Application by local authority to quash decision of Secretary of State for the Environment who had allowed an appeal from the authority’s refusal of planning permission–Permission sought for extension to offices–Alleged failure by Secretary of State to consider ground of refusal based on a draft district plan and to give adequate reasons–Held that Secretary of State had considered the appeal against the background of the relevant development history, including the draft district plan, and had given intelligible and adequate reasons for allowing the appeal–Application to quash dismissed
This was an
application by the Sheffield City Council to quash a decision by the Secretary
of State for the Environment, who had allowed an appeal by G R Stein
Refractories Ltd against the council’s refusal of planning permission for an
extension to the company’s offices in a residential area in Sheffield.
K T Simpson
(instructed by Sharpe, Pritchard & Co) appeared on behalf of the applicant
city council; Harry Woolf (instructed by the Treasury Solicitor) represented
the Secretary of State for the Environment; S Cripps (instructed by Slaughter
& May) represented G R Stein Refractories Ltd.
Giving
judgment, DRAKE J said: This is an application by the Sheffield City Council
for an order under section 245 of the Town and Country Planning Act 1971 that a
decision made by the Secretary of State for the Environment, in a decision
letter dated August 14 1978, be quashed.
The grounds
relied on are that the Secretary of State failed to take account of, or
consider, one of the substantial grounds
that the development in question would be contrary to the Crookes-Broomhill-Endcliffe
draft district plan and that such decision is defective in failing to give
reasons relating to an important matter.
The relevant
history and, so far as they be relevant, the facts of this matter can be stated
briefly. Genefax House, the site with which this planning matter is concerned,
is situated in what was formerly a good residential area in Sheffield. Before
planning control existed some of the larger older houses had become used as
offices, including Genefax House, where office use commenced at some time in
the 1930s. The premises were, at the times relevant to this application,
occupied by G R Stein Refractories Ltd (whom I shall refer to as ‘the company’
and whom I understand to be a subsidiary of some larger organisation). In 1957 an
area, including Genefax House, was designated in the Sheffield development plan
town map, which was approved by the Minister of Housing and Local Government,
as being in an area primarily for residential use.
In 1973 the
company applied for, and were refused, planning consent for an extension to the
offices at Genefax House; that extension being proposed on a different part of
the ground to that with which we are currently concerned. The grounds for
refusal of planning consent in 1973 were that the extension to the office
premises would be detrimental to the amenities of the area. In November 1973
the site and the surrounding area, known as Ranmoor, was designated as a
conservation area. In 1975 another application for an extension, on a different
line and on different ground to that which had been refused in 1973, was
granted by the city council. The reasons apparently, as it appears from the
council’s statement of reasons for the minister in this case, were that the
council at that stage felt that environmental objections were outweighed by the
company’s apparent urgent need for more office space. But a time condition for
the development to be begun within two years was imposed. That development was
not started within the two years and that period having expired, and the
consent having lapsed, the company in 1977 put in a fresh application, the one
with which I am now concerned.
Meanwhile the
council had prepared a draft of a proposed district plan, to which I have
already referred, to be known as the Crookes-Broomhill-Endcliffe district plan
which related to an area which included Genefax House. On this occasion the
city council refused planning consent on two grounds contained in their reasons
for refusal, which are as follows:
1. The
proposed development represents an undesirable intensification of an office use
in an essentially residential neighbourhood and in the council’s opinion this
would be detrimental to the amenities and character of the area by reason of
increased noise, traffic and car parking.
2. The
proposed development is contrary to the aims of the council as contained in the
Crookes-Broomhill-Endcliffe draft district plan which are, inter alia,
to discourage further office development in residential neighbourhoods of the
plan area and if possible thereby to improve the residential amenity of those
districts.
The company
appealed against that refusal to the Secretary of State, who dealt with the
matter himself rather than by appointing an inspector to consider the matter on
his behalf, and he dealt with the appeal by way of written representations from
the parties.
The city
council in their written representations, in support of their refusal of
planning consent, referred to the two reasons for refusal, which I have just
read out in full, and in that document amplified those reasons for refusal. It
is I think plain from reading that written statement, as also from reading the
original reasons for the council’s refusal, that the essential ground on which
they refused planning consent was that they considered that an extension to
these premises for office use would have an adverse effect on the amenity of
the surrounding district. The written statement, like the reasons for the
council’s refusal, refer expressly to the Crookes-Broomhill-Endcliffe draft
district plan. But I have no doubt that an examination of that lengthy draft
district plan shows quite clearly that, so far as it is relevant to this
planning application, it was the amenity aspect which was relied on and being
considered by the city council in refusing planning consent. Indeed, going back
to the original stated reasons for refusal, where it refers to the draft
district plan, it goes on to refer to the aims of the council as contained in
that plan, as being, inter alia, to discourage further office
development in residential neighbourhoods and if possible thereby to improve
the residential amenity of those districts.
