Camden seeks to quash Secretary of State’s decision granting permission for development of EMI Ltd’s Tottenham Court Road site–Secretary of State admits to having taken into consideration new issues of fact without reopening inquiry–Willis J nevertheless refuses to find that the matters concerned were in truth ‘new issues of fact’–Even if they had been, no substantial prejudice could have been found–Council’s application dismissed
This was an
application under section 245 of the Town and Country Planning Act 1971 by the
London Borough of Camden to quash a decision of the first respondent, the
Secretary of State for the Environment, dated September 4 1974, allowing
appeals by the second and third respondents, EMI Ltd and EMI Cinema Properties
Ltd, against the deemed refusal of the applicants to grant outline permission
for development of an area of land near Tottenham Court Road, London W1.
Mr D M
Trustram Eve QC and Mr K Schiemann (instructed by the town clerk) appeared for
the applicants; Mr H K Woolf and Mr G Chambers (instructed by the Treasury
Solicitor) for the first respondent; and Mr G Eyre QC and Mr M H Spence
(instructed by Denton, Hall & Burgin) for the second and third respondents.
Giving
judgment, WILLIS J said that the validity of the Secretary of State’s decision
allowing the appeals was questioned on two grounds, (1) that it was not within
the powers of the Act, and (2) that the relevant requirements had not been
complied with in relation to it. Under (2), the applicants asserted that the
Secretary of State not only took into consideration new issues of fact which
were not raised at the public inquiry, but also differed from his inspector on
a finding of fact by reason whereof he was disposed to disagree with the
inspector’s recommendation, and should therefore have given Camden an
opportunity of making representations in writing and of asking for the
reopening of the inquiry. His failure to take either course before coming to a
decision to allow the appeals was said to constitute a breach of rule 12 of the
Town and Country Planning (Inquiries Procedure) Rules 1974, and thereby to have
occasioned substantial prejudice to Camden’s interests.
The case
concerned a site of about 3 1/2 acres on the western side of Tottenham Court
Road. Forming the greater part of the Gort Estate, it was acquired by EMI under
long lease in 1971 to provide them with a suitable location for centralising
their offices, at present scattered over 21 different sites in London. In
September 1970 EMI obtained an office development permit and an industrial
development certificate, and in 1971 they submitted proposals for the
redevelopment of the site to Camden as the local planning authority. The
application was refused, and an appeal was dismissed by the Secretary of State,
following a public inquiry, despite a recommendation by the inspector that it
should be allowed. It appeared from the decision letter, dated January 15 1973,
that the Secretary of State, while accepting EMI’s special need for a
centralised location and the general need for redevelopment of the site,
considered the office content of the scheme too high, but gave some
encouragement to the submission of an amended scheme containing a higher
residential content. EMI made further application in outline for a
comprehensive redevelopment of the site to provide for a centralised location,
reducing the amount of office floor-space to be provided. Camden failed to deal
with the application within the statutory time limit, and the company thereupon
appealed on July 27 1973 against the deemed refusal. The appeal came before an
inspector in March 1974, and he made a report to the Secretary of State on
April 19 1974 in which he recommended that the appeal be dismissed and
permission refused. In his decision letter of September 4 1974, however, the
Secretary of State allowed the appeal. The letter quoted the inspector’s
conclusions, as follows:
In my view,
the present proposals, while increasing the amount of residential floor-space
proposed and reducing the amount of office floor-space, are not sufficiently
different from the previous proposals to be considered an acceptable
alternative scheme, as the amount of office accommodation proposed is still
substantially higher than that existing on the site and does not accord with
the office restriction policy of the initial development plan.
While it has
been established that the appellants [EMI] have established a need to assemble
their offices into one central London location, they have already been able to
reduce their central office requirements in respect of five of their units,
which would remain in their present premises, and it seems to me that, having
regard to this reduction, it may be possible for some parts or other activities
of the company also to remain in their existing locations, particularly as the
requirements of the company may change from time to time.
With the
electronic expertise at the appellants’ disposal it should be possible for
decision-making executives to be linked without the need to accommodate them in
what would be, even in central London, a very substantial office complex, and
on this basis some dispersal of offices within the central London area should
be feasible.
