Town and Country Planning Act 1971 — Appeal against dismissal of appellants’ application to quash, under section 245 of the Act, a decision of the Secretary of State — An application by the appellants for planning permission to construct a large shopping centre on a 109-acre site some 3 1/2 miles south-west of the centre of Leicester was refused by local planning authority in August 1981 — Appellants’ proposal was said to be contrary to the shopping policies of the Leicestershire structure plan, it being considered that the proposed new centre would divert trade from Leicester city centre and other centres — Appellants appealed to Secretary of State and a public inquiry was held — Inspector, in a report dated April 30 1982, recommended that planning permission should be given — Secretary of State disagreed on the ground that the proposed centre would be incompatible with the policies of the structure plan — The decision dismissing the appeal was given in a letter from the Secretary of State dated October 10 1985 — In the interval of nearly 3 1/2 years between the inspector’s report and the decision letter giving rise to these proceedings there had been an ‘unhappy history of delay and ineptitude’, including the quashing by consent of an earlier decision letter in 1983 and the quashing of two notices of the Secretary of State’s intention to reopen the inquiry — Appellants now submitted that the present decision letter should be quashed on two grounds — The first was on the basis of the Wednesbury principle that no Secretary of State, properly directing himself, could have reached the decision to dismiss on the evidence before him — The second was that the Secretary of State had not given clear and adequate reasons for his decision as required by rule 13 of the Town and Country Planning (Inquiries Procedure) Rules 1974 — Both submissions were rejected by the Court of Appeal — There was ample evidence on which the Secretary of State could come to his decision and on a matter of planning judgment he was entitled to disagree with the inspector — If, as had been suggested, the Secretary of State had changed his mind between the first (quashed) decision letter and the second, it was open to him to do so — As to reasons, it was not necessary for him to explain whether, and if so why, he had changed his mind; and the reasons for dismissing the appeal, although briefly expressed, were sufficient — Appeal from decision of Kennedy J dismissed
The following cases are referred to in this report.
Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320; [1965] 3 All ER 371; [1965] EGD 216; (1965) 195 EG 205, CA
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680, CA
Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 WLR 433; [1971] 1 All ER 1049; (1971) 22 P&CR 417; [1971] EGD 427; 218 EG 1163, CA
Edwin H Bradley & Sons Ltd v Secretary of State for the Environment [1982] EGD 1280; (1982) 264 EG 926, [1982] 2 EGLR 168
Hope v Secretary of State for the Environment (1975) 31 P&CR 120; (1975) 240 EG 627, [1976] 2 EGLR 147
J Sainsbury Ltd v Secretary of State for the Environment and Colchester Borough Council (1978) JPL 378
Re Poyser and Mills’ Arbitration [1964] 2 QB 467; [1963] 2 WLR 1309; [1963] 1 All ER 612
Rogelan Building Group Ltd v Secretary of State for the Environment (1981) JPL 506
Seddon Properties Ltd v Secretary of State for the Environment (1978) 42 P&CR 26; (1978) 248 EG 950, [1978] 2 EGLR 148
Westminster City Council v Great Portland Estates plc [1985] AC 661; [1984] 3 WLR 1035; [1984] 3 All ER 744; (1984) 49 P&CR 34, CA
This was an appeal by Centre 21 Ltd (formerly Penwise Properties (Wakefield) Ltd) from a decision of Kennedy J dismissing an application, under section 245 of the Town and Country Planning Act 1971, to quash a decision of the Secretary of State for the Environment. The Secretary of State had dismissed an appeal by the appellants from the refusal of the local planning authority, Blaby District Council, to grant permission for the proposed shopping centre adjoining the eastern side of the M1 motorway, close to junction 21.
A T Smith QC and John Randall (instructed by Lovell Son & Pitfield, agents for Bray & Bray, of Leicester) appeared on behalf of the appellants; Robert Carnwath QC and C Katkowski (instructed by the Treasury Solicitor) represented the respondent Secretary of State, and also (instructed by the chief executive, Blaby District Council) represented the respondent council.
Giving the first judgment at the invitation of Slade LJ, GLIDEWELL LJ said: The appellants wish to construct a large shopping centre on a site of 109 acres in extent, adjoining the eastern side of the M1 motorway, close to junction 21 (hence the company’s name). The site is some 3 1/2 miles south-west of the centre of Leicester. It has easy access to the M1 and also to the M69 motorway by a link road, the A46.
On May 15 1981 the appellants applied for planning permission to the second respondents, Blaby District Council. On August 4 1981 they received a notice of refusal, and I comment that whoever is responsible for the delay in this matter, it is not the district council.
The first ground of refusal was:
The proposal is contrary to the shopping policies of the approved Leicestershire Structure Plan.
There were other grounds, which related to loss of agricultural land; the desire of the planning authority to retain the area, including the site, as an open wedge between two communities; alleged inadequacy of the road network; alleged inadequacy of drains and sewers; the presence of a gas main beneath the site and nearness to a proposed crematorium.
The appellants appealed to the Secretary of State for the Environment. There was a public inquiry held in January and February 1982 before Mr Woodford as an inspector, assisted by an assessor expert in shopping matters, a Mr Fox. Both were very experienced in their fields.
