Planning inquiry — Costs — Refusal on ground of perceived public fears — Cost order against council — Whether perceived public fears against expert evidence can never be a ground of refusal
The appellant
council refused to grant the second respondent developers planning permission to
construct a chemical waste treatment plant against the background of
substantial public opposition to the proposed development. The council gave
their reasons for the refusal as, inter alia, perceived risks to the
health and safety of the public. In October 1991, following a local public
inquiry, the Secretary of State for Wales accepted the findings of his
inspector, that there was no objective basis for such perception and there was
insufficient evidence to justify refusal of permission for the development. In
August 1993 the Secretary of State, directing himself in accordance with para 9
of circular 2/87, made an order
that the council pay the developers’ costs on the grounds that they had behaved
unreasonably in refusing permission. In the court below the council’s
application to quash that decision was dismissed. The council appealed
contending, inter alia, that the unfounded perception of risk to the
public safety alone can justify the refusal to grant permission.
reconsideration.
The
inspector’s reasoning had the effect of meaning that, when approaching the
question of whether the council had behaved unreasonably on the basis that the
genuine fears on the part of the public, unless objectively justified, such
perceived fears could never amount to a valid ground for refusal. That was a
material error of law. A planning authority may properly take into account the
perceived fears of the public when deciding whether a proposed development would
affect the amenity of an area. Perceived fears of the public are a planning
factor which can amount (perhaps rarely) to a good reason for refusal of
planning permission. It is another planning reason within para 9 of Circular
18/85. The judge in the court below was wrong to come to the conclusion he had
on the interpretation of the circular: see p55D et seq.
to in the judgments
Gateshead
Metropolitan Borough Council v Secretary of
State for the Environment [1994] 1 PLR 85
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
the decision of Latham J
This was an
appeal brought by Newport Borough Council, against the decision of Latham J on
July 11 1995, dismissing their application to quash the decision of the
Secretary of State for Wales ordering them to pay Browning Ferris Environmental
Services Ltd the costs of a public inquiry.
QC (instructed by the solicitor to Newport Borough Council) appeared for the
appellant council.
Robinson (instructed by the Treasury Solicitor) represented the first
respondent, the Secretary of State for Wales.
respondents, Browning Ferris Environmental Services Ltd, did not appear and
were not represented.
following judgments were delivered.
STAUGHTON
LJ: Hutchison LJ will give the first judgment.
HUTCHISON LJ: This is an appeal from a judgment of Latham J, who on July 11 1995
dismissed Newport Borough Council’s application to quash the decision of the
Secretary of State for Wales of August 23 1993, ordering them to pay to
developers, Browning Ferris Environmental Services Ltd, the costs of a planning
inquiry in October 1991. The inquiry came about because the council had refused
planning permission for the construction of a chemical waste treatment plant on
land at the junction of Stephenson Street and Corporation Street in Newport,
Gwent.
The ground on
which the Secretary of State made the order was that the council had behaved
unreasonably in refusing planning permission and thus put the developers to
unnecessary expense. It is accepted that if it was open to the Secretary of
State on the material before him to conclude that the council had behaved
unreasonably, he was entitled to make the order. This is because there is power
by virtue of section 320(2) of the Town and Country Planning Act 1990 and
section 250(5) of the Local Government Act 1972 to make orders as to costs of
planning inquiries, and the Secretary of State’s declared policy in Circular
2/87 giving guidance as to awards of costs in such proceedings provides that
costs should be ordered against a party ‘only on grounds of unreasonable
behaviour’. I shall cite those passages of the circular relevant to the present
case. Part 1 in a paragraph headed ‘Costs in respect of appeals and other
planning proceedings’ provides:
5. In
planning proceedings the parties are normally expected to meet their own
expenses and costs are awarded only on grounds of unreasonable behaviour …
6. Before an
award of costs is made, the following conditions will normally need to be met:
(i) one of
the parties has appealed for an award at the appropriate stage of the
proceedings …
(ii) the
party against whom the claim is made has acted unreasonably;
(iii) this
unreasonable conduct has caused the party making the application to incur
expense unnecessarily, either because it should not have
determination or because of the manner in which another party has conducted his
part of the proceedings.
