Motorist service area — Planning permission quashed — Whether planning merits of rival sites amounted to material considerations — Criteria for materiality — Whether failure to take into account material considerations
The respondent,
Mr Edwards, owned land adjoining the A47 trunk road at North Tuddenham,
Norfolk. The road was subject to a scheme of improvement which rendered it a
dual carriageway. The Department of Transport had recognised the need for a
motorist service area on each side of the road and in 1991 the respondent applied
to Breckland District Council (‘the council’) for planning permission for such
a development on his land. Subsequently, a further six planning applications
were made to the council in relation to other sites. Two of these were lodged
on behalf of Roadside Developments Ltd (‘RDL’). In July 1992 the council
refused all seven applications. One reason of refusal common to all was that
the proposals would result in an undesirable intrusion into the countryside to
the detriment of the character and visual amenities of the area.
The
respondent, together with two of the other applicants for planning permission,
appealed to the Secretary of State for the Environment against the council’s
refusal to grant planning permission, electing for a public local inquiry. RDL
similarly appealed, but elected for the written representations procedure. The
respondent’s solicitors invited the Secretary of State to consider all of the
appeals at a single inquiry, but following objections from RDL, he declined to
agree to this and to the further request of the respondent that the same
inspector should determine all of the appeals.
In November
1992 the appointed inspector allowed RDL’s planning appeals. The respondent
served a notice of motion on the Secretary of State, RDL and the council
seeking to quash the inspector’s decision under section 288 of the Town and
Country Planning Act 1990 on the ground that the decision was not within the
powers conferred by that Act because the inspector: (1) had failed to take into
account the following material considerations, namely the planning merits of
the respondent’s proposals as compared to RDL’s proposals; and (2) had in
effect predetermined or pre-empted the respondent’s appeal — there being an
acknowledged need only for one such facility on either side of the trunk road —
without having considered the planning merits of the respondent’s proposals.
Mr Nigel
Macleod QC, sitting as a deputy judge of the Queen’s Bench Division, quashed
the decision of the inspector and ordered that the matter be remitted to the
Secretary of State. The Secretary of State
only became material planning considerations if the inspector concluded that
there would be an adverse impact resulting from the development of RDL’s
proposals and, in the light of that, the inspector had to go on to consider
whether the adverse impact would be outweighed by need.
was dismissed.
The criteria
for the materiality of the relative merits of the application site and those of
other sites were: (a) the presence of a clear public convenience or advantage
in the proposal under consideration; (b) the existence of inevitable and
adverse effects or disadvantages to the public, or to some section of the
public, in the proposal; (c) the existence of an alternative site for the same
project which would not have those effects, or would not have them to the same
extent; (d) a situation in which there could only be one permission granted for
such a development, or at least only a very limited number of permissions: see
pp69G-70B.
In the present
case, all four criteria were met. The other sites were material planning
considerations, account of which would have created a real possibility that the
inspector’s decision in the RDL appeals would have been different. The
inspector had failed to take account properly, or at all, of a material
planning consideration and his decision accordingly was therefore not within
the powers conferred on him by the Act: see pp70G-72B.
Decision of Mr
Nigel Macleod QC affirmed.
to in the judgments
Bolton
Metropolitan Borough Council v Secretary of
State for the Environment (1990) 61 P&CR 343; [1991] JPL 241, CA
Greater
London Council v Secretary of State for the
Environment and London Docklands Development Corporation (1985) 52 P&CR
158; [1986] JPL 193
Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281;
[1971] 1 All ER 65; (1970) 68 LGR 788; 22 P&CR 255; [1971] JPL 114
Trusthouse
Forte Hotels Ltd v Secretary of State for the
Environment (1986) 53 P&CR 293; [1986] 2 EGLR 185; 279 EG 680; [1986]
JPL 834
Appeal against
decision of Mr Nigel Macleod QC
This was an
appeal by the Secretary of State against the decision of Mr Nigel Macleod QC,
sitting as a deputy judge of Queen’s Bench Division, who on May 10 1993 quashed
the decision of the appellant’s inspector on November 10 1992 allowing certain
planning appeals by Roadside Developments Ltd.
