Town and Country Planning Act 1971 — Challenge to decision of Secretary of State that it would be premature to grant planning permission for a substantial development, a ‘business park’, involving important employment, population growth, traffic and infrastructure implications, before the matter had been investigated through the local plan process — Appeal from decision of Macpherson J dismissing an application by the appellants for judicial review with a view to quashing the Secretary of State’s decision — The Secretary of State in his decision letter had noted that modifications in the relevant structure plan proposed the establishment of a ‘well landscaped business park’ and he considered that the local planning authority should have the opportunity of using the local plan process to find the most suitable location for a business park
the Court of Appeal it was submitted by the appellants that the alleged
prematurity was not a good ground for refusal of planning permission — The
implications of a business park in the locality had in fact been known and
considered and a full opportunity afforded for examining them in connection
with the structure plan and at the inquiry held by the inspector — It was also
suggested that the Secretary of State had not given any sound reason for
putting off a decision, such as the identification of particular matters which
called for the local plan process — Rejecting these submissions, the Court of
Appeal held that there was no obscurity or lack of reasons in the decision
letter — On the main point, there was nothing unreasonable in the view taken by
the Secretary of State that the propose 1 development was of such a size and
importance, covering 180 acres and possibly generating 7,000 jobs, that in the
public interest its implications ought to be investigated and considered by the
local plan process — The risk of prejudice or error if a decision were taken
without that process outweighed the prejudice to the appellants by having to
await the completion of that process — It was also necessary to find the most
suitable site for the proposed development — Appeal dismissed
The following
cases are referred to in this report.
Arlington Securities Ltd v Secretary of State for
the Environment [1985] JPL 550
Link Homes Ltd v Secretary of State for
the Environment [1976] JPL 430
Niarchos (London) Ltd v Secretary of State for
the Environment (No 2) [1981] JPL 118
R v Bickenhill Parish Council, ex parte
Secretary of State for the Environment [1987] JPL 773
Rockhold Ltd v Secretary of State for the
Environment and South Oxfordshire District Council [1986] JPL 130
Stephenson v Secretary of State for the Environment
[1985] 1 EGLR 178; (1985) 274 EG 1385, [1986] JPL 357, CA
Thornville Properties Limited v Secretary of State for
the Environment (1980) 258 EG 172, [1981] 1 EGLR 146; [1981] JPL 116, DC
Trusthouse Forte Hotels Ltd v Secretary of State for
the Environment (1986) 53 P&CR 293; [1986] 2 EGLR 185; 279 EG 680;
[1986] JPL 834
This was an
appeal by Arlington Securities Ltd from the decision of Macpherson J dismissing
their application for judicial review challenging the Secretary of State’s
ruling that it would be premature to grant planning permission for the
appellant’s proposed business park development before the completion of local
plan procedures. The proposal concerned some 73 hectares of land at Forge Farm,
Steers Lane, Crawley, Sussex. The planning authority was Crawley Borough
Council.
Robert
Carnwath QC (instructed by Gouldens) appeared on behalf of the appellants;
Michael Kent (instructed by the Treasury Solicitor) represented the first
respondent, the Secretary of State. The second respondents, Crawley Borough
Council, were not represented and took no part in the proceedings.
Giving
judgment, NICHOLLS LJ said: In March 1986 the appellant, Arlington Securities
Ltd, applied to the local planning authority, Crawley Borough Council, for
planning permission in respect of a substantial development. Arlington sought
permission to construct office, industrial and warehouse buildings extending to
some 200,000 m2 of floorspace, in a so-called ‘business park’ on
about 180 acres of land at Forge Farm, Steers Lane, Crawley, Sussex. Arlington
is an experienced developer of business parks.
The local
planning authority failed to give notice of its decision on that application
within the prescribed period. In December 1986 Arlington appealed to the
Secretary of State for the Environment under section 36 of the Town and Country
Planning Act 1971. A local inquiry was held, extending over two weeks between
August 4 and 13 1987. The inspector reported to the minister in October. In a
full and detailed report he recommended that the appeal should be dismissed.
