Act 1971 was
considered by Megaw J (as he then was) in Re Poyser and Mills’ Arbitration
[1964] 2 QB 467. He said at p 478:
Parliament
provided that reasons shall be given, and in my view that must be read as
meaning that proper, adequate reasons must be given. The reasons that are set
out must be reasons which will not only be intelligible, but which deal with
the substantial points that have been raised.
This statement
was approved by the House of Lords in Westminster City Council v Great
Portland Estates plc [1985] AC 661, at p 673 and Lord Bridge of Harwich
used the three criteria of propriety, intelligibility and adequacy as the basis
of his analysis in Save Britain’s Heritage v Number 1 Poultry Ltd
[1991] 1 WLR 153 at p 166H.1
The district council do not have any complaint about the propriety and
intelligibility of the reasons given by the inspector for his determination;
the complaint is as to their adequacy. The method of dealing with such a
complaint has been laid down by Lord Bridge in Save Britain’s Heritage
in a speech with which the other members of the House agreed and which was
delivered two days after the decision of the learned judge in the present case.
Lord Bridge said at p 167C2:
Whatever may
be the position in any other legislative context, under the planning
legislation, when it comes to deciding in any particular case whether the
reasons given are deficient, the question is not to be answered in vacuo. The
alleged deficiency will only afford a ground for quashing the decision if the
court is satisfied that the interests of the applicant have been substantially
prejudiced by it. This reinforces the view I have already expressed that the
adequacy of reasons is not to be judged by reference to some abstract standard.
There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the
applicant substantially prejudiced thereby?
The single indivisible question, in my opinion, which the court must ask
itself whenever a planning decision is challenged on the ground of a failure to
give reasons is whether the interests of the applicant have been substantially
prejudiced by the deficiency of the reasons given. Here again, I disclaim any
intention to put a gloss on the statutory provisions by attempting to define or
delimit the circumstances in which deficiency of reasons will be capable of
causing substantial prejudice, but I should expect that normally such prejudice
will arise from one of three causes. First, there will be substantial prejudice
to a developer whose application for permission has been refused or to an opponent
of development when permission has been granted where the reasons for the
decision are so inadequately or obscurely expressed as to raise a substantial
doubt whether the decision was taken within the powers of the Act. Secondly, a
developer whose application for permission is refused may be substantially
prejudiced where the planning considerations on which the decision is based are
not explained sufficiently clearly to enable him reasonably to assess the
prospects of succeeding in an application for some alternative form of
development. Thirdly, an opponent of development, whether the local planning
authority or some unofficial body like Save, may be substantially prejudiced by
a decision to grant permission in which the planning considerations on which
the decision is based, particularly if they relate to planning policy, are not
explained sufficiently clearly to indicate what, if any, impact they may have
in relation to the decision of future applications.
1Also reported at [1991] 3 PLR 17 at p 29D.
2[1991] 3 PLR 17 at p 29G.
Later he said
at page 168C1:
. . . If it
was necessary to the decision to resolve an issue of law and the reasons do not
disclose how the issue was resolved, that will suffice. If the decision
depended on a disputed issue of fact and the reasons do not show how that issue
was decided, that may suffice. But in the absence of any such defined issue of
law or fact left unresolved and when the decision was essentially an exercise
of discretion, I think that it is for the applicant to satisfy the court that
the lacuna in the stated reasons is such as to raise a substantial doubt as to
whether the decision was based on relevant grounds and was otherwise free from
any flaw in the decision-making process which would afford a ground for
quashing the decision.
1[1991] 3 PLR 17 at p 30G
Mr Richards
relied upon these passages and submitted that the relevance of the 1982
decision was not a substantial issue on the representations, that there was
accordingly no need for the inspector to have dealt with it and that in any
event the district council were not
out that neither the notice of motion nor the affidavit in support asserted
prejudice, but he accepted that prejudice could be demonstrated by argument:
see Wells v Secretary of State for the Environment [1992] 1 PLR
51 at p 56. I agree that it can, although it is always desirable that the
formal documents should indicate the prejudice alleged.
Mr Timothy
Straker, who appeared for the district council, submitted that the 1982
decision was a ‘material consideration’ which had been ‘placed before’ the
inspector, that the inspector had failed to mention it and therefore the
council were left in a state of uncertainty both as to whether it had been
taken into account and as to whether they should treat applications in respect
of other lands, for example the fields north of Notton Lodge, as being for
development within the physical limits of Notton.
When making
his determination an inspector is obliged to have regard to those matters which
are specified in what was section 29(1) of the Town and Country Planning Act 1971
and is now section 70(2) of the 1990 Act (1971 Act section 36(5) and Schedule
9, para 2(1)(a), now 1990 Act section 79(4) and Schedule 6, para
2(1)(a)). Those matters include ‘other material considerations’. If an
inspector fails to have regard to what in the circumstances of the case is a
material consideration which has been ‘placed before him’ (and for the moment I
adopt Mr Straker’s phrase), then his determination is exposed to challenge on
the ground that it is not within the powers of the Act. Where an inspector’s
reasons do not indicate whether he has had regard to a material consideration
which was placed before him then there must usually be (in Lord Bridge’s words)
‘substantial doubt whether the decision was taken within the powers of the
Act’. Accordingly the interests of an applicant will, in that circumstance,
have been substantially prejudiced by the deficiency of reasons, for he is left
in doubt as to empowerment and his ability to challenge on that ground.