(instructed by the Treasury Solicitor) appeared for the appellant, the
Secretary of State for the Environment.
Katkowski (instructed by Pollok Webb & Gall) appeared for the first
respondent, Mr Edwards.
and third respondents, Roadside Developments Ltd and Breckland District Council,
did not appear and were not represented.
following judgments were delivered.
SIR STEPHEN
BROWNE P: I will ask Roch LJ to give the first
judgment.
ROCH LJ: The A47 Dereham to North Tuddenham trunk road improvement forms part
of a proposed link between Great Yarmouth and the A1. The new road is a dual
carriageway and as a result of its construction there is another length of
approximately 18 miles of road without a petrol filling station at all and a
length of approximately 25.5 miles of trunk road without comprehensive roadside
services.
Mr PG Edwards
owned land adjoining the trunk road near North Tuddenham. He made application
in 1991 for planning permission in respect of that land for a motorist service
area. His was the first of seven such applications. Of those seven applications
four represented applications by two persons for a site either side of the
trunk road. There were therefore five applicants involved in the seven
applications. One of these paired applications was made by Roadside
Developments Ltd (to whom I shall refer as ‘RDL’).
On March 2
1992 the planning committee of the local planning authority, Breckland District
Council, resolved to grant planning permission on Mr Edwards’ application and
on another application by Mr Smithson. The Department of Transport, who were
the highway authority in respect of this trunk road, had recognised the need
for a motorist service area on each side of the trunk road. Those resolutions
never became formal decisions notified to the applicants. Mr Smithson, like Mr
Edwards, had made his application in 1991. In March 1992 there were five
further applications, the last two being reapplications made by RDL. On July 6 1992
the local planning authority’s planning committee refused all seven
applications. One reason of refusal common to all applications was that the
proposals would result in ‘an undesirable intrusion into the countryside to the
detriment of the character and visual amenities of the area’.
Notice of this
refusal was given to those acting for Mr Edwards on July 30 1992. On September
4 1992 an appeal to the Secretary of State was made on behalf of Mr Edwards
against the local planning authority’s decision.
The procedure
chosen by Mr Edwards was that of a public inquiry. Two other applicants from
among the other five appealed and chose the public inquiry route. The date for
the holding of the public inquiry was fixed for January 12 1993. Meanwhile, RDL
appealed against refusal on July 27 1992 and elected the written
representations procedure. Learning of that, solicitors for Mr Edwards wrote to
the Secretary of State on September 24 1992, inviting the Secretary of State to
consider all the appeals at a single inquiry. On October 7 1992, the Secretary
of State asked Breckland District Council for their views on the proposal to
hold a single inquiry. The reply by the local planning authority was that they
had no objection to a single inquiry. That reply was contained in a letter of
October 9.
On October 13
1992, the Secretary of State faxed the request made by Mr Edwards’ solicitor
for a joint inquiry to RDL’s agents and indicated that ‘the planning
inspectorate [were] minded to agree this
by Mr Edwards’ solicitors, was not copied to Mr Edwards or his solicitor. In it
was a representation to the Secretary of State that Mr Edwards had decided
to forego the
right to submit representations on [Roadside Developments Ltd’s] appeal within
the period prescribed under Regulation 7(6) and 7(7) of the Town and Country
Planning (Appeals) (Written Representations Procedure) Regulations 1987.
It was not
pointed out to the Secretary of State that the notice required to be given to
Mr Edwards by the local planning authority under regulation 5 had not been
given. Mr Edwards, or those acting for him, heard of RDL’s appeal by chance on
September 24 1992. That that is what occurred was not disputed before deputy
judge on May 10 last year.
Other parts of
that letter are material and read:
I refer to our
telephone conversation on Tuesday 13th October 1992 and your subsequent
facsimile of that date enclosing copies of correspondence from third parties
requesting that our client’s above appeals be deferred and considered at a
joint public inquiry. I note that the Planning Inspectorate are ‘minded’ to
agree this request and I am grateful for the opportunity of commenting on this
matter.
