Material considerations — Planning permission refused for petrol filling station — Section 70(2) of the Town and Country Planning Act 1990 — Whether inspector ought to have taken into account availability of suitable alternative site — Whether inspector gave adequate reasons
The applicants,
MJT Securities Ltd, were refused planning permission for a petrol filling
station on a site (‘the appeal site’). This decision was upheld by the
Secretary of State for the Environment, by his inspector, on the grounds that
the harm caused by the proposal to the character and appearance to the area
outweighed the demonstrated lack of facilities within the area. On a motion
before the High Court, the applicants contended that the inspector had
concentrated too narrowly on the development plan, thereby failing to take into
account a material consideration pursuant to section 70(2) of the Town and
Country Planning Act 1990, namely that the appeal site was the only suitable
available site for a proposed petrol filling station. The motion was granted and
the decision of the inspector quashed. The Secretary of State appealed.
The
distinction between ‘major’ and ‘minor’ inquiries, with the scope of the duty
to give reasons depending upon the kind of inquiry advanced by the judge below,
was inconsistent with Lord Bridge’s speech in Save Britain’s Heritage v Secretary
of State for the Environment [1991] 3 PLR 17. Regardless of the size of the
inquiry the inspector’s duty is to give adequate reasons for the decision which
he makes. The inspector is not obliged to decide all the issues which are
raised before him. The statutory duty to give reasons does not extend to issues
which are not relevant to the result of the appeal. The inspector’s duty is to
set out the major steps in his reasoning, and this makes it necessary for him
to state his conclusions on the principal issues, which it was necessary for
him to decide. There was doubt whether the possibility of an alternative site
was clearly raised as a discrete issue at the inquiry, but if it was, it did
not come within the category of principal, important and controversial issues.
The possibility of some alternative site outside the settlement area was not a
main issue: see pp51F–52B.
to in the judgment
Bolton
Metropolitan Borough Council v Secretary of
State for the Environment (1990) 61 P&CR 343; [1991] JPL 241, CA
Bolton
Metropolian District Council v Secretary of
State for the Environment [1995] 1 WLR 1176; (1995) 71 P&CR 309; [1995]
3 PLR 37; [1995] JPL 1043, HL
R v Criminal Injuries Compensation Board, ex parte Cook [1996]
1 WLR 1037; [1996] 2 All ER 144, CA
R v Secretary of State for Trade and Industry, ex parte Lonrho plc
[1989] 1 WLR 525; [1989] 2 All ER 609, HL
R v Westminster City Council, ex parte Ermakov [1996] 2 All ER
302, CA
Save
Britain’s Heritage v Number 1 Poultry Ltd
[1991] 1 WLR 153; sub nom Save Britain’s Heritage v Secretary of
State for the Environment [1991] 2 All ER 10; (1991) 62 P&CR 105;
[1991] 3 PLR 17, HL
Secretary
of State for the Environment v Edwards
(1994) 69 P&CR 607; [1994] 1 PLR 62
Vale of
Glamorgan Borough Council v Secretary of State
for Wales (1985) 52 P&CR 418; [1986] JPL 198
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 ER744, HL
Appeal to the
Court of Appeal
This was an
appeal by the Secretary of State for the Environment from a decision of Brooke
J, who on May 2 1996 allowed a motion by the applicants, MJT Securities Ltd, to
quash a decision of the Secretary of State, by his inspector, dated November 10
1995.
Nardecchia (instructed by Roger Green & Co, of Billericay) appeared for the
appellants, MJT Securities Ltd.
Holgate QC (instructed by the Treasury Solicitor) appeared for the respondent,
the Secretary of State for the Environment.
following judgment was delivered.
EVANS LJ: This is an appeal by the Secretary of State for the Environment
against a judgment given by Brooke J on May 2 1996. Brooke J allowed a motion
by MJT Securities Ltd (‘the applicants’) to quash the decision of a planning
inspector dated November 10 1995.
The issue in
the appeal is whether the inspector gave adequate reasons for his decision, and
the related question, whether he took a particular material consideration into
account, as statute required him to do.
The applicants
sought planning permission for a petrol filling station on the outskirts of
South Woodham Ferrers in Essex. South Woodham Ferrers is:
a planned new
settlement with a population of about 17000. The appeal site lies to the
North-West of the town, at the roundabout junction of the A132 and the B1012,
newly built main roads around the town, and Ferrers Way, a distributor road
into the town centre. The site is an area of flat open grass …
— decision
letter para 7.
