Town and Country Planning Act 1971 — Application under section 245 of Act to quash a decision of the Secretary of State — Decision had dismissed appeals by applicants for outline planning permission for residential development of land at Newent, Gloucestershire — Present application related to one of these appeals, concerning a site which comprised several fields of agricultural land — A number of complaints were made against the Secretary of State’s decision — These were all rejected by the judge except one, based on a difference between the inspector and the Secretary of State as to the extent of land available for residential development in the relevant area — The inspector had found as a fact that at January 1 1980 only 2.07 years’ supply of land was available whereas the Secretary of State in his decision put the figure at 3 1/2 years’ supply — Held that the decision of the Secretary of State must be quashed — Either there was a breach of rule 12 of the Town and Country Planning (Inquiries Procedure) Rules 1974 by a failure to give the parties an opportunity to comment on a difference between the Secretary of State and his inspector on a finding of fact or there was a failure to state clear and intelligible reasons for the Secretary of State’s decision on this point
This was an
application by Robert Hitchins Builders Ltd to quash a decision of the
Secretary of State in relation to a site consisting of 52 acres lying on the
south-east side of Newent, near Gloucester. The first respondent was the
Secretary of State for the Environment, the second and third respondents being
the Forest of Dean District Council and Gloucester County Council.
A R Vandermeer
QC and D G Robins (instructed by Freedman & Co) appeared on behalf of the
applicants; Andrew Collins (instructed by the Treasury Solicitor) represented
the first respondent; the second and third respondents were not represented and
took no part in the proceedings.
Giving
judgment, SIR DOUGLAS FRANK QC said: This is an application to quash a decision
by the Secretary of State dismissing appeals against refusals of planning
permission.
There were
four applications for outline planning permission for the residential development
of land at Newent, Gloucestershire. The applications are referred to
respectively as A, B, C and D, but this appeal is directed only to application
A, an area of about 52 acres. The site lies on the south-east side of Newent, a
country town some 9 miles north-west of Gloucester. It comprises several fields
of grazing land.
The proposal
as described by the applicants was to develop the appeal site with some 400
dwellings at a rate of about 50 a year, providing accommodation for about 1,000
people and to provide a site for a school. In the county development plan
approved in 1955 the site was shown as unallocated for development and it was
stated that Newent was an area for which a town map would be prepared later. In
fact no town map was produced but in 1963 a map called a planning policy map
was prepared and on it the appeal site is shown as part of some 94 acres for
residential development. That map
town map but never had any statutory effect and was not approved by the local
planning authority, although it was used as a basis for planning decisions. At
the time of the inquiry into the appeals a draft structure plan had been
prepared, and in it Newent was shown in the North Forest Policy Area, but that
plan was still then in the public consultation stage and had not been subject
to a public inquiry.
At the inquiry
before the inspector into the appeal, the applicants put in the forefront of
their case the immediate need for additional land in Newent and the North
Forest Policy Area to be released for housing. They relied both on the planning
policy map and the draft structure plan. They also contended that the release
of the appeal site would be less harmful to agriculture than other land in the
area.
The case for
the local planning authority was that the proposed development of the appeal
site would greatly exceed the predicted requirement for Newent and equal that
for the whole of North Forest and would be inconsistent with structure plan
policies. Further, the Minister of Agriculture objected to the development on
the ground that the site was classified as Grade 1 land.
The inspector
made a number of findings of fact, and in particular the following:
(i) The planning policy map for Newent was used
as a basis for development control decisions and for infrastructure investment
to serve an area of 94 acres proposed for development, including the appeal
site.
(ii) The Ministry of Agriculture, Fisheries and
Food were consulted during the preparation of the planning policy map.
(iii) The structure plan, as amended for
submission, provides for an increase of 1,000 dwellings in the North Forest
Policy Area in 1976-1996, 700 by 1986.
(iv) Of the 700 additional dwellings required by
1986 by the structure plan 450 are allocated to Newent and 250 to the rest of
the North Forest Policy Area; of these some 300 had planning permission or were
under construction in mid-1979, 250 of them at Newent.
(v) In January 1980 there was 2.07 years’ supply
of land for residential development at structure plan rates, 10 months’ supply
at historic building rates, in North Forest Policy Area.
(vi) Many of the sites proposed for major
residential development in the structure plan have substantial infrastructure
constraints.
(vii) Apart from the provision of a primary school,
development of the appeal site would not involve any further public expenditure
on infrastructure.
