Planning permission — Proposal to expand business — Written and oral evidence — Whether inspector failed to take into account a material consideration — Whether inspector failed to give clear reasons
In appealing
the refusal of outline planning permission for commercial buildings, the
appellants adduced at the inquiry proofs of evidence which were supplemented by
oral evidence. They contented that the oral evidence, which contained
commercially sensitive information, formed the ‘central and principal
proposition’ of their case, namely that there was a ‘very real risk of the
business going under’ if the proposed buildings allowing the expansion of the
business were not permitted. The Secretary of State for the Environment, by his
inspector, dismissed the appeal. In appealing the decision of the court below,
which refused to quash the inspector’s decision letter, the appellants
contended that: the inspector failed to consider the oral evidence called by
them; failed to have regard to a material consideration; and his decision was inadequately
reasoned.
The
appellants’ case was sufficiently dealt with and reasoned by the inspector.
Rule 14 of the Town and Country Planning Appeals (Determination by Inspectors)
(Inquiries Procedure) Rules 1992 (SI 1992 No 2039) requires advance disclosure
of written proofs of evidence, its purpose being to prevent surprise to other
parties. The intention is that proofs should be the principal evidence for the
party submitting them: see p63C-D. The reason given by the appellants was not a
sound one. It was for them to prepare a fresh document covering the oral
evidence and ensure that its importance was made known to the inspector.
Relevant facts should be put in writing and presented to the inspector: see
p63E. An inspector should not include inappropriate comments in an affidavit
prepared for legal proceedings which would not appear in a decision letter: see
p65D.
to in the judgments
Bolton
Metropolitan District Council v Secretary of
State for the Environment [1995] 1 WLR 1176; (1995) 69 P&CR 324; [1995]
3 PLR 37
Hope v Secretary of State for the Environment (1975) 31 P&CR
120; [1976] 2 EGLR 147; [1976] EGD 823; 240 EG 627
Jones v Secretary of State for Wales (1995) 70 P&CR 211;
[1995] 2 PLR 26
Poyser
and Mills’ Arbitration, In re, [1964] 2 QB
467; [1963] 2 WLR 1309; [1963] 1 All ER 612; sub nom Poyser v Mills
[1963] EGD 421; (1963) 185 EG 609
Save
Britain’s Heritage v No 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
Appeal against
the decision of Mr Roy Vandermeer QC
This was an
appeal from the decision of Mr Roy Vandermeer QC, sitting as a deputy High
Court judge (April 29 1994), who dismissed the appellants’ motion to quash the
decision of the first respondent, the Secretary of State for the Environment,
who had dismissed an appeal by the appellants against the second respondent
council refusing outline planning permission.
(instructed by Peter James Scott, of Tetbury) appeared for the appellants,
Richard Read (Transport) Ltd.
Katkowski (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for the Environment.
respondents, Forest of Dean District Council, did not appear and were not
represented.
following judgments were delivered.
BUTLER-SLOSS
LJ: I will ask Pill LJ to give the first judgment.
PILL LJ: This is an appeal from the decision of Mr Roy Vandermeer QC,
sitting as a deputy High Court judge, made on April 29 1994. The deputy judge
dismissed the motion of Richard Read (Transport) Ltd (the appellants), to quash
the decision of the Secretary of State for the Environment (the respondent)
whereby the respondent had dismissed an appeal by the appellants against the
decision of Forest of Dean District Council to refuse outline planning
permission for the erection of a warehouse with ancillary works at their
premises at Longhope, Gloucestershire. The powers of the respondent to hear and
determine the appeal had been exercised by an inspector appointed by him. The
decision letter is dated January 29 1993 and it followed a local inquiry held
from December 8 to 10 1992.
The appellants
have operated a business on the site since 1956. It appeared to the inspector
to be a thriving business. The business, or businesses, were involved in road
haulage, warehousing, commercial vehicle sales and other activities related to
the operation of commercial vehicles. The appellants operated a fleet of 50
lorries.