The site is
outside the area of the planned new settlement, although close to it, and it is
subject to planning constraints appropriate to a rural area. These were
described as follows, and it is not suggested that the inspector did not direct
himself correctly in accordance with them:
3. The
Development Plan for the area consists of the Essex Structure Plan Second
Alteration and the Chelmsford Rural Areas Local Plan 1987. Policy S10 of the
Structure Plan seeks to protect the countryside in the rural areas beyond the
Green Belt, where existing uses will, for the most part, remain undisturbed.
Permission will not normally be given for development unless it is for
agriculture or similar uses with an open character compatible with rural areas.
4. The Rural
Areas Local Plan shows the appeal site as lying in a rural area to which this
policy applies, whilst Policy 87 of this plan deals with new petrol filling
stations in the countryside. Under this policy, permission will only be granted
in the most exceptional circumstances or where there is a demonstrated lack of
facilities to justify an exception to established policies.
5. The aim of
this policy has been carried forward into the Chelmsford Borough Local Plan,
which has been the subject of a local inquiry, and for which the Council has
published a list of modifications following the receipt of the Inspector’s
report. Policy RE12, as proposed to be modified, would not normally allow
petrol filling stations in the countryside, except where there is a
demonstrated lack of facilities. I have attached some weight to this policy
since the Plan has proceeded a long way towards adoption, and as its aim
closely reflects Policy 87 of the adopted plan.
In para 6 of
his decision letter, the inspector stated ‘the main issues’ as follows:
(1) whether
there is demonstrated lack of facilities in the area to justify an exception to
the normally strict control of development in the countryside set out in [the]
Development Plan and other policies; and
(2) the
effect of the proposal on the character and appearance of the area.
The judge
recorded that Mr Nicholas Nardecchia, counsel for the applicants:
did not
quarrel with this formulation but he complained that because the inspector
concentrated too narrowly on development plan issues he lost sight of another
material consideration which he should have borne in mind pursuant to section
70(2), namely that no suitable alternative site for a new petrol filling
station existed.
Mr Nardecchia
has maintained that position before us.
The inspector
found in favour of the applicants on the first issue, that is, the ‘demonstrated
lack of facilities in the area’, or in other words the question of need. The
applicants contended that the two existing filling stations in South Woodham
Ferrers do not meet the needs either of residents or of passing motorists. One
which is operated by ASDA is ‘poorly located within a shoppers car park in the
town centre and is subject to queuing and congestion at peak times’. The other
is in a cul-de-sac and ‘is too small to attract commercial investment for its
redevelopment’. The inspector said that neither provides the full range of
facilities expected by motorists today, such as a choice of fuel, 24-hour
opening, car wash and a motorists shop (para 8).
He found that
the planning authority, Chelmsford Borough Council,
to whether the existing stations might be developed or improved in the future.
Again, these findings were favourable to the applicants’ case. He said:
Whilst the
existing filling stations may be improved, ASDA in particular, there are no
detailed plans available at present, and no improvements could alter the
disadvantages of their locations
(para 10), and
that the other filling station
may well
continue to offer a local, neighbourhood service, but it is very different from
the type of operation proposed in this case. Moreover, neither site would meet
the needs of passing motorists on the A132 and B1012.
For those
reasons, he reached his conclusion on the first issue, saying that this ‘could
justify an exception to established policies for the protection of the
countryside’.
He then
considered the second issue in paras 13 to 16 of his decision letter. He found
that ‘the filling station would be an unduly intrusive feature beyond the edge
of the settlement in a largely undeveloped area’ (para 14) and he concluded:
My overall
conclusion in balancing the two issues which I have identified is that the
material harm caused by the proposal to the character and appearance of the
area is sufficient to outweigh the demonstrated lack of facilities in South
Woodham Ferrers. Because of this harm, I consider that the provisions of Policy
S10 of the Structure Plan should prevail in this instance, despite my
conclusion on the first issue.
Application
to quash
The applicants
sought to have the decision quashed on the ground that the inspector erred in
law ‘by failing to take into account a material consideration namely that the
appeal site was the only suitable and available site on which the need for
additional petrol filling station facilities at South Woodham Ferrers could be
met’ (Motion dated December 15 1995). They gave particulars of this allegation,
as follows:
The
Applicants’ case at the public local inquiry held to consider the Appeal was
that there was a need for an additional petrol filling station to serve the
area of South Woodham Ferrers and also that the Appeal site was the only
suitable and available site capable of meeting this need as there was no such
alternative site within the said area. The second respondent was unable when
asked to identify any other such site.