(viii) The appeal site and most of the land
surrounding Newent is shown on the agricultural land classification map as
Grade 1 land.
(ix) The appellants consider that the site should
be placed in Grades 1, 2 and 3a in equal parts.
It is, of
course, apparent that some of those findings are not findings of fact but
contentions of the parties.
The inspector
then reached a number of conclusions of which the following are the most
relevant:
(i) Four matters stand out: the weight to be attached
to the planning policy map for Newent, the shortage of land available for
housing, the existing infrastructure and services at the appeal site, and the
loss of agricultural land.
(ii) Whatever the formal status of the planning
policy map for Newent it is evident that it was used extensively as the basis
for development control decisions, for investment in infrastructure, and for
the severance and purchase of parcels of agricultural land for development
purposes. It was expected and intended that the planning policy map proposals
should be implemented: substantial residential expansion, including the appeal
site, was envisaged. The planning policy map does not represent a commitment on
the part of the planning authority; nevertheless its past history as a
substitute for the statutory town map which was proposed under the approved
county development plan indicates that the designation of the site as
unallocated land on the development plan is not a bar to development; it seems
to me to confer a presumption in favour of its implementation unless new
circumstances have arisen to outweigh it.
(iii) The most important change in circumstances is
the preparation of the structure plan based on a reduced population growth
projection for the South-West and for Gloucestershire, with allocations for
residential development in the county as a whole and in its policy areas. The
structure plan, however, still has to be tested at the examination in public
later in the year and therefore I consider that it does not necessarily
outweigh the informal substitute for the town map previously used by the
planning authority. Accordingly I attach considerable weight to the planning
policy map for Newent.
(iv) The appellants have demonstrated to my
satisfaction that there are substantial shortfalls of land available for
housing over the next 5 years measured against the structure plan rates as well
as against the past 5 years’ building rates in all the relevant areas. The
shortfall, which is particularly acute for the North Forest Policy Area, cannot
therefore be made up in adjoining areas. Although the proposed development
would concentrate at Newent the structure plan allocation for the whole plan
period in the North Forest Policy Area, the intended rate of development, ie over
some 8 years, and the difficulties at other proposed development areas
elsewhere in the county should be borne in mind. The development would not, in
my view, affect the generality of the structure plan proposals nor, therefore,
prejudice its proper consideration. Moreover, the shortfall has its effect now,
because of the time taken in procedures and building programmes, and will not
be alleviated for some time by any amendment to or additional provision in the
structure plan as finally approved by the Secretary of State.
(v) Whether the site should be regarded as wholly
Grade 1 or as equally composed of the top 3 grades, it is good agricultural
land and there is, therefore, a presumption against its development. I am,
moreover, not convinced by the appellants’ case that it would not be viable for
some form of agriculture or horticulture in the future even if not at present.
However, the intentions of the planning policy map for Newent have led to the
severance of parcels from town farm and to the lack of agricultural investment,
and it seems to me that in order to meet the long-term needs for growth some
development will occur in the vicinity of Newent which cannot be obtained by
infill or other forms of residential increase within the existing town boundaries.
In the planning policy map assessment of Newent it was considered that its
proposals would cause the least agricultural disturbance; there is no evidence
to justify a different conclusion now. Indeed, the circumstances of Newent
itself have changed in favour of development by the provision of infrastructure
and the development of the upper part of the south-east sector of the town.
(vi) Giving due weight to the planning policy map
for Newent, the shortage of land available for housing, the readiness of the
appeal site, and the agricultural assessment of the site I have come to the
conclusion that planning permission should be granted for the development of
the appeal site for residential purposes.
The inspector
recommended that the appeals be allowed subject to a number of conditions,
including restricting development to not more than 400 houses at the rate of 50
houses a year or such other amounts as may be agreed with the planning
authority.
The Secretary
of State gave his decision in a letter of February 1981. He agreed with the
inspector’s findings of fact. He accepted that the planning policy map had been
used as a basis for development control and infrastructure investment, but
having been prepared 17 years ago said it must be regarded, in the light of the
draft structure plan, as of secondary importance where major conflict occurs.