The Secretary of State accepted that recommendation. With Arlington’s consent,
the Secretary of State considered the appeal on the basis of permission being
sought for a development of reduced size, namely having a total floorspace of
about 104,500m2. His decision letter dismissing the appeal was dated
April 14 1988.
Arlington was
dissatisfied and applied to the court for judicial review of the Secretary of
State’s decision, seeking an order quashing it. Macpherson J heard that
application and on July 28 1988 he dismissed it. From that decision of the
judge, Arlington has appealed and it is that appeal which is now before this
court.
Central to the
Secretary of State’s decision was the interaction, in this case, of granting or
withholding of planning permission as sought by Arlington and the process
leading to the local plan. The land in question is in Sussex to the north-east
of Crawley, close to the M23 motorway and Gatwick Airport. The West Sussex
County structure plan was approved in June 1980 without any reference to a
business park. Proposed alterations were published in January 1985 and an
inquiry into these proposals was held in the autumn of that year. Arlington
argued in favour of release of land for a business park development.
Proposed
modifications were published in July 1987. This was shortly before the start of
the inquiry held by the inspector under section 36. On April 14 1988, which was
the same day he sent his decision letter now being challenged, the Secretary of
State approved proposed alterations to the structure plan. In the modifications
as
policy IC4 was expressed in similar terms:
Provision will be made in the vicinity of
Crawley/Gatwick Airport and readily accessible to the railway and motorway
networks, for the development of a low-density, well-landscaped ‘business park’
to accommodate high tech and other firms. High standards of building design and
landscaping will be required. The park should be located so as not to infringe
the principle of the Crawley and Gatwick Airport/Horley strategic gap.
The grounds
upon which the Secretary of State dismissed Arlington’s appeal appear from two
paragraphs in his letter. In short, he considered that the application was
premature. The two paragraphs are paras 5 and 6 of his letter, which are as
follows:
5. The third
consideration is whether housing demands associated with the development could
be met consistently with policies aimed to control the impact of urban
development on rural areas. On this aspect the Inspector concludes that the
development would have major employment, population growth, traffic and
infrastructure implications extending well beyond 1996 and that the size and
importance are such that their acceptability ought desirably to be urgently
weighed in forming local policies. These conclusions are accepted. It is noted
that the local plan is under review in light of the altered Structure Plan and
the Secretary of State considers that to grant planning permission for the
proposed development in advance of the local plan process would be premature
and he sees no compelling or immediate need for the development which would
justify dispensing with that process.
6. Finally,
the Secretary of State has considered the effect of the modifications to the
altered Structure Plan. In these published modifications the Secretary of State
has accepted a recommendation that provision be made for a well-landscaped
business park in the vicinity of Crawley/Gatwick Airport and readily accessible
to motorway and railway. However, the establishment of such a business park in
this location will have significant consequences for Crawley and its
surroundings, particularly with regard to housing requirements generated by the
development. In view of this, the Secretary of State considers that Crawley
Borough Council should have the opportunity of using the local plan process to
find the most suitable location for a business park, having due regard to the
size and timing of any business park development and the resultant creation of
employment and the need to house the workforce it creates in the Crawley area.
It is not considered that the need for a business park development is so urgent
as to justify the immediate granting of planning permission on this particular
site in advance of the local plan process.
In those two
paragraphs, as I read them, the Secretary of State stated two reasons why it would
be premature to grant planning permission as sought by Arlington. First, that
the housing demands associated with the development would have implications in
the fields of employment, population growth, traffic and infrastructure. These
implications would be major and they would extend well beyond 1996. The scale
and importance of these implications were such that their acceptability ought,
as a matter of urgency, to be weighed when local policies were formulated.
Likewise, and this is his second reason, the consequences of the establishment
of a business park in the area would be of such significance, particularly with
regard to housing requirements, that the local planning authority should have
the opportunity of using the local plan process to find the most suitable
location for a business park.
