Planning appeal — Material considerations — Housing supply — Procedural rules — Whether status of site as previously developed land amounting to matter of fact — Claim allowed in part
The claimant appealed to the defendant secretary of state against a refusal of planning permission for the development of 187 dwellings and open space on a site in Morpeth, Northumberland. Following a public inquiry, the inspector recommended that permission be granted. On an assessment of the relevant figures, he accepted the claimant’s contention that there was a deficit in the housing supply required under the structure plan and local plan for the area, and took the view that the appeal site was suitable for housing. He also considered that the site was previously developed land within the meaning of PPG 3, since it fell within the curtilage of the county hall.
The secretary of state rejected the inspector’s recommendations and refused permission. In his decision, he stated that he did not accept that it was possible to conclude that there would be insufficient land to meet the structure plan target for housing. He also took the view that several areas of the site were in fact greenfield land, and not previously developed land.
The claimant challenged that decision under section 288 of the Town and Country Planning Act 1990 on the grounds, inter alia, that: (i) the secretary of state had failed to take account of a material consideration, namely the inspector’s acceptance of the case for a housing shortfall, or had given no reasons for differing from that view; and (ii) on the matter of previously developed land, he had disagreed with the inspector on a “matter of fact” so as to require him to grant an opportunity for the parties to make further submissions under r 17(5) of the procedural rules. On the first point, the secretary of state contended that, although he had not explicitly dealt with the inspector’s conclusions, the decision should be read as assuming an acceptance of them.
Held: The claim was allowed in part.
1. The secretary of state’s statement, as to the impossibility of concluding that there would be insufficient land to meet housing targets, clearly indicated that he did not accept the inspector’s approach to the figures. He had ignored the inspector’s conclusions on the matter, or had failed to give reasons for his rejection of those apparently careful conclusions. His decision would be quashed on that ground.
2. The procedural rules had not been breached by the failure to give the claimant an opportunity to make further submissions on the “previously developed land” issue. The inspector’s finding that the areas came within the curtilage of the county hall had not been a finding of fact, given the context of the procedural rules. Where a conclusion on an issue involved a finding of primary fact, which had then to be considered from a planning perspective, or where there was a significant element of evaluation, it would not be a finding of fact for the purpose of the rules. The issue upon which the inspector and the secretary of state had differed was whether the primary facts, looked at from a planning point of view, showed the land to be within the curtilage of the county hall in the context of PPG 3. That evaluation fell outside the definition of a “finding of fact”. The secretary of state had rejected none of the primary facts that had been found by the inspector on the issue, but had simply evaluated them differently. His conclusion was one that he was entitled to reach. Accordingly, that ground of challenge would be rejected: Attorney-General, ex rel Sutcliffe v Calderdale Borough Council (1982) 46 P&CR 399 and Skerritts of Nottingham v Secretary of State for the Environment, Transport and the Regions (No 1) [2000] 2 PLR 84 considered.
Peter Village QC and Robert White (instructed by Berwin Leighton Paisner) appeared for the claimant; Timothy Morshead (instructed by the Treasury Solicitor) appeared for the defendant.
Sally Dobson, barrister
