Town and Country Planning Act 1971 — ‘Deplorable history’ of delays following refusal of Westminster City Council to grant planning permission for continued use of premises in Mayfair as offices — Secretary of State for the Environment, after local inquiry and despite inspector’s recommendation, dismissed appeals — This decision was quashed by Sir Douglas Frank, sitting as a deputy judge of the Queen’s Bench Division, on the principle of Associated Provincial Picture Houses Ltd v Wednesbury Corporation, ie as a decision so unreasonable that no reasonable Secretary of State could have come to it — After an interval the Secretary of State raised the question of a fresh decision and eventually decided to reopen the public local inquiry — The applicants then applied to the Divisional Court by way of judicial review, seeking an order of certiorari to quash the decision to reopen and an order of mandamus to compel the Secretary of State to determine the appeal forthwith — The application was referred to a single judge, Sir Douglas Frank, who dismissed it, holding that on this occasion it was not possible to say that the Secretary of State’s decision was perverse — Held by the Court of Appeal that a reopened inquiry would have produced nothing except further delay and expense to the parties — The Secretary of State’s decision crossed ‘the border-line dividing the valid exercise of his discretion from perversity’ — Appeal allowed and Secretary of State ordered to determine the appeals without further inquiry or delay
These were
appeals by Niarchos (London) Ltd from the dismissal by Sir Douglas Frank QC,
sitting as a deputy judge of the Queen’s Bench Division, of the appellants’
applications for judicial review. The appeals related to two sets of premises
in Park Street, Mayfair, 37 and 41 and 43, which the applicants wished to be
permitted to continue to use as offices.
David
Widdicombe QC and Matthew Horton (instructed by Coward Chance) appeared on
behalf of the applicant; David N R Latham (instructed by the Treasury
Solicitor) represented the first respondent, the Secretary of State. The second
respondents, Westminster City Council, were not represented and took no part in
the proceedings.
Giving
judgment, STEPHENSON LJ said: These are two appeals from a judgment of Sir
Douglas Frank, sitting as a deputy judge of the Queen’s Bench Division, whereby
on March 14 of this year he dismissed the appellant company’s applications for
judicial review. This court is asked to set aside his orders and to issue
mandamus to the first respondent, the Secretary of State, to determine
forthwith the applicant’s appeals from a refusal of planning permission by the
Westminster City Council, the second respondents, who have not appeared and
take no part in this appeal, without reopening a local inquiry which was held
over five years ago.
The deplorable
history of this matter is this. The applicant, the sole London agent of a
shipping company, occupies, or occupied, two sets of premises in Park Street,
Mayfair, 37 and 41 and 43, which are joined internally and occupied as one set
of premises. I say ‘occupied’ because we were told that one set of premises is
no longer leased to the applicant, but the appeal is continued in the
applicant’s name.
The applicant
applied to the council for planning permission for the continued use of these
two sets of premises on January 11 1974. On March 26 1974 the council refused
permission. On September 16 1974 the applicant appealed to the respondent
Secretary of State (whom I will call the respondent) against that refusal and
it appealed under section 36 of the Town and Country Planning Act 1971. The
grounds on which the council refused permission were:
(1) The proposal does not accord with the initial
development plan in which the area is allocated for Mayfair residential
purposes.
(2) The proposal has been examined in the light
of the council’s policy for this area of Mayfair as expressed in section
20(1)(a) of the written statement to the initial development plan and the
council is satisfied that the premises are reasonably capable of adaptation and
use for residential purposes and is thus opposed to the continuation of office
use of this property.
Section 36 of
the 1971 Act provides by subsection (1):
36(1) Where
an application is made to a local planning authority for planning permission to
develop land, or for any approval of that authority required under a
development order, and that permission or approval is refused by that authority
or is granted by them subject to conditions, the applicant, if he is aggrieved
by their decision, may by notice under this section appeal to the Secretary of
State.
Subsection (3)
provides:
(3) Where an appeal is brought under this section
from a decision of a local planning authority, the Secretary of State, subject
to the following provisions of this section, may allow or dismiss the appeal,
or may reverse or vary any part of the decision of the local planning
authority, whether the appeal relates to that part thereof or not, and may deal
with the application as if it had been made to him in the first instance.
Subsection (4)
provides:
(4) Before determining an appeal under this
section, other than an appeal referred to a Planning Inquiry Commission under
section 48 of this Act, the Secretary of State shall, if either the applicant
or the local planning authority so desire, afford to each of them an
opportunity of appearing before, and being heard by, a person appointed by the
Secretary of State for the purpose.
Subsection (6)
provides:
(6) The decision of the Secretary of State on any
appeal under this section shall be final.
There is more
to be said about some of those provisions later.
The Secretary
of State did not order a hearing, but he ordered an inquiry under section 282
of the 1971 Act, which provides:
282(1) The
Secretary of State may cause a local inquiry to be held for the purposes of the
exercise of any of his functions under any of the provisions of this Act.
(2) The provisions of subsections (2) to (5) of
section 290 of the Local Government Act 1933 . . . shall have effect with
respect to any inquiry held by virtue of this section as if the Secretary of
State were a department for the purposes of that section.
An inspector
was appointed by the respondent to hold a local inquiry. The hearing occupied
three days in June and July 1975. Both parties, that is to say the applicant
and the council, were represented by counsel. Both parties called witnesses.
The applicant called a director and three experts; the council called three
experts.