I consider
that the suggested planning advantages would be well outweighed by the
disadvantages accruing from the proposed development. Tottenham Court Road
underground station does not in my view offer significant facilities for
passenger interchange. It is self-evident from an inspection of that station
and the neighbouring roads during the morning and evening rush hours that
congestion does exist even though there may be spare capacity at other times of
the day. Further office development, even with flexible working hours, would, I
feel, only increase congestion.
The scale and
monolithic nature of the proposed development would cause the loss of existing
buildings and uses that help to maintain the domestic character of a part of
London which is largely undisturbed by large-scale development and concealed by
the commercial facades and the buildings in Oxford Street and Tottenham Court
Road, and I do not feel that the planning advantages to be gained are such as
to justify favourable consideration being given to the proposals as an
exception to established office policy.
The Secretary
of State said that there was no disagreement with the inspector on any question
of fact, but that his views on the planning merits were not entirely endorsed.
The letter continued:
In
particular, it is considered that the present scheme goes far towards meeting
the Secretary of State’s main criticism of the earlier proposal by making a
substantial reduction in office space and a corresponding increase in
residential content–a change which is thought to alter the balance of planning
advantage to a very considerable extent.
The inspector
suggests that there may be still further scope for leaving parts of the
company’s activities in their existing locations and thus for making do with
less office space at company headquarters; but against this must be set the
evidence given on behalf of the company that it is essential for four main
elements of the organisation to be grouped together in one building and that
the irreducible minimum floor-space requirement is 230,000 sq ft if a suitable
headquarters control complex is to be achieved and run efficiently as an
important international business. On the whole, it does not seem to the
Secretary of State that it would be reasonable to reject that evidence on the
somewhat conjectural basis of the inspector’s comments. It is noted that while
the inspector feels that further office development in the area would only
increase congestion, the GLC as highway authority consider the proposal
acceptable in respect of traffic generation, and London Transport do not expect
major congestion at Tottenham Court Road underground station.
The inspector
also sees it as unfortunate that the scale and
maintain the domestic character of the area; and he remarks that the proposal
does not in his opinion provide sufficient amenity areas for enjoyment by
office workers as well as residents. This point of view, which reflects to a
considerable extent contentions put forward by the Camden Council and by a
number of third parties, has much to be said for it and has been given very
careful thought. But while ideally an alternative scheme on the lines envisaged
by the inspector could prove a good solution to the redevelopment problem posed
by this area, on the face of it such a scheme might be a financially onerous
proposition, might well mean a reduction in residential floor-space and would
not meet the company’s own minimum requirements. It is therefore thought that,
in practice, to insist upon such a scheme could delay redevelopment of the site
indefinitely as well as frustrating the company’s efforts to achieve full
efficiency and to hold their own against foreign competitors.
After
weighing all the arguments for and against the present proposal, the conclusion
has been formed that there is sufficient justification in this instance for
making an exception to general policy on office growth in the central area of
London.
Not only was
the appeal an important one from the point of view of the company, Camden and
the interested parties, but it had the unusual feature of the Secretary of
State by his counsel, Mr Woolf, inviting the court to quash his decision on the
ground that he took into consideration new issues of fact, an invitation
largely based upon a concession made by him in correspondence prior to the
hearing. The site with which the appeal was concerned comprised a great many
existing buildings and a number of roads, and was plainly a site of the
greatest importance for that part of the west end of London in the context of
any redevelopment. The first matter which arose was whether, despite his
stating that there was no disagreement with the inspector on any question of
fact, the Secretary of State had differed from a fact found by the inspector.
There might well be fine distinctions and nicely-balanced argument between
findings of fact and expressions of opinion, or, as they were sometimes
referred to in the cases, ‘planning judgments.’
