Structure plan — Policy for strategic gap between two towns — Presumption against development save in compelling circumstances — Application to build petrol station and restaurants — Refusal by local planning authority — Reliance by planning authority on policy — Whether inspector determining appeal had regard to policy — Whether policy misinterpreted — Whether reasons adequate — Decision quashed
By a decision
dated October 30 1989 the first respondent, the Secretary of State for the
Environment, by his inspector, allowed an appeal by the second respondents,
Margram plc, against a refusal of planning permission by Horsham District
Council and granted conditional permission for the construction of a petrol
filling station, motorists’ restaurant, commercial restaurant and ancillary
development on land on the south side of the A264 at Buchan Hill Forest, West
Sussex. The site was on the edge of the High Weald area of outstanding natural
beauty (AONB) and in a gap in intervening countryside between Horsham and
Crawley, designated in the West Sussex County Structure Plan as a strategic gap
where, under policy ENV 3(8), development was not to be permitted save in
‘compelling circumstances’. Policy ENV 6 provided that strategic gaps were to
be maintained ‘with the object of preventing coalescence and retaining the
separate identity of settlements’. The inspector rejected the council’s
objection to the proposed development based on the site being in an AONB and
found that the development would not detract from the objective of policy ENV
6; accordingly he said that it was unnecessary to consider the question of
need, which had been argued by the second respondents to counter the council’s
objections, and he made no reference to any compelling circumstances.
The council
applied to the High Court to quash the inspector’s decision on the ground that
he had failed to give any, or any adequate, reasons for not applying policy ENV
3(8). Alternatively, if he intended to apply it, he should have asked himself
what compelling circumstances existed. Potts J dismissed the application and
the council appealed.
1. The duties
of the inspector were twofold. First, he had to have regard to the development
plan and other material considerations, pursuant to section 29(1) of the Town
and Country Planning Act 1971 (section 70(1) of the Town and Country Planning
Act 1990). Second, he had to give reasons for his decision pursuant to para
7(1) of Schedule 9 to the 1971 Act (para 8 of Schedule 6 to the 1990 Act).
Those reasons had to be intelligible and based on a proper understanding by him
of the
decision-maker merely to have regard to the development plan if he
misinterpreted it: see p 92E.
2. Under policy
ENV 3(8) it was not necessary to show that harm, significant or otherwise,
would be caused by the development. The objective of that policy was to protect
strategic gaps in their own right and compelling circumstances had to be shown
if an exception to the policy was to be made: see pp 89A-B and 93A-E. The
council relied on policy ENV 3(8) and they were entitled to know whether, and
if so why, that reliance was misplaced. The inspector’s decision paid no regard
to that policy: see p 89H-90A. The structure plan was both up to date and
relevant and the proposal conflicted with it. The inspector ought to have
considered whether there were compelling circumstances for allowing the
development: see p 93F-94G. Accordingly, his decision should be quashed.
Per Dillon LJ dissenting: there was a basic contradiction between
policy ENV 3(8) and the Secretary of State’s notice of approval, which formed
part of the development plan, in which he emphasised that the purpose of
strategic gaps was not to impose a presumption against development. In those
circumstances the inspector was entitled to adopt the pragmatic approach of
considering whether the particular development would result in significant harm
to the policy objective of preventing coalescence and preserving the identity
of settlements. He had given cogent planning reasons for his answers and the
court should not interfere with his decision: see p 95D-96A.
Decision of
Potts J reversed.
to in the judgments
Gransden
(EC) & Co Ltd v Secretary of State for the
Environment (1985) 54 P&CR 86; [1986] JPL 519
Reading
Borough Council v Secretary of State for the
Environment [1991] JPL 338
Stephenson v Secretary of State for the Environment [1985] 1 EGLR 178;
(1985) 274 EG 1385; [1986] JPL 357, CA
Appeal against
decision of Potts J
This was an
appeal by Horsham District Council against the decision of Potts J on February
14 1991 dismissing an application by the council as local planning authority
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 dated October 30 1989
by the first respondent’s inspector whereby he had allowed an appeal by the
second respondents, Margram plc, against the council’s refusal of planning
permission for the construction of a petrol filling station, motorists’
restaurant and commercial restaurant with ancillary development on land on the
south side of the A264 at Buchan Hill Forest, West Sussex.
QC and Michael Burrell (instructed by the chief solicitor, Horsham District
Council) appeared for the appellants.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment.
Carnwath QC and Duncan Ouseley (instructed by McKenna & Co) appeared for
the second respondents, Margram plc.
following judgments were delivered.