I have to say
that our client would wish to register his strong objection to such a request
on the following grounds:
(1) Our client’s appeals were lodged on 27th July
1992 (the starting date being 3rd August 1992) after which no representations
were received from either of the third parties in question within the timeframe
specified at Regulation 7(6) and 7(7) of the Town and Country Planning
(Appeals) (Written Representations Procedure) Regulations 1987 either objecting
to our client’s appeals or requesting at that time a delay to the decisions. .
.
(3) Our client’s appeals are now well advanced,
statements having already been exchanged and site visit confirmed for Wednesday
21st October 1992. A decision now to require that the appeals be heard at
public inquiry would not only result in considerable delay to our client but
also to considerable and unreasonable expense. . .
(6) The existence of these alternative proposal
sites has been fully addressed in our client’s written appeal statement and the
appellant has requested that the Planning Inspector visit these sites during
the appeal site visit. I would conclude therefore that sufficient information
and details have already been submitted and made available to the Inspector
(and opportunity provided to third parties to submit their own cases) to enable
our client’s appeals to be determined having full regard to the existence of
these alternative sites. . .
In the light
particularly of the two rival appellant’s decisions to forego the right to
submit representations on our client’s appeals within the period prescribed
under Regulations 7(6) and 7(7) of the Town and Country Planning (Appeals)
(Written Representations Procedure) Regulations 1987 in the light of the
guidance of paragraph 27 of Circular 18/86, and having regard to the above
points and the unreasonable delay and additional costs that would result to our
client, I cannot accept that ‘it is only right and proper and in the interests
of justice’ to defer our client’s appeal.
In his
judgment at p11G the deputy judge said:
In my judgment,
the letter was misleading in this respect and the misleading element supported
Roadside Developments’ objection of unreasonable delay, which was effectively
its primary objection. It was delay which determined the inspectorate’s
decision to continue their written representations procedure on Roadside’s
appeals . . .
Moreover, if
the consultants were right in noting that the inspectorate were minded to grant
the applicant’s request, it is a reasonable inference that the consultant’s
letter played some part in changing the inspectorate’s mind.
The Secretary
of State, by letter dated October 16 1992, informed Mr Edwards’ solicitors that
there were, at that time, four other such appeals before the Secretary of
State, two of which (that is to say RDL’s appeals) were proceeding by the
written representation method, while the other two were proceeding to inquiries
and that:
. . . the
Department does not consider there to be sufficient justification to delay the
appeals’ being dealt with by the written method, by insisting that they be
heard at an inquiry. It may, however, be appropriate for the two appeals
proceeding to local inquiry to be heard together with your client’s appeal on
12th January 1993.
Mr Edwards’
solicitors, in their reply dated October 22 1992, asked the Secretary of State
to reconsider and that in any event the same inspector should determine all the
appeals. The Secretary of State’s response was to write on November 4 1992 that
the written representations procedure for the RDL appeals was appropriate and
that:
. . . the
Inspector appointed to determine the [Roadside Developments] appeals can do so
based on the planning merits put forward. Furthermore, Roadside Developments
Limited have the right to have their appeals determined with the minimum
possible delay.
Your
objections to the ‘Roadside’ appeal have of course been placed before the
Inspector so that they can be fully taken into account before decisions are
reached.
The letter
went on to say:
. . . the
remaining three appeals could be heard at a joint inquiry, thus avoiding the
need for three separate inquiries. It is not, however, considered imperative
that the Inspector dealing with the written appeal be appointed to determine
the remaining appeals.
On November 10
1992, the Secretary of State’s inspector allowed the appeals of RDL. On
December 18 1992, a notice of motion was served on the Secretary of State, RDL
and the local planning authority on behalf of Mr Edwards, seeking to quash the
decision of the Secretary of State’s inspector, dated November 10, under
section 288 of the Town and Country Planning Act 1990. The ground was that the
decision was not within the powers conferred by the Act, because in deciding to
allow RDL’s appeal, the inspector:
(i) failed to take into account the following
material considerations, namely the planning merits of the applicant’s
proposals as compared to Roadside’s proposals;
(ii) in effect predetermined or pre-empted the
applicant’s appeal — there being an acknowledged need only for one such
facility on either side of the road — without having considered the planning
merits of the applicant’s proposal.