After that
hearing on July 27 1975 the inspector recommended that the appeal should be
allowed subject to conditions:
(a) The use hereby permitted shall cease on or
before December 31 1980.
(b) Standard time conditions.
Therefore at
that point the applicant might well have expected that it would be permitted
continued use of these two premises as offices in this residential area.
The applicant
and the council had put forward schemes for conversion of the premises back to
residential use in flats and given a good deal of detailed evidence as to the
course of both. As a result of that evidence and the rest of the evidence the
inspector, in his report, found as a fact among other things, in paragraph 92:
(h) The area around the site is of mixed uses
with offices and residential accommodation predominating but with a number of
hotels, shops and embassies.
(i) In the current written statement the amended
policy for Mayfair is now contained in section 20(i). This states inter alia
‘that where it can be shown to the satisfaction of the council (or the minister
on appeal) that any house, or part of a house, either alone or in combination
with others, cannot reasonably be used or adapted for use for residential
occupation of one kind or another, it is the council’s intention to permit the
use of accommodation for office purposes until the year 1990. Existing
temporary permissions will be revised on this basis.’
(j) Section 20(i) also states ‘Subject to these
exceptions, in residential zones throughout the county, where temporary
permissions have been given for change from residential use to some other use,
the premises will revert to residential use on the expiry of the present term
of permission. Except in very special circumstances no further permissions or
extensions of existing permissions for such other uses will be given.’
(r) Although there is some disagreement on the
merits of the 2 schemes . . .
that is the
two schemes put forward by the applicant and council respectively
. . . and on
the cost and realisation values of the schemes, both parties agreed that
neither scheme was economically viable at the present time.
The inspector
concluded — and I do not read the whole of his conclusions:
93. . . .
having regard to the particular character and situation of Mayfair and the
pressures which affect it, I am of the opinion that as it is an area which is
allocated primarily for residential use in the approved development plan,
applications for development in it must be considered in the light of this. The
Council’s policy, as set out in section 20(i) of the written statement of the
development. . . . In my view that policy is soundly based and should be supported.
94. In my
opinion therefore the issues in both of these appeals are (1) whether or not
the special circumstances of the appellant’s case are such as to allow them to
be considered to fall within the exceptions to the council’s policy or (2)
whether or not it can be shown that the appeal premises, either singly or in
combination, cannot reasonably be adapted for use as flats.
97. The
appellant’s architect prepared a scheme which showed, in some detail, how the
appeal buildings could be converted to provide mainly I bedroom flats. The
council submitted a sketch scheme for conversion which would have provided a
lesser number of larger flats. There can be no doubt, therefore, that it would
be physically possible for 37, 41 and 43 Park Street to be converted into
flats. The point at issue is whether they could be reasonably adapted for
residential use. Both the appellant’s and the council’s expert valuation
witnesses, in spite of their differences on other matters, agreed that neither
of the suggested schemes of conversion would be economically viable at the
present time. It seems likely therefore, under present conditions, that the
alternative to the use of the appeal premises as offices would not be to have
them converted into flats but to have them standing empty until such times as
there was a significant change in the economic situation. In my view therefore
it cannot be said that the buildings could be reasonably adapted for
residential use at the present time.
98. As the
reason why the building cannot be reasonably adapted for residential use is
purely a financial one, and as the economic situation has changed rapidly over
the past few years and may change just as rapidly in the future. I think it
would be wrong to give either permanent permissions or long temporary
permissions on the present applications. A temporary permission for 5 years
would allow time for the economic situation to improve and provide sufficient
time for the appellant company to find suitable alternative accommodation.
The inspector
accordingly recommended that the appeal should be allowed conditionally, as I
have stated.
That report,
with its findings of fact, recommendations and conclusions, presumably went to
the respondent in July 1975. On June 30 1976, nearly a year later, the respondent
made his decision. In paragraph 3 the respondent accepted the inspector’s
findings of facts and accepted the inspector’s conclusions, but in paragraphs 4
and 5 he went on to say this:
4. On the
question of reasonableness of adaptation for residential use, both parties
agree that — the question of profitability apart — it is physically practicable
for the premises to be converted and used as separate units of residential
accommodation and the council’s view is accepted that such units would provide
reasonably satisfactory living accommodation. The inspector remarks that
although conversion is physically possible neither of the suggested schemes
would be economically viable at the present time, and that the likely
alternative to the continued use of the premises as offices would be to have
them standing empty until such time as there was a significant change in the
economic situation. The inspector’s reasons for recommending further temporary
extensions of office use on these grounds are understood, but the Secretary of
State takes the view that the financial considerations, which make conversion
unprofitable at the present time, are not a factor of such importance in this
instance as to persuade him to permit an exception to the policy, under which
further extensions of office use would not normally be permitted. The Secretary
of State therefore decided not to accept the inspector’s recommendation, and
not to allow the appeals.
5. The
Secretary of State therefore hereby dismisses the two appeals.
That decision
is signed by a person authorised by the Secretary of State to sign in that
behalf.
From that
decision of the respondent the applicant appealed under section 245, which has
to be read with section 242, to the High Court, an appeal lying, in spite of
the obstacle apparently provided by subsection (6) of section 36 declaring the
Secretary of State’s decision final.