NOLAN LJ: On September 12 1988 Margram plc, the second respondents, applied to
Horsham District Council, in their capacity as local planning authority, for
permission to carry out a development on land near Crawley, West Sussex. The
application was refused on November 9 1988, and Margram appealed against the
refusal to the Secretary of State for the Environment under section 36 of the Town
and Country Planning Act 1971.
I shall refer,
for convenience, to the 1971 Act throughout and not to the more recent
legislation in which the relevant provisions have been re-enacted.
The Secretary
of State appointed an inspector to hear and determine the section 36 appeal.
After holding a public local inquiry and carrying out a site inspection the
inspector determined the appeal on October 30 1989 by allowing it and by
granting permission for the proposed development subject to certain conditions.
The council applied to Potts J under section 245 of the Act seeking an order to
quash the decision of the inspector, but Potts J refused the application on
February 14 1991. The council now appeal against his judgment and order of that
date.
The
development which Margram wish to carry out consists in the construction of a
petrol filling station, motorist restaurant and commercial restaurant with
ancillary parking, servicing and access roads, on land which lies on the south
side of the A264 at Buchan Hill Forest, which is to the south-west of Crawley.
In his decision letter, the inspector describes the proposed development site
in these terms:
2. There is a
gap of intervening countryside, at its narrowest some 3-4 miles wide,
separating the built-up areas of Horsham and Crawley. The A264 road connects
Horsham, to the south-west, with Crawley, to the north-east, through this gap,
and forms also, hereabouts, the northerly boundary of the High Weald Area of
Outstanding Natural Beauty (AONB). The site lies on the southerly side of this
road at a point where on the opposite side of the road the limit of the
developed area of Crawley, and indeed the boundary between the 2 Districts, is
marked by residential development now in course of construction. On the same
frontage as the site the built-up area extends outwards not quite so far in
this direction. For about a 1/2 mile, the land is open until Crawley’s urban
limit, existing or with a small extension proposed, is reached, again on the
district boundary. In the intervening land is an entrance to the car park,
toilets and picnic area of the Buchan Hill Country Park. That is presently the
case. Soon, with a start date of June 1990, the Crawley south-west by-pass will
also run through that intervening land. It will connect to the A264, completion
of the dualling of which is now in progress in readiness, at a roundabout
junction immediately eastwards of the site and form a link from there in a
south-easterly direction around Crawley to the A23 and M23.
3. There is
woodland south of the A264 and that has been cleared over the site, except for
one mature beech tree, to give an area of scrub and bracken. The land rises in
a southerly direction from the road to a ridge line just south of the site, so
that as a result of these factors the site cannot be said to be a prominent
feature of the landscape. It is shielded wholly from distant views from the
south and west, and such views as are available from the north and east are
foreshortened on the furthest site boundary by the combination of contours and
woodland and have as significant elements of the foreground either or both of
the adjoining road and the residential development now in progress. When that
development is completed and the new south-west by-pass and roundabout come into
being the significance of those manmade elements will be accentuated.
Thus it will
be seen that the site is (a) in an area of outstanding natural beauty and (b)
in the gap of intervening countryside between Horsham and Crawley. That gap is
designated as a strategic gap in the West Sussex County Structure Plan, which
is the principal component of the development plan for the area. This appeal
turns upon the effect of that designation.
In deciding
whether Margram’s application for planning permission should be granted, the
inspector was obliged to ‘have regard to the provisions of the development
plan, so far as material to the application, and to any other material
considerations’: see section 29(1) of the Act.
The structure
plan consists of a series of policy statements. Part III is headed ‘Objectives
and General Policies’. The first general policy, GEN 1, begins with the words:
In all their
decisions affecting the development and other use of land the Planning
Authorities will seek to protect and improve the appearance and conserve the
resources of the county, and in particular not normally permit development
which would
(1) be outside the built up area, except where a
countryside location can be justified.
Part IV is
headed ‘Policies for the Environment’. The material policies under this heading
are as follows:
ENV 1.
Development proposals will be permitted only if they comply with the relevant
policies for the environment, as well as with the general policies and the
policies elsewhere in the Plan which relate to the amount or type of
development concerned and to access.
ENV 2. The
Planning Authorities will seek to protect land and water in the countryside and
to ensure that the amount of land taken for development is kept to a minimum.
Development unrelated to the needs of agriculture, forestry and, in appropriate
cases, recreation, the extraction of minerals and the disposal of waste will
not normally be approved in the countryside.
ENV 3. Only in
compelling circumstances will development be permitted where it would . . .
(2) be obtrusive in or damaging to the
landscape, particularly in Areas of Outstanding Natural Beauty . . .
(8) be within a strategic gap between built up
areas.
Exceptions to
the above may be justified to allow for the development of important mineral
reserves, recreational development and essential
ENV 6. With
the objects of preventing coalescence and retaining the separate identify of
settlements, strategic gaps will be maintained between . . .
