Town and Country Planning Act 1971–Local authority challenge decision of inspector who allowed appeal from refusal of planning permission to trustees of private school–Proposals to develop unused part of playing fields by building houses and flats–Whether inspector in error in taking account of finance needed to restore and preserve the school, a listed building in a conservation area–Planning benefit likely to accrue from money derived from development–Inspector entitled to take account of these considerations–Other criticisms based on alleged lack of evidence and disregard of development plan also rejected–Inspector’s decision upheld
This was an
application by Brighton Borough Council to quash the decision of an inspector
appointed by the Secretary of State to determine an appeal by the trustees of
St Aubyn’s, a private preparatory school in Rottingdean, against the council’s
refusal of planning permission for the development of an unused part of the
school’s playing fields. The inspector had allowed the appeal.
R Seabrook
(instructed by Sharpe, Pritchard & Co) appeared on behalf of the applicant
council; C Fay (instructed by the Treasury Solicitor) represented the first
respondent, the Secretary of State; D Keene (instructed by Malcolm, Wilson
& Cobby, of Worthing) represented the second respondents, St Aubyn’s School
Trust Ltd.
Giving
judgment, SIR DOUGLAS FRANK QC said: St Aubyn’s is a private preparatory school
at Rottingdean, which is within the area of the applicant borough council. The
school building is in a conservation area and is a grade II listed building.
Adjoining it are the school playing fields, which are not in the conservation
area; the southern part of these are unused and that is the part farthest from
the conservation area.
On November 22
1976 the school trustees applied for planning permission to develop the unused
playing fields area, which I shall now call the appeal site, by building houses
and flats on it. On February 1 1977 the borough council refused permission and
they did so on three grounds. The first ground was that the development would
be contrary to the development plan. The second one was on amenity grounds,
with particular regard to visual amenity and on the ground that the development
would detract from the character and identity of the village. The third ground
was that the development would constitute over-development or would be out of
character. The trustees appealed against that refusal and the Secretary of
State appointed one of his inspectors to hold a public inquiry and delegated to
him the duty of deciding the appeal. The inspector whose concern it was was G
Borough-Copley OBE BSc(Eng) FICE. I mention his qualification because it is not
altogether irrelevant.
The appeal was
heard on July 12, 13 and 14 1977 and apart from the trust and the borough
council at the inquiry there also appeared the local preservation society and
two housing associations, each of which said they would like a part of the
appeal site for development of houses for old people. On August 30 the
inspector made his decision and he allowed the appeal. In the second paragraph
of his report he said:
From my
inspection of the site and the surroundings and from the evidence given at the
inquiry, I am of the opinion that the determining issues are firstly, whether
the visual and physical importance of the appeal site as opposed to the playing
fields in relation to the various parts of Rottingdean is such that it should
remain undisturbed; and secondly consideration of other special factors.
He then went
on to deal in some detail with the first issue. He concluded that the appeal
site, as distinct from the playing fields, was not of such visual and physical
importance that development should be excluded. Nothing really turns on that
finding, but it is to be noted in passing that that was the first issue and I
think it was really the main ground upon which the development was disapproved of
by the borough council.
Then he turned
to the special factors of which he said there were four, the first of which was
the upkeep of the school buildings and playing fields; he referred to a
structural survey and requirements made by the fire department and stated that
action was being urged by the Ministry of Education. He then said: ‘. . . the
most cursory inspection indicates the magnitude of the works required on
maintenance and refurbishment.’ I
observe in passing that in coming to that conclusion the inspector not only had
evidence of a surveyor’s report and other evidence to which I shall refer later
but he was able to assess that evidence on his inspection for which he was
qualified by virtue of his professional experience and qualifications. He then
stated:
In the
ordinary way finance would not be a planning consideration. However, in this
particular instance because of the importance and prominence of the school
buildings within the conservation area and so that the school can continue to
be successful such that its presence, which does much for Rotting-dean, can be
assured, it is proper to take account of the advice given to your clients so as
to ensure continuity.
The first two
grounds of the appeal to this court are concerned with that part of the
inspector’s decision. It is said, in short, that the inspector was wrong in law
in taking into account the financial state of the trust and the cost of works
to be carried out or which ought to be carried out to the school. Mr Seabrook
said that the inspector was only entitled to take into account planning
considerations, which considerations must relate to the use of land and that
there was no place for consideration of the applicant’s resources. He said that
what the applicant proposed to do with the proceeds of the development was not
relevant; that had nothing to do with the use of the land under consideration
and there was no obligation to use the money for particular purposes.