At para 2 of
the decision letter the inspector stated:
I consider
that the main issue in this appeal is the likely impact of the proposal on the
appearance of the valley in which this site is located, when weighed against
the economic advantages of the proposal.
The inspector
set out economic considerations in para 4 of his letter and environmental
considerations in paras 5 to 7. He stated that the site extension was seen as
projecting into the surrounding countryside and that, even with a substantial
landscaping scheme, it would still be clear that a commercial site had expanded
at the expense of the countryside.
At para 8 the
inspector stated:
The
conclusion I have reached is that this proposal would have an adverse effect on
the attractive rural appearance of this part of the Forest of Dean. To my mind
this impact would be serious enough to outweigh the commercial considerations,
important as they are, to which I have referred above.
He held that
there were compelling reasons for rejecting the proposal and dismissed the
appeal.
The
appellants’ point is that the inspector failed to consider evidence called by
them that the future of existing business on site would be jeopardised if the
appellants were unable to expand. It is submitted that the inspector failed to
have regard to a material consideration and that his decision was inadequately
reasoned.
Para 4 of the
decision letter reads:
It is a
national policy, as most recently expressed in Planning Policy Guidance Note 4,
to encourage continued economic development, and that Note makes it clear that
the system of development control should not place unjustifiable obstacles in
the way of business development. This part of the Forest of Dean is designated
in the Structure Plan (1982) as an Employment Priority Area, and I am conscious
that it enjoys Assisted Area and Rural Development Area status. This proposal
by Richard Read (Transport) Ltd will enable the growth of this business, assist
the efficient operation of those companies for which distribution and
warehousing facilities will be provided, and provide some more local jobs.
These are important considerations, especially in the context of the present
recession. It would be possible for this additional warehousing floorspace to
be provided on a different site elsewhere and an exploration of possible
alternative sites has been carried out, but this has indicated to me that the
choice in this area is very limited. However, even if there were a suitable
alternative site, I can see that it would be more advantageous to the company
to simply expand the present site, as proposed.
The submission
is that while the inspector set out the advantages which would accrue to the
appellants if the appeal were to be allowed, he did not deal with the other
aspect of their case, that the ‘present enterprise would rapidly become uneconomic
and would in the comparatively near future either relocate or close down’ if
the appeal were to be dismissed. The words in quotation marks are those of the
appellants’ solicitor contained in an affidavit sworn in April 1993.
Before
considering the merits of the appellants’ case, it is necessary to refer to the
procedural background to this litigation. Before the inquiry, the appellants
disclosed, as well as a formal statement of case, detailed proofs of evidence.
These included a 33-page statement from Mr Richard Read, the appellants’
managing director, a 26-page statement from Mr Jeremy Clark-Lowes [frics], a chartered surveyor and head
of the London planning department of a substantial firm, and a short statement
from Mr Dowle, the appellants’ general manager. They were disclosed under the
provision of r
by Inspectors) (Inquiries Procedure) Rules 1992 (SI 1992 No 2039) (the 1992
rules). The statements were read at the local inquiry and, as is not unusual,
were supplemented by oral evidence. In his affidavit already mentioned, the
appellants’ solicitor, Mr J C de Courcy Scott, submits that the appellants’
point, to which the inspector did not specifically refer in his decision
letter, was the ‘central and principal proposition advanced to the Inspector’.
On the day
fixed for the hearing of the notice of motion, in this case August 11 1993, the
respondent produced an affidavit from the inspector and an affidavit from the
solicitor who had appeared for the district council at the local inquiry. The
appellants sought to adjourn the hearing and, not surprisingly, an adjournment
was granted, with the respondent paying the costs thrown away and the
appellants given leave to file a further affidavit.
Mr Scott swore
a further affidavit on August 27 1993 and in September, counsel who had
appeared for the appellants at the inquiry, swore an affidavit confirming the
contents of that of Mr Scott. The inspector replied with a second affidavit
sworn on December 29 1993, but apparently disclosed earlier in draft. The
appellants sought leave to cross-examine the inspector upon his affidavits. The
application was opposed and was refused by Laws J on December 14 1993.