The judge
granted that application. He held that the inspector’s decision letter made no
reference to what he categorised as ‘one of the principal important
controversial issues’ that the inspector was called upon to decide. His
conclusion was as follows:
In my
judgment the Inspector should not only have had regard to this consideration
pursuant to his obligations under section 70(2) of the Act but he should also
have given his reasons for dismissing it, if he did, pursuant to his obligation
to give reasons under Rule 18(1) of the relevant Rules. Insofar as the relevant
requirements of the Act (and of Rules made under the Act) had not been complied
with, I am satisfied that the applicants’ interests have been substantially
prejudiced.
The judge
granted the application on the basis that it was common ground between the
parties that there was no suitable alternative site in the area of South
Woodham Ferrers. There was no formal agreement or admission to this effect, but
the applicants asserted that that was so and also that they had asked the
council to suggest an alternative site, which the council had failed to do. The
judge recorded a concession by Mr Christopher Katkowski, counsel for the
Secretary of State, that the fact that ‘There was no suitable alternative site
(so that the citizens of South Woodham Ferrers and passing motorists would
either have the benefit of a filling station on the appeal site or go without)
was indeed a material consideration to which the Inspector should have had
regard’. He further found that there was no reference, express or implied, in
the decision letter to the fact ‘That if a need for a new filling station was
established, there was no other site for it’, and he held:
It was a
material consideration, and I simply do not know if the Inspector had regard to
it or not.
He also held
that, if the inspector had failed to consider it, then there was ‘a real
possibility’ that the consideration of it would have made a difference to the
decision. That was an express reference to the judgment of Glidewell LJ in Bolton
Metropolitan Borough Council v Secretary of State for the Environment (1990)
61 P&CR 343 (‘Bolton No 1‘) where he held:
6. If the
judge concludes that the matter was ‘fundamental to the decision’, or that it
is clear that there is a real possibility that the consideration of the matter
would have made a difference to the decision, he is thus enabled to hold that
the decision was not validly made (p353).
As regards the
sufficiency of the reasons which the inspector gave, the judge directed himself
in accordance with the speech of Lord Lloyd of Berwick in Bolton
Metropolitan District Council v Secretary of State for the Environment
(1995) 71 P&CR 309,1 which I shall call Bolton No 2. I
should quote the relevant passage here:
1 [1995] 3 PLR 37.
The correct
approach
Before
dealing with each of these challenges, I should first make some preliminary
observations on the correct approach to decision letters in planning appeals,
with which alone we are concerned in this case. This can
of Lord Bridge of Harwich in Save Britain’s Heritage v No 1 Poultry
Ltd.
Under section
70(2) of the Act of 1990, read with section 77(4), it was the duty of the
Secretary of State to have regard ‘to the provisions of the development plan …
and to any other material considerations’. Under rule 17(1) of the Town and
Country Planning (Inquiries Procedure) Rules 1988 (S.I. 1988 No. 944), it was
the duty of the Secretary of State to ‘notify his decision … and his reasons
for it in writing to all persons entitled to appear at the inquiry who did
appear …’ So the Secretary of State had to have regard to all material
considerations before reaching a decision, and then state the reasons for his
decision to grant or withhold planning consent. There is nothing in the
statutory language which requires him, in stating his reasons, to deal
specifically with every material consideration. Otherwise his task would never
be done. The decision letter would be as long as the inspector’s report. He has
to have regard to every material consideration; but he need not mention
them all.
What then
must he mention? The classic exposition was given by Megaw J in In re Poyser
and Mills Arbitration approved by this House in Westminster City Council
v Great Portland Estates Plc:
‘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.’
Ten years
later, in Hope v Secretary of State for the Environment (1975) 31
P&CR 120 at p123, Phillips J said:
‘It seems to
me that the decision must be such that it enables the appellant to understand
on what grounds the appeal has been decided and be in sufficient detail to
enable him to know what conclusions the inspector has reached on the principal
important controversial issues.’
Lord Bridge
in Save Britain’s Heritage v No 1 Poultry Ltd, described this
statement as being ‘particularly well expressed’.
Then, having
quoted a passage from the judgment of Glidewell LJ in Bolton No 2, Lord
Lloyd said, at p314:
… in so far
as he was saying that a decision letter must refer to ‘each material consideration’
I must respectfully disagree. This seems to go well beyond Phillips J’s
formulation in Hope v Secretary of State for the Environment.