Now, as a
generality, it may be true that financial considerations are not relevant to
planning. Thus, it is not for the Secretary of State to consider whether or not
it would be economic for the applicant to carry out the development. That I
think is what is ordinarily meant by planning considerations and that was what
was under consideration in the case of J Murphy & Sons Ltd v Secretary
of State for the Environment [1973] 1 WLR 560. I think that it is that sort
of consideration which was in the mind of Ackner J in another case and broadly
to what Forbes J was referring in Sovmots Ltd v Secretary of State
for the Environment [1977] QB 414. However, both Forbes J and Ackner J, I
think, made it clear that they had no intention of saying that financial
considerations can never be relevant, and indeed in a more recent case, Niarchos
(London) Ltd v Secretary of State for the Environment
(1977) 76 LGR 480, I held that the Secretary of State was wrong on the facts of
that case in not taking into account the financial consequences of his
decision. An analysis of the Niarchos case shows that what the planning
authorities tried to do was to coerce the landowner into converting his
premises from offices to residential use and accordingly permission for office
use to continue was refused. The planning authority and the Secretary of State
decided that they were not bound to take into account the economic aspects of
the conversion into houses and I held that that was wrong.
The instant
case seems to be in parallel in so far as the inspector was saying that, in
deciding whether to grant planning permission, he should take into account the
financial implications of works required for planning purposes, namely the
refurbishment, the restoration, fireproofing and the various works which were
necessary to the grade II listed buildings in a conservation area. Now it is
clear that the restoration and maintenance of that building was a planning
matter and an important planning matter having regard to its listing, situation
and its prominence in the conservation area. Once that situation has come about
it seems to me that the Secretary of State is entitled–and that is all I have
to decide–to take into account the possibility that by granting permission
there will thereby result a planning benefit in the maintenance and
refurbishment of an important listed building. Under the circumstances,
therefore, I hold that the inspector did not wrongly take into account the
financial state of the trust and the cost of the maintenance, refurbishment and
upkeep of the structure of the scheme.
I now turn to
the next ground of challenge: it was that there was no evidence before the
inspector from which he could properly or reasonably infer or find, as he
implicitly found, that the existence of the school would be prejudiced were he
to dismiss the appeal. It is right to bear in mind that the rules of evidence
do not apply to planning inquiries. What the inspector seems largely to have
relied upon is the evidence which had been given by the chairman of the trust
that he had been advised informally by an architect that the cost of all the
necessary work would be in the order of £100,000. But he also said:
If these
proposals are approved we should be able to provide sufficient capital to bring
the school up to date and so safeguard its future in Rottingdean. Only thus can
we ensure the preservation of the major part of our property as open space
playing fields. If our proposals are rejected we can see no way of raising the
capital essential to the future of the school in Rotting-dean, and a major
doubt must be cast over its continuance on its present site.
Neither the
borough council nor any other party at the inquiry led as to the work necessary
to the building or to the cost of it. I therefore decide this point on the very
short ground that the inspector was entitled, if not bound, to accept such
evidence as there was before him, however tenuous it may have been, and the
fact that it would be inadmissible in an ordinary court is irrelevant. Hence
ground two fails.
The third
ground was that there was no evidence from which the inspector could infer that
there was appreciable support from two local housing associations who wanted to
develop the appeal site. The fact is that there was evidence given by two
housing associations, and one of them produced an architect’s plan as a feasibility
study for the provision of houses for old people. Although they did not show
housing on the whole site, and indeed a large part of the site is shown as
possible public gardens, I understand that it would not be right or feasible to
put buildings on other parts of the site. Be that as it may, there was very
appreciable support from two housing associations who want to develop the site,
and adequate evidence before the inspector to support these findings. Whether
they want to develop the whole or not is of no significance, because the
inspector did not say that they wanted to develop the whole, although, as I
understand the evidence, I think that certainly one of them would like to do
so.
Now I turn to
the last ground of challenge to the decision, which is that the inspector
failed to have regard to the provisions of the development plan, which shows
the land allocated as an independent school. Mr Seabrook readily acknowledged
that this was not his best point; indeed I
whether the site should remain for the purposes and use shown in the
development plan, that is as an independent school. The inspector was necessarily
having regard to the development plan position. Under all those circumstances
this application must be dismissed.
The
application was dismissed, the applicant council to pay the costs of both
respondents.
