Planning appeal — Application to quash inspector’s decision — Judge not entitled to substitute his views on planning merits for inspector’s — Whether inspector had regard to existing development plan and proposed alteration — Need for inspector properly to understand policies — Test for determining whether duty discharged
On appeal to
the Secretary of State for the Environment by developers, David Wilson Homes
(Southern) Ltd, an inspector granted planning permission for housing
development on 2.8 ha of land adjoining the village of Martock, Somerset, but
outside the development limits set in the emerging local plan, which was about
to be adopted. A policy in the local plan provided that development would not
normally be permitted outside the village development limits. An issue at the
local plan inquiry
land, including the appeal site, but the local plan inspector concluded, on the
basis of the approved structure plan requirements, that there were no grounds
for allocating additional housing land. The appeal inspector recognised that
the proposals were in conflict with the emerging local plan, but granted
permission on the basis that the appeal site was suitable for housing and that
a draft second alteration to the county structure plan envisaged a need for
further dwellings in Somerset by the year 2001 and, accordingly, that
additional sites would shortly need to be identified. An application by the
local planning authority to quash the decision was allowed by the deputy judge,
Sir Frank Layfield QC, on the grounds that the inspector had misunderstood or
failed to have regard to certain policies in both the existing and draft future
development plans. The developers appealed, seeking to restore the inspector’s
decision.
If the
inspector is to discharge his duty to have regard to the development plan and,
as a material consideration, to a proposed alteration of the structure plan, he
must properly understand them: see p 82G. An analysis of the decision letter
did not show that the inspector had overlooked a relevant policy or
misunderstood one in any material respect. His decision was entirely based on
what he perceived to be the planning merits. The deputy judge, who had immense
experience in town and country planning, may have found the decision
surprising, and he may well have been right: the appellants may have struck it
lucky. But the judge was not entitled to substitute his own views on the
planning merits for those of the inspector which was what, in reality, he had
done: see p 87F-G.
Per Hoffmann LJ: The inspector is not writing an examination paper on
current and draft development plans. The decision letter must be read in good
faith and references to policies must be taken in the context of the general
thrust of the inspector’s reasoning. A reference to a policy does not
necessarily mean that it played a significant part in the reasoning: it may
have been mentioned only because it was urged on the inspector by one of the
representatives of the parties and he wanted to make clear that he had not
overlooked it. Sometimes his statement of policy may be elliptical, but this
does not necessarily show misunderstanding. One must look at what the inspector
thought were the important planning issues, and decide whether it appears from
the way he dealt with them that he must have misunderstood a relevant policy or
proposed alteration to policy: see p 83E-G.
Decision of
Sir Frank Layfield QC reversed.
to in the judgments
Gransden
(EC) & Co Ltd v Secretary of State for the
Environment (1985) 54 P&CR 86; [1986] JPL 519
Horsham
District Council v Secretary of State for the
Environment [1992] 1 PLR 81; (1991) 63 P&CR 219; [1992] JPL 334, CA
Seddon
Properties Ltd v Secretary of State for the
Environment (1978) 42 P&CR 26; 248 EG 950, [1978] 2 EGLR 148; [1978]
JPL 835
Appeal against
decision of Sir Frank Layfield QC
This was an
appeal by David Wilson Homes (Southern) Ltd against the decision of Sir Frank
Layfield QC whereby he allowed an application by South Somerset District
Council to quash two planning permissions, granted by an inspector on appeal,
for housing development on land adjoining the village of Martock, Somerset.
Fulthorpe (instructed by Clarke Willmott & Clarke, of Bristol) appeared for
the appellants, David Wilson Homes (Southern) Ltd.
Sullivan QC and Rabinder Singh (instructed by Sharpe Pritchard, agents for R W
Edwards) appeared for the local planning authority.
Secretary of State for the Environment did not appear and was not represented.
following judgments were delivered.
PURCHAS LJ:
I will invite Hoffmann LJ to deliver the first
judgement.
HOFFMANN LJ:
This is an appeal from the decision of Sir Frank
Layfield QC (sitting as a deputy High Court judge) by which he quashed two
planning permissions for housing development adjoining the village of Martock,
Somerset. The appeal site was an area of 2.8 ha on the western side of the
village. The permissions had been granted by the inspector, on appeal, under
the predecessors of section 79 of and Schedule 6 to the Town and Country
Planning Act 1990. The application to quash was made by the local planning
authority, South Somerset District Council, and the respondents were the
Secretary of State for the Environment and the developers who applied for
permission. The learned deputy judge quashed the application on the grounds
that the inspector had misunderstood or failed to have regard to certain
policies contained in the existing and draft future development plan. The
developers now appeal to this court. The planning authority opposes the appeal
and the Secretary of State is not represented.