The principal
thrust of Arlington’s case in this appeal was that prematurity in relation to
the local plan process could not, in this case, have afforded a ground for
refusal of planning permission. It was submitted that the issue for the
Secretary of State was not whether the development sought would have
implications in various fields such as population growth — it was accepted by
Arlington that there would be such implications — but whether those implications
created unacceptable problems which needed to be resolved by the local plan
process. It was said that twice already the implications of a business park
development in this locality had been considered, and full opportunity afforded
for investigation of all the ramifications of this development; first, at the
examination in public leading to the modifications to the structure plan and,
second, at the inquiry held by the inspector on Arlington’s appeal under
section 36. It was said that although the local plan process under sections 11
to 14 of the 1971 Act provides scope for objections and inquiries, it is of a
limited nature. The same people will be involved as were involved in
formulating the modifications to the structure plan, save that the decision will
be made by the local planning authority and not the Secretary of State; the
local plan can operate only within the structure plan; it must conform
generally to the structure plan and it is confined to the same period as the
structure plan. Here it also will run only until 1996. It was submitted further
that the Secretary of State, obliged as he is to state his reasons clearly, did
not state any sound reason for putting off a decision; he did not identify any
particular points which, for their satisfactory resolution, call for the local
plan process.
Before
considering these points I should mention two matters. First, it was common
ground before us that, as stated in para 1.12 of Circular 22/84, the fact that
a local plan is in the offing is not in itself a reason for refusing planning
permission. Nor was there any dispute over the approach emphasised in para 3 of
Circular 14/85 that there is always a presumption in favour of allowing an
application for development having regard to all material considerations,
unless that development would cause demonstrable harm to interests of
acknowledged importance. Where the parties differed was on the application of
those principles to the facts of this case. Since that was the substantial area
of dispute, it is not necessary for me to refer to any of the authorities to
which our attention was drawn.
Second, I
should mention some of the background against which the Secretary of State’s
decision letter falls to be read and understood by the intelligent and informed
reader.
The proposed
modifications to the structure plan, published by the Secretary of State in
July 1987, contained the following comments on Arlington’s efforts to promote a
business park development in the vicinity of Gatwick Airport:
6.8 In the context of the amount and location of
industrial and office development, the Secretary of State has considered
representations concerning the possible location of a business park to
accommodate high technology and other firms in the vicinity of Gatwick Airport.
Arlington Securities Ltd argued that a location close to a major international
airport was ideal and that all the necessary road, rail and air transport
advantages existed in the Crawley/Gatwick area. They considered a business park
could bring regional and national benefits, creating perhaps 7,000 jobs, with
no major additional housing requirement, and without significantly breaching
the strategic gap between Crawley and Gatwick. The County Council and Crawley
Borough Council were concerned that the principle of a strategic gap between
Crawley and Gatwick Airport should not be undermined; the County Council also
argued that such a development would seriously jeopardise housing provision
proposals. The County Council did, however, put forward a draft of a new policy
for inclusion in the Alteration in the event that the proposal was accepted by
the Secretary of State. The Panel invited and considered written views on the
draft policy after the EIP had closed; all written views received were
circulated to all the participants in the discussion at the EIP of the business
park issue.
6.9 The Panel considered the proposal for a
business park in the general context of the Crawley/Gatwick area, and regarded
it as meriting support (PR Chapter 3 para 61). It considered the housing
consequences likely to be acceptable and that there was scope for a business
park to be accommodated in the general area while respecting the principle of
an adequate strategic gap (PR Chapter 3 para 61). It recommended inclusion of
an additional policy providing for such development in the area (PR Chapter 3
para 64).
6.10 The Secretary of State notes that the Panel
had regard, in making its recommendation, to its earlier recommendation for
additional housing provision in Crawley Borough. The Secretary of State does
not propose to take up this earlier recommendation (para 5.5 above) but he
considers it unlikely that a business park would have significant housing
consequences before 1996, although there may be some after that date. The
Secretary of State accepts the Panel’s recommendation for a business park and
proposes to modify the submitted Alteration by the insertion of a new policy
(to be numbered IC4), making provision for a low density, well-landscaped
business park in the vicinity of Crawley/Gatwick Airport.