On August 14
1978 the Secretary of State gave his decision in the form of a letter. It
refers, at paragraphs 6 and 7, to the case for the council. It omits any
express reference to the draft district plan. At paragraphs 9 and 10 the
Secretary of State gave his reasons for allowing the appeal to him; again,
there is no express reference to the draft district plan. Paragraph 10, I
should add, is in very general terms saying: ‘All the other matters raised on
the representations have been considered.’
It is conceded by and on behalf of the Secretary of State that paragraph
10 is of no avail as a ‘sweeping-up’ provision if, otherwise, the decision
letter has failed to deal with the ground number 2 on which the city council
had refused planning consent. The city council accordingly say that this is a
case where either the Secretary of State has not considered the draft district
plan at all and that is the reason why no reference to it is made in the
decision letter, or (and I think it would be fair to say that this is the
primary way in which they put their case) the Secretary of State has not given
reasons, or any adequate or sufficient reasons, for rejecting the council’s
refusal on that ground. It is not contended that the Secretary of State failed
to deal with ground 1 of the original reasons for refusal which was, in
general, amenity grounds.
It is
pertinent to note that in their written representation to the minister, while
amplifying reasons 1 and 2 of their original reasons for refusal, the council
summarised their case, under the heading ‘Conclusion,’ in the words: ‘The
appeal proposal is contrary to the . . . . draft district plan’s policy for
improving the amenities of the residential area by discouraging office
development. . . .’
Now those are
the relevant facts and history of the matter. What should be my proper approach
to this matter is not in dispute between the parties. Section 245 of the Town
and Country Planning Act 1971 provides that if any person is aggrieved by any
order to which this section applies, or by any action on the part of the
Secretary of State, to which this section applies, he may apply to this court and
this court, if satisfied that the order or action in question is not within the
powers of this Act or that the interests of the applicant have been
substantially prejudiced by failure to comply with any of the relevant
requirements in relation thereto, may quash that order or action. And the
relevant requirements, so far as we are concerned, include the requirements to
observe the provisions of section 12 of the Tribunals and Inquiries Act 1971,
which requires that it shall be the duty of the minister in giving a decision
to furnish a statement of the reasons for the decision, and to state the
reasons. And as to the test that is to be applied it is common ground simply
that those reasons must be adequate and intelligible and sufficient to meet the
circumstances of the case. Counsel for the applicant cited a large number of
authorities which referred to slightly different, but essentially the same,
ways in which the court should properly approach an application to quash an
order or decision of this nature. Counsel for the Secretary of State, and also
counsel for the company concerned, did not fundamentally disagree that those
authorities are helpful in indicating the correct approach although it was
pointed out that they are all, or almost all, concerned with cases in which it
has been a decision of an inspector appointed by the minister rather
than a decision of the minister himself with which the courts were concerned.
So far as
those decisions are concerned I am not going to refer to all of them to indicate
the approach that the courts have adopted; it will suffice to refer to the
judgment of Megaw J in Re Poyser and Mills’ Arbitration [1964] 2 QB 467,
which has been cited with approval in many subsequent cases; I go back to the
original judgment where, at p 477, at the foot, Megaw J said:
. . . The
whole purpose of section 12 of the Tribunals and Inquiries Act 1958 was to
enable persons whose property, or whose interests, were being affected by some
administrative decision or some statutory arbitration to know, if the decision
was against them, what the reasons for it were. . . . The decision might be
perfectly right, but the person against whom it was made was left with the real
grievance that he was not told why the decision had been made. . . . Parliament
provided that reasons shall be given, and in my view that must be read as
meaning that proper, adequate reasons must be given. The reasons that are set
out must be reasons which will not only be intelligible but which will deal
with the substantial points that have been raised.
Later he went
on:
I do not say
that any minor or trivial error, or failure to give reasons in relation to
every particular point that has been raised at the hearing, would be sufficient
ground for invoking the jurisdiction of this court.
and I have
there quoted what, I think, are the most relevant passages from that judgment.
