Town and Country Planning Act 1971 — Application under section 245 to quash decision of inspector dismissing|page:202| developers’ appeal under section 36 challenging imposition of occupancy condition on planning permission for development of units in industrial estate — Occupancy condition restricted occupation of units to persons, firms or companies which had been for at least two years in occupation of premises within the areas of the Oxford and certain other local plans — The restriction was to last for 10 years — Its object was stated to be to restrict new growth in the Oxford area in order to conserve its historical character and setting — Applicants criticised inspector’s decision, objecting in particular to the inspector’s dismissal of alleged problems in the marketing of the units and of an argument based on increased unemployment in the area (which, it was suggested, made any local occupancy condition unnecessary and inappropriate) — Held that the applicants had failed to make good their challenge under either head — A further submission that the condition was wrong per se was held not to be open to the applicants on the present motion — Application dismissed
No cases are referred to in this report.
This was an application under section 245 of the Town and Country Planning Act 1971 by Slough Industrial Estates Ltd to quash the decision of an inspector appointed by the Secretary of State for the Environment. The inspector had dismissed the applicants’ appeal under section 36 of the Act from the imposition by the South Oxfordshire District Council of an occupancy condition on permission for the development of seven units at the Nuffield Industrial Estate, Sandy Lane, Littlemore, Oxford.
Kenneth Bagnall QC and Miss Erica Foggin (instructed by Turner Kenneth Brown) appeared on behalf of the applicants; D Holgate (instructed by the Treasury Solicitor) represented the Secretary of State; South Oxfordshire District Council, the second respondents, were not represented and took no part in the proceedings.
Giving judgment, SIMON BROWN J said: This is an application pursuant to section 245 of the Town and Country Planning Act 1971 to quash a decision of the Secretary of State for the Environment given by his inspector under the powers contained in Schedule 9 to the Act, in a letter dated December 9 1985, in which he dismissed the applicants’ section 36 appeal in respect of premises at Nuffield Industrial Estate, Sandy Lane, Littlemore, Oxford.
In order to understand the challenge it is necessary to relate shortly the planning history of this development. It begins on September 21 1983 with planning consent for 13 factory/warehouse units of varying sizes: seven large and six small. The permission was subject to a number of conditions including, as condition 3, the following:
That the premises shall only be occupied by persons, firms or companies who prior to their occupation should obtain in writing from the Local Planning Authority confirmation that their occupation will comply with the employment policies of the Oxford Fringe Local Plan and whose occupation shall be in accordance with the employment policies of the Oxford Fringe Local Plan in all respects to the satisfaction of the Local Planning Authority.
On April 22 1984 the applicants applied to the South Oxfordshire District Council, the relevant local planning authority, for that local occupancy condition to be lifted. On June 19 1985 the authority granted planning permission for the development substituting in place of the earlier condition 3 a new condition 2 in the following terms:
That until 10 years from the date of this permission units 1, 2, 9, 10, 11, 12, 13
those being the seven large units
shall be occupied only by a person, firm, company or other organisation which was immediately prior to occupying the accommodation to which this planning permission relates in occupation for at least two years at premises within the Oxford Local Plan’s area.
That area was defined later in the permission to include the area of certain local plans, including that of the Kidlington and Gloucester Local Plan.
Of the six small units to which the modified condition did not apply three had already been sold with the original condition attached and the remaining three were then sold. Of the seven large units which were subject to the revised condition two had become let by the date of the inspector’s inspection of the site on October 21 1985. It was against that planning permission of June 19 1985, and in particular against that substituted occupancy condition affecting seven of the units, that the applicants appealed to the Secretary of State.
Section 36, of course, provides for an appeal against the grant of a conditional planning permission if, as here, the developer is aggrieved by such a condition. The inspector dealt with the appeal on the written representations respectively of the developers and the planning authority. He also, as I have indicated, inspected the site.
I come to his decision letter of December 9 1985. It is convenient to recite a substantial part of it. In para 4 the inspector expressed his ‘opinion that this case turns on whether condition number 2 is justified in the particular circumstances of this development having regard to the national and local planning policies towards industrial and warehouse development’. (I may say that the policies were contained partly in the structure plan which was approved on February 26 1979, partly in other policy documents, to which the decision letter refers, and partly in Circular no 1 of 1985, paras 74 and 75.)
The decision letter continued as follows:
5 You say that this condition is an onerous one and is proving to be a major obstacle to the successful letting of the premises. In a letter submitted by your clients when the application to remove the condition was made, they say that despite a substantial local and nationwide publicity campaign 7 of the units remained unlet. Your clients quote 4 examples of companies from outside of the Oxford area who were unable to take up premises due to this restrictive condition. In support of your case, you point to the increase in unemployment locally in the 2 years since the consent for the development was granted, though I note only a marginal increase from the figures you give. In addition you say that the imposition of the condition is contrary to the advice contained in Circular 1/85 and the development does not fall within the limited circumstances where occupancy conditions are appropriate.