On April 30 1982 the inspector reported to the Secretary of State. He reported in the appellants’ favour on all the grounds of refusal. On all of them, except the conflict with the shopping policies in the structure plan, the Secretary of State has accepted the inspector’s recommendation and no issue therefore arises in relation to any of those other matters. However, in relation to the first ground of refusal the Secretary of State disagreed with his inspector. In a decision letter dated October 10 1985 he concluded that the impact of the proposed centre would be incompatible with one of the policies in the structure plan and he therefore dismissed the appeal.
The appellants applied under section 245 of the Town and Country Planning Act 1971 to quash the Secretary of State’s decision. On February 14 1986 Kennedy J dismissed that application, and the appellants now appeal against that decision.
That formal recital of the processes which have led to this court makes no reference to the history of events between the dates of the inspector’s report and the Secretary of State’s decision letter, a period of almost three and a half years. That history unfortunately includes a number of errors by those advising, or acting for, the|page:197| Secretary of State, and I therefore turn to that history.
It is clear from the inspector’s report that consideration of the proposal in relation to the policies for shopping in the structure plan was the major issue at the inquiry. The appellants’ case was that what they intended to construct was an unusual, if not unique, type of shopping centre. Ninety per cent of its total trade was intended to be in durable goods, and it was also intended that they should be sold by retailers dealing in goods of high quality, described in the modern phraseology as ‘up-market’. An expert witness on shopping development called on behalf of the appellants estimated that the centre would draw its trade from a very wide area, from both the East and the West Midlands, including not merely the area around Leicester, but Birmingham, Derby, Nottingham and Northampton. For that reason he (at least, I think it was he) described the proposed centre as being ‘supra-regional’. As a result, he said, although a shopping centre so close to Leicester city centre might normally be expected to attract mostly trade which would otherwise go to that centre, he estimated that by 1991 something less than one-fifth of Centre 21’s trade would come from that source. This diversion of trade he calculated as being 10.6% of the likely trade in durable goods in Leicester city centre at 1991.
Neither Blaby District Council, the planning authority, nor Leicester City Council, who appeared as objectors, called a witness expert in shopping development. They attempted to challenge the evidence of the appellants’ expert and suggested that the diversion might be greater than he estimated.
The basic case for the planning authority is set out conveniently in the inspector’s report at para 166 in the following words:
Whether the trading impact of Centre 21 upon the city centre would be of the order of 10 to 11% as the appellants’ witness estimates, or of the order of 15 to 19%, is not a matter which could be decisive in determining the appeal. It would be wrong to permit any new shopping centre which would have any degree of adverse impact upon the city centre.
Leicester City Council echoed that. They are reported at para 191 as saying:
On the basis of the experience of the council’s officers rather than on that of any statistical exercise which must be open to a margin of error, it appears likely that the establishment of the proposed regional shopping centre within 3 1/2 miles of the city centre, would have very harmful effects upon investment in the city centre, even if the resulting trade diversion proved to be nor more than that estimated by the appellants’ experts.
The policies for shopping in the approved Leicestershire structure plan written statement are contained in chapter 10 of that document. That chapter contains policies and explanatory material relating to Leicester city centre (paras 10.12 to 10.17 inclusive) and also separate policies and material relating to district centres, suburban centres, local centres and village shops. Finally there is a section in paras 10.31 and 10.32, dealing with ‘out of town shopping centres’. Para 10.32 defines the phrase ‘out of town shopping centres’ in terms which, strictly, exclude the Centre 21 proposal, because the definition includes both durable and what are called ‘convenience’ goods. But the inspector apparently considered, and the Secretary of State has followed him and it is generally accepted, that the policy set out in para 10.31 should be taken into account.
There are thus two policies in the plan which are relevant. Para 10.31, after amendment by the Secretary of State and as approved, reads:
Applications for out-of-town shopping centres will be considered on their merits. Factors to be taken into account are the general shopping policies of the plan and whether there would be any detriment to existing shopping centres, or to the environment, and the likely effect on traffic flows, accessibility to public transport and parking facilities.
An earlier paragraph, para 10.13, reads:
It is the policy of the county council that the city centre should continue to provide facilities for the subregion, and they will seek to sustain and increase its importance with regard to durable goods shopping.
Proposals for growth in shopping floorspace elsewhere in the county and city generally should be considered in the light of the effect they would have upon the potential of the city centre to fulfil this primary role.
To go back to the inspector’s report, the case for the planning authority in relation to that is set out in para 163 in the following words:
The threat of competition from Centre 21 could suppress the investment necessary to improve efficiency and make provision for new shopping floor space in the city centre, with the result that shoppers in the centre would be subjected to crowded conditions.
In para 222 of his report the inspector, in customary form, made a number of findings of fact. They include the following, at subpara 15:
The proposal envisages:– . . .
(b) that for its commercial success, the centre must function as a supra-regional, durable goods shopping centre with an emphasis on quality, fashion and range of goods, and an international tenant mix, whereby it would extend and complement the present hierachy of shopping facilities in the Midlands.
And, in subpara (h):
That the centre would have the following trading impacts upon durable sales in existing shopping centres in 1991:–
(i) Leicester central shopping area – 10.6%.
This subpara continues with other towns, which I need not read.
I note that the inspector did not make a finding in terms that the centre would have that impact; his finding related to what the proposal envisaged.
