Planning appeal — Delay between Secretary of State’s interim and final decisions — Changing circumstances — Whether Secretary of State’s decision perverse — Costs in multiple representation
In 1986 a
planning permission was made for a subregional shopping complex in an urban
development area for which Trafford Park Development Corporation were
responsible. Although the corporation supported the application it was opposed
by a number of parties including the eight respondent local authorities.
Following an inquiry in August 1989 the Secretary of State for the Environment
accepted his inspector’s recommendation that to permit the development of more
than one major centre would not cause unacceptable damage to existing town
centres, but he had reservations about traffic congestion. In 1993, having
considered the recommendations of his inspector who held a further inquiry
limited to the specific issue of traffic congestion, the Secretary of State
made his second and final decision in which he again accepted the inspector’s
recommendation that planning permission should be granted. The respondents
challenged the decision of the Secretary of State on the grounds that: first,
he had not dealt properly with the question of urban regeneration, and in
particular, with the effect of the proposed development on existing shopping
centres; second, he had not dealt properly with the suggestion that the site
should be reserved for industrial development associated with high technology.
In respect of both matters further representations had been made to the
Secretary of State prior to his final decision. The Secretary of State appealed
the decision of the Court of Appeal ([1994] 2 PLR 42) which had allowed an
appeal against the decision of Schiemann J in favour of the Secretary of State.
The appellants, in addition to the Secretary of State, sought costs.
The Secretary
of State in discharging his obligation to have regard to all material
considerations, need not deal specifically with every material consideration.
The issue of urban regeneration had been dealt with: see pp 43B and 44G. The
exercise by the Secretary of State of his planning judgment in not reopening
the inquiry and in granting planning permission was not perverse; although the
balance of advantage of allowing the development had shifted between 1989 and
1993, that was a matter for the Secretary of State’s planning judgment: see
p49D. The Secretary of State had taken account of the argument advanced to him
in
there is no inference from the absence of any reference to the shortage of land
that he failed to take it into account: see pp 48F-50E. Subject to the
following propositions, costs are in the discretion of the court: (1) A
successful Secretary of State will normally be entitled to the whole of his
costs. He is not required to share his award by way of apportionment. Wychavon
District Council v Secretary of State [1994] 3 PLR 42 disapproved.
(2) The developer is not entitled to his costs unless he can show a separate
issue, one not covered by the Secretary of State, on which he was entitled to
be heard. (3) A second set of costs is more likely to be awarded at first
instance, than in the Court of Appeal or the House of Lords. (4) Even where
three or more separate interests exist an award of a third set of costs will
rarely be justified. In the circumstances the developer was granted his costs:
see pp 52F-53.
to in the opinions
Birmingham
City Council v H (a minor) [1994] 2 AC 212;
[1994] 2 WLR 31; [1994] 1 All ER 12; (1994) 92 LGR 349, HL
Hope v Secretary of State for the Environment (1975) 31 P&CR
120; [1976] 2 EGLR 147; [1976] EGD 823; 240 EG 627
In re
Poyser and Mills’ Arbitration [1964] 2 QB 467;
[1963] 2 WLR 1309; [1963] 1 All ER 612; sub nom Poyser v Mills
[1963] EGD 421; (1963) 185 EG 609
R v Secretary of State for Trade and Industry, ex parte Lonrho plc
[1989] 1 WLR 525; [1989] 2 All ER 609, HL
Save
Britain’s Heritage v No 1 Poultry Ltd [1991]
1 WLR 153; sub nom Save Britain’s Heritage v Secretary of State for
the Environment [1991] 2 All ER 10; (1991) 62 P&CR 105; [1991] 3 PLR 17,
HL
Waverley
Borough Council v Secretary of State for the
Environment [1987] JPL 202; ([1988] 3 PLR 101 — costs)
Westminster
City Council v Great Portland Estates plc
[1985] AC 661; [1984] 3 WLR 1035; (1984) 50 P&CR 34; [1985] JPL 108; sub
nom Great Portland Estates plc v Westminster City Council [1984] 3
All ER 744, HL
Wychavon
District Council v Secretary of State for the
Environment [1994] 3 PLR 42
Appeal against
the decision of Court of Appeal
This was an
appeal against the decision of the Court of Appeal which had allowed an appeal
against a decision of Schiemann J dismissing an application by the respondents
under section 288 of the Town and Country Planning Act 1990 to quash the
decision of the Secretary of State to grant planning permission to Manchester
Ship Canal Co Ltd.
QC and Meyric Lewis (instructed by Sharpe Pritchard) appeared for the
appellants, Bolton Metropolitan District Council, Bury Metropolitan District
Council, Manchester City Council, Oldham Metropolitan District Council,
Rochdale Metropolitan District Council, Stockport Metropolitan District
Council, Tameside Metropolitan District Council and Wigan Metropolitan District
Council.
Ouseley QC and Christopher Katkowski (instructed by the Treasury Solicitor)
appeared for the first respondent, the Secretary of State for the Environment.
and Paul Stinchcombe (instructed by Stephenson Harwood) appeared for the second
respondents, Manchester Ship Canal Co Ltd.
respondents, Trafford Metropolitan Borough Council, did not appear and were not
represented.