What the Secretary of State must do is to state his reasons in sufficient
detail to enable the reader to know what conclusion he has reached on the
‘principal important controversial issues’. To require him to refer to every
material consideration, however insignificant, and to deal with every argument,
however peripheral, would be to impose an unjustifiable burden.
Lord Lloyd
later referred to the obligation to refer only to ‘the main issues in dispute’:
see p315.
The judge
regarded this as establishing a new approach. He said that the House of Lords
was ‘wisely counselling that a proper balance had to be struck between a
broader brush approach on the one hand and excessive attention to detail in
relation to issues of subordinate importance on the other’, and that he adopted
a ‘cautious approach, pending further elucidation by the higher courts’. In so
doing, he distinguished between
planning proposal of major regional importance, with a long procedural history
and voluminous submissions received over a long period, and what he called ‘a
small inquiry’ such as the present case. He then reached the conclusions which
I have already quoted above.
One issue
which has arisen before us is whether, in addition to deciding that the
inspector failed to give adequate reasons, the judge also found that the
inspector also failed to take a material consideration, namely the lack of a
suitable alternative site, into account.
Mr David
Holgate QC, appearing before us for the Secretary of State, submits that the
judge found only that the reasons were inadequate and that that finding was
wrong. That was because even if it was established as a fact, whether by
agreement or otherwise, that there was no suitable alternative site,
nevertheless that fact did not come within the restricted category of
‘principal important controversial issues’ which the inspector was required to
give as one of his reasons in the decision letter, in accordance with Lord
Lloyd’s statement of the law.
Mr Nardecchia,
on the other hand, submitted that the judge also found that the inspector had
failed to take what was admittedly a ‘material consideration’ into account, and
that in any event the inspector failed to give adequate reasons even to the
extent required by law, because he made no reference to what was, on any view,
he submitted, a ‘main issue’ or ‘principal important controversial issue’,
within the authorities referred to above.
As to the need
for the inspector to take into account the fact, if it was the fact, that there
was no other suitable alternative site in the area of South Woodham Ferrers
(which to avoid repetition I will call ‘the material consideration’), Mr
Nardecchia referred to the judgment of Glidewell LJ in Bolton No 1 and
to Vale of Glamorgan Borough Council v Secretary of State for Wales
(1985) 52 P&CR 418 and Secretary of State for the Environment v Edwards
(1994) 69 P&CR 607.1 The last two authorities also underlined,
he submitted, the importance of this factor in a case such as the present.
1 [1994] 1 PLR 62.
In relation to
the inspector’s duty to give adequate reasons, we were referred to the speech
of Lord Bridge in Save Britain’s Heritage v Number 1 Poultry Ltd
[1991] 1 WLR 1531 at pp165–8, R v Westminster City
Council, ex parte Ermakov [1996] 2 All ER 302 at p309, and Westminster
City Council v Great Portland Estates plc [1985] AC 661 at p673, as
well as to Bolton No 2.
1 sub nom: Save Britain’s Heritage v Secretary of
State for the Environment [1991] 3 PLR 17.
Before
considering these authorities further, I should first set out the statutory
framework. The inspector was required to have regard ‘to the provision of the
development plan, so far as material to the application, and to any other
material consideration’ (Town and Country Planning Act 1990, section 70(2)). By
r 18(1) of the Town and Country Planning Appeals (Determination by Inspector)
Rules 1992, his duty was to ‘notify his
appeared at the inquiry.
That the
reasons given must be ‘proper, intelligible and adequate’ is clearly
established by the authorities referred to above passim.
These
proceedings in which the applicants question the validity of the inspector’s
decision on the ground that ‘relevant requirements have not been complied with’
are brought under section 288(1) of the 1990 Act. The court has power to quash
the order:
(b) if satisfied that the order or action in
question is not within the powers of this Act, or that the interests of the
applicant have been substantially prejudiced by a failure to comply with any of
the relevant requirements in relation to it
— section
288(5).
Adequate
reasons
There is no
express reference in the decision letter to what I have defined above as the
material consideration. The inspector did make express findings that the two
existing stations in South Woodham Ferrers itself could not or were unlikely to
be expanded to satisfy this need, and his letter clearly implies that there was
no alternative site for a new station within the boundaries of the proposed
urban area.
What he does
not deal with, therefore, is the question whether there might be a suitable
alternative site outside South Woodham Ferrers but close enough to it to satisfy
the demand which he found to exist.