The inspector followed his findings of fact with conclusions. In para 224, in the last sentence of that para, he said:
Since, on the appellants’ own evidence, the proposal would draw trade from Leicester city and other centres, on a superficial view the proposal would conflict with those policies
that is to say, those to which I have referred in the structure plan
if they are taken to imply that the importance of Leicester’s central shopping area cannot be sustained and increased and other centres cannot be sustained, unless they are protected from any degree of outside competition.
In para 226 the inspector said:
I take the modification of para 10.31 of the structure plan to imply fundamentally, that the decision whether or not a proposal for an out-of-town shopping centre is acceptable, must depend upon whether it would be seriously harmful to existing shopping centres, the environment, or traffic conditions, and that if it is not likely to be damaging to these or other primary planning interests, it is not unacceptable by reason of structure plan policies.
At para 235 he said:
I accept the appellants’ evidence to the effect that it would be both possible and necessary for the commercial success of the enterprise, that Centre 21 should function primarily as an ‘up market’ durable goods centre, and in its position in relation to the motorway and major road network, I consider that a centre of the kind envisaged would be likely to bring welcome benefits to the shopping public of the Midlands, with the convenience of generous free parking space, long opening hours, a wide range of goods, and a comfortable controlled shopping environment.
The last phrase of para 237, again in his conclusions, is:
. . . it is reasonable to accept the appellants’ estimates of origin by time-band for durable expenditure at the proposed centre in 1991, at 1971 prices.
That may or may not have comprehended a finding that the 10.6% diversion was a reasonable estimate; certainly that is what Mr Smith suggested.
Then, in para 240, the inspector summarised the advice he had received from the assessor. His summary includes the following:
iv. It is reasonable to expect a degree of improvement in the state of the economy, and with increased spending power, relatively more money is available for luxury and ‘up-market’ goods, so that the impact of Centre 21 would not disproportionately affect central area stores trading at the upper end of the market where there is higher growth potential; it may be that with the development of Centre 21, full growth potential in ‘up-market’ trade in central Leicester would not be realised, but it is unlikely that there would be real loss.
Then:
(viii) Centre 21, although described as a supra-regional shopping centre because it is expected to attract irregular shopping trips from a large catchment area astride the East and West Midlands Regions, would not attain the rank of a sub-regional centre in character or volume of trade; thus it would not rank as high in the shopping hierarchy as Leicester city centre.
That subpara is relevant to a matter to which I shall have to refer later.
At subpara (ix) the assessor said:
Centre 21 would widen the choice of shopping facilities available to the public without harming existing centres.
I propose to read the next two paras of the inspector’s report in full, because they contain his advice to the Secretary of State.
I endorse and adopt the general of these
the assessor’s
|page:198|
comments, with the reservation that, at least in the short term, there must be doubt of the practicability of financing a new department store from the conversion of a multi-storey building to shops with offices above the first floor, because of central Leicester’s current over-supply of office space. The doubts and fears expressed on behalf of the planning authority, the city council and local traders are understandable, but they are not supported with adequately reasoned research to justify a conclusion that the establishment of Centre 21 would have drastic effects upon other shopping centres to the point at which the broad interests of the shopping public would be damaged.
The existing shopping hierarchy is basically the creation of developers and retailers, and it makes a major contribution to the habits and traditions of our society. It should be protected against probable ill-effects of over-provision of shopping space, where it can be shown that this would lead to serious waste or material harm to public service facilities, but it would be inhibitive of economic and social progress to stifle its evolution, where it would not be harmful to community interests. I consider, and the assessor agrees, that Centre 21 would introduce a worthwhile new dimension into the shopping hierarchy, bringing benefits of wider choice and greater convenience and comfort to the shopping public of the Midlands.
For those reasons he recommended that permission should be granted subject to conditions.
Officers of the Department of the Environment considered that report for over a year. A decision letter on behalf of the Secretary of State was issued on May 19 1983, but unfortunately a basic error was built into it. Shopping centres are often classified according to the total amount of shopping floorspace they contain; they are so classified as regional, sub-regional or major district centres. In this classification, for example, the centres at Birmingham and Nottingham are classified as regional centres, whereas Leicester city centre is classified as sub-regional. As the assessor said in para (viii), which I have already read, the amount of floorspace proposed for Centre 21 is less than that appropriate to a sub-regional centre.
The description ‘supra-regional’ merely means drawing trade from more than one region. It has nothing to do with the classification to which I have just referred, but unfortunately the officer who wrote the decision letter seems to have thought that it had. He said, in summary, that if the centre will not even be a sub-regional centre, it cannot possibly be supra-regional, and therefore the basis of the appellants’ ‘shopping model’ — that is, the projections of where trade would come from and of the impact on other centres — was destroyed. He went on to say that the centre’s trade would probably come from a much smaller catchment area than the witness for the appellants had envisaged, and therefore would have a much greater impact upon, because it would draw a much greater proportion of its trade from, Leicester city centre; that would be an unacceptable impact, which would be in conflict with the structure plan policies. The letter therefore purported to refuse planning permission.
On June 28 1983 the appellants applied to the High Court to quash that decision. The Secretary of State recognised the error in the letter and on November 16 of that year, by consent, Mann J quashed the decision and remitted the matter to the Secretary of State for him to decide again.