Hamilton QC and Sebastian Head (instructed by Nabarra Nathanson) appeared for
the fourth respondents, Trafford Park Development Corporation.
following opinions were delivered.
LORD GOFF
OF CHIEVELEY: My lords, I have had the advantage of
reading in draft the speech prepared by my noble and learned friend Lord Lloyd
of Berwick. For the reasons he gives I, too, would allow the appeal and restore
the order of Schiemann J.
LORD MUSTILL: My lords, I have had the advantage of reading in draft the speech
prepared by my noble and learned friend Lord Lloyd of Berwick. For the reasons
he gives I, too, would allow the appeal and restore the order of Schiemann J.
LORD SLYNN
OF HADLEY: My lords, I have had the advantage of
reading in draft the speech prepared by my noble and learned friend Lord Lloyd
of Berwick. For the reasons he gives I, too, would allow the appeal and restore
the order of Schiemann J.
LORD LLOYD
OF BERWICK: My lords, this case concerns a planning
application for a new shopping centre at Trafford Park, Manchester. The
application was made as long ago as July 21 1986. There have since been two
public inquiries. The first lasted from September 22 1987 to February 26 1988
and the second from June 9 to July 17 1992. The decision letter is dated March
4 1993.
During this
lengthy period of over six years, there have been major changes in government
policy and in economic conditions. This has resulted in extensive post-inquiry
representations being placed before the Secretary of State for the Environment,
which he was, of course, obliged to take into account when reaching his
decision. At one stage the Secretary of State was being pressed to reopen the
inquiry for a third time, but he resisted this suggestion. Instead, the
opponents of the planning consent brought proceedings under section 288 of the
Town and Country Planning Act 1990 claiming that the Secretary of State has
failed to take certain material considerations into account and asserting that
in certain respects his decision is perverse. In addition, it is contended that
he has failed to give proper reasons for his decision, or that his reasons are
so obscure as to be unintelligible.
Schiemann J
rejected all these allegations: (1993) 67 P&CR 333. But there was an appeal
to the Court of Appeal, who allowed the appeal and quashed the Secretary of
State’s decision: (1994) 69 P&CR 3241. There is now an appeal
to this House.
1 [1994] 2 PLR 42.
No doubt it is
important in these hotly contested planning disputes that those who are
affected should have a full opportunity to state their case, and that the
decision, when taken, should be taken in the light of all material circumstances
known at that date. But if the process becomes overburdened, there is a price
to pay. When circumstances are changing all the time and new material is placed
before the Secretary of State in a never-ending stream (a representation on
which the appellants rely strongly was dated February 22 1993, only 10 days
before the date of the decision letter), there is, as Schiemann J rightly
pointed out, a tension between the proper examination of all relevant material
and the need to come to some decision, sooner rather than later. The Secretary
of State might be forgiven for thinking that in this case he has been shooting
at a moving target; and that, in turn, may explain why, if the Court of Appeal
be correct, he missed.
The
contentions of the parties to the appeal are explored in the comprehensive
judgments of Schiemann J and Glidewell LJ, two of the most experienced judges
in the planning field. For present purposes it is sufficient to sketch in the
background. The first application was submitted on behalf of Manchester Ship
Canal Co (to whom I shall refer to as ‘the appellants’) for the development of
a subregional shopping centre on land at Trafford Park, adjoining the M63
motorway. Two subsequent applications related to the same development and
included with it a proposed regional sports complex on a total area of 123ha.
The land is part of a larger area designated as an urban development area under
section 134 of the Local Government Planning and Land Act 1980. Trafford Park
Development Corporation, whose function it is to support regeneration within
their area, have been separately represented in the course of these proceedings
and have supported the appellants throughout.
The opponents
of the proposed development are a consortium of eight local authorities in
Greater Manchester, who are the respondents to the appeal, together with a
number of property companies and other commercial organisations with interests
in rival shopping centres in the city centre and elsewhere in the Manchester
area, including MEPC Investments Ltd, Land Securities Properties Ltd, P&O
Shopping Centres Ltd and so on.
There were
other applications before the inspector, including two other proposals for
subregional shopping centres, together with other more modest shopping
developments. Having conducted an exhaustive inquiry into the effect of the
various proposals on existing town centres, the inspector concluded that there
was room for one new shopping centre, but not more than one. At para 21.13.1 he
says:
In
considering the various issues explored at the inquiry I have concluded that
the building of one major shopping centre in the western sector of Greater
Manchester would not cause unacceptable harm to the regeneration of the
conurbation; nor would one such centre damage the vitality and viability of any
existing town centre. I do consider that the development of more than one major
centre would cause unacceptable damage to existing town centres and prejudice
the strategic role of the motorways…
He then made a
detailed comparison between the three major proposals and came down in favour
of the appellants. Accordingly, he recommended that the appellants’
applications be granted and the others refused.