On December 13
1977 — and for that delay of more than a year probably nothing except the
business of the courts can be held responsible — Sir Douglas Frank, sitting for
the first time as a deputy judge of the Queen’s Bench Division, quashed the
decision of the respondent and his decision is reported in (1977) 76 LGR 480;
245 EG 847, [1978] 1 EGLR 140. From that decision there was no appeal.
The learned
judge quashed the respondent’s decision of June 30 1976 fundamentally for two
reasons. He held that the Secretary of State asked himself the wrong question.
He said: ‘. . . what he should have done was to have asked himself whether the
premises could reasonably have been adapted for use for residential
accommodation . . . and in answering that question he should have taken into
account financial considerations’. The learned judge read the Secretary of
State’s decision as not really taking those decisions into account at all by
describing them as ‘not a factor of such importance in this instance’ as to
permit an exception to the general policy.
He rejected
the argument for the respondent that section 21(a) of the written statement of
the amended development scheme was directed to physical practicability only,
and he said that it was right to consider ‘the financial consequences as found
by the inspector’. He then upheld the contention that the respondent’s decision
‘was perverse and/or unreasonable and/or unsupported by any or sufficient
evidence’ on the principle laid down long ago in Associated Provincial
Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
The learned
judge said:
Given that in
the instant case the Secretary of State was bound to take into account the
financial implications of adapting the premises, and having regard to both the
primary facts, that is to say, the evidence on costs and rents given by the
respective parties and the inferences which must be drawn from them, I am
inevitably led to the conclusion that the premises could not reasonably be
adapted for residential occupation at the present time As Lord Radcliffe said
in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at p 36:
‘I do not
think that it much matters whether this state of affairs is described as one in
which there is no evidence to support the determination or as one in which the
evidence is inconsistent with and contradictory of the determination, or as one
in which the true and only reasonable conclusion contradicts the determination.
. . .’
I can see
only one true and reasonable conclusion in this case, and that is as I have
said. I realise that this is the first town planning decision which has been
quashed for being unreasonable, but I believe I am doing no more than applying
an established principle to the particular facts.
As I have said,
there was no appeal from that decision, but for nearly three years the position
has been that the permission recommended by the inspector has remained refused
and the parties and the premises have rested uneasily in the valley of
indecision.
A certain
amount has happened during that period from the first decision of the learned
deputy judge of the Queen’s Bench Division until today. On December 22 1977 the
respondent received a letter from the Mayfair Residents’ Association. They
appeared to think that the decision of Sir Douglas Frank related to 39, 41 and
43 Park Street, and they so headed their letter, which read:
As an
Association, whose principle (sic) policy is to support all cases where
premises can reasonably be converted back to residential use, we have been
following the case of 39, 41 and 43 Park Street with keen interest.
They then
refer to their ‘dismay’ at the decision and record the fact that their
vice-chairman, who had offered himself as a witness in the High Court, was not
called. They went on to say:
He is of the
opinion that your original decision was correct and should have been upheld for
the following reasons:
(a) The defence counsel did not stress the point
that the property could be converted back to residential. The case of 37 Park
Street next door, a very large house which has been converted back to
residential, could have been used as an example of what can be done.
It is not
right that 37 Park Street has been converted back to residential use.
(b) No mention was made by counsel of the fact
that you gave Niarchos Ltd five years in which to find alternate (sic)
accommodation and they attempted to do so.
(c) In your original decision you stated that
during that period of grace the economic situation may change, so making a
conversion back to residential viable. This is precisely what has happened.
Counsel ignored this important fact.
It is hardly
necessary to call attention to the way in which those reasons show that the
position has been completely misunderstood by the vice-chairman. The
association ended their letter by requesting an urgent meeting ‘so that action
can be taken to have this unfortunate decision reversed’.
The
respondent’s reply to that letter was not before the deputy judge in this case.
It has been read to us. It merely acknowledged the letter and treated the
matter as one still pending final decision, but did not accept the
association’s request for an urgent meeting.
On February 28
1978, only two months after the respondent’s decision had been quashed, the
respondent wrote to the applicant’s solicitors as follows:
I refer to the
above appeals and to the recent High Court judgment quashing the Secretary of
State’s decision of June 30 1976.
It appears to
the Secretary of State that a fresh decision on the appeal could be given on
the basis of the inspector’s report on the inquiry held on June 20 and July 2
and 3 1975. I should be glad to know whether your clients are content that he
should do so or whether they desire an opportunity to be heard or wish to make
any further representation in writing. A letter in similar terms has been sent
to Westminster City Council.
It is clear
that at that stage the respondent was taking the view that it would be possible
for him to decide whether to accept the inspector’s recommendation, whether to
refuse planning permission or grant some other conditions or terms, without any
further information, but he was giving both the council and the applicant an
opportunity to make further representations in writing, not because he wanted
them but because they might wish to make them.
On March 10
the applicant’s solicitors replied:
Our clients
have instructed us to say that they would be content for the Secretary of State
to issue a fresh decision on their appeals in the light of the inspector’s
report following the inquiry held in 1975. This is on the understanding that
the Secretary of State’s decision will be on the basis of the policy
considerations raised or referred to in the report of the inquiry and that no
additional policy considerations will be taken into account by the Secretary of
State.
And they added
that if further policy considerations were to be taken into account their
‘clients would wish to make further representations’.
On April 26
1978 the council wrote to the respondent in reply to the same letter of
February 28, stating:
. . . I am now
able to let you know that the city council wishes to make further
representations. This is because it is understood that one of the properties
involved has since the date of the inquiry been disposed of (again, the same
misunderstanding) and because the change in the economic climate since the
inquiry makes it likely that a conversion of the properties to residential use
could now be economically viable.