Horsham and
Crawley . . .
The precise
boundaries of the strategic gaps will be defined in local plans. ENV 8. Any
development which is permitted in the countryside (including agricultural and
horticultural buildings for which planning permission has to be obtained) will
be required to be sited and designed in such a way that any adverse impact on
farming, the landscape, nature conservation, archaeological sites, historic
features, water supplies, current or proposed mineral extraction or on public
enjoyment of the countryside is kept to a minimum.
The West
Sussex County Structure Plan in its present form incorporates a number of
alterations. These were the subject of a notice of approval written by the
Department on behalf of the Secretary of State to West Sussex County Council on
April 14 1988. By virtue of section 20(1)(b), a development plan must be
taken to include any alterations thereto, together with the Secretary of
State’s notices of approval thereof. Accordingly, I turn now to that notice,
which was written after the Secretary of State had considered a report
submitted to him by an advisory panel. The material parts of the notice read as
follows:
4. Policies
for the Environment.
4.1 Modifications: The Secretary of State has
modified submitted policies ENV3 . . . ENV6, [and] ENV8 . . . in order to
achieve more flexibility and consistency between the environmental policies, to
ensure clarity, and to remove inappropriate detail.
4.2 The Panel considered that there may be
occasions where the existence of important hydrocarbons reserves may justify
the granting of permission for development as an exception to the otherwise
rigorous provisions of submitted policy ENV3. It recommended that a reference
to that circumstance should be specified in the policy itself, rather than
simply in the Explanatory Memorandum. The County Council accepted that it would
be appropriate to include the reference in the policy. The Secretary of State
has accepted the Panel’s recommendation. Although the recommendation related
only to mineral reserves, the Secretary of State considers the same principle
could apply to recreational development and development of community
facilities. He has modified submitted policy ENV3 accordingly by the inclusion
of an additional sentence; he is satisfied that this addition does not imply
any erosion of strategic gaps, as provided for in Policy ENV6, and he considers
the decision on whether any development proposal can be justified as an
exception to the provisions of ENV3 must be taken having regard to the
individual merits of each case.
The additional
sentence, we were told, is the sentence at the end of ENV 3 setting out the
exceptions to it. The notice continues:
4.5 Although the concept of strategic gaps as
carried forward from the approved Plan was not challenged there was objection
to the inclusion in submitted policy ENV6 of a particularly strong presumption
against
the policy should instead define the purpose of the gaps — to prevent
coalescence of settlements and to retain their separate identity. The Panel
recommend an amendment of submitted policy ENV6 in such terms, and the inclusion
in the policy itself of reference to the definition of the precise boundaries
of strategic gaps in local plans. It also recommended against the inclusion in
the policy of gaps additional to those proposed by the County Council. The
Secretary of State has accepted those recommendations and has modified
submitted policy ENV6 accordingly; in particular he emphasises that the purpose
of strategic gaps is to prevent coalescence, not to impose a presumption
against development. He does not consider that the approved policy, as worded,
will result in the erosion of gaps. He does not consider that the policy should
specify that the boundaries of gaps and the boundaries of built-up areas are
co-incidental. Local plans will define boundaries in both cases.
4.6 The Secretary of State has deleted the
reference to strategic gaps in submitted policy ENV8 because he considers that
it does not fall within the rubric of the policy, given his modification to
submitted policy ENV6 (para 4.5 above). He has added a reference in policy
ENV3(8) to the strategic gaps policy ENV6 for clarification.
Unfortunately,
as will be seen above, policy ENV 3(8) contains no reference to the strategic
gaps policy ENV 6. Counsel for the Secretary of State was unable to explain its
absence.
The local plan
for the area was the North Horsham District Local Plan, which had appeared in
1982. At the time of the hearing before the inspector, a deposit draft of a new
local plan was available. It had been published in January 1989 and it operated
as a non-statutory plan. As such, it had the status of a ‘material
consideration’ for the purposes of section 29(1). It included the following:
Policy T4.
(i) Planning permission will not be granted for
service station facilities along the A264 within the Strategic Gap.
Equipped with
this guidance, and having described the physical background of the proposed
development site in paras 2 and 3 of his decision letter which I have quoted
above, the inspector proceeded to give his decision in these terms:
4. The policies
of the development plan are to be related to that physical background. There
was discussion at the inquiry as to the precise terms of the relevant policies,
particularly in the light of modifications by the Secretary of State to the
1988 County Structure Plan, but I do not think it necessary to explore that in
detail. In substance, I am concerned with policies which seek to maintain a
strategic gap between Horsham and Crawley, so as to avoid the coalescence of
those settlements, and to preserve the attractive, unspoilt appearance of the
High Weald AONB. The site is designated as within both the strategic gap and
the AONB, and the proposal was rejected by the council for non-compliance with
the relevant policies. In those circumstances I see the question whether
significant harm would result to those policy objectives as the primary issue
in the case.