He then referred to the structure plan forecast for the North Forest Policy
Area providing for 400 additional dwellings in the period mid-1979-1986, that
is an average of 60 per annum, and for 300 additional dwellings in the last 10
years of the plan period. He then said:
Although it
is accepted that the housing requirements in the approved structure plan may
differ from those envisaged by the draft plan, it is considered that it would
be unwise to prejudge the issue and accordingly for the purposes of assessing
the land required to provide a 5-year supply for residential development, an
average requirement of 60 dwellings per annum should be used as the basis of
calculations. It is accepted therefore that there is a need for further land to
be allocated in the North Forest Policy Area to ensure such a supply, only 3
1/2 years being calculated on this basis as available at January 1980, and
consisting of 210 sites, 160 of which were in the Newent area.
Included
within the draft structure plan proposals for the North Forest Policy Area is
specific provision for 450 additional dwellings at Newent within the plan
period. Outstanding planning permission for dwellings under construction at
this location amounted at mid-1979 to 250 leaving a balance of 200 dwellings to
be provided by 1996. Thus the appellant’s proposal for site A, to construct up
to 400 houses in the space of some 8 years, would seriously prejudice the draft
structure plan’s provision for not only the quantity but also the rate of
development of housing in the Newent area. The proposals for sites C and D
would each individually fulfil the balance of the provision for housing at
Newent and, assuming the same rate of development, would allow for little or no
further housing provision in the town in the last six years of the plan period.
Approval of the proposal for site B would not prejudice the draft structure
plan proposals, but would permit an undesirable intrusion of development into
the surrounding open countryside unrelated to existing nearby development
thereby prejudicing consideration of any future proposals for development in
the locality.
In the
following paragraph he referred to the agricultural quality of the land and
said: ‘Having regard therefore to the need to safeguard valuable agricultural
land it is considered that the loss of such land must be the overriding factor
militating against the proposed developments, as they would be contrary to
national policy.’ Then he said:
It is
recognised that infrastructure investment in the area has been made as a
prudent measure to allow for any future development of the appeal site, past
inferences having suggested that the land might become available for residential
development. Whilst infrastructure constraints elsewhere in the
area where the infrastructure exists, it is not considered that this is, at the
present time, sufficient justification for development of the appeal sites. For
these reasons the Secretary of State does not accept his inspector’s
recommendations and hereby dismisses your 4 appeals.
In Seddon
Properties Ltd v Secretary of State for the Environment, noted in
(1981) 42 P & CR 26, Forbes J summarised the principles under which a
decision by the Secretary of State in a case such as this may be reviewed in
the courts. I set out below those which seem to me to be particularly relevant
in this case:
(1) In reaching his conclusion the Secretary of
State must not take into account irrelevant material or fail to take into
account that which is relevant: see, for example, again the Ashbridge
Investments case, per Lord Denning MR,
(2) The Secretary of State must abide by the statutory
procedures, in particular by the Town and Country Planning (Inquiries
Procedure) Rules 1974. These rules require him to give reasons for his decision
after a planning inquiry (rule 13), and those reasons must be proper and
adequate reasons that are clear and intelligible and deal with the substantial
points that have been raised: Re Poyser and Mills’ Arbitration [1964] 2
QB 467.
(3) If the Secretary of State differs from his
inspector on a finding of fact or takes into account any new evidence or issue
of fact not canvassed at the inquiry, he must, if this involves disagreeing
with the inspector’s recommendation, notify the parties and give them at least
an opportunity of making further representations: rule 12 of the rules of 1974.
(4) There are other peripheral principles. If the
Secretary of State differs from the inspector on an inference of fact he must
have sufficient material to enable him to do so: per Lord Denning MR in Coleen
Properties Ltd v Minister of Housing and Local Government [1971] 1
WLR 433 at p 438. Otherwise, the courts can interfere in accordance with the
first principle stated above. If it is a matter of planning policy, he is free
to disagree with the inspector’s conclusions or recommendations without
bringing into operation rule 12: Lord Luke of Pavenham v Minister of
Housing and Local Government [1968] 1 QB 172, but, of course, he must make
clear what the policy is and its relevance to the issues raised at the inquiry
in accordance with the [second] principle above.
With those principles
in mind, I can now examine the arguments for the applicants and the Secretary
of State in relation to the grounds set out in the notice of motion. The first
of these is that the Secretary of State differed from his inspector’s finding
of fact, namely, that there was in January 1980 2.07 years’ supply for
residential development by concluding that there was 3 1/2 years’ land supply
available. Accordingly, it is contended that principle (3) described above was
contravened. Mr Collins for the Secretary of State said that the decision
letter must be dealt with as a whole, knowing that it would be read by those
who knew the issue. In effect, the Secretary of State did not dispute that
there was a shortfall of land, so that whether there was 2.07 years or 3.5
years was not material. What Mr Collins described as the ‘meat’ of the decision
was that the application did not provide the answer to the shortfall because it
would produce an imbalance. Nevertheless, he accepted that the Secretary of
State had arrived at his estimate of shortfall on a different basis.