The city
council has no objection to these further representations being made in writing
and I should be grateful if you would let me know if you are agreeable to this.
The respondent
then wrote on June 7 1978 to the applicant’s solicitors:
With
reference to the above appeals I enclose a copy of a letter (which I have just
read) from the local planning authority dated April 26. The department has
agreed to further representations being made in writing and have asked the
council to submit these within 28 days from the date of this letter. A copy
will be sent to you in due course.
To that letter
the applicant’s solicitors replied on June 16 1978:
Our clients
note that the department have agreed to further written representations being
submitted by the Westminster City Council. In those circumstances our clients
wish to reserve their position until they have had an opportunity of
considering what these further representations may say. In doing so, our
clients must therefore specifically reserve the right for the reopening of the
local inquiry, if necessary, having regard in particular to the provisions of
paragraph 12 of the Town and Country Planning (Inquiries Procedure) Rules 1974.
Those rules,
Statutory Instrument 1974 No 419, contain this provision permitting and
requiring the Secretary of State to reopen an inquiry. Rule 12, dealing with
procedure after inquiry, provides by subrule (3):
(3) The Secretary of State may in any case if he
thinks fit cause the inquiry to be re-opened, and shall cause it to be
re-opened if asked to do so in accordance with the last foregoing paragraph.
I need not
read the further letters which were put before us. They show that there was a
considerable delay in the council making the written representations which they
had asked the respondent to agree to their making. But on December 12 1978 the
respondent wrote to the council saying that the department understood there was
little possibility of the council’s statement being available by September 11.
The respondent wrote:
Although the
appellants (that is the applicant) and the department have been content until
now to await your representations the department is under pressure,
particularly from local residents and their members of Parliament, to reach a
fresh decision on the appeals. In the circumstances, therefore, I must request
that your statement is submitted to the department no later than September 20.
The reference
to pressure from local residents would appear to be a reference to the letter
of December 22 1977 from the Mayfair Residents’ Association, which I have read.
There is no evidence of any pressure from Members of Parliament except the
statement in this letter.
A copy of that
letter was sent to the applicant’s solicitors by the respondent and on September
19 the council wrote to the respondent enclosing a copy of their further
statement and supporting documents; in other words their further statement of
represen-
states:
It is the contention
of Westminster City Council that since the date of the inquiry in the summer of
1975 there has been a change in the economic situation which would justify the
Secretary of State taking into account in reaching decisions on the appeals a
reappraisal of the financial implications of an adaptation of the appeal
premises for residential use. For this purpose the city council has prepared
two conversion schemes, one for 37 Park Street . . . and one for 41/43 Park
Street. . . .
There is then
a reference to drawings.
On the basis
of these schemes financial appraisals have also been undertaken and their
results also accompany this statement. In the case of 37 Park Street the
appraisal shows a surplus (excluding developers profit) of £21,233 of estimated
realisation value over costs and for 41/43 this surplus is £19,244.
4.
Accordingly the city council remains of the opinion that the appeal properties
can reasonably be adapted for residential occupation bearing in mind that the
inspector has already found that ‘it would be physically possible to convert
the buildings into flats’ (paragraph 92(r)) and bearing in mind that Sir
Douglas Frank merely said that financial consequences should be taken into
account not that they should conclude the matter.
There are then
valuations supporting those surplus figures but frankly stating that those
surplus figures exclude developers’ profits, and those representations with
those figures were, of course, sent to the applicant’s solicitors.
On December 4
1978 the applicant’s solicitors sent the applicant’s comments on those
representations and submissions to the respondent. In paragraph 5 of that
letter they said:
5. Against
this background, our clients have considered the further submissions put
forward by the Westminster City Council and compared them with the evidence
given on behalf of our clients and on behalf of the council at the inquiry in
1975. The relevant figures are set out in the attached schedules. Our clients
consider that on any view the proposals now put forward by the planning
authority do not even start to establish a prima facie case that conversion to
residential use would today be economically viable. Indeed, it will be apparent
from the figures that in relation to numbers 41/43 Park Street the situation has
deteriorated still further from that revealed in 1975.
6. This
conclusion is inescapable, even assuming that the schemes put forward by the
council are practicable and that the costs and realisation values are accurate,
none of which matters have been examined by our clients at this stage.
7. The
following points should be noted about the council’s current schemes:
(i) the costs do not allow any item for
contingencies, which if taken as 10 per cent of the building costs, would in
the case of both 37 and 41/43 Park Street considerably exceed the item defined
as ‘surplus’.
(ii) no provision has been made for VAT on the
items in respect of fees included in the estimated costs
(iii) no provision whatsoever has been included in
the calculations in respect of the value either of the existing buildings or
the land on which they stand
(iv) no allowance whatsoever has been made for
developer’s profit. In view of the risk demonstrated by the council’s figures,
any developer would require a return of at least 15 per cent on his costs
(v) the item shown as surplus amounts to only 2.4
per cent of the cost in respect of 37 Park Street and 2.5 per cent in the case
of 41/43 Park Street. This amount is all that is left to cover the four
omissions mentioned in paragraphs (i) to (iii) above and any developer’s
profit. No consideration is given by the council to the question of whether any
developer would be prepared to undertake the works in these circumstances, but
it is clear from the evidence given on behalf of the council at the inquiry
that they accept that no developer would conceivably undertake either scheme
upon this basis.