I should say,
first, that although Mr Holgate accepts on behalf of the Secretary of State
that this was a material consideration for the inspector to take into account,
I am far from satisfied that the issue was clearly defined at the hearing in
this way, so as to distinguish between possible alternative sites in the
surrounding rural area and those in South Woodham Ferrers itself. The
particulars given by the applicants in their application to quash did not do so
(see above), and the proof of evidence given by their expert witness, Melville
Dunbar, does not include the availability of alternative sites as one of the
five major issues: see para 7.1.
In the section
of Mr Dunbar’s proof of evidence dealing with need, he says that his and the
applicants’ other evidence will demonstrate ‘that there is no alternative site’
(para 7.4), and in connection with location the proof reads at para 7.13:
No other
appropriate site in the vicinity of South Woodham Ferrers is capable of serving
such a large number of people and range of destinations
The people
referred to are those living in South Woodham Ferrers and those travelling on
the roads which intersect near the appeal site. This suggests that an
alternative site would have to be close to the appeal site and therefore in the
same rural area and subject to the same planning constraints.
Finally, in a
section headed ‘Lack of other Sites Suitable for Filling
the urban area, leading to the conclusion that ‘the only alternative was to
look elsewhere in the vicinity’ and to support for the appeal site because it
is co-terminous with that area and as close as possible to it (paras 7.18–21).
I am not
convinced, therefore, that there was a live issue at the inquiry as to whether
there might or might not be a possible alternative site which like the appeal
site was outside the urban area and close enough to it to satisfy the suggested
need, and which might have a greater or lesser chance of overcoming the same
planning constraints. Rather, the emphasis seems to have been on the appeal
site as the obvious candidate to overcome the objections, if any site could.
That would mean that the non-availability of any suitable alternative site
outside the urban area effectively was common ground, and that fact was not
relevant to the issue which the inspector had to decide. The question for him
was whether the appeal site did overcome the objections or not.
However, since
the appeal has been argued on the basis described above, and the Secretary of
State accepts that the non-availability of a suitable alternative site outside
South Woodham Ferrers (for that is what the decision letter fails to mention)
was a ‘material consideration’, I will deal with the issues raised before us on
the basis that it was.
The
inspector’s statutory obligation was to give reasons for his decision, and the
courts can do no more than say that the reasons must be ‘proper, intelligible
and adequate’, as has been held. What degree of particularity is required must
depend on the circumstances of each case:
I do not
think one can safely say more in general terms than that the degree of
particularity required will depend entirely on the nature of the issues falling
for decision
— per
Lord Bridge in Save Britain’s Heritage at p167B.
In the present
case, the judge introduced a distinction between ‘major’ and ‘minor’ inquiries
which could suggest that the scope of the duty to give reasons depends upon the
kind of inquiry which it is. I would reject this suggestion as being
inconsistent with Lord Bridge’s speech: see especially p166G. Regardless of the
size of the inquiry and the number of issues that may arise, his duty is to
give adequate reasons for the decision which he makes.
What should be
noted, however, is that the inspector is not obliged to decide all the issues
which are raised before him. It may not be necessary for him to decide all the
issues in order to decide whether planning permission should be granted. An
obvious example is provided in the present case: if he had decided the question
of need against the applicants, the issue as to planning merits would no longer
be relevant to his decision. No one suggests that the statutory duty to give
reasons extends to issues which in the event are not relevant in this sense to
the result of the appeal. The duty established by the House of Lords in Bolton
No 2, in my judgment, is to set out the major steps in the inspector’s
reasoning which
him to state his conclusions on the principal issues which were raised for
decision by him (‘controversial’) and which in the result it was necessary for
him to decide. Moreover, he need not refer to ‘every material consideration,
however insignificant’, but only to the ‘main issues’: see per Lord
Lloyd at pp314–5.
This approach
is supported, in my view, by the following passages from two of the judgments
cited to us:
… in this
case the council’s reasoning in support of its view is made perfectly clear …
— per Lord
Scarman in Westminster City Council v Great Portland Estates plc [1985] AC 661
at p673G, and —
… an
obligation, whether statutory or otherwise, to give reasons for a decision is
imposed so that the persons affected by the decision may know why they have won
or lost and, in particular, may be able to judge whether the decision is valid
and therefore unchallengeable, or invalid and therefore open to challenge
— per
Hutchison LJ in R v Westminster City Council ex p Ermakov [1996]
2 All ER 302 at p309f.
The
inspector’s reasons as given in the decision letter are said to be inadequate
because he failed to indicate whether or not he reached his decision on the
basis that there was no other site outside the settlement area which could be
regarded as an alternative site for the purposes of satisfying the need which
he found existed. If he did not make this assumption, Mr Nardecchia submits,
then it could be open to the applicants to propose some other site, but which
would be contrary to the decision if the assumption was made. In this way, the
applicants are prejudiced by the inadequacy of which they complain.