It is common
ground between the parties to this appeal that the need for motorist service
stations on this length of trunk road is limited to one such area on each side
of the road. The local planning authority, by letter dated November 30 1992,
notified Mr Edwards’ agents that at the public inquiry scheduled for January 13
1993, the local planning authority would say:
. . . that
the fact that two sites . . . have been allowed on appeal should have a bearing
on the Inspector’s decision and that [Mr Edwards’] and subsequent appeals
should be dismissed as a result.
The notice of
motion came before Mr Nigel Macleod QC, sitting as a deputy judge of the
Queen’s Bench Division, on May 10 1993. His findings were: first, that the
inspector did not take account of the other proposals for motorist service
areas on this length of trunk road in any meaningful way; that is to say, he
did not consider adequately whether they might meet the acknowledged need in a
way which will be materially less harmful to the character and amenities of the
area than the proposal from RDL. The deputy judge recorded that Mr John Hobson,
who appeared for the Secretary of State, had not sought to argue that the
inspector had taken into account the other proposals in any meaningful way.
Second, the deputy judge found that the other proposals, and in particular Mr
Edwards’ proposal, were a relevant planning consideration which the inspector
should have taken into account. Third, it was not open to the Secretary of
State to rely on the administrative inconvenience or difficulty to avoid taking
into account a material planning consideration; rather the Secretary of State
should have ensured that it was open to the inspector to take account of such
consideration. Fourth, that had the inspector taken account of the other
proposals, that might well have led him to a different conclusion on the RDL
appeal. There was, in the deputy judge’s judgment, a real possibility that the
result might not have been the same.
Fifth, that
the procedure adopted had resulted in Mr Edwards being treated unfairly,
although the deputy judge accepted that the planning inspectorate had not
intended to treat Mr Edwards unfairly.
The deputy
judge consequently quashed the decision of the inspector and ordered that the
matter be remitted to the Secretary of State.
The appeal by
the Secretary of State against the quashing of the inspector’s decision is
based upon the argument that the merits of alternative sites only became
material planning considerations if the inspector concluded that there would be
an adverse impact resulting from the development of RDL’s proposals; and in the
light of that, he had to go on to consider whether the adverse impact would be
outweighed by need.
This is based
on para 5 of the inspector’s decision letter, where he directed himself that:
. . . the
issues to be determined in these cases are whether or not the proposed
developments would have an adverse impact on the character and amenities of the
area and, if so, whether there is a need for the proposed facilities sufficient
to outweigh such objections.
Mr Hobson then
directed this court to the parts of the decision letter in which the inspector
referred to the impact of the proposals on the landscape, namely paras 8, 9 and
10 of that letter. He pointed out, correctly, that nowhere does the inspector
state in terms that the impact on the existing countryside would be adverse, in
the sense that nowhere where the inspector uses the word ‘impact’ in those
paragraphs does he qualify it with the adjective ‘adverse’.
Further, in
para 10 of the decision letter the inspector simply stated:
I accept that
there is a reasonable need for the proposed facilities in this general
location.
Mr Hobson
points out that the inspector did not refer to the need outweighing or
overriding the impact of the proposals on the countryside. Thus, no question of
considering whether there were other potential sites, which would have a less
adverse impact on the countryside and the local community, arose.
Mr Hobson
submits that it was not appropriate for the inspector to consider the relative
merits of the other sites; they were not material to his decision. He relied
upon passages in the judgment in Trusthouse Forte Hotels Ltd v Secretary
of State for the Environment (1986) 53 P&CR 293, where at p299 Simon
Brown J (as he then was), having referred to
a growing
body of case law upon the question when it is necessary or at least permissible
to have regard to the possibility of meeting a recognised need elsewhere than
upon the appeal site. . .
then went on
to say:
These
authorities in my judgment establish the following principles:
(1) Land . . . may be developed in any way which
is acceptable for planning purposes. The fact that other land exists . . . upon
which the development would be yet more acceptable for planning purposes would
not justify the refusal of planning permission upon the application site.