They then
submit that permission should be granted to the applicant in various ways,
ending with the suggestion:
. . . that
planning permission should be granted at least until 1990 in accordance with
the provisions of the initial development plan. It cannot be in the public
interest that the question of the practicability of conversion to flats should
be re-examined as a result of a further planning application before that date
at the earliest.
But in that
letter, after they had set out their comments on the council’s representations,
are two important paragraphs, paragraphs 9 and 10. Paragraph 9 reads:
9. Our clients
therefore consider that, in the light of the further submissions prepared by
the city council, the Secretary of State can reach only one conclusion, namely
that the premises cannot reasonably be converted to residential use. If the
Secretary of State does come to that conclusion, then it appears to our clients
that it would not be necessary for them to ask for a re-opening of the inquiry
in order to examine the city council’s proposals in detail (a clear reference
back to their letter reserving their right to do so, which I have already
read), since these merely go to confirm the evidence given in 1975 and the
conclusions reached by the inspector on that evidence. It seems to our clients
therefore that the Secretary of State could proceed to determine the appeal
accordingly, on the grounds that the submissions lodged by the city council do
not even raise a prima facie case that the buildings could be reasonably
adapted for residential use.
10. However,
if the Secretary of State is unable to accept this submission then our clients
have no alternative but to ask for the local inquiry to be re-opened.
The schedules
referred to in an earlier paragraph of that letter again set out both in
relation to 37 Park Street and in relation to 41/43 Park Street the figures for
realisation value, cost and surplus (or loss) of the 1975 schemes put forward
by both the applicant and the local planning authority (the council), and for
the 1978 scheme put forward by the local planning authority.
They show that
there was a loss of thousands of pounds (£215,000 or £145,000) on the 1975
schemes, although realisation value and cost in the case of no 37, on the 1975
council scheme, balanced exactly. But they show that on the council scheme of
1975 on 41/43 Park Street there was a surplus, not of £19,244 but of £60,000,
yet on that figure of surplus, leaving out the current developer’s profits and
various matters to which the letter called attention, it was common ground and
accepted as common ground that conversion to residential use with such a low
profit as £60,000 was not an economic proposition. It was not an economically
viable conversion or one which any developer could be expected to undertake. A fortiori,
therefore, the applicant’s solicitors would say ‘these profits of £21,000 and
£19,000 odd on the scheme put forward in their representation in 1978 by the
council stood self-condemned as economically still not viable, whatever the
change in the economic situation or climate might have been in the intervening
three years’.
On February 6
1979 the respondent wrote a letter which shows that he either did not
understand or was not impressed by the contentions put forward on behalf of the
applicant in the letter which I have just read. That letter refers to
representations submitted by the council and by the applicant’s agents in their
letter of December 4 1978. The letter goes on:
The department
has considered the proposal made on behalf of the appellant that the Secretary
of State should redetermine the appeal forthwith on the ground that the council
has not made a case to show the buildings could be reasonably adapted for
residential use. However, the Secretary of State is not prepared to decide the
appeal without first assessing all the relevant facts, and in view of the
difference of view between the two main parties, and the interests by local
residents, it is considered that the inquiry should be reopened to assess
evidence from the appellants and the council on the financial implications of
adapting the premises, and to take account of any other additional
representations that either of the main parties, or any interested persons, may
wish to make.
To assist the
inspector at the reopened inquiry it would be helpful if both main parties
could provide a statement of the issues they propose to raise, to be available
28 days before the date of the reopened inquiry, together with any additional
written representations which they may wish to make.
So there was
the respondent apparently thinking it fit to reopen the inquiry in the exercise
of the discretion given to him under rule 12(3) of the statutory instrument to
which I have referred.
That letter
was answered by the applicant’s solicitors on February 28. They set out the
highlights in summary of the deplorable history which I have been recounting:
Fourteen
months have now elapsed since your decisions were quashed by the High Court,
much of that time due to delay by the Westminster City Council in making their
written representations.
After your
decisions were quashed, your initial response (with which we agreed) was that
new decisions should be issued at once on the basis of the inspector’s report.
In the event, the Westminster City Council made further written
representations, but neither the council nor ourselves has made an
unqualified request to you to reopen the inquiry. As we explained to you in our
letter dated December 4 1978 the council’s further representations cannot
possibly alter the previous findings of the inspector.
In these
circumstances, our clients are not prepared to accept your decision to reopen
the inquiry. They are advised that you are under a statutory duty to them to
determine their appeals, and that your decision to reopen the inquiry is
invalid in point of law, as being a decision which no reasonable authority could
make.
The only
request made by the applicant for reopening the inquiry is, in my judgment,
rightly implied in this letter to have been a qualified request. It was in a
letter which made clear that the applicant thought no further inquiry was
needed for the reasons given in the next paragraph of the letter which I have
just read. Qualified or unqualified, no request has ever been made by the
council for the respondent to reopen the inquiry.
That reply did
not influence the respondent, who wrote on March 9:
The points
made in your letter have been considered but I must inform you that the
department cannot agree to your request that these appeals be determined
forthwith. Mr Window’s letter of February 6 explained the reasons for the
department’s decision to reopen the local inquiry and it is not accepted that
this decision is either unreasonable or otherwise wrong in law.