Under the
heading ‘Awards against planning authorities — unreasonable refusal of planning
permission’, one finds:
7. A planning
authority should not prevent, inhibit or delay development which could
reasonably be permitted. In accordance with the advice given in Circular 22/80
… a planning authority should refuse planning permission only where this serves
a sound and clear planning purpose and the economic effects have been taken
into account. As stated in Circular 14/85 … ‘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. Reasons for refusal should be complete,
precise, specific and relevant to the application. In any appeal proceedings
authorities will be expected to produce evidence to substantiate their reasons
for refusal … While planning authorities are not bound to follow advice from
their officers or from statutory bodies such as Water Authorities or the Health
and Safety Executive, or from other Government Departments, they will be
expected to show that they have reasonable planning grounds for a decision
taken against such advice and that they were able to produce evidence to
support those grounds. If they fail to do so, costs may be awarded against
them.’
Under the
heading ‘Examples of unreasonable refusal’, para 9 reads:
Planning
authorities are expected to take into account the views of local residents when
determining a planning application. Nevertheless, on its own, local opposition
to a proposal is not a reasonable ground for the refusal of the planning
application unless that opposition is founded upon valid planning reasons which
are supported by substantial evidence. While the planning authority will need
to consider the substance of any local opposition to the proposal their duty is
to decide a case on its planning merits. They are unlikely to be considered to
have acted reasonably in refusing an application if no material departure from
statutory plans or policies is involved and there are no other planning reasons
why permission should be refused.
As will become
apparent, the appellants attach particular importance to para 9, as indeed does
the respondent.
The appellants
submit that the decision of the Secretary of State gives rise to an important
point of planning law with which they say the judge did not deal, namely
whether a local authority may ever reasonably refuse to grant permission for a
development which is perceived to be unsafe and to pose unacceptable health and
safety hazards, even though that perception is not supported by opinions of
experts.
There is no
doubt that the proposed development gave rise to very substantial public
opposition. As the judge said, this was not at all surprising. The council gave
four reasons for refusing permission, the second of which was withdrawn before
the inquiry began. The first, which
other hazardous waste materials would give rise to additional public safety
risks, as to which the inspector found that the council had offered no
substantial evidence, needs no separate consideration as it is no longer
material. The third and fourth reasons were as follows:
(3) In the
interests of public safety and proper planning, major waste treatment plants
should not be located within urban communities.
(4) The
proposed development is perceived by the local community to be contrary to the
public interest generally and to their interests in particular.
The
inspector’s conclusion was that there was no evidence to support the third
reason. As to the fourth, he accepted the accuracy of what was asserted, but
found there was no valid basis for the subjective perception. Since the
Secretary of State agreed with, and adopted, the reasoning of the inspector
when making the order as to costs, it is to the inspector’s recommendation in
his report dealing with the developers’ application for costs that regard must
be had. However, it is necessary first to make some reference to his
recommendations and findings as to the substantive appeal.
In summary,
what he said was that, while he accepted that there was in the minds of the
residents of the area a perception that the plant would occasion unacceptable
danger to public health, and that that perception would remain however much
reassurance there was from experts, there was no objective basis for reasonable
fears. He concluded, as follows in para 9.33:
As the
proposal would be in accordance with the policies of the Development Plan,
determination of the appeal should be in favour of the development, unless
there are material considerations which indicate otherwise. In my opinion, the
above material considerations do not indicate otherwise. However, there remains
the question of public perception and opinion. It is expected that the views of
residents will be taken into account when determining applications for planning
permission. Nevertheless, in land-use planning considerations, public opinion
should be founded on valid planning reasons and supported by substantial
evidence. In this instance, it seems to me that the evidence produced in
opposition to the development has not indicated that the proposal would cause
demonstrable harm to the environment or public health. The public’s perception
of the hazards and risks remains. In my judgment, this is a factor which counts
against the development. Nevertheless, bearing in mind the actual evidence
regarding the foreseeable risks to health and all the circumstances surrounding
this case, I find that the opposition of the general public, expressed through
various bodies and individuals as well as the Local Planning Authority, is
insufficient to override the acceptability of the proposals in terms of
Development Plan Policies and the lack of demonstrable harm to the public or
the environment.