In 1984, and again early in 1985, the Secretary of State twice gave notice of his intention to reopen the inquiry, and twice his decision to do so was quashed. On the second occasion he intended to reopen the inquiry because he had received from the planning authority a report from chartered surveyors whom they had by then instructed — Drivers Jonas, chartered surveyors also experienced in shopping development — and the report disagreed with the estimate of the appellants’ expert as to the impact on Leicester city centre, and particularly with the 10.6% diversion of trade figure. However, the appellants were able to demonstrate from that report itself that it contained major errors which vitiated its conclusion. On July 30 1985 Nolan J therefore quashed the second decision to reopen the inquiry and directed the Secretary of State to determine the appeal forthwith.
Before Nolan J made his decision two further documents had emerged, upon which Mr Smith, for the appellants, relies. They are, firstly, a letter dated December 20 1984 from the Department of the Environment at Bristol. The second para of that letter reads as follows:
The Secretary of State believes that the decisive element of the case is the likely consequence of your clients’ proposal for central Leicester. The submissions by the local authorities and by the John Lewis Partnership indicate different estimates of the impact of Centre 21 on Leicester city centre from those considered at the original public inquiry. He considers these differences to be of such significance that their respective merits must be examined in detail before he can redetermine this appeal.
Second, there is an affidavit by Miss Rosamund May Whittaker, sworn on April 17 for the purpose of the proceedings before Nolan J. She is, or was then, the regional controller (planning) for the East Midlands region of the Department of the Environment; in that affidavit she deposed, in para 3 onwards, as follows:
The Department accepts that there are some flaws in the submission of evidence from Messrs Drivers Jonas, but even if these are removed the Secretary of State is not satisfied that the conclusion as to impact would necessarily be the same as that presented by the applicants and accepted by the inspector at the inquiry held in 1982.
4. In addition to the submissions from the local authorities the Secretary of State has received new evidence from the John Lewis Partnership drawing on their own recent experience and suggesting that Messrs Drivers Jonas may have considerably underestimated the impact of Centre 21.
5. The Secretary of State considered that having received this new evidence he could not determine the appeal without a proper inquiry to establish the validity or otherwise of the new assessments of impact. He considered that the result of further written representations could well have been inconclusive and have left him with no option but to reopen the inquiry with the opportunity that would give for direct cross-examination. It was in these circumstances that the Secretary of State, mindful of the need to avoid delay, thought it right to reopen the inquiry forthwith for the very restricted purpose of examining impact in the terms set out in the Department’s letter of December 20 1984.
However, as I have said, that decision to reopen the inquiry was quashed by Nolan J, and following his decision the Secretary of State issued the decision which leads to these proceedings, without further correspondence or representations. That was contained in a letter of October 10 1985; the first seven paragraphs of the letter really set the scene and dealt with some of the history; para 8 says:
The Secretary of State accepts all the findings of fact in para 222 of the Inspector’s report.
Para 9 repeats, and sets out, the whole of the inspector’s conclusions, some of which I have already read; that is to say, paras 223 to 243 inclusive in the inspector’s report. The Secretary of State said that he accepted the inspector’s conclusions on all matters, save in relation to the policy with regard to shopping in the structure plan.
In para 12 he says:
The Secretary of State is however concerned whether the proposed development is acceptable in the light of the shopping policies of the county structure plan and whether, on wider grounds, the likely impact upon existing urban centres is acceptable.
And:
13. With respect to the wider grounds, it is the Government’s policy to encourage the regeneration of inner urban areas.
And the para goes on to expand, to some extent, on that point.
Para 14 sets out the two structure plan policies, which I have already read, and says that they are of crucial importance in the consideration of the present application; that is commented upon in para 15.
The letter says that the development is to be regarded as an out-of-town shopping centre in para 10.31; then the crucial para is para 19. After making the points that I have just made, that is to be regarded as falling within para 10.31, that para reads as follows:
At least a substantial proportion of it
that is to say, the centre’s trade
is likely to duplicate much of the role of Leicester city centre as a shopping centre for durable goods (see appendix 9 to the inspector’s report). The Secretary of State acknowledges that if your client’s estimate of the expected effects of Centre 21 on Leicester city centre is correct and is considered only in relation to structure plan policy 10.31, the degree of detriment to that city centre (and to the other town centres listed in the inspector’s findings of fact at para 222(15(h))) may not be sufficient in itself to justify the conclusion that the development should not be allowed to take place. But the proposal also falls to be considered in the context of policy 10.13 which expressly relates to Leicester city centre. In the context of that policy, the Secretary of State considers, on the information provided by your client, that the Centre 21 development would have a sufficient impact to be incompatible with the policy of seeking to sustain and increase the importance of Leicester city centre with regard to durable goods; and he considers that it would detract from the city centre’s potential to fulfil a primary role in this regard. In the light of this, the Secretary of State concludes that the Centre 21 development would be unacceptable when considered by reference to the shopping policies of the structure plan and would not be consonant with Government policy relating to inner urban areas.
20. For those reasons, and after taking all other materal considerations into account, the Secretary of State hereby dismisses the appeal.
The Secretary of State’s reason is encapsulated in the last two|page:199| sentences of para 19.
The grounds of this application stem from section 245 of the Town and Country Planning Act 1971. Subsection (1) of that section provides as follows:
If any person — . . .