5. Having
posed the question, I think the answer appears readily from what I saw of the
site and surroundings, particularly in the light of the
the south-west by-pass will bring about. I understand the Council’s concern to
prevent coalescence and to protect the AONB. These are important considerations
on the basis of which previous proposals for petrol filling stations and allied
development along the A264 between the 2 towns have been quite properly
rejected. However the site is at the very tip of the AONB, in a position where
because of the landform it appeared to me very firmly visually linked to the
land to the north, outside the AONB, and to the east, still within the AONB but
consisting of only a small area of land soon to be severed by the by-pass,
rather than to be associated with the major part of the AONB to the south and
west. The prevailing character of these surroundings is therefore, and will
become increasingly, one of a manmade environment with its predominance of
housing development and pattern of roads and roundabout, into which I consider
a service area as proposed, particularly with reasonable attention to design
details, would fit quite happily without threatening the natural appearance of
the remainder of the AONB. As to coalescence, it is making the same point in a
different way to say, as is my view, that the scheme of development would not
entail breaking out into the gap of countryside between Horsham and Crawley and
would not therefore detract from the objective of that policy.
6. In view of
these conclusions, and having considered all other points raised in the case, I
see therefore no good reason to withhold consent for development as proposed,
subject to clarification of certain aspects. In the absence of any sustained
objection, it becomes in particular unnecessary to address the question of need
for the proposed facilities, an argument advanced by you to counter the
objections of the council with which I have dealt. Nor do I take the view that
my decision sets any precedent whereby future implementation of the relevant
policies will be weakened. It is, I consider, quite apparent that I have
assessed the implication of the proposal in terms of those policies in the
light of the specific circumstances of the case. I have not yet referred to the
policy of the draft local plan which seeks simply to ban the provision of any
service station facilities along the A264 within the strategic gap. To the
extent that I have considered the proposal in the context of the aims of that
policy I do not think separate treatment is necessary. I comment only that my
decision must weaken the chances of any successful case being put forward on
the grounds of need to counter an environmental objection put forward in
respect of some other location on this length of road in future.
Mr David Keene
QC, representing the council, accepted that in so far as the council’s
objections to the proposed development were based upon the site being within an
AONB they have been conclusively rejected by the inspector. He has found, in
effect, that the development would not be obtrusive in or damaging to the
landscape, and that, accordingly, it does not fall foul of policy ENV 3(2). It
is also apparent from the inspector’s findings that he did not regard the
proposed development as being open to objection under policy ENV 6. He plainly
formed the view that the proposed development would not produce or tend towards
coalescence between Crawley and Horsham, or threaten the separate identity of
those towns. But what of ENV 3? It is
common ground that the proposed development does not fall within the exceptions
listed at the end of that policy. Accordingly, it should be permitted only if
there were ‘compelling circumstances’ which called for it to be carried out. No
such circumstances have been referred to by the inspector. In particular, he
has not found that there is a need for the development. The inspector reached
his decision without regard to the question of need, a question which, in para
6, he said that it was ‘unnecessary to consider’. Was he thus in breach of his
statutory duties, so that his decision should be quashed under section 245?
The duties of
the inspector were twofold. The first, which I have mentioned, was to have
regard to the development plan and other material considerations pursuant to
section 29(1) of the Act. The second was to give reasons for his decision,
pursuant to para 7(1) of Schedule 9 to the Act, which incorporates section
12(1) of the Tribunals and Inquiries Act of the same year. The nature of these
duties has been explained in numerous authorities. So far as the first is concerned,
his obligation to have regard to the structure plan does not require him to
follow it slavishly. He must exercise a planning judgment, having regard to the
plan and to all other material considerations. In the exercise of that
judgment, he may think it right to depart from the plan. He is at liberty to do
so provided that he explains the reasons for his departure. His reasons (and
here we come to the second of his duties) must be full and clear, so that the
parties can understand them. The reasons must not only be intelligible to the
parties but also, obviously, be based upon a proper understanding by him of the
plan and of the policies which it contains. I would refer in this connection to
the judgment of Woolf J, as he then was, in E C Gransden & Co Ltd
v Secretary of State for the Environment [1986] JPL 519. He summarised
the position of a decision-making body in the form of five statements of
principle, which are none the less clear for being reported in oratio
obliqua. I need only quote the last three [at p 521]:
Thirdly, the
fact that a body had to have regard to the policy did not mean that it needed
necessarily to follow the policy. However, if it was going to depart from the
policy, it had to give clear reason for not doing so in order that the
recipient of its decision would know why the decision was being made as an
exception to the policy and the grounds upon which the decision was taken.