I turn next to
the reasons given for ordering the council to pay the developers’ costs.
Directing himself in accordance with Circular 2/87, the inspector noted that
neither the council’s offices nor the statutory bodies
consulted had reported that in land-use terms there would be no significant
environmental impact and agreed with the conclusions of the environmental
statement on siting, overall design and intended operation. Against this
background, he said, any evidence relied on to support refusal on the grounds
of safety and risk should be ‘strong and convincing’.
The inspector
then summarised the evidence, apart from that relating to the perceptions of
local people, and concluded that there had been nothing to establish a prima
facie case for refusing permission. It will be remembered, from the passage
I have cited from his substantive report, that he considered that the public
perception of the hazards and risks remained and was a factor against the
development, but one which in the light of the evidence was insufficient to
justify refusal of permission for the development.
Returning to
this topic in his costs’ report, he said:
There was
substantial local interest in the proposal. That is understandable, bearing in
mind the publicity which related to the other nearby plants, one at Pontypool
and the other at Caerleon. No doubt the fire at KwikSave added to local concern
over accidents at commercial and industrial premises. There was, therefore, an
intense and justifiable local sensitivity to the issue of chemical waste
treatment plants. Whilst there is substantial evidence of substantial local
opposition, it seems to me that that is not the same as significant land-use
planning evidence. Although the objections made to the council indicated the
genuine and widespread public concern, the evidence offered by many of the
objectors related to the waste disposal industry in its widest and most general
aspects and to opposition against a chemical waste treatment plant in general
and consequently to its location in Newport. I ask the question: is that
extensive perceived public concern sufficient reason to refuse planning
permission? The Local Planning Authority take the view that it is. Bearing in
mind the advice of Circular 2/87 and PPG 1, it seems to me that that perception
of public concern, without substantial supporting evidence does not amount to
demonstrable harm nor is it, on its own, a sound and clear cut reason
sufficient to warrant the refusal of planning permission.
Commenting on
the council’s individual reasons for refusing permission, the inspector said of
this matter of local perception:
Clearly the
development was perceived by the local community to be unsafe and to pose
unacceptable public health and safety hazards and there was evidence to support
the volume of public concern. However, in my opinion, that public concern was
not supported by substantial evidence, even when founded on valid planning
reasons.
Accordingly,
it seems to me that the Council did not behave reasonably in refusing planning
permission and that, as a consequence, the applicants have incurred the
unnecessary expense of an inquiry.
The principal
argument advanced by the applicants in support of the detailed grounds of
appeal can be simply stated. What is said is that, once it is accepted that the
public’s perception and risk to their safety inherent
consideration, it must follow that the unfounded perception alone can,
in an appropriate case, justify refusal. The inspector and the Secretary of
State failed to consider whether the present was such a case, but instead
approached the case on the basis that unless there was evidence to substantiate
the public’s perception, that perception could never be a ground for refusing
permission. This was inconsistent with their acceptance of the proposition that
the perception was a material consideration. The Secretary of State therefore
erred in law by approaching the question of the reasonableness or otherwise of
the council’s refusal of permission on the basis that, absent reasonable
grounds on which the public perception was based, it was necessarily
unreasonable.
It is also
contended, as I have already noted, that the judge in determining the
application for judicial review did not address this argument, because he based
his judgment on the assumption that the inspector had found that there was no
substance in planning terms in the public’s perception, whereas the inspector
had held that it was a planning consideration, but one which in the
light of all the evidence was ‘insufficient to override the acceptability of
the proposals in terms of the development plan policies and the lack of
demonstrable harm to the public or the environment’.