In his interim
decision letter dated August 23 1989, the Secretary of State accepted the
inspector’s recommendation, but subject to a concern about traffic congestion
at junction 3 on the M63 motorway, in the light of comments which he had
received from the Department of Transport. So he asked for written
representations on this specific issue. Two years later the Department of
Transport changed its mind. It no longer required an additional lane running
south between junctions 3 and 4. Instead, it required an additional lane
running north between junctions 2 and 3. So the Secretary of State for the
Environment asked for further written representations in light of the changed
requirement. On November 4 1991 he announced that he would reopen the inquiry,
limited to the specific issue which he had raised. The second inquiry was held,
as I have said, from June 9 to July 17 1992. Once again, the inspector
recommended that planning permission be granted, on condition that certain
rather limited road works be carried out at junction 3. He did not regard an
additional north-bound lane as necessary. There followed the Secretary of
State’s second and final decision letter dated March 4 1993, in which he again
accepted the inspector’s recommendation.
The principal
attack on the Secretary of State’s final decision letter of March 4 1993
relates to the way in which he dealt with the traffic issue. This occupies the
first 13 paragraphs of the decision letter. It was the reason why the Secretary
of State reopened the inquiry in 1992. It was the subject of grounds 1-3 in the
respondents’ notice of motion under section 288 of the Act. It was the first of
the matters dealt with, at some length, by Schiemann J under the heading ‘The
Congestion Point’. Schiemann J found in favour of the Secretary of State on
this point and the Court of Appeal agreed with Schiemann J, although their
agreement was somewhat half-hearted. ‘If this were the sole matter in issue’,
said Glidewell LJ, (1994) 69 P&CR 324 at p355, ‘I should consider [the
Secretary of State’s] exposition of his reasoning adequate, though certainly
not better than adequate’. The traffic issue has not been raised again before
your lordships and I say no more about it.
The Secretary
of State then turned to ‘other issues’, about which he had received
representations before, during and since the 1992 inquiry. These are covered in
the remaining paragraphs of his decision letter and give rise to the remaining
grounds set out in the application under section 288. These grounds disclose
two broad areas of challenge. First, it is said that the Secretary of State has
not dealt properly with the question of urban regeneration, and, in particular,
with the effect of the proposed development on existing shopping centres in
Greater Manchester. Second, it is said that he has not dealt properly with the
suggestion that the site at Trafford Park should be reserved for industrial
development and in particular development associated with high technology.
Correct
approach
Before dealing
with each of these challenges, I should first make some preliminary
observations on the correct approach to decision letters in planning appeals,
with which alone we are concerned in this case. This can be done very briefly,
since the question was fully covered in the recent speech of Lord Bridge of
Harwich in Save Britain’s Heritage v No 1 Poultry Ltd [1991] 1
WLR 1531.
1 Sub nom Save
Britain’s Heritage v Secretary of State for the
Environment [1991] 3 PLR 17.
Under section
70(2) of the Act of 1990, read with section 77(4), it was the duty of the Secretary
of State to have regard ‘to the provisions of the development plan … and to any
other material considerations’. Under r
Planning (Inquiries Procedure) Rules 1988 (SI 1988 No 944), it was the duty of
the Secretary of State to ‘notify his decision … and his reasons for it in
writing to all persons entitled to appear at the inquiry who did appear …’. So
the Secretary of State had to have regard to all material considerations before
reaching a decision and then state the reasons for his decision to grant or
withhold planning consent. There is nothing in the statutory language which
requires him, in stating his reasons, to deal specifically with every material
consideration. Otherwise his task would never be done. The decision letter
would be as long as the inspector’s report. He has to have regard to every
material consideration; but he need not mention them all.
What then must
be mentioned? The classic exposition was given by Megaw J in In re Poyser
and Mills’ Arbitration [1964] 2 QB 467 at p478, approved by the House of
Lords in Westminster City Council v Great Portland Estates plc
[1985] AC 661 at p673.
Parliament
provided that reasons shall be given, and in my view that must be read as
meaning that proper, adequate reasons must be given. The reasons that are set
out must be reasons which will not only be intelligible, but which deal with
the substantial points that have been raised.
Ten years
later in Hope v Secretary of State for the Environment (1975) 31
P&CR 120 at p123, Phillips J said:
It seems to
me that the decision must be such that it enables the appellant to understand
on what grounds the appeal has been decided and be in sufficient detail to
enable him to know what conclusions the inspector has reached on the principal
important controversial issues.
Lord Bridge in
Save Britain’s Heritage v No 1 Poultry Ltd [1991] 1 WLR 153 at p165C, described
this statement as being ‘particularly well expressed’.
Coming to the
present case, Glidewell LJ put the matter as follows, (1994) 69 P&CR 324 at
p357:
In relation
to two of these issues, Schiemann J in the passages I have quoted said that it
is ‘fanciful to postulate’ that the Secretary of State did not take
these matters into account, nor give them appropriate weight. With all respect
to a judge with great experience in this field, I do not think this is a proper
approach. A decision letter must, in order to give proper and adequate reasons,
refer to each material consideration, and explain why because or despite it the
eventual decision is reached. At the least, if there is no express reference to
some matter, it must be possible for the reader to infer that the words used
implied such a reference.