Fourthly, in
order to give effect to that approach it was essential that the policy was
properly understood by the determining body. If the body making the decision
failed properly to understand the policy, then the decision would be as
defective as it would be if no regard had been paid to the policy.
Fifthly, if
proper regard was not given to the policy, then the court would quash its
decision unless the situation was one of those exceptional cases where the
court could be quite satisfied that the failure to have proper regard to the
policy had not affected the outcome in that the decision would in any event
have been the same.
Remarks to the
same effect are to be found in the judgment of Goff LJ (as he then was) in Stephenson
v Secretary of State for the Environment [1985] 1 EGLR 178 at p 179,
where the further point was made that the need for clarity in the
decision-maker’s reasons when he was granting planning permission included the
need for him to make it clear whether he regarded himself as doing so in
pursuance of the relevant policy or
In his
submissions before the learned judge, and again before us, Mr Keene argued that
the inspector had misinterpreted policy ENV 3 and had asked himself the wrong
question. ENV 3(8) said plainly that there should be no development in a
strategic gap in the absence of compelling circumstances. If the inspector, in
granting planning permission, intended to apply the policy he should have asked
himself what compelling circumstances existed. The clear objective of the
policy thus stated was to protect strategic gaps in their own right, as an important
part of the countryside. If the inspector did not intend to apply the policy he
should have explained why he was not doing so. He had taken neither course and
therefore his decision could not stand. For the respondents, reliance was
placed upon ENV 6 and the passages relating to that policy in the Secretary of
State’s notice of approval, and also on the general presumption in favour of
development which appears in PPG1 where the Department’s general policy and
principles are set out. PPG1 para 15 is headed ‘The presumption in favour of
development’ and reads as follows:
The planning
system fails in its function whenever it prevents, inhibits or delays
development which can reasonably be permitted. There is always a presumption in
favour of allowing applications for development, having regard to all material
considerations, unless that development would cause demonstrable harm to
interests of acknowledged importance. Except in the case of inappropriate
development in the Green Belt the developer is not required to prove the case
for the development he proposes to carry out; if the planning authority
consider it necessary to refuse permission, the onus is on them to demonstrate
clearly why the development cannot be permitted.
For the
respondents it was argued that there was no single ‘right question’. The
inspector’s duty was to have regard to all of the material considerations
referred to in section 29(1). Provided that this duty was observed, the
identification of the determining issues and the weight to be given to any
particular factor, including development plan policy, were entirely matters for
the inspector.
Potts J
accepted the arguments of the respondents. He said:
Planning
permission was granted because in the inspector’s opinion the proposals would
not cause any significant harm to the policy objectives of the strategic gap or
the AONB. The inspector’s reasons were clear and consistent with the approach
of the Secretary of State as set out in [PPG1 para 15]. Having found that no
significant harm would accrue, the inspector was entitled to grant planning
permission and find in the absence of sustained objection that it was
‘unnecessary to address the question of need’.
The difficulty
which I find with this conclusion, as with the inspector’s decision, is that it
pays no regard at all to ENV 3(8). However limited the content of the
decision-maker’s duty to have regard to the policies in the development plan
may be, it surely cannot allow him to ignore one of them altogether. I accept,
of course, that for the purposes of
no presumption against the development of strategic gaps and that the only
purpose of that policy is to prevent coalescence. But the council do not rely
on ENV 6. They rely, and have always relied, on ENV 3. They are entitled to
know whether, and if so why, that reliance is misplaced.
I feel
considerable sympathy with the inspector. Decision-makers in the planning field
are accustomed to the difficulties of deciding between conflicting
considerations and presumptions, but usually these considerations and
presumptions are clearly stated and intelligible and can be judged accordingly.
In the present case, the conflict between the treatment of strategic gaps in ENV
3 on the one hand and ENV 6 on the other hand is inexplicable. If the only
purpose of protecting strategic gaps is to prevent coalescence, as indicated in
ENV 6 and para 4.5 of the notice of approval, then why do they remain subject
under para 4.2 of the notice to the ‘rigorous provisions’ set out in ENV
3? I can see no answer to this question.
Possibly the missing reference in ENV 3(8) which is mentioned in para 4.6 of
the notice would have provided the answer.