In his second
affidavit Mr Scott, by reference, we are told, to the note of evidence he took
at the inquiry quotes oral statements at the inquiry of Mr Read, Mr Dowle and
Mr Clark-Lowes, not included in their written statements, in which they
referred, for example, to the ‘very real risk of the business going under’. In
his affidavit the inspector disputes the proposition that the threat of closure
of the company was the appellants’ ‘central and principal’ proposition. He does
not deal in terms with the oral evidence additional to proofs which it is claimed
was given. I propose to refer later to another feature of the affidavits, but
deal first with the central issue which has arisen.
The
appellants’ explanation for what they later claimed to have become their
‘central and principal proposition’ not receiving prominence in their proofs of
evidence, is that they were:
… very
concerned that we should not present written statements which might find their
way into wide circulation amongst competitors in which commercially sensitive
information may appear to the effect that the future of the business was in
immediate jeopardy.
Some hint of
the point, as the inspector accepts, had been given in the preinquiry statement
by a reference to the existing transport operation being ‘brought into question
and existing employment put in jeopardy’ by refusal and a statement in Mr
Read’s proof of evidence:
It is trite
that businesses cannot stay still, they either flourish or wither.
The risk of
closing down was elevated into the central and principal proposition advanced,
it is submitted, by oral additions to the proofs of evidence. On the material
before the court, I cannot accept that it ever
of the future of the range of activities conducted by the appellants. The
headings in Mr Read’s proof illustrate this: ‘The Appellants’ need for
extended warehousing’; ‘expansion of distributorship’, (with reference to
successes and awards one) ‘expansion generally’; ‘demand for warehousing’;
‘effect of expansion on employment.’
It is no
surprise that the inspector found the business to be thriving. Mr Read deals at
length with the disadvantages of further development on a split site, a point
considered by the inspector. I do not accept Mr Scott’s description of proofs
of evidence as ‘no more than aide memoires’. The proofs were the main evidence
of the appellants at the inquiry and the inspector was entitled to treat them
as such.
R 14 of the
Town and Country Planning Appeals (Determination by Inspectors) (Inquiries
Procedure) Rules 1992 rules require proofs of evidence to be disclosed in
advance of the inquiry and the rules clearly contemplate a specific status for
those documents. One purpose and effect of r 14 is to prevent surprise to other
parties. Another is to save time at inquiries by preinquiry reading of
documents by the inspector and other parties. The intention is that the proof
should be the principal evidence for the party submitting them, their status
must have been understood by the appellants and their experienced advisers. The
proofs can, of course, be supplemented if new points arise: r 15(8). This was
not, however, a case where the fresh point arose from a change of circumstances
or a line pursued in cross-examination but from a deliberate decision not to
disclose in advance of the inquiry. I do not regard the reason given by the
appellants for failing to put in their proofs of evidence the point they now
rely on in their proofs of evidence as a sound one, but having taken the course
they did, it was incumbent upon them, as a matter of good sense rather than
law, by the preparation of a fresh document or in some other way to ensure that
the importance to be attributed to the point was made clear to the inspector.
Having said
that, I propose to accept for present purposes that oral evidence was given, as
Mr Scott says, of the risks to the business if there was a refusal of
permission. I approach the case on that basis.
The inspector
could have expressly rejected the point out of hand. It was made very late in
the day and appeared to conflict with the tenor of the proofs of evidence. It
would indeed have been surprising if the inspector had, on the basis of the
detailed evidence before him of several successful enterprises, have concluded
that the business was in jeopardy. The complaint of Mr Barry Payton, who
appears for the appellants, is however that the inspector made no finding at
all on the point. He should have dealt with the evidence on the subject of the
consequence of the appeal being dismissed.
In Hope
v Secretary of State for the Environment (1975) 31 P&CR 120,
Phillips J stated at p123:
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
reached on the principal important controversial issues.
That test has
been approved by Lord Bridge in Save Britain’s Heritage v No 1
Poultry Ltd [1991] 1 WLR 1531 and by implication by Lord Lloyd in Bolton
Metropolitan District Council v Secretary of State for the Environment unreported
May 24 19952. It is agreed to be the appropriate test in the present
circumstances. I see no inconsistency between the statement of Phillips J and
the even better known statement of Megaw J In re: Poyser and Mills’
Arbitration [1964] 2 QB 467.