6 On the other hand the council point out that the condition is a direct consequence of the restraint policies, relating to the growth of Oxford, contained in the approved structure plan, and its proposed amendments and the Oxford Fringe Local Plan. The relevant policy in the local plan permits new employment related development to that which has a local operational necessity to be located there. This, together with similar policies in the structure plan, aims to restrict the attraction of new growth to the Oxford area in order to conserve its historic character and setting. This constraint is balanced by other structure plan policies which direct new country-wide growth to selected country towns around Oxford.
7 I find that the structure and local plan policies are soundly based in seeking to restrain the future expansion of the city in order to protect and conserve its heritage and setting. These policies have been approved or drafted comparatively recently and take into account the prevailing economic conditions. I have considered the points you make regarding Circular 1/85 and in my view the exceptional circumstances which warrant an occupancy condition are present in this case. The appeal development, though of a speculative nature, provides accommodation for the expansion needs of local firms in an area where there is a general policy of restraint. It meets an important need in the local economy for a supply of readily available warehousing and factory space, and one would expect the take up of such units to be a gradual process. The condition in question has been imposed for some 4 months and evidence of its effect on marketing is unlikely to emerge over such a short period. At my site inspection I saw that 2 of the units to which this condition applies have been let and 5 units remain unlet. This is a small improvement on the earlier position stated by your clients and indicates to me that the occupancy of premises is continuing; albeit slowly.
8 The form and wording of the condition follows the advice given in the circular. It is imposed for a limited period, its catchment area for potential occupiers is reasonably large, and it avoids a system of vetting occupiers by defining clearly the class of persons or firms who may occupy the premises. Having regard to the sound basis of the restraint policy and the wording of the condition, I see no reason to depart from a restriction which limits occupiers of this development to those who have an operational necessity to be there. I therefore conclude that the imposition of condition no 2 is justified in the circumstances of this development in order to comply with the employment policies of the Oxford Fringe Local Plan.
The applicants take essentially two points on this challenge. They criticise in particular two sentences in the decision letter, both of which they say are inaccurate and betray a failure by the inspector to appreciate properly the evidence or argument which the appellants in their written submissions were urging upon him. If, of course, the applicants make good that contention in either instance then there would appear a failure by the inspector, contrary to the requirements of section 29 of the Act, to have regard upon the appeal to all material considerations. There might additionally be unlawful regard paid to immaterial considerations. In either event it would follow that if the court thought it appropriate to exercise its undoubted discretion under section 245 of the Act the decision would fall to be quashed.
The two sentences criticised, in the order in which the points are taken, are these. First (which I may call the marketing point) the|page:203| sentence in para 7 of the decision letter:
The condition in question has been imposed for some four months and evidence of its effect on marketing is unlikely to emerge over such a short period.
Second (which I may call the unemployment point) in para 5:
In support of your case you point to the increase in unemployment locally in the two years since the consent for the development was granted, though I note only a marginal increase from the figures you give.
The marketing point. What is said as to this is, in essence, that the evidence before the inspector was to the plain effect that the condition had in fact been imposed for some 27 months and that marketing had been taking place for nearly two years rather than, in each regard, for only four months. The evidence was indeed plain. So far as the condition was concerned there is no question but that the first condition, as I may describe it, was imposed upon the original grant of planning permission on September 21 1983, namely some 27 months before this decision letter. Equally there was no question but that the second condition (the one to which the appellants were objecting on the appeal) was imposed at the time of the second grant of planning permission on June 19 1985, namely some four months before the decision letter. As to the applicants’ efforts to market these units the evidence before the inspector was contained in part in a letter dated January 30 1985 from the applicants’ agent indicating the efforts made and the difficulties encountered in marketing these units over the preceding year, and in part in the applicants’ written statement, in particular para 17 of part 4, which referred to the agent’s letter and said that it was understood now that approximately 2,000 brochures had been sent out and approaches made to every major industrial and warehouse operator in the local plan’s area. The statement then observed that the fact that there was no substantial demand from the Oxford plan’s area was amply demonstrated by seven out of 13 units remaining unlet despite being completed and immediately available for more than a year. The development had in fact been completed in September of 1984. Oddly, however, by about the time when that statement appears to have been composed, the inspector, upon the site inspection, found that two of the seven units had in fact been let.
Is the sentence which I have quoted open to the criticism that the applicants direct against it? I conclude not. It would be odd indeed if the inspector, having noted, as he did in para 5, the substance of the agent’s letter of January 30 1985 had then when he came to para 7 of his decision wholly overlooked it. In my judgment, far from doing that, the inspector was in fact recognising the plain differences between the condition now, the subject of the appeal, and that which had originally been imposed 27 months earlier and which had itself caused a number of difficulties in the marketing effort.