Be that as it
may, I conclude that the inspector’s determination must be quashed. I do so
because, to my mind, he adopted the wrong approach to the problem at the outset
when he said, in para 4 of the decision letter, that ‘there was discussion at
the inquiry as to the precise terms of the relevant policies, particularly in
the light of modifications by the Secretary of State to the 1988 County
Structure Plan, but I do not think it necessary to explore that in detail’. By
omitting to address this fundamental question, the inspector, as it seems to me,
has failed to carry out his duty of having regard to the development plan as
expanded by the Secretary of State’s modifications. My sympathy for the
difficulty confronting the inspector extends also to the parties, to Margram
because if the evidence of compelling circumstances which they presented at the
local inquiry had been considered and accepted the inspector’s decision would
have been unimpeachable, and to the council because of the uncertainty to which
they will be subject if the reference to strategic gaps in ENV 3 can be
ignored. It is regrettable that there should be a further delay before the
issue is finally resolved, but if, as I would propose, the matter is now
remitted to the Secretary of State for determination, it may serve to achieve
the additional purpose of clarifying his notice of approval. It is not right
that the fate of the countryside in strategic gaps should depend upon an
unresolved conundrum.
I would
therefore allow the appeal and remit the matter for further consideration by
the Secretary of State.
McCOWAN LJ: This is an appeal by Horsham District Council against the judgment
of Potts J given on February 14 1991, dismissing the council’s application
under section 245 of the Town and Country Planning Act 1971 to quash a decision
dated October 30 1989 by an inspector on behalf of the Secretary of State for
the Environment (the first respondent) to grant planning permission to the
second respondents.
Application
had been made by the second respondent to the appellants (the local planning
authority for the area in question) for planning permission for the
construction of a petrol filling station, motorist restaurant and commercial
restaurant with ancillary parking, servicing and access roads. Permission was
refused. The second respondents appealed and a local inquiry was held on
September 27 1989. By decision letter of October 30 1989 the inspector allowed
the second respondents’ appeal.
The statutory
development plan for the area in question consists of:(1) the West Sussex Structure Plan, approved in
its current form by the first respondent in 1988; and (2) the Horsham Area
District Plan, adopted in 1982.
The West
Sussex Structure Plan contains a number of ‘Policies for the Environment’. The
relevant ones for present purposes are the following:
ENV 3. Only in
compelling circumstances will development be permitted where it would
(1) be
on land of grades 1, 2 or 3a of the Ministry of Agriculture, Fisheries and
Food’s Agricultural Land Classification;
(2) be
obtrusive in or damaging to the landscape, particularly in Areas of Outstanding
Natural Beauty;
(3) be
harmful to nature conservation;
(4) be
harmful to the fabric or setting of archaeological sites or historic features
in the countryside;
(5) threaten
the availability or purity of water supplies;
(6) sterilise
important mineral resources;
(7) reduce
the scope for public enjoyment of countryside important for recreation, or
potentially so; or
(8) be
within a strategic gap between built up areas.
Exceptions to
be above may be justified to allow for the development of important mineral
reserves, recreational development and essential community facilities for local
communities in the countryside.
ENV 6. With
the objects of preventing coalescence and retaining the separate identity of
settlements, strategic gaps will be maintained between . . .
Horsham and
Crawley . . .
The precise
boundaries of the strategic gaps will be defined in local plans.
The strategic
gap between Horsham and Crawley had been defined by the Horsham Area District
Plan. The appeal site falls within that strategic gap and within an area of
outstanding natural beauty.
The vital
parts of the decision letter are:
4. . . . The
site is designated as within both the strategic gap and the AONB, and the
proposal was rejected by the council for non-compliance with the relevant
policies. In those circumstances I see the question whether significant harm
would result to those policy objectives as the primary issue in the case.
5. . . . As
to coalescence, it is making the same point in a different way to say, as is my
view, that the scheme of development would not entail breaking out into the gap
of countryside between Horsham and Crawley and would not therefore detract from
the objective of that policy.
6. In view of
these conclusions, and having considered all other points raised in the case, I
see therefore no good reason to withhold consent for development as proposed,
subject to clarification of certain aspects. In the absence of any sustained
objection, it becomes in particular unnecessary to address the question of need
for the proposed facilities . . .
In his
judgment, Potts J said that it is necessary to have regard to the provisions of
section 29(1) of the Town and Country Planning Act 1971. This reads:
. . . where
an application is made to a local planning authority for planning permission,
that authority, in dealing with the application, shall have regard to the
provisions of the development plan, so far as material to the application, and
to any other material considerations . . .
The judge went
on to say of the inspector:
His duty was
to have regard to the provisions of the development plan and other material
considerations. Provided he did this, as I find he did, his decision is not
open to criticism.
For the first
respondent, Mr Howell put it before us in this way:
The only
legal obligation is to have regard to the Development Plan. He does not have to
follow it.
I have no
doubt they are both right, provided that the inspector has understood the
development plan. ‘Regard to the development plan’ must mean ‘proper regard’.
