Business park — Application for planning permission dismissed on appeal — Contemporary modification to structure plan suggesting business park in locality — Proposed development in advance of local plan consideration — Secretary of State concluding that housing considerations and implications of structure plan modification should be investigated through local plan process — Whether Secretary of State was in error in deciding prematurity a ground of refusal — Whether High Court in error in dismissing challenge to Secretary of State’s decision
The appellant
company applied for outline planning permission for a business park on 180
acres of land at Crawley in Sussex. In April 1988 the Secretary of State for
the Environment, on the recommendation of the appointed inspector who held an
inquiry, dismissed an appeal brought by the appellants against a deemed refusal
by the local planning authority to grant planning permission. Parallel with the
planning application and appeal, a modification of the structure plan was
suggested, and in April 1988 the Secretary of State approved the modification
to include a business park in the locality. The implications of this
modification would then need to be carried through the appropriate local plan
procedures.
In dismissing
the planning appeal, the Secretary of State concluded that to grant planning
permission in advance of the local plan process would be premature, as the
question of housing demands or requirements and the effect of the structure
plan modification would need to be explored in the local plan investigations.
The
appellants’ application, under section 245 of the Town and Country Planning Act
1971, to quash the Secretary of State’s decision was dismissed by Macpherson J
([1988] EGCS 123). The applicants had submitted that the Secretary of State had
been wrong in concluding that the local plan procedures must be completed
first. Macpherson J had decided that there was nothing in Thornville
Properties Ltd v Secretary of State for the Environment [1981] JPL
116 to suggest that there was any principle that it must always be wrong to
wait for a local plan’s completion before a planning permission could be
granted.
Macpherson J had been entitled to decide that the Secretary of State’s decision
was not obscure or contained any error of law. This case turned on its own
facts and it was not really necessary to consider the legal authorities, as the
Secretary of State had given clear reasons for his decision: they were not
obscure: see p 19C.
It had not
been unreasonable for the Secretary of State to take the view that the proposed
development was so large that the idea of a business park should first be
considered through the local plan process. The examination in public into the
modifications to the structure plan was not an adequate opportunity for these
matters to be investigated. The risks in not using that process outweighed the
prejudice to the appellants in having to await the outcome of that process. An
inquiry under section 36 of the Town and Country Planning Act 1971 was not
appropriate in the circumstances and it was not surprising that the local plan
process was preferred: see pp 19F-20.
to in the judgments
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
[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 Ltd 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; (1986) 279 EG 686;
[1986] JPL 834
Appeal against
a decision of Macpherson J
This was an
appeal against a decision of Macpherson J (July 28 1988), who had dismissed an
application under section 245 of the Town and Country Planning Act 1971
challenging a decision of the Secretary of State for the Environment to dismiss
an appeal by the appellants against a deemed refusal of outline planning
permission.
Carnwath QC (instructed by Gouldens) appeared for the appellants.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment.
respondent, Crawley Borough Council, did not appear and was not represented.
following judgments were delivered.
KERR LJ: I have asked Nicholls LJ to give the first judgment.
NICHOLLS LJ:
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 200,000m2 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 proposed in July 1987, and also in the modifications as approved in April
1988, 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
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
Secretbary 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, he found that the development would increase housing demands
throughout a 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
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
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.
STAUGHTON
LJ: 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.
KERR LJ: 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
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.