(2) Where, however, there are clear planning
objections to development upon a particular site then it may well be relevant
and indeed necessary to consider whether there is a more appropriate
alternative site elsewhere. This is particularly so when the development is
bound to have significant adverse effects and where the major argument advanced
in support of the application is that the need for the development outweighs
the planning disadvantages inherent in it.
It is Mr
Hobson’s submission that in this case there was no significant
development. Consequently, it is said that the deputy judge misdirected himself
at p14E of his judgment where, having referred to parts of RDL’s written appeal
submissions, he said:
Looking at
these passages and looking at all the circumstances which are apparent from the
documentation, I am of the view that the matters which I have had to consider
involve a very clear situation of rival applications, involving the same issue
of balancing environmental interest against need, submitted at, and being
considered at, the same period of time.
The deputy
judge’s first finding that the inspector did not consider adequately the other
sites — or whether they might meet the acknowledged need in a way which would
be materially less harmful to the character and amenities of the area — not
being disputed by the appellants, the sole issue in the appeal, in my opinion,
is whether the relative merits of the other sites were a material planning
consideration which the inspector was under a duty to take into account.
Section 78 of
the Town and Country Planning Act 1990 gives a right of appeal against a
refusal of planning permission. Section 79(4) applies the provisions of section
70 of the 1990 Act in relation to an appeal under section 78. Subsection (2) of
section 70 provides:
In dealing
with such an application the authority shall have regard to the provisions of
the development plan, so far as material to the application, and to any other
material considerations.
Application
means an application for planning permission and authority in the context of an
appeal means the Secretary of State or his inspector.
In Stringer
v Minister of Housing and Local Government [1970] 1 WLR 1281, at
p1294G Cook J said:
It may be
conceded at once that the material considerations to which the Minister is
entitled and bound to have regard in deciding the appeal must be considerations
of a planning nature. I find it impossible, however, to accept the view that
such considerations are limited to matters relating to amenity. So far as I am
aware, there is no authority for such a proposition, and it seems to me to be
wrong in principle. In principle, it seems to me that any consideration which
relates to the use and development of land is capable of being a planning
consideration. Whether a particular consideration falling within that broad
class is material in any given case will depend on the circumstances.
Criteria for
the materiality of the relative merits of the application site, and those of
other sites, were suggested by Oliver LJ (as he then was) in the case of Greater
London Council v Secretary of State for the Environment and London
Docklands Development Corporation [1986] JPL 193. At p196, Oliver LJ is
reported as saying:
Without
seeking to lay down a test for every case, because definition was always
dangerous in these circumstances, he [Oliver LJ] thought it might
generally to cases having the following characteristics: First of all, the
presence of a clear public convenience, or advantage, in the proposal under
consideration; secondly, the existence of inevitable adverse effects or
disadvantages to the public or to some section of the public in the proposal;
thirdly, the existence of an alternative site for the same project which would
not have those effects, or would not have them to the same extent; and
fourthly, a situation in which there could only be one permission granted for
such development, or at least only a very limited number of permissions.
The facts of
that case were quite different from the facts in this appeal. It is to be
noticed that Oliver LJ went on to say:
None of these
criteria applied in this case. The Court was not concerned here with the
necessity for office development or whether, it being necessary, it should take
place at site A rather than at site B. Nor indeed was it easy to see how the
Secretary of State could in any event have made any sensible comparison in the
absence of some concrete example of an alternative for this scheme, and that
was never canvassed either before him or the Inspector.
In Bolton
Metropolitan Borough Council v Secretary of State for the Environment (1990)
61 P&CR 343 Glidewell LJ, sitting in the Court of Appeal, at p352 set out
the principles by which the question whether a relevant consideration was
material should be judged. That part of his judgment is set out in the deputy
judge’s judgment at pp20F-21G. Two brief citations of that part of Glidewell
LJ’s judgment will, in my view, suffice for the purpose of deciding this
appeal. They are, first:
The decision
maker ought to take into account a matter which might cause him to reach a
different conclusion to that which he would reach if he did not take it into
account.