Section 70 of
the 1990 Act, read with section 79(4) and para 2(10) of the sixth Schedule,
requires the inspector
to have
regard to the provisions of the development plan, so far as material to the
application, and to any other material considerations.
The
development plan is defined in section 54 to include the structure plan and the
local plan, together with any approved alterations. In this case, the inspector
referred to the structure plan and local plan and also had regard, as a
material consideration, to a proposed second alteration to the structure plan.
If an inspector is to discharge his duty to have regard to these matters, he
must properly understand them. The basis of the council’s case was that the
inspector demonstrated, by his decision letter, that he had materially misunderstood
both the existing development plan and the proposed alteration. If that is the
case, then that would provide a foundation for quashing the decision.
In the case of
Horsham District Council v Secretary of State for the Environment
[1992] JPL 334, this court approved certain propositions of
State for the Environment [1986] JPL 519 at p 521 and, in particular, the
following:
Thirdly, the
fact that a body had to have regard to the policy did not mean that it needed
necessarily to follow the policy. However, if it was going to depart from the
policy, it had to give clear reason for not doing so in order that the
recipient of its decision would know why the decision was being made as an exception
to the policy and the grounds upon which the decision was taken.
Fourthly, in
order to give effect to that approach it was essential that the policy was
properly understood by the determining body. If the body making the decision
failed properly to understand the policy, then the decision would be as
defective as it would be if no regard had been paid to the policy.
Or, as McCowan
LJ put it:
‘Regard to
the Development Plan’ meant ‘proper regard’. It was not enough for the
decision-maker merely to have regard to the plan if he misinterpreted it.
On the other
hand, as Forbes J said in Seddon Properties Ltd v Secretary of State
for the Environment (1978) 42 P&CR 26 at p 28:
. . . it is
no part of the court’s duty to subject the decision letter to the kind of
scrutiny appropriate to the determination of the meaning of a contract or a
statute. Because the letter is addressed to the parties who are well aware of
all the issues involved and of the arguments deployed at the inquiry it is not
necessary to rehearse every argument relating to each matter in every
paragraph.
The inspector
is not writing an examination paper on current and draft development plans. The
letter must be read in good faith and references to policies must be taken in
the context of the general thrust of the inspector’s reasoning. A reference to
a policy does not necessarily mean that it played a significant part in the
reasoning: it may have been mentioned only because it was urged on the
inspector by one of the representatives of the parties and he wanted to make it
clear that he had not overlooked it. Sometimes his statement of the policy may
be elliptical but this does not necessarily show misunderstanding. One must
look at what the inspector thought the important planning issues were and
decide whether it appears from the way he dealt with them that he must have
misunderstood a relevant policy or proposed alteration to policy.
At the time of
the inquiry the state of the development plan was as follows. The Somerset
Structure Plan dated from 1982 with a first alteration approved in 1986. This
contained estimates of housing requirements for the various subareas of the
county covering the period 1981-1996. A proposed second alteration was in an
early stage of preparation. This would carry forward the housing requirement
estimates to the period 1986-2001.
The relevant
local plan covered the Yeovil subarea. This plan, covering the same time-scale
as the approved structure plan, had been
for approval by the inspector and was just about to be adopted by the planning
authority. But the authority was already contemplating a further review to keep
in step with the structure plan, and in particular to take forward the proposals
for housing requirements until the year 2001.
The reasoning
of the inspector can be summarised as follows. He noted that the local plan
contained policy P3, which said:
Development
will not normally be permitted outside the development limits
of Martock and
a number of other villages. One of the issues at the inquiry into the local
plan had been whether the development limits of Martock should be redrawn to
include various pieces of land, including the present appeal site. The local
plan inspector said that the Yeovil subarea could already provide land for all
the houses estimated to be required by the structure plan then currently in
force and, since the local plan had to conform to the structure plan, there
were no grounds for allocating additional housing land. Thus the existing
development limits of Martock were affirmed and the inspector in the present
case said that this was a fact of prime importance in the present appeal.