But before the court was asked to decide whether a passage in a report
fairly represented a finding of fact, the passage must be identified and
examined in its context. The ‘finding of fact’ identified by the notice of
motion was the passage beginning ‘With the electronic expertise at the
appellants’ disposal.’ This did not
strike him (his Lordship) at first blush as a finding of fact. However, Mr Eve
sought to link this passage with the sentence to the effect that it might be
possible in the inspector’s view for certain activities of the company to
remain in their existing locations, in order to submit that the inspector did
not accept the company’s claim that their ‘minimum irreducible need for office
space’ was 230,000 sq ft, and had thus inferentially found against their claim
as a fact. He (Willis J) thought that the true view was that the inspector felt
in one way or another that it might be found possible to reduce the floor-space
proposals, and so impliedly he did not accept the company’s claim that 230,000
sq ft was their irreducible office need. His reasoning could not be put any
higher than expressions of his opinion, if indeed the more appropriate
description would not be speculation. Whatever description it was proper to
apply to the words in the report relied on by Mr Eve, he (his Lordshop) had the
strong impression that they could not be described as a ‘finding of fact.’ If that were right, the Secretary of State
was entitled to disagree with any view expressed in the inspector’s conclusions
which ran counter to his finding as to the company’s irreducible minimum of
office space, and in doing so he was not in breach of rule 12.
The next
matter was the contention that the Secretary of State took into account two
‘issues of fact’ which had not been raised at the inquiry and by reason of
which he was disposed to reject his inspector’s recommendation. Mr Eve accepted
that in order to succeed, he must show (1) that issues of fact which were not
raised at the inquiry were taken into account by the Secretary of State, (2)
that by reason of the Secretary of State’s consideration of those issues he
felt disposed to reject the inspector’s recommendation, and (3) that Camden had
been substantially prejudiced by his failure to observe the rules, ie to afford
them an opportunity to have the inquiry reopened. Counsel naturally derived
support for his contentions from the concessions made by the Secretary of State
in correspondence; further, the Secretary of State’s invitation to the court,
through Mr Woolf, to recognise his error and quash his decision in order that
Camden might ask for the inquiry to be reopened for discussion of the two
alleged new issues of fact, acknowledged inferentially, said Mr Eve, that the
Secretary of State accepted that his failure to observe rule 12 had occasioned
Camden substantial prejudice. Both Mr Woolf and Mr Eve had been at pains to
make clear that whatever might be the proper inferences to be drawn from the
decision letter and the form of the concession, it was for the court to decide
upon the three matters referred to above. He (his Lordship) nevertheless
thought that while he was clearly not bound by any view of the Secretary of
State implicit in the concession as regarded the questions whether the matters
relied on were issues of fact not previously raised and whether, if it became
relevant, Camden had suffered substantial prejudice, his consideration of the
questions whether the Secretary of State took these matters into account, and
whether by reason thereof he was disposed to differ from the inspector’s
recommendation, had in effect been pre-empted by the concession.
Mr Woolf
accepted that these questions were normally to be answered by the court upon a
consideration of the decision letter, but he said that in very exceptional
circumstances the answer might be found elsewhere. Of course, no one knew
better than the Secretary of State what he took into account and the reasons
why he was disposed to differ from his inspector, but in the ordinary way it
seemed to him (his Lordship) very desirable that those matters should be made
clear in the decision letter itself. Here he did not think they had been, and
but for the concession as to what affected the Secretary of State’s mind, he
would have found it very difficult to infer from the contents of the decision
letter that the matters complained of by Mr Eve could have disposed the
Secretary of State to differ from the inspector’s recommendation, so peripheral
to the basic issues in the appeal did they seem to him to be. Nevertheless in
the circumstances of this case it had been thought right to make the
concession, no doubt for reasons which seemed good, and so he passed to the
first and critical question, whether there was any new ‘issue of fact’ which
was taken into consideration. It was said that the Secretary of State, after
considering what was described as an ‘alternative scheme’ put forward by the
inspector, rejected it for three reasons, namely (1) that such a scheme might
be financially onerous; (2) that it would not meet the company’s minimum
requirements, and thus would frustrate their efforts to achieve full
efficiency; and (3) that in practice, to insist upon such a scheme could delay
redevelopment of the site indefinitely. Mr Eve submitted that the references to
possible financial onus and indefinite delay were issues of fact which were not
raised at the inquiry, and that if they had been Camden would have wanted
either to cross-examine, or to lead evidence, or both, in an endeavour to meet
these issues. Camden would be substantially prejudiced, he submitted, unless
they were given the chance at a reopened inquiry to take the course which they
would have taken had the matters arisen at the inquiry.