Faced with the
respondent’s insistence on a further local inquiry, or reopening of the
existing inquiry (which of course means a further local inquiry), the applicant
applied to the Divisional Court for judicial review and asked for certiorari to
quash the decision to reopen the inquiry, mandamus directed to the Secretary of
State to determine the appeal forthwith without first reopening the inquiry,
and an injunction restraining him from reopening the inquiry or taking steps to
that end.
The grounds
upon which they sought that relief were:
(i) the decision to reopen the inquiry is ultra
vires and void, being a decision which no reasonable person could make.
(ii) the Secretary of State has refused to perform
according to law his duty to determine the appeal.
That
application on April 3 was granted on May 1. On July 3 it was referred to a
single judge. On July 4 there was a notice of motion asking for the same three
forms of relief on the same grounds.
The single
judge to whom it was referred may have remembered something about the case from
his decision to quash the respondent’s decision in 1977. Sir Douglas Frank had
before him two affidavits from the applicant’s solicitors. Although the order
only states that he had the first, we are told that was a mistake and that he
did have the second and more important affidavit. He did also have an affidavit
of a Mr Anderson, sworn on behalf of the respondent, before him.
The affidavit
of Mr Anderson, sworn on January 17 this year, deposes that he is a principal
in the Department of the Environment at Bristol ‘and in such capacity I am
authorised to exercise the powers of the Secretary of State for the Environment
under the Town and Country Planning Act 1971 and the Inquiries Procedure Rules
made thereunder in relation to procedural matters affecting planning appeals
under section 36 of the said Act’. It is not questioned that he had such
authority.
In paragraph 5
of his affidavit he deposes:
I considered
that the further representations made by the Westminster City Council and
Niarchos (London) Ltd showed there to be a disagreement between the parties as
to the viability of returning the appeal premises to residential use. I
concluded that the strength of the two conflicting sets of evidence could best
be tested by inviting both parties to present their case at a public local
inquiry where they would be open to questioning by the presiding inspector and to
cross-examination by the advocates for the parties.
6. Since the
quashing of the Secretary of State’s decision a keen interest has been shown in
the progress of the appeal by the Mayfair Residents’ Association.
He then
produced their letter of December 22 1977, but not the respondent’s reply.
7. I
considered that the reopening of the public local inquiry would assist the
Secretary of State in gauging the strength of local feeling aroused by the
appeal proposals and the weight to be attached to this factor.
8. In the
letter dated December 4 1978 from the applicants’ solicitors . . . the
applicants put forward the view, in paragraph 9 thereof, that the Secretary of
State was in a position where he must conclude that the appeal premises could
not reasonably be adapted for residential use and they went on to say that if
he could not do this then the public local inquiry should be reopened in order
to examine the City Council’s proposals in detail. Since it was considered that
the Secretary of State did not have sufficient information before him on which
to base a fresh decision it was felt that in reopening the public local inquiry
the Department was acceding to the appellants’ request.
9. With
specific regard to the letter from the appellants’ solicitors to the Secretary
of State dated February 27 1979 . . . it will be seen that the appellants
effectively withdrew their earlier request for the public local inquiry to be
reopened and asked that the appeals be determined forthwith.
Mr Anderson’s
affidavit concludes with these words:
I formed the
view that the Secretary of State did not have sufficient information on which
to base a fresh decision and I therefore refused the appellants’ request for an
immediate decision by the aforementioned letter dated March 9 1979.
In reply to
that affidavit the applicant’s solicitor swore an affidavit, of which I need
only quote a few sentences:
3. Reference
is made in paragraph 5 of the said affidavit of Mr F F Anderson to the fact
that there was disagreement between the parties as to the viability of
returning the appeal premises to residential use. It is clear that there was
disagreement between the conclusions reached by the council and my
clients. My clients’ case is that there is nothing in the evidence
produced by the council which could in any way support the conclusions which
they claim to have reached.
And in
paragraph 4 he draws the court’s attention to the fact that . . .
. . . no
interest appears to have been shown by the residents’ association in my
clients’ appeal at the time that the appeal was the subject of the local
inquiry held in 1975. It will be noted from the inspector’s report of that
inquiry that no representations (whether oral or written) were submitted by the
residents’ association (or by anyone else) and their letter appears to be based
on a misunderstanding on the nature of the proceedings in the High Court. I
have not subsequently received any notification whatsoever that there has been
any further correspondence between the residents’ association and the
Department of the Environment and I question whether it is correct in the
circumstances to say that ‘keen interest’ in the proceedings is being shown by
the association.
We have not
been shown any further correspondence. Indeed it appears to be accepted that
there has been no further correspondence since 1977 and the only correspondence
is that one letter and that non-committal reply.
On March 14
Sir Douglas Frank, again sitting as a deputy judge of the Queen’s Bench
Division, dismissed the application, and from his dismissal of the application
the applicant appeals to this court. In this court the battle is between the
applicant and the respondent Secretary of State, the council not taking part in
the appeals.
By a notice of
appeal dated April 22 1980 the applicant questions the decision of the
respondent to reopen the inquiry as ‘one which no reasonable person could
make’. By a supplementary notice of appeal, admitted by leave because it was
out of time, it is further contended that the respondent wrongly interpreted
the letter of December 4 1978 to the applicant’s solicitors (particularly
paragraph 10) and wrongly took it into account as a request for a local
inquiry, which the respondent now thinks ought to be held.