In this case
the asserted material consideration is a previous appeal decision. It was not
disputed in argument that a previous appeal decision is capable of being a
material consideration. The proposition is in my judgment indisputable. One important
reason why previous decisions are capable of being material is that like cases
should be decided in a like manner so that there is consistency in the
appellate process. Consistency is self-evidently important to both developers
and development control authorities. But it is also important for the purpose
of securing public confidence in the operation of the development control
system. I do not suggest, and it would be wrong to do so, that like cases must
be decided alike. An inspector must always exercise his own judgment. He is
therefore free upon consideration to disagree with the judgment of another but
before doing so he ought to have regard to the importance of consistency and to
give his reasons for departure from the previous decision.
To state that
like cases should be decided alike presupposes that the earlier case is alike
and is not distinguishable in some relevant respect. If it is distinguishable
then it usually will lack materiality by reference to consistency although it
may be material in some other way. Where it is
practical test for the inspector is to ask himself whether, if I decide this
case in a particular way, am I necessarily agreeing or disagreeing with some
critical aspect of the decision in the previous case? The areas for possible agreement or
disagreement cannot be defined but they would include interpretation of
policies, aesthetic judgments and assessment of need. Where there is
disagreement then the inspector must weigh the previous decision and give his
reasons for departure from it. These can on occasion be short, for example in
the case of disagreement on aesthetics. On other occasions they may have to be
elaborate.
The
materiality of previous appeal decisions has not hitherto been discussed in
this court, but we were referred to some decisions at first instance. The most
recent is Launchdeal Ltd v Secretary of State for the Environment
[1991] JPL 1036 where at pp 1041 to 1042 Mr Roy Vandermeer QC, sitting as a
deputy judge of the High Court, referred to the earlier authorities1.
I have read the judgments at first instance and, with one possible exception, I
find what is said in them consonant with what I have said. The exception is a dictum
by Mr Vandermeer to the effect that he had reservations about whether an
inspector need refer to ‘every decision with which he had disagreed’ [1991] JPL
at p 1041. If Mr Vandermeer had in mind cases where an inspector in deciding in
a particular way necessarily disagrees with some critical aspect of a previous
decision, then there is no occasion for the reservation and I disagree with it.
However, I suspect that all that the learned deputy judge had in mind was that
an inspector is under no obligation to manifest his disagreement with other
decisions which are distinguishable. That indeed would be a gratuitous and
pointless exercise.
1Editor’s note: The cases referred to by Mr Roy Vandermeer QC in his
judgment in Launchdeal were: Rockhold v Secretary of State for
the Environment [1986] JPL 180 (Forbes J); and Barnet Meeting Room Trust
v Secretary of State for the Environment [1990] 3 PLR 21 (Sir Frank
Layfield QC).
In the present
case the 1982 decision plainly fulfils the capacity of a previous appeal
decision to be a material consideration in regard to the appeal of 1990. The
determination of the latter appeal necessarily required a decision as to
whether the site was within the physical limits of Notton and that was a
critical aspect of the decision in the previous case which related to an
identical proposal on the same, albeit slightly larger, site. The inspector’s
decision in 1990 gives no indication that he had taken the 1982 decision into
account, let alone of why he disagreed with it.
The decision
of 1982 had been placed before the inspector in the sense that it was referred
to in the district council’s planning history, enclosed with their submissions
and referred to in Mrs Hawkins’ letter which had been forwarded to him and
which he said he had considered. Mr Richards submitted that such placement did
not impose any obligation upon the inspector to deal with the decision. The
district council, he said, were content to make their case by arguing the merits
afresh without reference to consistency and it was that argument on
merit alone that the inspector had to address. Mr Richards relied on the
decision of this court in Cranleigh Aerials Ltd v Secretary of State
for the Environment, December 18 1991 (unreported) as showing that an
inspector is under no obligation to explore issues which have not been raised
before him. Similarly, an inspector is under no obligation to devise conditions
which might make a development acceptable if none have been suggested before
him: see Top Deck Holdings Ltd v Secretary of State for the
Environment [1991] JPL 961. However, I do not find these cases helpful. I
am not concerned with the treatment of issues which were not raised. I am
concerned (and only concerned) with the disregard of a consideration of which
the materiality was apparent and of which the inspector was made aware by a
party to the appeal. The inspector’s duty is by statute to have regard to such
consideration and his failure to do so exposes his decision to challenge on the
ground that it is not within the powers of the Act. The fact that the party did
not rely upon the consideration does not affect the need to perform the duty.
Accordingly, the deficiency in the inspector’s reasons, that is to say the absence
of any treatment of the 1982 decision, is, in my judgment, one which
substantially prejudiced the interests of the district council in that they
were left in doubt as to empowerment and to their ability to challenge on that
ground.
I should add
that I was not attracted by Mr Straker’s second argument that the deficiency of
reasons gave rise to prejudice because of the consequent uncertainty as to how
the district council should treat applications in respect of other land. This
argument (which attracted the learned deputy judge) encounters the difficulty,
in my judgment, that even if reasons had been given there would have remained
two different value judgments, for the later could not have overruled the
earlier. The district council would have been left with a question of judgment
upon which there were two available but differing opinions.
I would
dismiss this appeal.
SIR MICHAEL
KERR: I agree.
PURCHAS LJ:
I also agree.
Appeal
dismissed with costs.
