Permission for Luton cash-and-carry warehouse refused on appeal because of the possible impact on council’s project for central shopping area–Secretary of State did not need evidence on which to base this conclusion–Entitled to rely on opinion and experience–Further point that in another such appeal in the same district permission was given–Court cannot investigate facts of another application, even if inconsistent decisions do disclose an error of law–Possibly a further application of some kind would bring the two matters before the Secretary of State together–Owners’ appeal dismissed and leave to appeal refused
This was an
appeal by Wholesale Mail Order Supplies Ltd and John Evans (Furnishings) Ltd,
of Bilton Way, Luton, and by two directors, Mr Lawrence Alfred Kostick and Mr
Alan Francis Kostick, from decisions of the first respondent, the Secretary of
State for the Environment, dismissing their appeals against enforcement notices
served on them by the second respondents, Luton Borough Council, requiring them
to cease using premises at Bilton Way as a ‘cash-and-carry’ warehouse.
Mr L Lait
(instructed by Anthony & Co) appeared for the appellants, and Mr A Fletcher
(instructed by Sharpe, Pritchard & Co, agents for the solicitor to the
council) represented the second respondents. The first respondent took no part
in the proceedings.
Giving
judgment, LORD WIDGERY said: This is an appeal, purporting to come to this
court under section 246 of the Town and Country Planning Act 1971, by Wholesale
Mail
the Secretary of State for the Environment and the Luton Borough Council, arising
out of enforcement notices served by the respondent planning authority upon the
appellants and relating to premises at nos 70, 72 and 74 Bilton Way, Luton, in
Bedfordshire. The appellants are the owners of the premises, which were
initially used as a warehouse and distribution depot. The proposal was to use
them for retail trading. The change having been factually made, and the
planning authority having concluded that it was a material change of use and
that no planning permission had been granted for it, they proceeded to serve
the enforcement notices to which I have referred. The appellants, as they were
perfectly entitled to do, then appealed to the Secretary of State under the
Act, and they appealed on a number of grounds. But in the end, as the matter is
presented to us, there are only two grounds which require consideration at all.
One is a ground which was mentioned at the hearing before the inspector and
featured in the inquiry below, and appears in the appellants’ statement of
grounds of appeal in this court. The other is an entirely novel ground to which
I shall have to refer more fully in a moment.
To take the
first ground first, if one goes to the decision letter, which is dated February
28 1975, the essential paragraph comes in the reasons for the decision under
the figure 10. At this stage the Secretary of State has left the technical
aspects of the case and come to consider the planning merits. These paragraphs
are relevant because amongst other heads of appeal relied upon by the appellants
is paragraph (a) of section 88 (1) of the Act, which is a ground upon which the
appellants ask that planning permission should be granted. The Secretary of
State discusses the disadvantages of the new use to which the appellants have
put the site in a planning sense, and considers the argument in favour of their
being allowed nevertheless to continue with it. He narrows his decision down to
one ground, which is expressed in this way, that ‘it would be both contrary to
and detrimental to the council’s policy of establishing a central shopping area
which is already in the course of construction.’ It is in the end on that ground that the
Secretary of State decided to refuse planning permission under ground (a) of
the appeal. The views of the inspector, as adopted by the Secretary of State,
are as follows:
It is my
opinion that it is the last which must be the deciding factor. It is not a
planning function to protect individual traders, but it is a planning
responsibility to ensure that there is a balanced layout between shopping,
residential, industrial, etc development. In the case of Luton this is achieved
by the production of the town plan which is the result of considerable study by
the authorities concerned. If there is to be a substantial departure from this
plan, there must be good reason for it, or the whole plan would become
meaningless. I consider that the grant of planning permission for a large
retail store in this otherwise industrial estate would amount to a substantial
departure. Further-more, if the proposal were permitted, it would be very
difficult for the council to refuse other similar applications for
cash-and-carry establishments dealing with a variety of commodities including
foodstuffs, and there appears to be space available, bearing in mind the new
development under construction to the west. A proliferation of this form of
trading here could well jeopardise the viability of the town redevelopment
scheme.
That is what
the inspector said, and the Secretary of State adopted it, and therefore it
becomes the basis for refusal of planning permission in the first instance. Mr
Lait attacks this conclusion on the ground that there is no evidence, or there
was no evidence before the Secretary of State, to enable him to come to that
conclusion. The actual words of objection are:
The Secretary
of State erred in law in deciding that it would be contrary to and detrimental
to the council’s policy of establishing a central shopping area to grant
planning permission. There was no evidence on which the Secretary of State
could so decide.
The short
answer to that objection is that in the planning sphere a great many decisions
are not based on facts and evidence but are based on opinion and experience;
and when the inspector first, and Secretary of State secondly, expressed the
views which I have just read out they did not require to call witnesses to
support those views. They were giving the opinions of people experienced in
this sort of business whose opinions were worthwhile and upon whose opinions
actions could take place. It is a complete misconception to take the view that
matters of professional opinion, in planning in particular, require the sort of
factual support in evidence which is required in proving the existence of a
criminal case. The objection taken that there was here an absence of evidence,
with the implication that there should have been further evidence, is in my
judgment wholly misconceived.
The other
ground to which Mr Lait seeks to draw our attention is one which has been put
in writing before us, and I think I can summarise it without doing injustice to
it. He seeks to contend before this court that the Secretary of State has
committed a further error of law in his approach to these problems in that he
has recently considered a similar application in another part of Luton and has
taken a view there favourable to the developers, and has taken the view,
further, that such development is not inconsistent with the proper development
of the centre of Luton. So, says Mr Lait, we have here two conflicting
decisions based on substantially the same facts and showing that something has
gone wrong. He invites us to say, having gone through that tortuous process of
reasoning, that thus is disclosed an error of law of the kind which entitles
this court to interfere under section 246. The principal difficulty here, of
course, is that this court cannot possibly investigate facts of another and
wholly different planning application which was never referred to in the
proceedings below and upon which the Secretary of State has never expressed an
opinion. How, first of all, we can be apprised of the facts is hard enough,
because there is already authority which indicates the general tendency in
these proceedings not to embark on a retrial of facts on the basis of fresh
evidence admitted: I am referring, of course, to Green v Minister of
Housing and Local Government [1967] 2 QB 606. So not only are we faced with
the problem of how, with propriety, this court is to be informed of the facts
in the other case, but we are also faced with the far more serious problem that
the Secretary of State has never been asked to consider that case in relation
to the present, and it would be quite wrong, in my judgment, to consider any
arguments of this kind in the absence of the Secretary of State and without his
having been joined in the proceedings. Whether or not other procedures can be
adopted, whether or not a further application of some kind may not bring these
two matters before the Secretary of State together, I do not know, but
certainly this court would not be a promising forum in which to achieve that,
because it must be remembered first and last that our authority is only in
regard to errors of law, and I am very far from accepting, for myself, that an
error of law is disclosed merely because one finds the Secretary of State or
the planning authority reaching inconsistent conclusions in two cases. It may
be an error of law; I do not express a final view upon it, but I am by no means
certain it is. In my judgment, what is clear in this case, however, is that the
appeal must be dismissed, and I would dismiss it.
O’CONNOR J: I
agree.
LAWSON J: I
agree.
The appeal
was dismissed with costs, and leave to appeal to the House of Lords refused.