There was no
doubt that these two matters did not arise in specific form at the inquiry, for
the good reason that no one was propounding an alternative scheme. The
opposition of Camden, as it had always been, was root and branch, and it only
became necessary, in his (Willis J’s) view, for the Secretary of State to refer
to anything other than the subject-
a reference to a number of plans drawn to illustrate how the site could be
developed, put forward what he considered to be the desideratum of a ‘less
ambitious scheme,’ having always expressed his clear view that EMI’s proposals
were not acceptable. Having commented on the inspector’s suggestions, or
‘alternative scheme,’ in the way he did, had the Secretary of State introduced
and taken account of new ‘issues of fact’?
Mr Eve suggested that an ‘issue of fact’ could be described as a
‘factual topic,’ and that the possibility of financial burden and indefinite
delay were ‘issues of fact’ within the contemplation of rule 12. He (his Lordship)
thought that whether something could sensibly and fairly be said to be an
‘issue of fact’ was very much a matter of impression to be gained not only from
the words used but from the whole context of the document in which they
appeared. It seemed to him that the basic issue was conclusively decided in the
company’s favour, and it would have been quite sufficient for the Secretary of
State, as a matter of courtesy, to have done no more than take note of the
inspector’s ideas and to say that, although they had much to commend them they
were, in the event that he accepted the company’s minimum need, not practical.
To add that they might involve a financial burden and could cause an indefinite
delay to a much-needed redevelopment was really nothing to the point. It was,
in the circumstances of this case, palpably obvious, as he (his Lordship) saw
matters, that if one put the whole application back into the melting-pot in the
hope of achieving the provision of amenity areas (which did not seem to have
been canvassed by anyone save the inspector in his report), of enabling mixed
uses to be retained or provided, and of securing a reduction of office
floor-space, as suggested by the inspector, financial burden and indefinite
delay in redevelopment would inevitably follow. That these results might
follow–and that was as high as the Secretary of State put it–must have been
even more obvious. Whether he (Willis J) looked at the decision letter in
detail or considered it broadly, he found it impossible to say on a proper
construction of the document that the references to the possibility of
financial burden and indefinite delay introduced new issues of fact.
He should add
that if he had been persuaded by Mr Eve that new issues of fact had been
introduced, and had had to accept by reason of the concession that the
Secretary of State had taken these issues into account and had by reason of
them felt disposed to disagree with the recommendation, he would not have held
that Camden had suffered substantial prejudice. Camden’s potential position in
relation to a possible new inquiry must be looked at realistically. Leaving
aside the Secretary of State’s observations on the ‘alternative scheme,’ which
was not advanced by Camden, it seemed to him (his Lordship) inconceivable that
the result would be any different once the Secretary of State had decided the
basic issue in the company’s favour and accepted their minimum claim. If the
inquiry were to be reopened Camden would have no reasonable chance of securing
the development of the site to their liking, and were not substantially
prejudiced by the Secretary of State’s failure to give them the opportunity of
asking for it.
To support a
contention that the Secretary of State had acted ultra vires, Mr Eve now
sought to rely on Mr Eyre’s description of the Secretary of State’s reference
to financial onus as conjectural, and submitted that he had taken this matter
into account by guesswork, whereas he should only have taken it into account if
he had first considered if it was right. He (Willis J) was quite unable to
accept this submission. Guesswork, albeit perhaps inspired, must be involved in
many planning judgments and expressions of opinion, and he could not accept
that the Secretary of State did not first consider whether he was right in
thinking that to embark on an alternative scheme might impose a financial
burden. The applicants had established no ground on which they were entitled to
succeed. Accordingly the application must be dismissed, and EMI’s costs would
be paid equally by the Secretary of State and the council.