1 Sub nom Save Britain’s Heritage v Secretary of State for the
Environment [1991] 3 PLR 17.
2 [1995] 3 PLR 37.
The decision
should be quashed, it is submitted by Mr Payton, for failure to deal with one
of the ‘principal important issues’. I do not accept that submission. Upon the
evidence as a whole, consideration of the evidence of risk could be, and was in
my view, subsumed within a general consideration of commercial considerations.
In the context of a fully justified finding of fact that the business was
thriving, express reference to the risk was not in the circumstances required. I
am reinforced in that view by the way in which the second part of para 4 of the
decision letter is expressed. The inspector rightly considered the evidence
about development on a different site. He recognised that it would be less
advantageous to the appellants. Implicit, if not explicit, in his consideration
of that evidence is a finding that development elsewhere is possible so that
the risk of failure which the appellants introduced into the case does not
arise as a factor to be considered separately. I also understand the reluctance
of an inspector to express an opinion upon the current commercial viability of
a company. Whether or not the inspector was an expert in financial appraisals
of complex organisations, and it could not be assumed that he was, he would
have needed much more information from the appellants if they expected him to
form a judgment on the commercial consequences of the dismissal of their
appeal.
The
appellants’ case was sufficiently dealt with and the decision sufficiently
reasoned in the circumstances. Though the decision does not depend on it, it is
necessary to comment on what Mr Christopher Katkowski, for the respondent,
described as the paperchase, which followed the inspector’s decision. Seven
affidavits are before the court, two of them from the inspector. Mr Katkowski
accepts the undesirability of an inspector, the decision maker, entering into
the arena by swearing affidavits. He submits however that when an appellant
asserts in an affidavit that oral evidence not recorded in documents was given
at the inquiry and the inspector has not dealt with it in his decision letter,
a decision is in danger of being quashed and wrongly quashed for lack of a
reply from the inspector. The respondent’s only defence is for the inspector to
deny an assertion which he says is inaccurate. That may, of course, lead to an
application to cross-examine the inspector, as it did in this case. I
understand the danger contemplated by Mr Katkowski, but affidavits
from inspectors should certainly not become routine. What this case does
highlight is the importance, in the absence of a formal record of proceedings,
of relevant facts being reduced to writing and presented to the inspector in
that form. That is not to diminish the importance of oral procedures, including
cross-examination, or to disregard the change of emphasis in a case which for
good reason often occurs in debate during the course of an inquiry. It is,
however, important that at the end of the day the inspector has, whenever
possible, the main points on which each party relies in written form. If the
parties co-operate to achieve that end, misunderstandings can be avoided and
the quality of decision making enhanced.
I agree with
the decision of Laws J to refuse to permit cross-examination in this case,
especially as the inspector does not dispute Mr Scott’s note of evidence as
distinct from Mr Scott’s comments and submissions. I would reach the same
conclusion in the light of the subsequent decision of this court in Jones
v Secretary of State for Wales (February 1 1995)1 where, in
quite different circumstances, cross-examination of an inspector was permitted.
1 [1995] 2 PLR 26.
The inspector
in this case, having resorted to affidavits, would, in my view, have been
better advised to resist the temptation to rise to the bait provided by Mr
Scott’s describing the ‘whole gathering’ of the inquiry as ‘hanging in silence
upon the issue which had not previously dawned on them’. The inspector was the
decision maker. I detect a note of sarcasm in para 2 of his second affidavit,
along with the description of the appellants’ opponents as speaking ‘with
passion’ at the inquiry. Comments like that are rarely seen in decision
letters. If they are inappropriate there, they are inappropriate when the
inspector is defending his own position in an affidavit. For the reasons given,
I would dismiss this appeal.
HENRY LJ: I agree.
BUTLER-SLOSS
LJ: I also agree. The appeal therefore is
dismissed.
Appeal
dismissed with costs.
