Planning permission – Appeal – Judicial review – Second defendant local authority failing to determine planning application within prescribed period – Inspector appointed by first defendant secretary of state allowing third defendant’s appeal and granting permission – Claimants applying for judicial review – Whether screening opinion unlawful – Whether inspector failing to consider material considerations or failing to give reasons – Whether inspector unfairly refusing cross-examination of expert – Whether inspector erring in concluding proposal not major development – Application dismissed
The third defendant developer applied to the second defendant local authority for planning permission to erect 14 dwellings on land in Dorking comprising approximately 1.94 hectares of rough grassland and other vegetation. When the second defendant failed to determine the application within the prescribed period, the third defendant appealed to the first defendant secretary of state. An inspector appointed by the first defendant allowed the appeal and granted planning permission for the development.
The claimants sought an order under section 288 of the Town and Country Planning Act 1990 quashing the inspector’s decision. The first claimant was a local resident who worked as a sustainability consultant, specialising in flood risk. The second claimant was a limited company, of which the first claimant was a member, formed by local residents to oppose the proposed development.
They raised four discrete grounds in support of their claim: (i) a screening opinion that the proposed development was not an environmental impact assessment development was unlawful; (ii) the inspector had failed to take account of the planning points raised by the second claimant as they related to the core strategy and policies and, alternatively, failed to provide adequate and intelligible reasons for rejecting the second claimant’s case on breach of policy and prematurity; (iii) the inspector had acted unfairly by refusing to allow the first claimant to cross-examine an expert witness about flood risk issues; and (iv) the term “major development” in the National Planning Policy Framework (NPPF) had the same meaning as in article 2 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010/2184) so that the inspector had erred in finding that the proposal did not constitute a major development.
Held: The application was dismissed.
(1) A screening opinion was not to be interpreted as a comprehensive analysis written by a lawyer to be subject to legalistic technical scrutiny. The issue for the second defendant was whether or not the proposed development was likely to have significant effects on the environment by virtue of factors such its nature, size or location. When a local planning authority adopted a screening opinion under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 it was engaged in a process which was or was akin to exercising a planning judgment. A decision which was dependent upon the exercise of planning judgment might be quashed on classic Wednesbury grounds but the threshold was high: Younger Homes (Northern) Ltd v First Secretary of State [2004] EWCA Civ 1060; [2004] PLSCS 212 considered.
In the present case, the court was not persuaded that the second defendants had adopted an opinion which no reasonable local planning authority could have adopted or that the screening opinion, read reasonably and as a whole, demonstrated that the their reasoning process was flawed to the extent necessary to render it unlawful. There was no doubt that the second defendants had taken account of material considerations in reaching their conclusion. The screening opinion had addressed directly the nature, size and location of the proposed development and the claimants had failed to demonstrate that it was unlawful.
(2) The inspector had been entitled to conclude, in the exercise of his planning judgment, that the proposed development was generally in accordance with all the relevant development plan polices. The inspector had explained in succinct but precise language why it was that he accepted the third defendant’s case about housing shortfall and had analysed the policy issues sufficiently to demonstrate that he had concluded that the development of the site accorded with the local plan. It followed that the reasoning provided by the inspector did not demonstrate any real possibility of legal error. The second claimant could not have doubted why its case was being rejected and the inspector had not failed to take account of material considerations.
(3) The reasons given orally by the inspector amply justified his decision to refuse to permit cross-examination by the first claimant on the issue of flood risk. That issue had never been relied upon by the second defendant prior to, or at, the inquiry. The inspector had been entitled to proceed on the basis that the risk of flooding was not likely to be a determining issue and that cross-examination by the first claimant might prolong the inquiry unnecessarily. The inspector had heard the first claimant’s evidence and such cross-examination of her as had occurred. He had received a written response on the issue of flood risk and was aware of all the statutory responses on that issue. He had been peculiarly well placed to make a decision about the need for cross-examination. The public inquiry in this case was governed by the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000. Rule 16(1) made it clear that the inspector should determine the procedure to be adopted at the inquiry and rule 16(5) conferred a discretion upon him whether or not to permit cross-examination. No part of rule 16 had been infringed by the inspector’s decision: Nicholson v Secretary of State for Energy [1077] 245 EG 139; [1978] 1 EGLR 111 distinguished; Bushell v Secretary of State for the Environment [1981] AC 75 considered.
(4) The court was not persuaded that the phrase “major development” should have a uniform meaning wherever it appeared in a policy document, procedural rule or Government guidance, provided the context was town and country planning and no contrary meaning was provided in the policy document, rule or guidance. The term had to be construed in the context of the document in which it appeared. The word major had a natural, albeit not precise, meaning in the English language. It would not be appropriate to import a definition which might be sensible and desirable in Regulations or guidance concerned with procedural matters into a document intended to form a detailed policy framework. Accordingly, the inspector had made no error of law when he determined that the meaning of the phrase major development was that which would be understood from the normal usage of those words. The inspector had been entitled to conclude that the third defendant’s application to erect 14 dwelling-houses on the appeal site did not constitute an application for major development.
Richard Harwood QC (instructed by SJ Berwin LLP) appeared for the claimants; Daniel Kolinsky (instructed by the Treasury Solicitor) appeared for the first defendant; The second defendants did not appear and were not represented; James Strachan QC (instructed by Berwin Leighton Paisner) appeared for the third defendant.
Eileen O’Grady, barrister