As stated
above, I am doubtful whether the possibility of some other site, outside the settlement
area and not subject to the same development criteria on the proposed site, was
clearly raised as a discrete issue at the inquiry, and if it was not, then the
inspector’s reasons cannot be faulted for failing to refer to it. But even if
it was identified in that way, I cannot accept that it comes within the
category of ‘principal, important and controversial issues’ in the
circumstances of this case, for the purposes of applying the test formulated by
Lord Lloyd in Bolton No 2. Rather, the inspector was asked to decide, if
the applicants established need, whether the need outweighed the planning
restrictions imposed on the proposed site. He decided that issue and he gave
clear reasons for his decision. The possibility of some alternative site outside
the settlement area was not a main issue (compare Bolton No 2 at p319
regarding the ASDA issue), and it is the applicants’ own case that the issue,
if there was one, was not ‘controversial’. His reasons cannot be faulted for
failing to mention what was effectively, if not formally, common ground: see R
v Criminal Injuries Compensation Board, ex parte Cook [1996] 1 WLR 1037
(‘The reasons … did
see p1043E).
I therefore
must differ from the judge’s conclusion that the reasons were inadequate, and I
would allow that ground of appeal.
‘Material
consideration’
The
respondents contend that the judge also decided that the inspector failed in
his duty to have regard to what was admittedly a material consideration — ‘I
simply do not know if the Inspector had regard to it or not’. Logically, this
conclusion would seem to follow from the fact that no reference is made to it.
But it is implicit in the House of Lords’ ruling in Bolton No 2, that
only the ‘main issues’ need be referred to, that the failure to refer to other
issues does not mean that they have been ignored. This was recognised in Lord
Lloyd’s speech in Bolton No 2. He quoted from Lord Keith’s speech in R
v Secretary of State for Trade and Industry, ex parte Lonrho plc [1989]
1 WLR 525 as follows:
The only
significance of the absence of reasons is that if all other known facts and
circumstances appear to point overwhelmingly in favour of the different
decision, the decision-maker, who has given no reasons, cannot complain if the
court draws the inference that he had no rational reason for his decision
— p540, quoted
at 71 P&CR p314.
Lord Lloyd
held in Bolton No 2 that the same principle applies to a failure to
refer in a decision to a material consideration: see p315. The material
consideration which the applicants say the inspector failed to take into
account was not a ‘main issue’ and there are no grounds for inferring that he
overlooked it when he reached his decision.
For these reasons,
I would hold that the applicants failed to make out either of their complaints
with regard to the inspector’s decision, and that the judge was wrong to order
that the decision should be quashed.
A further
matter argued before us was the nature of the burden of proof resting upon an
aggrieved person who questions the validity of a decision or order under
section 288 of the 1990 Act. The court may quash the order if it is satisfied
that ‘the interests of the applicant have been substantially prejudiced by a
failure to comply with any of the relevant requirements in relation to it’
(section 288(5)(b)).
This implies
that the burden lies on the applicants of showing on a balance of probabilities
that the inspector so failed. Mr Nardecchia submits, however, that the burden
on the applicants is somewhat less onerous than this. He relies upon the
following passage from Lord Bridge’s speech in Save Britain’s Heritage
at p168C:
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 [to lay the decision
open to challenge]. 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 of fact left unresolved and when
the decision was essentially an exercise of discretion, I
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.
Mr Nardecchia
submits that the burden of raising a substantial doubt is lighter than that of
satisfying the court that a failure has in fact occurred. This proposition
seems to me to be correct, but I am not persuaded that Lord Bridge intended to
give the words of the statute anything other than their true meaning and
effect. He said on the previous page, ‘I disclaim any intention to put a gloss
on the statutory provisions’: see p167E, in a paragraph introduced by:
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
(p167C), and
this formula was repeated at p168B.
It is
unnecessary to say more, however, because in the present case, in my judgment,
the applicants fail to satisfy the court that there is even a substantial doubt
as to whether the inspector failed to take into account a material
consideration which can be regarded as a ‘main issue’ within Lord Lloyd’s test.
I therefore
would allow the appeal.
PETER
GIBSON LJ: I agree.
HOBHOUSE LJ: I also agree.
Appeal allowed
with costs.