Having
recognised the importance of the conflict with the local plan, the inspector
went on to consider what might be the effect of the proposed revision of the
structure plan. He said that an indication of future trends was the draft
second alteration which envisaged a further 5,000 to 5,900 dwellings as being
required up to the year 2001. These figures meant, in the inspector’s view,
that further sites would have to be identified in the near future and he
proposed to take what he thought a realistic view of anticipated future housing
requirements. There was, in his opinion, nothing special about the appeal site
which made it unsuitable for housing. It was bounded on three sides by
residential development and the development limits as appearing in the existing
local plan simply represented where past development had happened to stop. I
may have oversimplified matters but this seems to me to have been the essence
of the inspector’s reasoning. He summed up the issue at the commencement of his
decision as follows:
. . . whether
or not the fact that the sites lie beyond the defined settlement boundary in
the emerging local plan is of such importance as a policy consideration that,
as a reason for objection to the schemes, it should be capable of outweighing
all the other material matters in their favour, including the perceived need to
allocate additional housing land in Somerset by the turn of the century;. . .
I now turn to
the various criticisms which have been made of the inspector’s decision. First,
it is said that he misunderstood the changes in general policy which were being
proposed in the draft second alteration. The old structure plan designated
Martock as a ‘local rural centre’ in which it was said in policy SP6 that
limited
development of employment, housing, shopping and transport facilities will
normally be acceptable.
The inspector
noted that the draft second alteration proposed that this should be replaced by
a new policy SP3 under which Martock would be a rural centre
wherein
growth would be encouraged to continue, consistent with other policy
considerations.
The council
complain that the inspector took no account of qualifying reservation in the
proposed policy SP3 which said:
. . .
identification as a rural centre does not carry with it an automatic
presumption in favour of significant further growth or that the settlement is
equally suited to all types of development.
Presumably
because the inspector made no reference to this qualification, the deputy judge
found that he misunderstood policy SP3. For my part, I can see no basis for
this conclusion. The inspector was not obliged to set out the whole of policy
SP3 in extenso. There is nothing in the decision to suggest that the
inspector thought that the proposed designation of Martock as a rural centre
would give rise to an automatic presumption in favour of further growth. His
decision, as I read it, is not based on presumptions but on a weighing of
policy SP3 against other planning considerations, such as the anticipated
future demand for housing and the nature of this particular site. In fact, it
seems to me that he relied upon nothing whatever in the proposed second
alteration except for the survey work which showed the figures for the likely
housing requirement in the period up to 2001.
Second, it is
said that he looked at the wrong version of policies H2 and H6 in the draft
second alteration. Policy H6 does not appear to be relevant at all. But an
early version of policy H2 apparently said that growth in rural centres would
be limited to estates of up to 20 houses, and the inspector referred to this
limitation in para 12 of his decision. But the council say that, by the time of
the inquiry, that draft had been superseded by one which omitted the reference
to estates of 20 dwellings or, indeed, estates of any kind. The inspector said
that these policies were ‘of particular relevance’ and I can only assume that
he meant that they were matters to be considered as weighing in the balance against
the developers’ appeal, because he refers to the policy as a limitation and the
developers were intending to build a good many more than 20 houses. But the
council say that he must have treated the policy as giving a green light to
estates development in general and that this formed part of the basis for his
later decision. For my part, I can find no trace of such reasoning in the letter.
Third, it is
said that he failed to take into account policy H5 in the proposed second
alteration. This reads as follows:
New housing
development outside the identified limits of Principal Centres, Towns, Rural
Centres and Villages will not normally be permitted unless
appropriate local need which cannot reasonably be met in such settlements.
The decision
letter contains no reference at all to policy H5 and the deputy judge has found
that it was not properly taken into account. I do not agree. Policy H5 was for
all practical purposes the same as local plan policy P3, which the inspector
said he regarded as being of prime importance. The planning authority say that
his omission to refer to policy H5 demonstrates that he must have thought that
the policy of not allowing growth outside the identified limits of rural
centres was about to be abandoned. This is, in my view, untenable. The
inspector clearly thought that the policy would remain but that the identified
limit of Martock would have to be moved to meet the new structure plan housing
needs.
Fourth, it is
said that the inspector overlooked policy H4 in the draft second alteration.
The relevant parts read as follows:
The Local
Planning authorities will seek to ensure that, within each district, land is
available for housing development as set out in Policy H1 [which sets out the
figure for 2001] and that at least a five year supply of land is genuinely
available . . .