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and desires to question the validity of that action, on the grounds that the action is not within the powers of this Act, or that any of the relevant requirements have not been complied with in relation to that action, he may, within six weeks from the date on which the order is confirmed or the action is taken, as the case may be, make an application to the High Court under this section.
Mr Smith relies on both heads in that subsection. He submits, first, that the Secretary of State’s dismissal of the appeal is not within the powers of the Act because, he argues, there was no material before the Secretary of State upon which he could reach a decision to dismiss the appeal; or, putting it another way, no Secretary of State, properly directing himself, could have reached the decision to dismiss on the material before him.
Secondly, or alternatively, Mr Smith argues that the Secretary of State had not complied with the requirement of rule 13 of the Town and Country Planning (Inquiries Procedure) Rules 1974, which requires him to notify the reasons for his decision in writing, and that the interests of the appellants were substantially prejudiced by that failure.
The requirement, if he is to succeed under that head, that the interests of the appellants should be substantially prejudiced, comes from section 245(4), which gives powers to the High Court as follows:
On any application under this section the High Court — . . .
(b) if satisfied that the . . . action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation thereto, may quash that . . . action
I should have said that, by a process of going back to section 242, one finds that the dismissal of an appeal under section 36 of the Act is action to which section 245 applies.
I must say something about the law relating to both those heads of challenge. First, there is the submission that there is no material upon which the decision could properly be based. The leading authority on this branch of the law is the decision of this court in Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320. That was a challenge to a compulsory purchase order under Part III of the Housing Act 1957. However, Schedule 4, para (2), to that Act contains the procedure for challenging a decision of the Secretary of State to confirm a compulsory purchase order which is identical in its terms and effect to section 245 of the 1971 Act, so that clearly this authority applies to proceedings of this sort.
At p 1326, between F and H, Lord Denning MR said this:
Seeing that that decision — that is to say, whether or not to confirm the compulsory purchase order — is entrusted to the Minister, we have to consider the power of the court to interfere with his decision. It is given in Schedule 4 paragraph 2. The court can only interfere on the ground that the Minister had gone outside the powers of the Act or that any requirement of the Act has not been complied with. Under this section it seems to me that the court can interfere with the Minister’s decision if he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law
Harman LJ and Winn LJ agreed.
That proposition was summarised in the list of principles, and helpfully and accurately summarised, by the late Forbes J in Seddon Properties Ltd v Secretary of State for the Environment. That was a 1978 decision, which was cited to us in Estates Gazette,* but which is also reported in (1978) 42 P & CR 26. Forbes J at pp 26-27 summarised the first two principles as being:
(1) The Secretary of State must not act perversely. That is, if the court considers that no reasonable person in the position of the Secretary of State, properly directing himself on the relevant material could have reached the conclusion that he did reach, the decision may be overturned. See eg Ashbridge Investments Ltd v Minister of Housing and Local Government . . . per Lord Denning MR at p 1326F and Harman LJ at p 1328H. This is really no more than another example of the principle enshrined in a sentence from the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation . . . : ‘It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.’
(2) In reaching his conclusion the Secretary of State must not take into account irrelevant material or fail to take into account that which is relevant: see eg the Ashbridge Investments case per Lord Denning MR loc cit.
*Editor’s note: Reported at (1978) 248 EG 950, [1978] 2 EGLR 148.
The third authority on this point to which I must make reference, and to which we were referred, is Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 All ER 1049; this also was a compulsory purchase order case. The subject property lay outside a clearance area, but it was sought to be acquired under powers in the Housing Act which applied only if its acquisition was reasonably necessary for the satisfactory development or use of the cleared area. The acquiring authority asserted, both on paper and through their advocate, that it was so reasonably necessary, but called no evidence at all to substantiate that assertion. On application to the High Court the compulsory purchase order was quashed and that was upheld by the Court of Appeal.
There is a passage in the judgment of Sachs LJ which encapsulates the point; at the bottom of p 1054 he said:
Before turning to the report and examining the evidence, there is a further observation to be made. When seeking to deprive a subject of his property and cause him to move himself, his belongings and perhaps his business to another area, the onus lies squarely on the local council to show by clear and unambiguous evidence that the order sought for should be granted.
His lordship then went on to ask what the state of the evidence was and, as I have said, said that there was none.
As to the necessity for reasons, the statutory requirement is contained in the Town and Country Planning (Inquiries Procedure) Rules 1974, rule 13, which requires the Secretary of State to ‘notify his decision and the reasons therefor in writing to the applicant’. That, of course, does not answer the question what the nature of those reasons must be; but that is answered by what has become the classic dictum on this part of the law in the judgment of Megaw J (as he then was) in Re Poyser and Mills’ Arbitration [1964] 2 QB 467. The passage starts at the bottom of p 477. That was a case in which the relevant statutory requirement was contained not in regulations but in section 12 of the Tribunals and Inquiries Act 1958, and his lordship said:
The whole purpose of section 12 of the Tribunals and Inquiries Act 1958 was to enable persons whose property or whose interests were being affected by some administrative decision or some statutory arbitration to know, if the decision was against them, what the reasons for it were. Up to then, people’s property and other interests might be gravely affected by a decision of some official. The decision might be perfectly right, but the person against whom it was made was left with the real grievance that he was not told why the decision had been made. The purpose of section 12 was to remedy that, and to remedy it in relation to arbitrations under this Act. 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.