It may be that
in this passage, Glidewell LJ was saying only that he disagreed with Schiemann
J’s conclusion. But in so far as he was saying that a decision letter must
refer to ‘each material consideration’ I must respectfully disagree. This seems
to go well beyond Phillips J’s formulation in Hope v Secretary of
State for the Environment (1975) 31 P&CR 120, at p123. What the
Secretary of State must do is to state his reasons in sufficient detail to
enable the reader to know what conclusion he has reached on the ‘principal
important controversial issues’. To require him to refer to every material
consideration, however insignificant, and to deal with every argument, however
peripheral, would be to impose an unjustifiable burden.
For the same
reason, I have doubts about another passage in Glidewell LJ’s judgment where he
quotes from the speech of Lord Keith of Kinkel in R v Secretary of
State for Trade and Industry, ex parte Lonrho plc [1989] 1 WLR 525 at p540:
The only
significance of the absence of reasons is that if all other known facts and
circumstances appear to point overwhelmingly in favour of the different
decision, the decision-maker, who has given no reasons, cannot complain if the
court draws the inference that he had no rational reason for his decision.
Glidewell LJ
adds, (1994) 69 P&CR 324 at p355:
I add that in
my judgment the same principle applies to a failure to refer in a decision to a
material consideration, or to an indication that it is not material, the
inference may be that the decision-maker has not fully understood the
materiality of the matter to the decision.
Since there is
no obligation to refer to every material consideration, but only the main
issues in dispute, the scope for drawing any inference will necessarily be
limited to the main issues, and then only, as Lord Keith pointed out, when ‘all
other known facts and circumstances appear to point overwhelmingly’ to a
different decision.
Urban
regeneration
I now return
to the first of the ‘other issues’, namely urban regeneration. Glidewell LJ
rightly regarded this as the most important point made by Mr Robin Purchas QC,
on behalf of the respondents. It is said that the Secretary of State failed to
have regard to changes in government policy since the inspector’s first report
in 1989 and further that he failed to have regard to changes on the ground, so
to speak, which had falsified many of the assumptions on which the inspector
based his
have regard to these matters, then his conclusion was irrational and perverse.
As to changes
in government policy, these are well described in paras 4.1 to 4.13 of the
report of Gerald Eve, sent to the Secretary of State under a covering letter
from Land Securities plc dated July 9 1992. The report draws attention to the new
section 54A of the Act of 1990, inserted by section 26 of the Planning and
Compensation Act 1991, which came into force on September 25 1991, the new
version of Planning Policy Guidance Notes (PPG1 — General Policy and
Principles March 1992), and the revised draft of PPG 6 — Town Centres
and Retail Developments, circulated in October 1992. Para 37 of the revised
PPG 6 reads:
Major new
developments
37 Experience
has shown that regional out-of-town shopping centres (more than 50,000 square
meters of floor space) can have a substantial impact over a wide area. They
should normally be allowed only where they would fulfil an important retail
need, taking full account of all the likely impacts …
Although the
language in para 46 of the final revision published in July 1993 is toned down,
there can be no doubt — indeed, it was not disputed — that government policy
has indeed shifted significantly against large subregional shopping centres
since the inspector’s first report in 1988.
Has it been
demonstrated that the Secretary of State disregarded this change of policy? In
para 4 of his decision letter, he says:
Appropriate
weight must be given to any relevant national policy, development plan policy
and informal planning guidance. In particular, as set out in section 54A of the
1990 Act, applications and appeals should be determined in accordance with any
relevant development plan unless material considerations indicate otherwise.
In para 5 he
refers to the draft revised PPG 6 and in para 18, he says:
The
additional representations argue that the Trafford Centre should not be
permitted because it does not accord with emerging Government policy on
shopping development as set out in the draft revision of Planning Policy
Guidance Note PPG6 …
In the light
of these references to section 54A and the revised PPG 6, it cannot fairly be
said that the Secretary of State did not have regard to government policy
current at the date of his decision and to any changes which had taken place
since 1988.
I turn next to
changes ‘on the ground’. These were helpfully summarised under four main heads.
Decline in
retail activity
In paras
21.3.1 to 21.3.16 the inspector made an attempt to forecast the likely increase
in future spending, based on various assumptions. Such a forecast could not in
the nature of things be more than ‘informed
the fragility of any conclusion based on his forecast. Indeed, he was tempted
to disregard the exercise altogether: see para 21.3.5. However, he stated his
conclusion in para 21.3.16 as follows:
The estimates
set out above should not be interpreted as demonstrating a need for a new
sub-regional shopping centre or for any particular increase in shopping floor
space. It is however more significant to note that they do not suggest that the
introduction of a new centre on the scale now proposed would attract trade on
such a scale as to absorb more than 20 per cent of the likely growth in
available spending. On this broad scale, I am therefore satisfied that there
are no grounds on which to justify a refusal of planning permission in terms of
comparison goods trade.
It seems clear
enough that some at least of the assumptions underlying the inspector’s
conclusion have proved to be incorrect. The expected increase in retail
expenditure has not occurred. Thus, taking the United Kingdom as a whole, the
growth of expenditure on comparison goods in 1988 was 8.1%. By 1989 it had
dropped to 2.7% and by 1990 it was negative. The inspector took an average
growth of 3.38% compound over the 10-year period from 1986-1996, producing a
figure for additional available expenditure of £620m by 1996. The respondents
say that the correct estimate should be £368m.