These differences are several and the clear reason for them is to be found in the recommendations contained in para 75 of Circular 1/85, which had come into effect on January 7 of that year. One of the critical differences between the condition as originally imposed and the modified condition later imposed was that, while originally it was unlimited in point of time, the modified condition was subject to a 10-year limit. Second, the unmodified condition required substantial vetting of any prospective occupier. Third, it imposed only a vague test of eligibility for occupation.
One sentence at para 75 of the circular reads as follows:
It is unacceptable to attempt to define the class of occupiers by, for example, providing a system of vetting by the local planning authority or a system whereby the local planning authority will determine whether a vague test, for example needing to be located in the area, will be satisfied by a particular occupier.
In the applicants’ statement it was pointed out that the circular deprecates the use of a vetting system for prospective occupiers and that the agent’s letter showed that this had been responsible for the loss of a number of prospective occupiers for the development. That, however, in my judgment, had become, as Mr Holgate put it, a false point by the time the modified condition was imposed later in 1985. Rather the planning authority’s statement, in para 4.2(ii), accurately indicated the material difference between the two conditions and the relevance of these material distinctions was plainly not lost on the inspector. He expressly recited them and in para 8 of the decision letter observed that they followed the advice contained in the circular.
In my judgment, it clearly follows that he was entitled to look at the condition in question as being something separate and apart from occupancy conditions in general, and the initial condition in particular, and was also entitled to remark in effect that it was early days to see whether or not marketing problems of the sort experienced earlier would continue, not least since he himself had discovered on inspection that two of the seven units had already been let.
I turn to the unemployment point. The evidence before the inspector in this regard was contained in the applicants’ statement, paras 20 and 22. Para 20 contended that there had been a sustained increase in unemployment in the Oxford area since the policy was first imposed. That reference to the first imposition of the policy is clearly a reference to the approved structure plan of February 1979. The statement then set out in table form the proportion of those unemployed in the relevant Oxfordshire area over each of the years 1980 to 1984 inclusive. There was a breakdown as between males and females and there was some slight recasting of the figures during 1982 when there was a change in definition as to who was being included as unemployed. Broadly speaking what that table shows is that for 1980 there was total unemployment of 5.3%, rising in 1981 to 8%, and in 1983 reducing to 7.5% (although that reduction may be questionable because of the altered definition) and finally rising to 7.9% in 1984. Those figures, it is plain from an appreciation of the nature of this appeal, were designed to show basically that it was no longer appropriate to impose any form of local occupancy condition because the workforce was available in the locality even for firms from outside the area.
In para 22 of the statement the applicants said this: ‘Finally, despite the deteriorating employment situation the council continued to apply this policy rigidly.’ The reference there to the council’s continuing approach must inevitably have involved consideration of the council’s stance both at the time of the original substitution of the condition in 1983 and at the time of the imposition of the modified condition in 1985. I have reached the conclusion that it was to that particular paragraph that the criticised sentence in para 5 of the decision letter was being directed. The inspector was saying that the employment situation could hardly sensibly be described as deteriorating over the two-year period since the initial condition was imposed: there was then indeed only a marginal increase in the unemployment figures. He was not in that passage in para 5 saying anything about the contrasting position as between 1980 and 1984.
That latter contrasting position, however, he does, in my judgment, take into account when he gets to para 7 of the decision letter because it is there that he refers to the developing policies over the period. He points out that the policy is not to be found merely in the approved structure plan of 1979 but also in later policy documents, namely, as he had described them in para 6, the proposed admendments to that structure plan and the Oxford Fringe Local Plan. It is true that both documents were in draft, not having completed their consultation and approval procedures, but nevertheless they were properly to be taken into account in determining the policies to be applied. As the inspector said in para 7:
These policies have been approved or drafted comparatively recently and take into account the prevailing economic conditions.
In my judgment, therefore, the applicants fail also to make good the unemployment point.
In his reply, Mr Bagnall, on behalf of the applicants, emphasised that the applicants’ essential complaint is directed to the imposition of any occupancy condition at all. We complain, he said, that the condition is wrong per se. He drew my attention to those many passages in the applicants’ statement before the inspector contending that following upon Circular 1/85 it was wholly inappropriate in this type of case of speculative development to impose any local occupancy condition at all.
In my judgment that is not a criticism that is open to the applicants upon this motion. In the first place it involves the total recasting of the application: there is not a word in the pleadings to suggest any such ground of challenge. In the second place it is far from plain that the inspector erred in any way in his appreciation and resolution of those points. These are matters he dealt with in para 7 of the decision letter, and to those particular passages the notice of motion before me directs not the least criticism.
Obviously it is open to the applicants hereafter, if they are so advised, to make a fresh application for planning permission in the light of whatever may have been the marketing history of this site over the last year. If they take that course then clearly they can raise afresh their objection to any continuing local occupancy condition in|page:204| the light of paras 74 and 75 of Circular 1/85. I say, of course, nothing whatsoever as to what should be the attitude of the planning authority upon any such further application.
For the reasons I have given the challenge fails and must be dismissed.
The application was dismissed with costs.