We therefore
have to consider whether the learned deputy judge was right in considering that
the respondent’s decision was one which a reasonable Secretary of State could
make and therefore was right to dismiss the application. The judgment under appeal
must have inspired hope in the breast of the applicant as it was given. At p 2
of the transcript, the first page of the judgment, Sir Douglas Frank said:
It would
appear that there was no good reason for inviting the parties to make fresh
representations because they had every opportunity of putting their case in
full at the inquiry and there was nothing in my judgment that
evidence then stood there could only be one answer and the invitation could
only be seen as giving the city council the opportunity of changing their
evidence which, in the event, was what they did.
After
referring to the history of the matter Sir Douglas Frank gave his opinion:
In my opinion
the representations made by the Mayfair Residents’ Association are not a good
reason for reopening the inquiry because: (1) that association had the
opportunity of appearing at the original inquiry and failed to take it; (2)
their representations are based on a misunderstanding of the facts; and (3) in
substance their representations are irrelevant. Further, in my view and that of
the appellants and apparently the city council, the Secretary of State has all
the evidence they considered necessary to determine the appeal. I find it most
disquieting that over six years have elapsed since the application was made and
if the Secretary of State has his way it may be another year before a decision
is reached. I share the view of the parties that little or nothing is to be
gained by reopening the inquiry and that they would be put to unnecessary
expense. If the applicants’ observations on the new evidence are well-founded,
there is no purpose in reopening the inquiry. However, the city council have
put forward fresh evidence and although the applicants have said all they want
to say about it in their written representations there remains the question
whether it is perverse for the Secretary of State to require that evidence to
be examined at a local inquiry. I think it is a borderline case. In my judgment
I cannot say the Secretary of State’s decision is one to which no reasonable
Secretary of State could have come. I further think that on a literal
construction of their letter of December 4 1978 the applicants gave the
Secretary of State a choice of granting permission or reopening the inquiry and
although it may not have had any part in the Department’s decision I do not
think it would be right for me to disregard it.
In view of
the foregoing I dismiss the application with some regret.
In 1977 Sir
Douglas Frank took his courage in both hands and quashed for the first time, as
he said, a planning decision on the ground that it was unreasonable to the
extent required by what is called the Wednesbury principle. This time he
took his courage in one hand only — and his grip was not good enough to hold on
to it. In my judgment we should take ours in both hands and not allow it to
escape, or the respondent to postpone his decision where there is no reason
except ease of indecision or perhaps excessive care for an ideal completeness.
The principle
that this court, like the judge, has to apply is not in doubt. It is, as I have
said, the Wednesbury principle. We are not Secretaries of State. He is,
through his officers, as he is entitled to do, acting as the planning authority
on an appeal from a planning authority’s decision. It is his decision: not
ours. He has to take into account — I accept from Mr Latham — wider
considerations than the issues which the parties, the planning authority and the
applicant who has sought planning permission from them, put before him. He has
to take into account the development plan; he has to take into account public
interest and the public good; and he has a discretion under the rule which I
have read to reopen an inquiry if he thinks fit: not if we think fit. But that
does not entitle him to be unreasonable, or perverse, or to shrink from the
only reasonable conclusion when it so clearly contradicts his decision to put
off determination of the applicant’s appeal by reopening this inquiry.
In putting the
matter in that way I have in mind the words of Lord Radcliffe in Edwards v
Bairstow which Sir Douglas Frank quoted in his 1977 judgment, and our
attention was also called to the speeches of their Lordships in a recent
decision of the House of Lords in Newbury District Council v
Secretary of State for the Environment [1980] 2 WLR 379. There at least
four of their Lordships applied the Wednesbury test to a case in which
planning permission had been given subject to conditions under section 29(1) of
the Town and Country Planning Act 1971 (or it may have been an earlier
enactment in identical terms) empowering an authority to grant planning
permission ‘either unconditionally or subject to such conditions as they
think fit.’
After quoting
those words Lord Fraser of Tullybelton went on to say at p 396.
The words
that I have italicised would appear on their face to confer an unlimited power,
but it is plain that the power is subject to certain limitations. If authority
for that proposition is needed it is to be found in the speech of Lord Reid in Kingsway
Investments (Kent) Ltd v Kent County Council [1971] AC 72, 86. In
order to be valid, a condition must satisfy three tests.
The first two
tests are not relevant to this appeal, but the third test is this:
Thirdly, the
condition must be ‘reasonable’ in the rather special sense of Associated
Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
223, 229. Thus it will be invalid if it is ‘so clearly unreasonable that no
reasonable planning authority could have imposed it’ as Lord Widgery CJ said in
Kingston-on-Thames Royal London Borough Council v Secretary of State
for the Environment [1973] 1 WLR 1549, 1553.
So there is
that limitation on the respondent’s power to do as he thinks fit.
I agree with
the learned deputy judge that the residents’ ‘representations’ were not a good
reason for reopening the inquiry. I agree that the Secretary of State has all
the evidence which is necessary and which the council considered necessary to
determine the applicant’s appeal. I share his disquiet at the lapse of six
years since the application was made and a possible further delay, and I share
his view that little or nothing is to be gained by reopening the inquiry and
that the parties will be put to unnecessary expense. Although perhaps I do not
go as far as him in saying it was unnecessary for the respondent to ask for or
consider further representations, I would go further than him and say that as
far as I can see nothing would be gained by reopening the inquiry.