That was approved and applied, in relation to the Town and Country Planning Act, by the House of Lords in the recent decision in Westminster City Council v Great Portland Estates plc [1985] AC 661. Lord Scarman, with whose speech the rest of their Lordships agreed, said, at p 673D, in a passage headed ‘failure to give reasons’:
When a statute requires a public body to give reasons for a decision, the reasons given must be proper, adequate, and intelligible. In In Re Poyser and Mills’ Arbitration . . . Megaw J had to consider section 12 of the Tribunals and Inquiries Act 1968 which imposes a duty upon a tribunal to which the Act applies or any minister who makes a decision after the holding of a statutory inquiry to give reasons for their decision, if requested. Megaw J commented
and then his lordship set out two sentences from the passage that I have read and continued:
He added that there must be something ‘substantially wrong or inadequate’ in the reasons given. In Edwin H Bradley & Sons Ltd v Secretary of State for the Environment (1982) 264 Estates Gazette 926, 931 Glidewell J added a rider to what Megaw J had said: namely, that reasons can be briefly stated. I accept gladly the guidance given in these two cases.
The proposition derived from the Department of the Environment’s own Circular 22/1980, that planning permission should not be refused unless there are ‘sound and clear cut reasons’ for the refusal, is another aspect of the same concept.
Mr Smith reminds me that in Rogelan Building Group Ltd v Secretary of State for the Environment (1981) JPL 506, sitting in the|page:200| Queen’s Bench Division, I said, as reported at p 508, that where the Secretary of State decided to disagree with the recommendations of his inspector, it was particularly important that he should make his reason for such disagreement clear. I remain of that view, but I regard it as a matter of commonsense rather than of legal principle.
I turn now to the submissions in the present case. As to the first point, Mr Smith submits that there is no material upon which the Secretary of State could come to a conclusion as to the impact on Leicester city centre of the diversion of trade — a proportion of 10.6% if that was correct — which differed from that of the inspector. The material, he says, is all one way. This is a case like Coleen, where there is no material which justifies the Secretary of State’s decision.
Mr Carnwath controverts that; he says that it is not so; that the conclusion to which the Secretary of State has come is one of planning judgment on which, as Mr Smith admits, the Secretary of State is entitled to reach a conclusion or judgment which differs from that of his inspector. The Secretary of State, says Mr Carnwath, has the final word and he is entitled to disagree with his inspector. The inspector set out in his report, in the cases for the planning authority and the city council, the brief passages to which I have referred, though obviously there were more extended quotations in the report. There was indeed, therefore, evidence, unlike the Coleen case, on which the Secretary of State could properly conclude as he did. The test laid down in the Ashbridge Investments case is satisfied; this is not a case like Coleen.
It seems to me that this part of the argument was not put to Kennedy J as clearly as it has been put before us, since his judgment, to a considerable extent, concentrates on the second issue. He does, however, say, in the transcript of his judgment, which we have at a page numbered 91, just above C:
In making his determination he cannot be regarded as fettered by the expression of opinion to be inferred from something said or done at an earlier stage when he was progressing towards or attempting to uphold a decision which was later set aside.
So to that extent Kennedy J was saying that in his view there was material.
In my judgment, if one disregards the unhappy history of delay and ineptitude between the inspector’s report and the eventual decision letter, Mr Carnwath’s submission is correct. There clearly was evidence upon which the Secretary of State could conclude, as he did in 1983, that:
the Centre 21 development would be unacceptable when considered by reference to the shopping policies of the Structure Plan.
Does the history, therefore, affect this issue? If, as Mr Smith contends, it is to be inferred that between his first and second decision letters the Secretary of State changed his mind, he was entitled to do so, and Mr Smith expressly so concedes. It follows, therefore, that the history does not affect this issue.
One of the decisions to which Mr Smith referred us was that in J Sainsbury Ltd v Secretary of State for the Environment and Colchester Borough Council (1978) JPL 378. The facts of that case were in many ways very similar to the facts of the present case, but I quote it not for that reason, because one must never try to compare cases simply on their facts. I refer not to the decision itself at all but to a comment which follows the report in the Journal of Planning Law. There are two passages in that comment, where the learned editor says:
Basically the case is a classic example of winning an inquiry but losing the appeal and although (counsel) for the appellants tried almost every variation of the grounds for judicial reviews that are open to the appellant, he was up against the basic fact that at the end of the day it is the Secretary of State who makes the decision.
Further down, the comment continues:
. . . such questions of impact are obviously planning judgments and in the end the prerogative of the Minister unless such a decision goes clearly against the weight of evidence or is otherwise illogical or completely unreasonable.
I take the view, frustrating though I appreciate this is for the appellant, that those comments apply exactly to the present case. I would therefore hold, against Mr Smith’s submission on his first point, that there was no material upon which the Secretary of State could conclude as he did; in other words, in my judgment there was material.