It is
submitted that the source of error into which the inspector and the Secretary
of State fell was their misconstruction of para 9 of Circular 2/87. That
paragraph, it is argued, is concerned with local opposition to a proposed
development and is saying that there should be reasonable grounds for the
opposition. It is not saying that there must be reasonable grounds for the
perception. On the contrary, it is the perception which may constitute a ground
for the opposition. The argument is that the inspector and the Secretary of
State, who adopted his reasons, misconstruing this paragraph and para 18 of PPG
1, treated them as in effect requiring that there should be objective grounds
for the perception rather than for the opposition. It is said that the judge
did not address this argument, but wrongly treated fear as synonymous with
opposition and therefore regarded the circular as applying.
Finally, three
particular points are urged, which I summarise briefly. It is said that the Secretary
of State misconstrued the requirement for substantial evidence as requiring
something more than substantial evidence of public concern and anxiety. It is
said that he failed to consider properly the evidence that was before the
inspector. Further, it is said that if the guidance in effect condemns as
irrational any refusal based on public perception alone, it is in itself
irrational.
Those
arguments have been extensively developed by Mr John Howell QC before us today
in his submissions. Miss Alice Robinson, on behalf of the Secretary of State,
has contested the validity of any of those contentions. It will be observed
that there is no assertion that the decision to award costs was unreasonable in
the Wednesbury sense. Accordingly, the challenge before the judge
depended on it being shown that the Secretary of State had erred in law in one
or more of the respects relied on, and
him. That, in the last resort, is the position on this appeal. I shall
therefore consider the validity of the criticisms advanced in respect of the
Secretary of State’s decision (or at any rate some of them) without taking time
to analyse the way in which the learned judge dealt with those submissions.
There is, in
my view, no doubt that a substantial part of the reasoning of the inspector in
that part of his report where he states his conclusions (ie para 5) addresses
the question whether there were any objective grounds for the public perception
that the plant would give rise to significant risks to the local inhabitants.
This is, however, in my view, understandable, given that the arguments relied
on by the council, as Miss Alice Robinson reminded us, in resisting the order
for costs, included arguments to the effect that the decision was not
unreasonable because the evidence before them showed that there were,
objectively viewed, good grounds for fear. I refer to parts of para 4 of the
inspector’s report on costs. In para 4.03(a) he says that the submission was
that the evidence before him showed that the plant had not been shown to be
safe; and (b) that, in any event, a proposal which gave rise to this degree of
public concern was not appropriate for an urban area. So the inspector could
not properly have disregarded arguments as to substantive risks.
However, it is
contended that he had no real regard to the argument that perceived safety risks,
even though unjustified, could constitute a valid ground for refusal. Rather,
the main thrust of his reasoning is to the effect that, absent any evidence to
substantiate the validity of those fears, perceived hazards alone could not as
a matter of principle amount to good planning grounds for rejecting an
application.
Miss Robinson,
for the Secretary of State, accepts that public perception, even if not
objectively justified, is a material consideration to be taken into account on
the issue of costs. She seeks to make a distinction in two ways, from the way
in which Mr Howell puts the matter. First, she does not concede that it is a
relevant planning consideration (ie it is not relevant in land-use terms), but
it is nevertheless relevant to the decision whether planning permission should
be granted. Second, she seeks to argue that the authorities show that it is
only rarely or in exceptional cases that such a consideration would be held to
be decisive, absent other planning considerations militating against the grant
of planning permission. Those differences apart, it is common ground between
the parties to this appeal that a perceived concern about safety is a material
consideration which must be taken into account and given such weight as may be
appropriate in the particular circumstances of the case. Miss Robinson’s
submission is that in this case the public’s perception of risk was taken into
account by the inspector and the Secretary of State as a material
consideration, and found to be insufficient to give reasonable grounds for
refusing permission. She submits that the Secretary of State was right to have
regard to the policy of Circular 2/87 and she argues that he is not shown to
have misconstrued or misapplied it. Since the question whether the public
perception was soundly based remained in issue, and
decide that question and his conclusion that it was not soundly based was a
material one to which he could have regard in deciding the question of
reasonableness. The decision was not made on the basis that mere perception
could never justify refusal, but was a decision that in the circumstances of
this case it did not do so. Therefore, Miss Robinson submits, there was no error
of law on the part of the inspector and therefore none on the part of the
Secretary of State.