Another
important assumption was the amount of the available increase in retail
expenditure which would be taken up by existing permissions for retail
development or ‘hard commitments’. Again, the assumption has proved to be
inaccurate: 4.5 million sq ft of new retail floorspace has been created since
the 1988 inquiry and is currently trading; and permission has been given for a
further 6 million sq ft. In para 5.4 of the submission, the respondents
comment:
Even if one
were to assume that none of the 6 million sq ft of approved floor space were to
be built, the £4.5 million actually trading must account for some £400 million
of annual expenditure which the inspector was not able to take into account in
his calculations.
How then does
the Secretary of State deal with this issue? Since, as I have said, it lies at
the heart of the respondents’ challenge, I shall quote the relevant paragraphs
of the decision letter verbatim:
16. With
regard to the likely effects of the Trafford Centre on urban regeneration, it
is considered that this issue was fully debated at the 1988 inquiry, following
which the Inspector concluded, for the reasons set out in his report, that he
could find no evidence that the proposals would have an unacceptable impact on
the regeneration of Greater Manchester. The view is taken that the additional
representations do not provide any reasons to doubt that the Inspector’s
conclusions on this issue remain valid.
17. In the
additional representations it has been argued that the decline since the 1988
inquiry in retail activity and the permissions granted since then for retail
development in existing centres or other appropriate urban
account. In considering those issues the Secretary of State has had regard to
the approach adopted by the 1988 inquiry Inspector in assessing the economic
effects of the proposed Trafford Centre as set out at section 21.3 of his
report. In particular, he notes the comments made by the Inspector at
paragraphs 21.3.4 to 21.3.15 about the difficulties in quantifying spending,
turnover and floor space assessments, and the limited weight which he concluded
should be attached to those considerations. It is accepted that since 1988
retail spending has not risen at the average rate envisaged by the Inspector,
and that the Inspector gave some weight to this element of the forecasting.
However, it is considered that the assessment provided in support of the
additional representations, which is based on information forthcoming since the
1988 inquiry, does not provide sufficient reason to show that the Inspector’s
detailed and careful assessment of the wide range of information about the
likely economic effects of the Trafford Centre debated at the 1988 inquiry is
no longer valid or to believe that reopening the inquiry or refusing permission
for the Trafford Centre is justified.
Two points can
be made at the outset. First, whatever else may be in dispute, it is clear that
the Secretary of State had regard to the additional representations. It is quite
impossible to infer that he did not read them, or that he put them on one side.
Second, the
paragraphs are, in certain respects, poorly expressed. Thus the Secretary of
State says:
the
assessment provided in support of the additional representations … does not
provide sufficient reason to show that the Inspector’s … assessment of the wide
range of information about the likely economic effects of the Trafford Centre …
is no longer valid …
Mr Purchas
argues that this cannot be right. The inspector’s assessment of the
information available has undoubtedly been affected by the subsequent
information provided by the respondents. So the Secretary of State cannot have
meant that the assessment remains valid. What he must have meant was that the
inspector’s conclusion remains valid.
I agree with
Mr Purchas that the drafting could have been a great deal clearer. The same is
true of the last sentence of para 18, which is tacked on uneasily at the end of
a paragraph dealing with levels of carbondioxide. But I do not think it can be
said that the reasoning is so obscure as to be unintelligible. Nor are the
reasons inadequate. The Secretary of State pointed out that the inspector
himself attached limited weight to his projection of retail spending. This was
the Secretary of State’s reason for not changing his view. I agree that the
reason is expressed very briefly, when compared with the mass of material which
the respondents placed before him. There is no attempt to analyse that
material. But this was not necessary. The reason is there, and that is all that
r 17(1) of the 1988 rules requires.
The truth is,
as my noble and learned friend Lord Mustill pointed out in the course of the
argument, that the real attack on this part of the decision letter lies rather
on the ground of perversity. Having regard to the considerable changes that
have taken place since 1988, both in government
is, one suspects, the underlying ratio of the Court of Appeal’s decision. As
Glidewell LJ said, (1994) 69 P&CR 324 at p356:
Thus, in the
absence of reasons, we are entitled to infer that he had no valid reasons, that
either he failed to have regard to this very material consideration, or that he
reached his decision on the issue without any good reason, ie perversely.
I shall have
to come back to the question of perversity. But before doing so, I should first
mention the other matters on which Mr Purchas relied under this head.
ASDA
One of the
proposals which the inspector considered in the 1988 inquiry was for an ASDA
superstore on the site adjoining Trafford Park. The inspector recognised that
the combination of the new subregional shopping centre and the ASDA superstore
would cause unacceptable damage to nearby shopping centres. Accordingly, he
recommended refusal of ASDA’s application. If, however, it were to be granted,
then he recommended the imposition of a condition on the appellants’ planning
permission, so as to limit the amount of floorspace devoted to convenience
goods.
On March 5
1992 ASDA obtained planning permission for a superstore with a total floorspace
of 115,000 sq ft, including 75,000 sq ft for convenience goods. Yet the
Secretary of State makes no mention of this in his decision letter.