Perhaps the only other case I need, and can usefully, refer to is that of a
decision of the Divisional Court, Ellis v Secretary of State for the
Environment (1974) 31 P & CR 130. In that case May J, with whom Lord
Widgery CJ and Bridge J (as he then was) concurred, said at p 132:
All that it
seems to me is required is that adequate reasons, reasons adequate to the
circumstances of any particular case, be given.
Though it is
fair and right to say that he had preceded that by pointing out that that
particular case was concerned, again, with an appeal dealt with by an
inspector.
A report or a
decision by an inspector need not in his view be as full as that which might be
given by the minister himself, which might afford some grounds as suggesting
that where the minister himself is concerned the report should, if anything, be
fuller and more explicit. I also agree with the submission made to me by Mr
Simpson in his reply in this case that it is not good enough for reasons only
to be found, determined and arrived at by the parties by some complex exercise
of reasoning involving cross-references from one set of documents to another.
Looked at as a whole, fairly and squarely, the decision and the reasoning ought
to be clearly intelligible to those affected by it.
Now the first
question I have to consider, since it is referred to in the application to this
court, is: did the Secretary of State consider the draft district plan at
all? That argument has not been
seriously pursued, if at all, by Mr Simpson, in the face particularly of an
affidavit, on behalf of the Secretary of State, which says that that document
was in fact before him when he made his decision; a short affidavit to that
effect exhibited the draft district development plan in question. But the real
grounds upon which this application is pursued is the question whether or not
the Secretary of State gave any, or any sufficient, adequate and intelligible
reasons for rejecting the council’s refusal of the application on the grounds
relating to the draft district plan. It is conceded by Mr Woolf, for the Secretary
of State, that it was an unhappy error that the minister’s decision letter did
not refer expressly to the fact that he had considered the draft district plan
in arriving at his decision. Notwithstanding that admittedly unhappy error, I
have no doubt at all that in this case the minister did consider that plan and
that on a fair reading of this decision letter it gives his reasons for
rejecting the council’s case on that ground. It is, in my view, absolutely
plain that the Secretary of State here did consider in detail the relevant part
of that draft district plan, which overlaps, it may be said, very much with the
other amenity ground for refusal of this council. The Secretary of State, in
his decision letter, first deals with and refers to the original Sheffield town
map and development plan in 1957. He does so at paragraph 6 without, it is
true, mentioning that development plan by name; but in referring to the case
for the council, and that in 1957 with the approval of the minister most of
Ranmoor was designated as an area primarily for residential use, it is clear
that the Secretary of State took that background policy and matter into
consideration; as he did also the designation in 1973 of the area as a
conservation area, which is also expressly referred to both in the council’s
written representations and the decision letter. And by paragraph 9, where the
Secretary of State gave his reasons for saying that in his view this extension
would not be substantially detrimental to the amenities of the area, he was, in
my view, plainly dealing with precisely the arguments advanced by the council
for saying that the extension did not fit in with their aims as expressed in
the draft district plan. I would say that this was a case where the Secretary
of State was considering this appeal against the background of those various
documents and I come near to echoing words used on a slightly different
background by Willis J in French Kier Developments Ltd v Secretary of
State for the Environment [1977] 1 All ER 296, where at p 303 he said:
It seems to
me plain from the report that the inquiry was conducted against the background
of government policy as it has developed since Circular 42/1955 and that there
is no suggestion in the decision letter that the inspector had misdirected
himself at any stage in relation to policy.
I think
equally that it is plain from this decision letter that the appeal was
considered by the Secretary of State against the background of the development
history relating to this area including, especially, the draft district plan
that he had referred to.
Mr Simpson
submitted finally to me that having regard to ground 6, on p 6 of the council’s
written representation, referring to the fact that the Department of the
Environment has recently supported this district plan by dismissing two appeals
for office use in existing smaller buildings the decision letter should have
spelt out the reasons very clearly why, in this particular case, the Secretary
of State reached a different conclusion. But I think that that is precisely
what the decision letter does spell out clearly. I can find no substance in
this case for saying that the reasons given in this decision letter were not
sufficient, adequate and intelligible. Accordingly, the applicants have not
satisfied me that there has been a failure to comply with any of the relevant
requirements; indeed, had it been necessary, which it is not, for me to do so I
would have gone further, to say that I am satisfied that the requirements are
complied with, and for those reasons this application is dismissed.
The application was dismissed with costs in favour of
the Secretary of State and G R Stein Refractories Ltd.