Given the
substantial agreement between counsel as to the law, it does not seem to me
necessary to cite any of the five or six authorities to which we were helpfully
referred by counsel. Nor, as I see it, is it necessary to consider the
criticisms of the judge’s approach because, as I have already pointed out, it
is with the approach and reasoning of the inspector, whose conclusions the
Secretary of State in effect adopted, that we are essentially concerned. Has it
been shown that he erred in law in his approach to the resolution of the
question whether the council had acted reasonably or unreasonably in refusing
permission? Though it is of course stating the obvious, I nevertheless
emphasise that we are not concerned with the merits of the decision, but with
whether it was lawfully reached in the sense that all material and no
immaterial matters were taken into account.
That the
inspector accepted that genuine public perception of danger, even if not
objectively well founded was a valid planning consideration, is apparent from
what he said in para 9.33 of his substantive report where, it will be
remembered, having stated his conclusion that the evidence had not established
that there would be any demonstrable harm to the environment or to public
health, he continued:
The public’s
perception of the hazards and risks remains. In my judgment this is a factor
which counts against the development.
He went on to
conclude that it was insufficient to override the other considerations.
However, as I
suggest the passages I have cited show, in his costs report he adopted a
different approach. As I read the material passages in which he gives his
reasons for his award of costs, he was, as Mr Howell asserts on the appellants’
behalf, directing himself that:
perception of
public concern without substantial supporting evidence does not amount to
demonstrable harm nor is it, on its own, a sound and clear-cut reason
sufficient to warrant the refusal of planning permission.
Miss
Robinson’s argument is that this and the passages I have cited from paras 5.06
and 5.07 can be understood as accepting that perception of fear which is not
objectively based can but on the particular facts of this case did
not constitute a valid reason for refusing permission, must, in my view, be
rejected since it is simply incompatible with the language he uses. Miss
Robinson places particular emphasis on the latter part of para 5.05. Mr John
Howell submits that in the last two sentences of that paragraph the inspector
is stating a general proposition of law, rather than addressing
that by pointing to the fact that he uses the word ‘that’ on two occasions in a
context which, she argues, suggests that he is addressing the facts of this
particular case.
For my own
part, I have concluded that if the passage is read as a whole, the proper
construction is that the inspector was indeed, as Mr Howell submits, stating a
general proposition, a proposition contrary to what he had said in his earlier
report dealing with the substantive application. If there were any doubt about
the matter, it is, in my judgment, dispelled by the words in subpara (04) of
paras 5.06 and 5.07, which I have already quoted and which seem to me to be
inconsistent with any construction other than that the inspector was saying
that in no circumstances could an objectively unfounded fear constitute by
itself a reason for refusing planning permission. Moreover, had he had in mind
his conclusion in the substantive appeal, as Miss Robinson suggests he must as
a matter of commonsense have done, he would, in my view, inevitably have used
different language from that which he employed in the passages which I have
cited from his costs decision. I accept Mr Howell’s submission that the only
sensible construction of the material words is that the inspector, and
therefore the Secretary of State who adopted his reasoning, was approaching the
question whether the council had behaved unreasonably on the basis that the
genuine fears on the part of the public, unless objectively justified, could
never amount to a valid ground for refusal. That was, in my judgment, a
material error of law. In the circumstances, I consider it unnecessary to deal
with any of the other points raised and relied on by Mr Howell. I would on that
ground quash his decision and remit the matter for reconsideration.