Where a
significant shortfall in approved or adopted local plan provision can be
demonstrated and no serious conflict with other policies in the plan will
arise, further land releases may be permitted to secure a satisfactory supply.
However, land
releases which are so substantial as to pre-empt decisions about the scale and
location of new development, which ought properly to be taken within the
context of development plan preparation and review, will not normally be
permitted in advance of local plan approval or adoption.
The deputy
judge held that the inspector overlooked policy H4 and it is true that, like
policy H5, it goes unmentioned in the letter. Again, I can see nothing in the
decision to show that its underlying principles were ignored. The inspector
considered the grounds upon which the appeal site had been excluded from the
development limits in the local plan inquiry. He said that the sole reason was
that enough land was already available to satisfy the needs of the 1981-1996
housing requirement. If more land had been required, he said that the council
at the local plan inquiry had regarded the appeal site as a possible candidate
for release, and that the council had little objection as a matter of general
principle to the expansion of Martock. He went on to say that, if it was
necessary to find additional land in the Yeovil subarea, the appeal site would
be
worthy, at
the very least, of serious consideration and further appraisal.
He did not
believe that
the policy
limits of Martock have been defined in any other way than by following the
general edge of the existing development limits.
He went on to
find that the site had little merit in terms of contribution to the appearance
or character of the area. It seems to me, therefore, that in his reference to
the local plan inquiry, the inspector had well in mind the essence of policy
H5, which is that a decision on an individual planning application for a
substantial development should not pre-empt decisions which should more
appropriately be made at a local plan inquiry. He clearly thought that there
was in this case no need to wait for the approval of the local plan for the
period to 2001. Consequently, I can find no misdirection in his failure to
refer to policy H4.
Fifth, the
deputy judge said that the inspector only incompletely understood policy P3.
This policy, it will be recalled, was the one which said that development would
not normally be allowed outside the development limits of Martock. The
inspector frankly acknowledged that his decision was in conflict with this
policy and the deputy judge offers no reasons for why he thought that the
inspector had incompletely understood it. I can find no grounds for this
conclusion.
Finally, the
deputy judge says that policy H1 of the draft second alteration was overlooked.
I do not understand this criticism. Policy H1 sets out the estimated housing
requirements to 2001 for each of the subareas in Somerset. The total is 38,700,
of which 5,000 are allocated to Yeovil. While it is true that the inspector
does not mention policy H1 by letter and number, he cannot possibly have
overlooked it. It was the principal source of the figure for future housing
demand on which he based his decision. The planning authority say that his
reliance on this figure is vitiated, first, by his suggestion that it might go
up to 5,900 and, second, by his omission to mention that since the new plan
would cover the period 1986-2001, many of the 5,000 houses would already have
been built or land to build them would already be the subject of allocation or
planning permission. It seems to me most improbable that the inspector did not
have this in mind. His only conclusion was that ‘further sites will have to be
identified in the near future’. There is no suggestion that the inspector was
wrong in drawing this modest inference and I therefore cannot see why it
matters that he did not calculate exactly how much of the identified need had
already been met.
In my judgment,
therefore, an analysis of the decision letter does not show that the inspector
overlooked a relevant policy or misunderstood one in any material respect. His
decision was entirely based on what he perceived to be the planning merits. The
deputy judge, who has immense experience of town and country planning, may have
found the decision surprising. He may well have been right. The appellants may
have struck it lucky. But the judge was not entitled to substitute his own
views on planning matters for the inspector’s and it seems to me that, in
reality, that is what he did. I, therefore, think that he was wrong to quash
his decision and I would allow the appeal.
RUSSELL LJ:
I agree. In my judgment, for the reasons detailed
in the judgment of Hoffmann LJ the learned deputy judge embarked upon a too
critical analysis of the decision letter. The inspector, who, it should be
remembered, had professional qualifications in the field of town
three days listening to evidence and hearing submissions made on behalf of all
parties. I am not persuaded that the decision letter, which was subjected to
close examination before this court, was flawed to the extent that the deputy
judge was justified in striking down the decision. In my view, that decision
was one which was properly open to the inspector and accordingly I, too, would
allow this appeal.
PURCHAS LJ:
I, also, agree that the appeal should be allowed,
for the reasons given in the judgments already delivered.
Appeal
allowed with costs of appeal and below; leave to appeal to House of Lords
refused.