I note that
the learned deputy judge appears to have attached some importance to the
applicant’s solicitors’ letter of December 4 1978 and, as Mr Latham has put it,
that is a matter which might be taken into account in considering whether it
was reasonable to order a further inquiry — the fact that even in a qualified
way a request was made. But that request, in paragraph 10 of the letter which I
have read, was not acted upon by the respondent, or relied upon; it was
withdrawn and treated as withdrawn in the affidavit of Mr Anderson, which I
have read. As I have already stated, there was no request of any sort by the
council for reopening. I, therefore, feel able to ignore paragraph 10 of the
letter and the contentions in the supplementary notice of appeal. Of course,
the respondent has power without request and without consent to reopen the
inquiry but in my judgment the two reasons which he gives for reopening it,
both in letters and in Mr Anderson’s affidavit, are not merely not compelling,
as Mr Latham has submitted, but bad. If one rereads the letter of February 6
1979, the letter written after the letter of December 1978 containing what I
call the ‘qualified request’, one sees no reference to that. One sees the two
reasons stated: the respondent ‘is not prepared to decide the appeal without
first assessing all the relevant facts, and in view of the difference of view
between the two main parties, and the interests by local residents, it is
considered that the inquiry should be reopened to assess evidence from the
appellants and the council on the financial implications of adapting the
premises . . .’.
Again, when it
comes to Mr Anderson’s affidavit, it is suggested that the strength of local
feeling can be gauged if the inquiry is reopened and it is stated that there is
‘a disagreement between the parties as to liability’ and a conflict of
evidence.
Neither of
those reasons seems to me to be a valid reason, and Mr Latham has conceded that
the first reason by itself could not justify the respondent’s decision, by
which I take him to mean ‘could support the respondent’s decision when it is
attacked as so unreasonable that no reasonable Secretary of State could make
it’. The residents accepted the answer to their letter of December 22 and, as
was pointed out and emphasised by the judge, they had not appeared when they
might have been heard at the 1975 inquiry, so uninterested were they.
On the second
ground there was a representation that the conversion scheme now put forward by
the council was economically viable, but all the figures in support of that
conversion were accepted and relied on by the applicant, as was made plain in
correspondence with the respondent. There was no dispute therefore as to these
primary facts and figures which, it was the contention of the applicant, spoke
for themselves, and spoke in favour, not of the council and reopening the
inquiry but in favour of the
seems to me to have been left at the end of the representations by the council
and the applicant, and of the local residents’ association letter, was
argument. If there was anything that the respondent wanted cleared up by the
council in answer to the comments on their representations made by the
applicant, I would have thought a carefully drawn letter would have been
enough. Evidence of economic change, it is suggested, might have helped the
inspector at the local inquiry to determine the length of any permission which
might be granted — whether five years was the right time, or whether it should
be extended to 1990, or whether it should not be granted at all. But what
further evidence of change in the economic climate, which did not arise from
the council’s figures or from common knowledge of the respondent and his
experts, could have been given to an inspector at a second or extended public
inquiry? I am afraid I fail to see what
that evidence could have been, or how it could have been necessary or helpful
as affecting the economic viability and the only economic viability which was
put forward by the council.
What could a
further inquiry have produced, except further delay and further expense to the
parties, and, if it is permissible to look at such a matter, to the public in
one form or another; expense which in the case of a party, the council or the
applicant, might be mitigated if the respondent were to exercise the very limited
power over costs conferred on him by section 290 (5) of the Local Government
Act 1933?
The
respondent’s decision not to decide on the present material the applicant’s
appeals without more in my judgment crosses the border-line dividing the valid
exercise of his discretion from perversity.
I would
accordingly allow the appeal and direct the respondent to do his statutory duty
and determine the applicant’s appeals without further inquiry or delay.
Agreeing, DUNN
LJ said: I only add a few words of my own because we are reversing the decision
of the deputy judge, who is very experienced in this field.
All the
considerations mentioned by the judge contradict the decision of the minister
to reopen the inquiry, but at the end of his judgment the judge refers to the
case as a border line one and feels unable to say that the Secretary of State’s
decision is one to which no Secretary of State could have come, or is perverse.
In reaching that conclusion, in my judgment the judge fell into error. The case
falls plainly within the test laid down by Viscount Simonds in Edwards v
Bairstow [1956] AC 14 at p 29 when his Lordship said this:
The primary
facts, as they are sometimes called, do not, in my opinion, justify the
inference or conclusion which the commissioners have drawn: not only do they
not justify it but they lead irresistibly to the opposite inference or
conclusion. It is therefore a case in which whether it be said of the
commissioners that their finding is perverse or that they have misdirected
themselves in law by a misunderstanding of the statutory language or otherwise,
their determination cannot stand.
Having regard
to the various considerations set out by the judge in his judgment he should
have formed the view that this was one of those cases in which all the
considerations led irresistibly to the opposite conclusion to that arrived at
by the Secretary of State.
Furthermore
the judge appears to have attached some weight to the letter of the applicant’s
solicitors of December 4 1978. As appears from the affidavit of Mr Anderson
that letter was taken by the respondents as having been effectively withdrawn
by their letter of February 28 and Mr Anderson placed no reliance upon it. In
so far as the judge did place reliance upon it, in that, too, he fell into error.
For those
reasons, and for the reasons given by my Lord, I, too, would allow this appeal
and order mandamus to the Secretary of State.
SIR DAVID
CAIRNS also agreed.
The appeal
was allowed with costs in the Court of Appeal and below. The order to the
Secretary of State was to determine the appeal forthwith without first
reopening the inquiry.