ALDOUS LJ: I agree. Having listened to the submissions of Mr Howell QC and
Miss Robinson, I have not in the end discerned any dispute as to the relevant
law.
A planning
authority may properly take into account the perceived fears of the public when
deciding whether a proposed development would affect the amenity of an area.
Miss Robinson, for the Secretary of State, submitted that such fears will
rarely provide grounds for refusal of planning permission, whereas Mr Howell,
for the council, submitted that each case will depend on its facts. Both may be
right. However, perceived fears of the public are a planning factor which can
amount (perhaps rarely) to a good reason for refusal of planning permission. It
is therefore, in my view, ‘another planning reason’ within para 9 of Circular
14/85.
That being the
law, the inspector should have considered whether the council acted
unreasonably so that it was not necessary for the case to come before the
Secretary of State. In so doing, he should have accepted that the perceived
fears, even though they were not soundly based upon scientific or logical fact,
were a relevant planning consideration, and then gone on to decide whether,
upon the facts of the particular case, they were of so little weight as to
result in the conclusion that refusal by the council was unreasonable.
Miss Robinson
submitted that the inspector must have had in mind that perceived fears were a
relevant factor and, when read in that light, his decision was unobjectionable.
Mr Howell submitted that, upon the wording of the decision, it appeared that he
did not have that in mind. The inspector appeared to have concluded that if the
fears were not based on scientific, technical or logical fact, it followed that
refusal by the council was unreasonable with the result that costs should be
paid.
Hutchison LJ
has read the relevant passages from the inspector’s decision. I believe that
they can only be read in one way, namely that suggested by Mr Howell for the
reasons given by Hutchison LJ. It may be that what is said in that decision
does not reflect the true views of the inspector, but we have to interpret what
he said.
The judge
appears, in my view, to have read the decision letter in a somewhat similar
way. He said, at p7 of the transcript:
It follows
that the inspector had come to the conclusion that, although public perception
was a relevant consideration, it had no substance in planning terms. In those
circumstances there was no justification by way of clear cut and sound planning
for refusing planning permission. It was on the basis of that approach that the
inspector, when considering the question of costs, came to the determination
that he did.
In that
passage the judge points to the illogical conclusion that he thought the
inspector had reached, namely that public perception was a relevant
consideration, but it had no substance in planning terms. How then could it be
relevant on a planning inquiry, as the inspector held? In any case, both Miss
Robinson and Mr Howell accepted that public perception is a factor in planning
terms, and on rare occasions can be grounds for refusal.
The judge went
on, at p9, to consider the effects of Circular 2/87. He said:
The position
was, and comes out clearly from the documents, that this was a case where the
public quite understandably and, as the inspector recognised, with some
justification had real fears about what might happen were the development to be
permitted. As the circular, however, makes clear, that is not of itself to be
an adequate reason for refusing a planning permission which should otherwise be
granted and if, in fact, there is no significant evidence or substantial
evidence to support the fear, then for a council to rely upon it, it must fall
within para 9 so as to carry with it the consequence as to costs which occurred
in this case.
In my view,
the judge was wrong to come to that conclusion. The circular does not have that
meaning. The circular states that local opposition is not a reasonable ground
for refusal. Mr Howell did not suggest that it was. However, there is a
difference between local opposition and a perceived fear, which by itself could
affect the amenity of the area. The circular makes it clear that if there are
planning reasons, refusal may be reasonable. A perceived fear by the public can
in appropriate (perhaps rare) occasions be a reason for refusing planning
permission, whether or not that has caused local opposition. It follows that
the circular contemplates that planning reasons such as public perception can
(again, perhaps rarely) warrant refusal, even though the factual basis for that
fear has no scientific or logical reason. That being so, I conclude that the
judge wrongly interpreted the circular. For the reasons given by Hutchison LJ,
I agree with the order proposed by him.