The local
planning authority commented on this at the section 36 inquiry. Para 76 of the
inspector’s report records these observations as follows:
However the Secretary of State proposes
to provide expressly for a business park of unspecified size in the
Crawley/Gatwick area (document 7gg). There is no reference to the area
north-east of Crawley, to Forge Farm, or to the minimum desirable width for the
gap. These are draft modifications only, and the local planning authorities
have as yet had no opportunity to form a view about them. It is clear they do
not amount to an endorsement of the appellants’ proposal; the Secretary of
State says nothing to jeopardise the hoped-for reduction in house-building
rates and seems expressly to rule out development which would — as the proposal
would — have significant housing consequences before 1996. If the new land
requirement is eventually included in the plan it would be reasonable, as well
as consistent with the emergence of the draft modification, if time were
allowed for the local plan-making authority to come to terms with it and to
make its own decision as to the appropriate size and location.
The inspector
concluded that no objection on highway or traffic grounds sufficient to justify
the refusal of planning permission had been made out. Further, he found no
support for the view that the development need prove irreconcilable with the
protection of the required break between Crawley and Gatwick/Horley. On
housing,
considerable area. The estimated 7,000 additional jobs, to be generated by the
development, might give rise directly to an eventual requirement for 3,600
dwellings. A ‘first stage’ development generating 4,000 jobs might call for
about 2,060 dwellings, which might require about 1,500 dwellings to be built
and occupied by 1996. He referred to the view expressed in the draft
modification statement that a business park at Crawley need not greatly affect
housing requirements before 1996 and commented on the efforts broadly to
balance employment and population growth. He then said at para 126 of his
report:
. . . it would be misleading to draw,
from a fortuitous short-term surplus of available housing land, a conclusion
that the proposal involves no material conflict with objectives which have
informed and, as far as one can foresee, will continued to inform planning
policies in this part of the south-east.
The inspector
expressed his overall conclusion, and made his recommendation, in para 127, as
follows:
The development would have major
employment, population growth, traffic and infrastructure implications
extending well beyond 1996. Its size and importance are such that their
acceptability ought desirably to be urgently weighed in formulating local
policies. On the planning evidence, particularly as to the availability of
land, premises and other potential development sites, there is no compelling
reason to dispense with that process in order to grasp benefits which could only
be obtained by immediately commencing to develop the appeal land. On that
ground the appeal should fail and I recommend accordingly . . .
I turn now to
consider Mr Carnwath’s submissions. First, I am not persuaded that to those
versed in the art there is any impenetrable obscurity in the decision letter.
Nor, second, am I persuaded that there is necessarily an inconsistency between
(1) the reference to housing demands and housing requirements in paras 5 and 6
of the decision letter and (2) the view expressed by the Secretary of State at
para 6.10 in the draft modification statement, and repeated in para 7.10 of the
notice of approval dated April 14 1988, that it was unlikely that a business
park would have significant housing consequences before 1996. As I understand
the position, in the latter passages the Secretary of State was negativing the
need for additional housing provision in Crawley borough if a business park
were constructed. Paras 126 and 127 of the inspector’s report and para 5 of the
decision letter, on the other hand, were concerned with the wider implications
which the housing demands generated by this one substantial development in one
place would have. Thus, the inspector referred to the possibility of material
conflict between Arlington’s proposals and objectives underlying planning
policies in this part of the south-east of England. Likewise, in paras 5 of his
letter, the Secretary of State was considering whether the housing demands
associated with Arlington’s proposals ‘could be met consistently with policies
aimed to control the impact of urban development on rural areas’.
Third, I can
see nothing unreasonable in the view of the Secretary of State which is
implicit, if not explicit, in paras 5 and 6 of his decision letter, that this
development is of such a size and importance, covering, as I have said, 180
acres and generating eventually some 7,000 jobs, that in the public interest
its implications ought to be investigated and considered by the local plan
process, and that in this case the risk of prejudice and error which could
arise if a decision were made regarding this development without that process
having been undertaken outweighed the prejudice resulting from Arlington’s
having to wait for that process to unwind. This was so because of the major
implications mentioned in para 5. It was also so because of the need to find
the most suitable site in Crawley borough for such a major development as
mentioned in para 6.
I consider
that it was open to the Secretary of State to form the view that in this way
and having regard to the size and importance of the development and the
significance of the implications arising from the creation of thousands of new
jobs, to permit the development at this stage would in this case cause
demonstrable harm to interests of acknowledged importance.