Second:
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 is not validly made.
Turning to the
four criteria suggested by Oliver LJ, first, is the presence of a clear public
convenience or advantage in the proposal under consideration. That existed; the
provision of service areas along this stretch of trunk road would provide a
clear convenience or advantage to the motoring public. It is the second aspect
referred to by Oliver LJ which is the matter of controversy in this appeal: the
existence of inevitable adverse effect or disadvantages to the public or to
some section of the public, in the proposal.
In my
judgment, those were present for these reasons: first, the sole ground common
to the refusal of all seven applications by the local planning authority was
the undesirable intrusion into the countryside. It
there is a need for such service areas. That is demonstrated by policy TRA.4 of
the local planning authority’s policy on transportation.
Second, in
RDL’s written statement for their appeal to the Secretary of State at para
5.07, under the heading ‘Planning considerations’, this passage appears:
The Appellant
does not dispute that these proposals are not compatible with the objectives of
the development plan to conserve and enhance the natural resources and
environment of the County. However, the Appellant would argue that these
objectives in themselves, are not a determining issue in this appeal
particularly having regard to the comments above. Indeed, in this instance, it
is the Appellant’s view that these objectives are outweighed by policies which
encourage the provision of adequate roadside facilities on a national strategic
route, such as the A47.
One pauses to
comment that there the appellant was referring to policy TRA.4, which can
hardly be said to encourage the provision of adequate roadside facilities. The
appellant’s statement went on:
The Appellant
would conclude, therefore, that there are no grounds to suggest that the
proposals would result in any ‘demonstrable harm to interests of acknowledged
importance’ and that therefore there are no reasons to withhold the grant of
planning permission to the appeal proposals.
The third
matter which, in my judgment, demonstrates the materiality of the other sites
is the letter of RDL’s agents of October 14 1992 and in particular para 6 of
that letter, which I have already incorporated into this judgment. At that
paragraph RDL’s agents were saying that the inspector would have sufficient
material:
. . . to
enable our client’s appeals to be determined having full regard to the
existence of these alternative sites.
In paras 8 and
9 of the inspector’s decision letter of November 10 1992, it is clear, in my
judgment, that where the inspector is using the word ‘impact’, he means adverse
impact. He refers to modern buildings, advertising and lighting which are
inevitable parts of motorist service areas. In doing so, he is referring to those
matters on which the local planning authority were relying to support their
submission that the impact of the proposals on the landscape would outweigh any
need for the service areas. It is revealing that the inspector in para 10 of
the decision letter refers to a letter supporting RDL’s appeal on a ‘least
worst’ basis and that he says the impact ‘can be reduced to an acceptable
degree’. In the same paragraph, he then accepts that a reasonable need exists.
There can be
no dispute, in my view, as to the existence of the third and fourth criteria in
Oliver LJ’s list: the existence of an alternative site for the same project,
which might have a lesser adverse effect on the countryside and a situation in
which there could be only one permission, or alternatively a limited number of
permissions for such development.
Crucial in
this case, in my judgment, was the fact that there were not merely alternative
sites, but those sites had been the subject of planning applications and were,
in the case of three other applicants, the subject of appeals to the Secretary
of State. These other sites were material planning considerations in the
circumstances of this case, account of which would have created a real
possibility that the inspector’s decisions in the RDL appeal would have been
different.
For these
reasons, I am satisfied that the deputy judge was right in his conclusions that
the inspector had failed to take account properly, or at all, of a material
planning consideration and that his decision was therefore not within the
powers conferred on him by the Act and has to be quashed. I would dismiss this
appeal.
RUSSELL LJ:
For the reasons given by Roch LJ in the judgment he
has just delivered, I too would dismiss this appeal. There is nothing I can
usefully add.
SIR STEPHEN
BROWNE P: I agree that the appeal should be
dismissed for the reasons given by Roch LJ.
Appeal
dismissed with costs; application for leave to appeal to the House of Lords
refused.