So I come to the second issue: were adequate and clear reasons given? Again I have considered this matter first without reference to the history, whether the conclusion contained in the last two sentences of para 19 of the decision letter is a clear and sufficient explanation of the reason for differing from the inspector. As I have said, the matter is purely one of planning judgment. I think the author of the letter might well have gone further and referred, for example, to some of the evidence of the planning authority or the city council given at the inquiry; indeed, I think it would have been better if the letter had contained something such as that. But I also take the view that it can properly be inferred from what is said in that letter, that the Secretary of State was accepting the points made in that evidence. Accordingly, I find that I cannot say that the reason is either unclear or insufficient. In effect, the Secretary of State says, though not in words, ‘I have taken account of the inspector’s and assessors’ opinions, but I disagree with them, as I am entitled to do. In my view that is sufficient’.
What effect, then, does the history have on this issue? I found this the most difficult part of the case. I go back to refer to a passage in the first decision letter; this is the material upon which Mr Smith based his submission in relation to this matter.
Para 4 of that letter (this is the decision which was quashed) reads as follows:
The Secretary of State accepts the inspector’s findings of fact but has major reservations about his conclusions.
Para 5:
The principal reservations concern the relationship of the proposed development to the shopping policies of the approved structure plan, and the potential impact of the proposed development upon the central shopping area of Leicester.
The first sentence of para 7 reads:
Your clients’ concept is an attractive one provided that Centre 21 could fulfil a truly complementary role to the existing hierarchy.
Mr Smith submits that the only proper inference to be drawn from that phraseology is that at that stage the Secretary of State had decided that an impact of 10.6% upon Leicester city centre was not sufficiently serious to contravene the structure plan policy 10.13 or to justify refusal. Moreover, says Mr Smith, the passages from the letter of December 20 1984 and the affidavit of Miss Whittaker, to which I have referred, make it clear that the Secretary of State was still of that view as late as April 1985. If that were not so, then why did the Secretary of State not give, back in May 1983, the decision that he has now given, saying that an impact of 10.6% (if that is the right figure) is nevertheless sufficient to say that it would have a detrimental effect on Leicester city centre, which is too great to be acceptable?
Mr Smith’s argument continues that, although the Secretary of State was entitled to change his mind, if he was going to do so he was obliged to explain in his eventual decision letter why he had done so. He failed to give any such explanation and thus was in breach of rule 13 of the Inquiries Procedure Rules.
In my view, if it is right to take the first decision letter into account at all, that letter does not oblige us to draw the inference suggested by Mr Smith. All that one can properly infer from that letter is that, since he was rejecting (for mistaken reasons) the appellants’ ‘shopping model’, the Secretary of State simply did not consider at that stage whether the 10.6% diversion of trade would of itself constitute a valid reason for refusal. In addition, I think that Mr Carnwath is correct in submitting that, since the first decision has been quashed, the letter in which it was conveyed has no remaining force or relevance.
That latter objection does not apply to the letter of December 20 1984 nor to Miss Whittaker’s affidavit. Those two documents, to put it no higher, do make it appear that as late as April 1985 the Secretary of State was anxious to avoid giving a decision based only on the material in the inspector’s report, if he could possibly do so.
Kennedy J dealt with that issue in his judgment as follows; he says that Mr Latham, who then appeared for the Secretary of State,
concedes that the letter does perhaps show an unwillingness to take a decision, which it was the duty of the Secretary of State to take — a failure of nerve — but he also submits that the letter does not say and ought not to be read as saying that the Secretary of State would regard as acceptable an impact of 10.6 per cent upon the durable goods trade of Leicester city centre. Here it seems to me that there is force in Mr Latham’s submission. The state of mind underlying the letter of December 20 1984 could well have been one in which the Secretary of State, if he had decided anything, was in fact minded to refuse the application and dismiss the appeal, but felt it desirable, if possible, to obtain further evidence upon which to rest his decision.
Over the page he said:
However, despite the words used
|page:201|
that is to say, in the affidavit
I see no reason to conclude that in April 1985 the Secretary of State really had applied his mind to the information already available and concluded that a 10.6 per cent impact upon the durable goods trade of Leicester city centre was acceptable.
At p 90 he said, in the first of his conclusions:
. . . I conclude that, firstly, the Secretary of State did not at any time accept in terms the proposition that an impact of 10.6 per cent is acceptable, although that inference can be drawn from certain documents, especially if they are considered in isolation. Accordingly, the second decision letter does not amount to a volte-face . . .
If that phrase about the inference being drawn from certain documents means that it is a possible inference, but not one which the learned judge himself was drawing (which is what I think it must mean in the context of the sentence), then I agree with his conclusion. With the explanation which he apparently adopted — that is to say that the Secretary of State had suffered from a failure of nerve — I am not necessarily saying that I agree, but it is one possible explanation; there are a number of others. What matters is that I do agree that it cannot be inferred clearly that the Secretary of State did accept in terms the proposition that an impact of 10.6% was acceptable, although on the other hand it does seem to me that some people might read the contrary into the documents to which I have referred.
But even if it were to be inferred that in December 1984 and April 1985 the Secretary of State was of the view that a 10.6% diversion of trade was not a sufficient reason for refusal, when he came to make his eventual decision, the question is: was he obliged to say that he had changed his mind and say why? I very much doubt whether he was. In Rogelan I said that a reason for disagreeing with an inspector should be explained, because the inspector’s conclusions are set out in the Secretary of State’s decision letter, and if the Secretary of State is going to disagree with those conclusions, he has to say why in order to make his decision letter self-consistent. But here, the earlier documents, which may show a different frame of mind, are not referred to in the decision letter, and I do not think it was strictly necessary for the Secretary of State to refer to them or to explain them.