Fourth, I do
not accept that the examination in public leading to the introduction of policy
IC4 and the section 36 inquiry provided adequate opportunity for these matters
to be investigated and considered properly in this case. The need for further
investigation to find the most suitable site was indeed mentioned by the
Secretary of State in the notice of approval at para 7.13, part of which reads:
[the Secretary of State] considers that
matters such as the location, size and timing of development of a business park
are too detailed for the Structure Plan and he accepts the view of Crawley
Borough Council and the County Council that a comparative assessment of
possible sites should be allowed to be made within the process of preparing a
Local Plan for the Borough. He considers that Policy IC4, as he has approved
it, gives adequate scope for choice of the most suitable location in the
Crawley/Gatwick area.
The business
park development would be a very major one in this locality and plainly the
section 36 inquiry was not the appropriate forum, and hence it would not have
been a satisfactory forum, for investigating the important question of which
site, or sites, within the borough would be most suitable.
Mr Carnwath
complained that though his client had embarked on the expense of a two-week
section 36 inquiry, the matter was no further forward. The Secretary of State
has not said, for example, whether Arlington’s proposed development was too big
or not, or whether it would be in the wrong place. The debate is further
forward. On this I have some sympathy with Arlington. But I do not thing that
it can have come as a surprise to the company, an experienced developer, to
find that the Secretary of State considered that the size, the timing and the
location of the business park development mentioned in policy IC4 in the
modified structure plan ought to be subjected to the local plan process, in
view of its major implications, and a decision made thereon by the local planning
authority.
For these
reasons, for my part I would dismiss this appeal.
Agreeing,
STAUGHTON LJ said: I agree that this appeal should be dismissed.
There are
authorities which show that the absence of a local plan is not necessarily and
by itself a sufficient reason for refusing planning permission: see, for
example, Arlington Securities Ltd v Secretary of State for the
Environment [1985] JPL 550.
This view of
the law is shared by the minister as appears from Circular 22/84, para 1.12:
The absence of a local plan or relevant
proposals in a local plan, or the fact that a local plan is in the offing or
that there are proposals for alteration or repeal or replacement of a structure
plan or a local plan, is not, in itself, a reason for refusing planning
permission.
There may well
be cases in which it is perverse of the Secretary of State to put off a
decision, in which case this court will interfere. That happened in Niarchos
(London) Ltd v Secretary of State for the Environment (No 2) [1981]
JPL 118.
However, as
Nicholls LJ has shown, there are matters which legitimately could influence the
Secretary of State in holding that the application in this case was premature,
and I do not for one moment consider that his decision could be held to have
been perverse in this instance.
Accordingly, I
agree that the appeal should be dismissed.
Agreeing, KERR
LJ said: I agree with both judgments.
In view of the
relative importance of this case, I merely refer, without discussion, to the
authorities which were cited to us to show that we have taken them into
account.
The appellant
cited Stephenson v Secretary of State for the Environment [1985]
1 EGLR 178; Thornville Properties Ltd v Secretary of State for the
Environment [1981] JPL 116; Arlington Securities Ltd v Secretary
of State for the Environment [1985] JPL 550, which has already been
mentioned; R v Bickenhill Parish Council, ex parte Secretary of State
for the Environment [1987] JPL 773; the second of the Niarchos cases, which
has already been referred to by Staughton LJ, Niarchos (London) Ltd v Secretary
of State for the Environment (No 2), a decision of this court [1981] JPL
118; Rockhold Ltd v Secretary of State for the Environment [1986]
JPL 130; and finally Trusthouse Forte Hotels Ltd v Secretary of State
for the Environment (1986) 53 P&CR 293, a decision of Simon Brown J.
On behalf of
the respondent the only case cited to us was Link Homes Ltd v Secretary
of State for the Environment [1976] JPL 430.
At the end of
the day this case turns on its own facts, but these authorities were rightly
referred to.
I agree that
this appeal should be dismissed.
Appeal dismissed with costs; application
for leave to appeal to House of Lords refused.