Shudehill
On June 4 1992
the Co-operative Wholesale Society and the Co-operative Insurance Society
obtained planning permission for a new shopping centre of 500,000 sq ft at
Shudehill, in the inner city area, adjoining Manchester City Centre. On
February 22 1993 they wrote to the Secretary of State to complain that if the
Trafford Park scheme went ahead, their own scheme would not be viable:
We believe
that these matters are material to your deliberations on the Dumplington
scheme; in our view, approval for Dumplington is incompatible with your recent
stated objective of protecting city centres from the effects of such
out-of-town developments.
Meadowhall,
Sheffield and Merryhill, Dudley
In para 5.5 of
the representations the respondents point out that at the time of the first
inquiry in 1987-1988 there was very little direct experience of the impact of
major subregional centres on existing shopping centres, since only Brent Cross
and Gateshead were operational. Since 1988 evidence has begun to accumulate,
though it is still not available in great quantity. Thus, the authors of a
study on Sheffield demonstrate that the effect of Meadowhall on the city centre
is worse than the city council originally expected; and in another study
Drivers Jonas say the same about the effect of Merryhill on Dudley. Indeed,
subsequent evidence
respondents conclude: ‘Any detrimental impact of this kind in Greater
Manchester Centres would be a significant step in the wrong direction’.
Urban
regeneration — conclusion
There can be
no doubt that the ASDA consent was a material consideration to which the
Secretary of State was bound to have regard when reaching his decision. Should
it have been mentioned in the decision letter? This is in some ways the
strongest of Mr Purchas’ points, because of the inspector’s recommendation
that, if the ASDA consent were granted, a condition should be imposed on the
appellants’ consent. I find it strange that there is no reference to any such
condition in the decision letter, especially as the point was mentioned again
by the inspector in para 9.7.4 of his second report. Indeed, the inspector
records that the appellants offered to accept such a condition, an offer which
was, incidentally, repeated before your lordships. What is the explanation? It
may be that the failure to impose a condition was due to simple oversight. But
whatever the explanation, I am not prepared to hold that the absence of any
reference to the ASDA consent is fatal. True, it was a material consideration.
But it was not itself one of the ‘principal important controversial issues’, to
use the language approved by this House in Save Britain’s Heritage v No
1 Poultry Ltd [1991] 1 WLR 153, at p167B. It was part of the wider issue as
to the effect, if any, of permissions granted since the first inquiry. The
first sentence of para 17 of the decision letter refers specifically to such
permissions. So the Secretary of State clearly had such permissions in mind,
including presumably the ASDA consent, when reaching his decision. It was not
necessary for him to spell them all out. It is significant in that connection
that the ASDA consent is nowhere mentioned in the respondents’ own five-page
summary of their written submissions. I cannot, therefore, infer from the
absence of any reference to ASDA in the decision letter that the Secretary of
State disregarded the ASDA consent altogether.
For the same
reason, it was not necessary for the Secretary of State to mention Shudehill by
name, or the experience at Sheffield or Dudley. The reference to ‘the
experience of the effect on other centres’ in a quotation from the respondents’
summary in para 14 of the decision letter shows again that the Secretary of
State had the point in mind. All these points were elements in the overall
issue of urban regeneration. This was clearly a controversial issue, second
only in importance to traffic. If the Secretary of State had failed to deal
with urban regeneration at all, then of course his decision letter would have
been vulnerable. But that is not the case. He stated his conclusion, right or
wrong, on that vital issue; and although his reasons may not be very full, and
are in certain respects badly expressed, they are, in my opinion, adequate.
This brings me
back to the question whether the decision is so clearly wrong, that it ought to
be characterised as perverse. It is here that I feel compelled to part company
with the Court of Appeal. Schiemann J expressed himself thus, (1993) 67
P&CR 333 at p353:
In my
judgment the decision letter read as a whole leaves one in no doubt that the
Secretary of State looked at all matters which were before him at the time when
he issued his decision, apprehended that a number of matters had changed since
the first inquiry, perceived that the proposal had a number of disadvantages
but nevertheless took the view that its advantages were such as to outweigh the
disadvantages. That view is not a perverse one as such. The decision letter is
expressed with sufficient clarity to show to the applicants that the Secretary
of State had grappled with the problems to which the implementation of the
planning permission might give rise. In so far as there is any lack of fuller
exposition of the reasoning the applicants have not been substantially
prejudiced thereby.
I find myself
in agreement with this view. The Secretary of State had a difficult decision to
make in 1989 when he issued his interim decision letter. He had not only to
balance the advantages of allowing development within an urban development area
at Trafford Park against the disadvantages to other shopping centres, but also
to take numerous other factors into account. By 1993 the decision had become
even more difficult, since the balance of advantage had shifted in the meantime.