I have the
benefit of the transcript of the judgment in Seddon’s case. During the
course of his judgment Forbes J said:
The corollary
of the proposition that the courts do not entertain objections relating to the
weight which the Secretary of State attaches to a matter is that the courts
cannot determine how much weight he has in fact attached to it: and unless the
matter is clearly peripheral it is impossible to say how far the Secretary of
State’s decision may have been affected by the consideration.
It cannot be
said in the instant case that the extent of the supply of land was a peripheral
matter; on the contrary, it was one of the central issues. It must have been a
matter which the Secretary of State took into account, otherwise there would
have been no point in not accepting the inspector’s findings. It seems to me,
therefore, that the decision is unsatisfactory, either because of a breach of
rule 12, or, if this was not a matter which weighed with the Secretary of
State, then there was a failure to give clear and intelligible reasons and
therefore a breach of principle (2) described above.
The next
ground of complaint is that the Secretary of State differed from the
inspector’s conclusions on the effect the proposals would have on the loss of
agricultural disturbance (I think that this was an error and the word ‘land’
should be substituted for ‘disturbance’). Mr Vandermeer said that the decision
took no account of the agricultural loss compared with the loss to agriculture
by the development of other land. Further, that the Secretary of State did not
say how he had applied the agricultural policy and, indeed, in failing to make
a comparison he manifested a wrong understanding of that policy.
I think that
although the decision letter could have been couched more explicitly, the
meaning is tolerably clear. It really did not need to be explained that the
national policy is to preserve high-quality agricultural land and that although
a comparison with other land might have to be made in the future, the time for
that comparison had not yet arrived.
The third
ground is that the Secretary of State differed from the inspector’s conclusion
that a development would not affect the generality of the structure plan
proposals nor prejudice its proper consideration. It is said that that was
differing on a finding of fact and, alternatively, that the reasons for it are
not clear. In my judgment, that was not a finding of fact but a conclusion
drawn from the facts, and one which persuaded the Secretary of State to refuse
permission. Further, I think the reasons for that conclusion are clear and that
is what Mr Collins described as the ‘meat’ of the decision.
The next
ground is that the Secretary of State’s conclusions, on both the question of
land supply for housing and the utility of the land for agriculture, were
contrary to the evidence and/or cannot be supported. As to the first part of
that ground, as I have already indicated, the Secretary of State used his own formula
for arriving at the land supply and gave no reasons for doing so. It follows
that that part of the applicants’ case succeeds. So far as the agricultural
land is concerned, there was ample evidence, as Mr Vandermeer conceded, and in
my judgment the conclusion is adequately supported by that evidence.
The next
ground goes to the totality of the decision and is that the Secretary of
State’s conclusions on the questions of land supply for housing, prejudice to
the draft structure plan, relative importance of the planning policy map,
investment in infrastructure and the utility of the land for agriculture,
cannot be supported having regard to the inspector’s conclusions and
recommendations; or he failed to understand the case put by the applicants; or
his findings of fact differed in every respect from the inspector’s. Apart from
the question of land supply, I am not persuaded that the decision letter shows
that the Secretary of State failed to have regard to these matters or that he
failed to understand the applicants’ case. Moreover, it was not perverse for
the Secretary of State to conclude that the avoidance of risk of prejudice to
the structure plan should take precedence over the advantages claimed for the
development of the appeal site. The next allegation relates to agriculture and
has already been dealt with.
The next
ground is that the Secretary of State assumed an absolute rate of development
and did not apply his mind to the question, as suggested by the inspector, of
controlling the rate of building by the imposition of restrictions. It seems to
me that the Secretary of State’s conclusion that the proposed development would
result in an excessive number of houses rendered it unnecessary for him to
consider the rate of building. However much the rate was restricted, the total
number of houses would exceed those for which the Secretary of State considered
permission should not be granted at the present time.
The final
ground is that the Secretary of State failed to give proper and adequate
reasons for his decision and/or that it was unintelligible. Apart from the
criticisms I have made already, I find the decision reasonably intelligible.
In view of my
conclusions relating to the Secretary of State’s assumptions as to land supply,
the appeal must be allowed and the decision quashed.
Judgment was
given for the applicants with costs.