STAUGHTON LJ: The conclusion which I have reached is that this appeal should be
dismissed. It is right to say that Mr Howell sensibly elected not to address us
in reply when he heard that two members of the court were in his favour. It is
also right to say that his opening address was by no means abbreviated.
The statute
entrusts the task for deciding whether there shall be an award of costs to the
Secretary of State. The decision is not for the courts, but for him. We can
interfere if his decision was unlawful or irrational or procedurally improper.
It is said in this case that it was unlawful or irrational.
I feel that
one has to start with para 9 of the circular. Mr Howell submitted that although
that paragraph was dealing with the effect of local opposition, it was not
dealing with fear (whether justified or not) in local people. I do not agree
with that conclusion. It seems to me that it is dealing with local opposition
of any kind and the weight that one must give to opposition.
The second
sentence of para 9 seems to me to conflict with the fourth. The second sentence
says:
on its own,
local opposition to a proposal is not a reasonable ground for the refusal of a
planning application unless that opposition is founded on valid planning
reasons which are supported by substantial evidence.
The fourth
sentence says:
They are
unlikely to be considered to have acted reasonably in refusing an application
if no material departure from statutory plans or policies is involved and there
are no other planning reasons why permission should be refused.
The fourth
sentence does not lay down an absolute rule, but merely says that in those
circumstances a refusal is unlikely to be reasonable. In my judgment, the
fourth sentence prevails over the second, and there is no absolute rule.
That seems to
me to accord with the substantive law, at any rate as it was put to us by Miss
Robinson. In Westminster City Council v Great Portland Estates plc
[1985] AC 661, Lord Scarman, at p670E said:
It would be
inhuman pedantry to exclude from the control of our environment the human
factor. The human factor is always present, of course, indirectly as the
background to the consideration of the character of land use. It can, however,
and sometimes should, be given direct effect as an exceptional or special
circumstance. But such circumstances, when they
general rule to be met in special cases.
Applying that
to the present case, I would say that local fears which are not, in fact,
justified can rank as part of the human factor and could be given direct effect
as an exceptional or special circumstance. I would not go so far as Glidewell
LJ did in Gateshead Metropolitan Borough Council v Secretary of State
for the Environment [1994] 1 PLR 85, where he said, at p95H:
if in the end
that public concern is not justified, it cannot be conclusive.
Glidewell LJ
is a great authority on planning matters, but in this instance I cannot agree
with him.
So I look to
see whether the inspector did take into account public fears as a special
circumstance. In my judgment, he did. He said as much in his decision letter on
the substantive application. He said:
The public’s
perception of the hazards and risks remains. In my judgment, this is a factor
which counts against the development.
He had earlier
said that public opinion should be founded on valid planning reasons and
supported by substantial evidence. But then in his decision on costs, which was
adopted by the Secretary of State, he said:
I asked the
question is that extensive perceived public concern sufficient reason to refuse
planning permission? The local planning authority take the view that it is.
Bearing in mind the advice of Circular 2/87 and PPG1 it seems to me that that
perception of public concern without substantial supporting evidence does not
amount to demonstrable harm nor is it on its own a sound and clear-cut reason
sufficient to warrant refusal of planning permission.
That was not,
in my judgment, an abstract statement of law, but the inspector’s assessment of
the facts in this case. Perhaps in reaching that conclusion I am influenced by
what he said in his substantive decision letter which was dated in the same
month as his decision on costs. I am prepared to assume that he did not intend
to contradict in a second document what he had said in the first.
It is true
that the passage at para .04 says that public concern was not supported by
substantial evidence, even when founded on valid planning reasons. I have
difficulty with that sentence, not least because I do not understand what it
means. But I can see nothing irrational or unlawful in the inspector’s decision
as I have construed it. He took into account the public fear; he rightly
concluded that it was not supported by any planning grounds; and in those circumstances
he was entitled to conclude that the council’s opposition was unreasonable. I
would, as I have said, have dismissed this appeal.
Appeal
allowed with costs.