The question is whether it had shifted sufficiently to justify reopening the
inquiry, or refusing permission. This was essentially a matter for the
Secretary of State’s planning judgment. I have much sympathy for the conclusion
reached by the Court of Appeal, since the respondents put forward a powerful
case in their post-inquiry representations. But I feel unable to agree that the
decision taken by the Secretary of State in the exercise of his planning
judgment was perverse. This was not a case where, in Lord Keith’s words in R
v Secretary of State for Trade and Industry, ex parte Lonhro plc [1989]
1 WLR 525 at p540, the other known facts and circumstances pointed
overwhelmingly in favour of a different decision. I am, therefore, unable to
infer, as Glidewell LJ inferred, that the Secretary of State had ‘no rational
reason’ for maintaining his original view on retail impact.
High
technology
The argument
here is that at the time of the first inquiry there was no shortage of land for
industrial development: see para 21.8.6 of the inspector’s conclusions of 1988
inquiry. In 1989 the Secretary of State issued Regional Planning Guidance 4
(RPG4 December 1989) in which he required local authorities in the Greater
Manchester area to identify ‘major high amenity sites for high technology
industry’ (para 5). By 1993 it had become clear that there was a shortage of
such sites: see the inspector’s second report, para 9.6.7. According to the
case put forward by the respondents, Trafford Park is ideally located as a
strategic site for high technology industry and should be safeguarded for that
purpose. The inspector accepted that Trafford Park would be suitable for high
technology industry, but nevertheless recommended, on balance, that it should
not be reserved for that purpose. In his view, the balance of advantage lay
with the appellants’ proposal.
How then did
the Secretary of State deal with this new point? In para 14 he refers to
Salford City Council’s argument that the Trafford Park site
returns to the same point:
The Secretary
of State has considered the arguments advanced about the relationship of the
proposed development to published and proposed planning guidance and
development plans. In summary those were that the appeals and applications
before him should not be determined in advance of the preparation of Regional
Planning Guidance and Unitary Development Plans, particularly those for
Trafford and Salford; that the Trafford Centre site should be reserved for
development as a high amenity site for high technology industry which, it has
been argued, Strategic Guidance for Greater Manchester suggests merits greater
weight than the building of a sub-regional shopping centre in the western
sector of Greater Manchester …
Later in the
same paragraph, he comments:
[The
Secretary of State] has had regard to the stage reached in the preparation of
both the Trafford and Salford Unitary Development Plans but he does not accept
that the arguments advanced show that the development of the proposed Trafford
Centre is so central to Regional Planning Guidance, which is as yet at a very
early stage of preparation, or to emerging development plans, that he would be
justified in deferring further his decision on the proposals before him. Nor
does he accept that weight should be attached to the possibility of reserving
the site for some alternative form of development …
Clearly,
therefore, the Secretary of State has taken account of the new argument. It
cannot be said that he has disregarded it altogether. But what is said against
him is that he has disregarded the shortage of land for industrial development.
This is the argument which found favour with the Court of Appeal, (1994) 69
P&CR 324 at p357:
As to the use
of the site for high technology industry, the inspector made it clear that this
would have disadvantages. Nevertheless the consortium argued that the shortage
of land for such industrial development was a new feature which counterbalanced
the disadvantages. To say, as the Secretary of State did, that he did not
accept that weight ‘should be attached’ to the suggestion that the site should
be used for high technology industry apparently ignores the point about the
shortage of land, or fails to explain why the point is not material.
I agree that
it would have been better if the Secretary of State had mentioned the shortage
of land. But it was only one aspect of the issue. He does not have to mention
everything. I am unwilling to infer from the absence of any reference to the
shortage of land in para 19 that the Secretary of State left it out of account.
Various other
criticisms are made. For example, it is said that there should have been a
reference in the decision letter to the abandonment of the arena, as originally
proposed by the appellants. But as Glidewell LJ acknowledged, it was the
combination of deficiencies which led the Court
Purchas has failed to persuade me on the two major issues of urban regeneration
and high technology. In those circumstances the remaining criticisms are of
little avail.
In conclusion,
I would allow the appeal and restore the order of Schiemann J. It is
unnecessary to consider alternative arguments advanced by Mr Brian Ash QC and
Miss Susan Hamilton QC that the respondents have failed to show that they have
suffered substantial prejudice and that in any event relief should be refused
in the exercise of the discretion vested in the court by section 288 of the
Town and Country Planning Act 1990.
LORD STEYN: My lords, I have had the advantage of reading in draft the speech
prepared by my noble and learned friend Lord Lloyd of Berwick. For the reasons
he gives I, too, would allow the appeal and restore the order of Schiemann J.
Appeal
allowed.
of the House on costs delivered on July 6 1995
LORD GOFF
OF CHIEVELEY: My lords, for the reasons given in
the speech of my noble and learned friend, Lord Lloyd of Berwick, I too would
grant the order as to costs in this House and below.
LORD
MUSTILL: My lords, for the reasons given in the
speech of my noble and learned friend, Lord Lloyd of Berwick, I too would grant
the order as to costs in this House and below.
LORD SLYNN
OF HADLEY: My lords, I also would make the order
for costs proposed by my noble and learned friend Lord Lloyd of Berwick for the
reasons he gives.