But that apart, what I am quite clear about is that, although the appellants may justifiably feel a sense that their appeal has not been well handled and that they have come very near to winning but have finally lost, they cannot properly claim that their interests have been substantially prejudiced by the failure to give adequate reasons, if there were such a failure. If we were to quash the Secretary of State’s decision on this ground, in my view he could immediately issue another decision letter, containing the material in the present decision letter, but in effect saying in addition something like this (I am not of course drafting a letter for the Secretary of State): ‘It is true that in the past my officers made statements from which it might be inferred that I had reached a decision in your favour on this issue. Whatever my state of mind was then, following the judgment of Nolan J, I have considered the question again and I now have reached a different conclusion, which is . . . ‘ That would be a perfectly sufficient reason; it would not, of course, assist these appellants at all, but the lack of such additional phraseology cannot, in my view, be a prejudice to the appellants.
For these reasons, therefore, I would dismiss this appeal.
CROOM-JOHNSON LJ agreed and did not add anything.
Also agreeing, SLADE LJ said: I only wish to add a few observations by way of postscript.
I have a good deal of sympathy with the appellants in this case. The terms of the decision letter of May 19 1983, the letter of December 20 1984 and Miss Whittaker’s affidavit of April 17 1985 could well, in my view, have led them to believe that, whatever else the Secretary of State did not accept, he would regard an impact of no more than 10.6% upon the durable goods trade of Leicester city centre as acceptable.
The appellants’ disappointment, and perhaps surprise, too, may therefore well have been all the greater when they received the decision letter of October 10 1985 by which, albeit apparently in the absence of any evidence of a greater impact than 10.6%, the Secretary of State dismissed their appeal essentially on the grounds that ‘the Centre 21 development would have a sufficient impact to be incompatible with the policy of seeking to sustain and increase the importance of Leicester city centre with regard to durable goods’. This was clearly an implicit reference to the wording of para 10.13 of the amended Leicestershire structure plan.
Nevertheless, it has been common ground before this court that the Secretary of State would have had the right to change his mind on this point on proper grounds between May 1983 and October 1985, if change his mind he did. Early in his opening, Mr Smith explained to us that the appellants’ principal ground of appeal to this court would be that set out in para (2)(a) of their notice of appeal, namely that:
the learned judge in any event erred in holding that the Secretary of State’s decision was one to which he was entitled in law to come, because there was no material before the Secretary of State supporting or capable of supporting his conclusion that 10.6% impact as aforesaid was unacceptable.
Despite his forceful and attractive argument, Mr Smith has failed to persuade me that there was no such material before the Secretary of State. Contrary to his submission, the decision in question was in my opinion clearly one for the planning judgment of the Secretary of State. Though the inspector himself had clearly regarded a 10.6% impact as acceptable, and his view was supported by a lot of the evidence before him, a not insignificant part of the evidence before him had pointed the other way. The good faith of the Secretary of State is not questioned. For the reasons given by Glidewell LJ, amplified by these short comments, I think that the attack on the Secretary of State’s decision based on Wednesbury grounds must inevitably fail.
The alternative attack on the decision, based on the alleged failure of the Secretary of State to comply with the requirements of rule 13 of the Town and Country Planning (Inquiries Procedure) Rules 1974, relating to the giving of reasons, has caused me greater difficulty. The decision of the House of Lords in Westminster City Council v Great Portland Estates plc [1985] AC 661, illustrates that ‘when a statute requires a public body to give reasons for a decision, the reasons given must be proper, adequate and intelligible’ (see at p 673 per Lord Scarman). And it seems to me that the adequacy of the reasons given must be judged in the circumstances of the particular case (see, for example, Hope v Secretary of State for the Environment (1975) 31 P & CR 120 at p 123, per Phillips J).
I think that, in the light of what had gone before, between May 19 1983 and October 1985, the statement of the essential reasons for the Secretary of State’s decision of October 10 1985, to be found in para 19 of the letter of that date, is somewhat sparsely stated. But I agree with Glidewell LJ that there was no obligation on him to refer to, or explain, the earlier documents, which might have suggested a different frame of mind.
I think it would, perhaps, have been better if the Secretary of State had explained a little more fully why he regarded the appellants’ project for Centre 21 as inconsistent with the policy expressed in para 10.13 of the amended Leicestershire structure plan. This would have been likely to leave the appellants with a less strong feeling of grievance. Nevertheless, I do not think that there was any obligation on him to do so, even having regard to the background against which his decision was made. The reasons given by him for this decision on a matter of planning judgment, though briefly expressed, were, in my opinion, still proper, adequate and intelligible.
Even if that were not so, however, I am in full agreement with Glidewell LJ that any failure by the Secretary of State to give adequate reasons cannot, on the particular facts of this case, have caused the appellants sufficiently substantial prejudice to justify setting aside his decision on that ground.
I, too, would dismiss this appeal.
The appeal was dismissed with costs; leave to appeal to the House of Lords was refused.
Petition for leave to appeal was dismissed by the Appeal Committee of the House of Lords on July 16 1986.