It is not enough for the decision-maker merely to have regard to the plan if he
misinterprets it.
When
considering whether this inspector had proper regard to the development plan,
the first thing that strikes me is that nowhere does he refer to the necessity
to find ‘compelling circumstances’. On the contrary, he says that it is
‘unnecessary to address the question of need for the proposed facilities’. This
must have come as much of a surprise to the second respondents as to the
appellants, having regard to the following passage in the proof of the second
respondents’ planning expert put before the inspector:
4.30 Policy ENV 3 again provides that development
in such areas should only be permitted in compelling circumstances.
4.31 This strong presumption does however permit
exceptions where there is a strong justification. Paragraph 12.3 of the explanatory
memorandum refers to ‘inessential development’ as that which must be prevented
in the AONB.
4.32 It is clear therefore that in respect of the
Structure Plan Policy, if it can be demonstrated that a need for development
exists and that it is of high quality, the planning permission can be granted
despite the strong restraint policies.
Again, I find
it remarkable that at the end of para 4 of the decision letter the inspector,
having referred to the site being within both the strategic gap and the AONB,
should say:
I see the
question whether significant harm would result to those policy objectives as
the primary issue in the case.
This strongly
suggests, to my mind, that he has failed to appreciate the difference in
wording employed in ENV 3 between the different categories. Thus the question
in (2) of that policy is whether the development would be ‘obtrusive in or
damaging to the landscape, particularly in Areas of Outstanding Natural
Beauty’. In (3), the question is whether the development would be ‘harmful to
nature conservation’. In (7), it is whether the development would ‘reduce the
scope for public enjoyment of countryside important for recreation, or
potentially so’. But when one comes to (8), all that is required is that the
development ‘be within a strategic gap between built up areas’.
Had the
intention been that category (8) should come into question only where the
development would ‘be harmful to the strategic gap’ or would ‘entail breaking
out into the gap’, it would have been easy enough to say so. In fact, however,
the words chosen must mean that the mere location of a site within the defined
strategic gap is enough to give rise to the need for compelling circumstances
to be shown if an exception is to be made. I assume that the reason for the
choice of words was recognition that these gaps are usually narrow areas of
land between towns and that the cumulative effect of a number of individually
harmless losses may result in significant erosion of the gaps. Whatever the
reason, it seems plain to me that it is not necessary under the policy to show
that harm, significant or otherwise, would be caused by development of the site
in question. I am driven to the conclusion, however, that this was not apparent
to the inspector.
The learned
judge placed some reliance on para 15 of PPG1 issued by the first respondent’s
department in January 1988. This includes the phrase:
There is
always a presumption in favour of allowing applications for development, having
regard to all material considerations, unless that development would cause
demonstrable harm to interests of acknowledged importance.
Regard must
also be had, however, to para 14, which says that where the development plan:
is up-to-date
and relevant to the particular proposal, [it] follows that the plan should
normally be given considerable weight in the decision and strong contrary
planning grounds will have to be demonstrated to justify a proposal which
conflicts with it.
Here, the plan
was both up to date and relevant and the proposal conflicted with it. In
consequence, it was necessary for the second respondents to demonstrate strong
contrary planning grounds. I agree, moreover, with the words of Schiemann J in Reading
Borough Council v Secretary of State for the Environment decided on
February 28 1990 (of
in para 3 of Circular 14/85 to those in para 15 of PPG1, he said:
Although the
general presumption in Circular 14/85 means that the first question to be asked
in relation to any planning application is, ‘Why should the application be
refused?’, once that general presumption meets in a development plan a specific
presumption the other way in regard to specific development on a specific site
then, in my judgment, the right question is to ask, ‘Why should the application
be permitted?’
1Reported at [1991] JPL 338.
However, Potts
J also attached importance in the present case to a letter of April 14 1988
sent on behalf of the first respondent to West Sussex County Council signifying
approval of alterations to the West Sussex Structure Plan. The appellants
accept that this letter forms part of the development plan. The passage which
particularly impressed the learned judge was where, in the context of
modifications to ENV 6, it was said that the Secretary of State:
emphasises
that the purpose of strategic gaps is to prevent coalescence, not to impose a
presumption against development.
Against that
passage must, however, be set an earlier paragraph in the same letter where it
is explained that ENV 3 has been modified by the addition of the sentence
beginning: ‘Exceptions to the above . . .’. These, it is said, are exceptions
‘to the otherwise rigorous provisions of submitted policy ENV 3’, the Secretary
of State being ‘satisfied that this addition does not imply any erosion of
strategic gaps’. I can only make sense of this letter on the basis that the
Secretary of State is saying that although there is not to be a presumption against
development, none the less if development would be within a strategic gap only
in compelling circumstances will it be permitted.