LORD LLOYD
OF BERWICK: My lords, at the conclusion of the
hearing counsel were invited to submit written representations on the question
of costs, since it seemed desirable that something should be said about
multiple representation in planning appeals before the House. In Birmingham
City Council v H (a minor) [1994] 2 AC 212, there was before the
House an application under section 34(4) of the Children Act 1989. Numerous
parties were represented, all by leading counsel. Yet there was no significant
difference between the arguments of those who supported the appeal or those who
opposed it. My noble and learned friend, Lord Keith of Kinkel said, at p217,
that there must be a serious question whether such a degree of separate
representation was justified.
In the Birmingham
City Council case all the costs were, in one way or another, met either by
the Legal Aid Board, or otherwise at public expense. Here there is no question
of any of the costs being funded by the Legal Aid Board. But similar
considerations apply. The House will be astute to ensure that unnecessary costs
are not incurred. Where there is multiple representation, the losing party will
not normally be required to pay more than one set of costs, unless the recovery
of further costs is justified in the circumstances of the particular case.
There can, I
think, be no doubt that in the past there has been a practice in the lower courts
to award two sets of costs in certain types of planning appeal under section
288 of the Town and Country Planning Act 1990, and its predecessors, notably
where a decision of the Secretary of State in favour of a developer is
challenged by the local authority and the Secretary of State successfully
defends his decision. In such cases the developer has usually been regarded as
having a separate interest which he is entitled to protect at the local
authority’s expense. This practice was recognised by Simon Brown J in Waverley
Borough Council v Secretary of State for the Environment [1988] 3
PLR 101.
However, in Wychavon
District Council v Secretary of State for the Environment
unreported, October 5 19941; Court of Appeal (Civil Division) transcript no 1118 of 1994, the
Court of Appeal cast doubt on the current practice. In that case the developer
had been awarded the whole of his costs in the court below and the Secretary of
State got nothing. The Court of Appeal held, in my view correctly, that this
was wrong. The Secretary of State should have been awarded the whole of his
costs. The Court of Appeal could not, however, touch the award of costs in
favour of the developer, since the developer was not represented on the appeal.
But Leggatt LJ said obiter:
1 [1994] 3 PLR 42.
If the
developer had not been awarded any part of his costs, he might not have been
able to complain.
A little later
he said:
In my
judgment, in circumstances such as these where the issues argued on behalf of
two or more respondents are identical, the court should be disposed to make
only one order for costs …
What then is
the proper approach? As in all questions to do with costs, the fundamental rule
is that there are no rules. Costs are always in the discretion of the court,
and a practice, however widespread and longstanding, must never be allowed to
harden into a rule.
But the
following propositions may be supported:
(1) The
Secretary of State, when successful in defending his decision, will normally be
entitled to the whole of his costs. He should not be required to share his
award of costs by apportionment, whether by agreement with other parties, or by
further order of the court. In so far as the Court of Appeal in the Wychavon
District Council case may have encouraged or sanctioned such a course, I
would respectfully disagree.
(2) The
developer will not normally be entitled to his costs unless he can show that
there was likely to be a separate issue on which he was entitled to be heard,
that is to say an issue not covered by counsel for the Secretary of State; or
unless he has an interest which requires separate representation. The mere fact
that he is the developer will not of itself justify a second set of costs in
every case.
(3) A second
set of costs is more likely to be awarded at first instance, than in the Court
of Appeal or House of Lords, by which time the issues should have crystallised
and the extent to which there are indeed separate interests should have been
clarified.
(4) An award
of a third set of costs will rarely be justified, even if there are in theory
three or more separate interests.
On the facts
of the present case, the Secretary of State is clearly entitled to the whole of
his costs. The only question is whether Manchester Ship Canal Co should also
receive their costs. In my opinion they should. I accept that the issues were
all capable of being covered by counsel for the Secretary of State. But the
case has a number of special features.
First, the
case raised difficult questions of principle arising out of the change of
government policy towards out-of-town shopping centres between the date of
application and the final decision. The Secretary of State was concerned not
only to support his decision, but also to explain and defend his wider policy.
If the appeal had gone the other way, the case would in all likelihood have
gone back to him for redetermination de novo. To that extent he had to
remain aloof from the parties. On the other hand, the developers were concerned
only with the outcome of this particular appeal. They were entitled to take the
view that on the facts of this case they had a sufficiently independent
interest requiring protection so as to justify separate representation.
Second, the
scale of the development, and the importance of the outcome for the developers,
were both of exceptional size and weight.
Third, this
was an unusual case in the sense that the opposition came, not from the local
authority, but from eight neighbouring authorities supported financially by a
consortium of major commercial interests.
For these
reasons, I consider that the developers, Manchester Ship Canal Co, are in this
case entitled to their costs in this House and below. This is in accordance
with the order made by Schiemann J at first instance, after hearing full
representations on the point. No distinction need be drawn in this case between
the costs at first instance and the costs in the Court of Appeal and the House
of Lords.
Miss Hamilton
pointed out that the case was also one of great importance for Trafford Park
Development Corporation. No doubt she is right. But the interests of the
developers, and development corporation, were to all intents and purposes
identical. The House is grateful for her further written submissions. But a
third set of costs would not be justified, save to the extent allowed by
Schiemann J.
LORD STEYN: My lords, for the reasons given in the speech of my noble and
learned friend, Lord Lloyd of Berwick, I too would grant the order as to costs
in this House and below.