The
authorities plainly establish that an inspector is entitled to depart from the
policies of the development plan, but, if he is making such a departure, it is
his duty to say so and to make his reasons clear. Mr Howell felt driven to
submit, as I understood him, that here the inspector had in fact made a
departure from those policies. He certainly does not say that he is doing so or
give any reasons for it. The truth is, in my judgment, that he thought he was
applying them, but he was wrong in so thinking. He ought to have been looking
to see whether there were ‘compelling circumstances’ for permitting this
development in a strategic gap between built up areas. He found none. Indeed,
he did not look for any. In those circumstances the result should, in my
judgment, be that his decision is quashed.
I would allow
the appeal.
DILLON LJ: Under section 29 of the Town and Country Planning Act 1971, the
Secretary of State, or his inspector exercising delegated powers, was bound to
‘have regard to’ the provisions of the development plan,
authorities that that did not oblige him to follow the development plan
implicitly or slavishly to adhere to it. But it has been held that a Secretary
of State or an inspector cannot be said to have ‘had regard’ to a development
plan if he has misinterpreted it. That is the basis of this appeal. But, in my
judgment, the drafting of the documents which together constitute the
development plan has, in the present case, been such as to make it virtually
impossible for anyone to understand the precise intentions of the development
plan.
There is no
doubt that the ‘Policies for the Environment’ designated by the letters ENV and
a number in the West Sussex Structure Plan in its current form are part of the
development plan. ENV 6 sets out clearly that ‘with the objects of preventing
coalescence and retaining the separate identity of settlements, strategic gaps
will be maintained between’ (inter alia) Horsham and Crawley. There is
no difficulty over that, and it is then provided as a further part of the
development plan that ‘the precise boundaries of the strategic gaps will be
defined in local plans’.
The real
difficulty is that the Policy ENV 3(8) provides that ‘only in compelling
circumstances will development be permitted where it would . . . (8) be within
a strategic gap between built up areas’, and yet in the letter on behalf of the
Secretary of State to West Sussex County Council of April 14 1988 (‘the notice
of approval’), which also forms part of the development plan, the Secretary of
State has emphasised that the purpose of strategic gaps is not to impose a
presumption against development. There appears thus to be a basic contradiction
between components of the development plan.
In those
circumstances, it was, in my judgment, open to the inspector to adopt the
pragmatic approach of considering whether this particular development would
have any significant adverse effect on the purpose of the policy of strategic
gaps, namely preventing coalescence and preserving the identity of settlements.
Given that he
was not bound to follow the development plan slavishly he was entitled, in my
judgment, to formulate the question he had to consider, as he did in the
following passage in para 4 of the decision letter:
In substance,
I am concerned with policies which seek to maintain a strategic gap between
Horsham and Crawley, so as to avoid the coalescence of those settlements, and
to preserve the attractive, unspoilt appearance of the High Weald AONB. The
site is designated as within both the strategic gap and the AONB, and the
proposal was rejected by the council for non-compliance with the relevant
policies. In those circumstances I see the question whether significant harm
would result to those policy objectives as the primary issue in the case.
In essence that
was indeed the question he had to decide, and not, as has been submitted by Mr
Keene, a misdirection.
Having posed
the question, the inspector answered it and gave cogent planning reasons for
his answers, both in relation to the strategic gap policy and in relation to
the factor (on which his views are not
natural beauty.
I agree with
Potts J that the decision is one which the inspector was entitled to make in
the particular circumstances of this case, and the way he made it cannot be
faulted. This court should not interfere and I would, therefore, dismiss this
appeal.
I have had the
advantage of reading in draft the judgment of Nolan LJ. He poses the question
[at p 90C supra]: ‘If the only purpose of protecting strategic
gaps is to prevent coalescence, as indicated in ENV 6 and para 4.5 of the
notice of approval, then why do they remain subject under para 4.2 of the
notice to the ‘rigorous provisions’ set out in ENV 3?’ He says that he can see no answer to that
question and nor can I. But there is also the related question which is equally
unanswerable: If under para 4.5 of the notice of approval, there is no
presumption against development in strategic gaps, how can it be necessary to
find ‘compelling circumstances’ under ENV 3 to justify permitting development
in strategic gaps?
What then is
the poor inspector to do? I suggest he
should act as this inspector did, by having regard to the declared object of
strategic gaps, and satisfying himself that this development would not impair
that object at all.
Appeal
allowed. Decision of the first respondent’s inspector quashed. Appellants’
costs in Court of Appeal and below to be paid by the first respondent.
Applications of first and second respondents for leave to appeal to the House
of Lords refused.
