Town and Country Planning Act 1971–Application under section 245 to challenge decision of inspector who dismissed appeal against refusal of planning permission–Land in green belt area–Complaint that inspector had decided on an issue not raised at inquiry, namely, that planning application was premature pending approval of structure plan–Alleged breach of rules of natural justice–Held that inspector had decided case on the basis of the approved green belt situation then existing, not on prematurity of application–Draft
This was an
application by Charles Church Ltd under section 245 of the 1971 Act questioning
the validity of the decision of an inspector appointed by the Secretary of
State to determine an appeal against the refusal of planning permission for
residential development of three acres of land at Bisley, Surrey. The inspector
had dismissed the appeal after an inquiry.
A Dinkin
(instructed by Merriman, White & Co) appeared on behalf of the applicant
company; Harry Woolf (instructed by the Treasury Solicitor) represented the
Secretary of State.
Giving
judgment, SIR DOUGLAS FRANK QC said: This is an appeal under section 245 of the
Town and Country Planning Act 1971 against a decision of an inspector appointed
by the Secretary of State to determine an appeal against the refusal of
planning permission.
In November
1976 the applicants applied for residential development of three acres of land
at Bisley, Surrey. That application was refused in January 1977 on the grounds
that the land was in the green belt. In April 1978 the inspector held a two-day
inquiry, and by a letter dated July 31 he dismissed the appeal. The matter
comes before this court on one ground of complaint, namely, that the appeal was
decided on an issue not raised at the inquiry and on which the applicant had no
opportunity of calling evidence or commenting on, namely, that the proposal was
premature pending approval of the structure plan. In his decision letter, the
inspector said in the second paragraph:
The principal
issue in the case is whether the circumstances put forward on behalf of the
appellant are sufficient to override the established policy of preventing
general development in this area, where green belt restrictions apply.
There then
followed in the usual form the decision letter setting out the case for the
various parties.
In his
conclusions, the inspector first of all referred to non-statutory plans
relating to the area, from which he concluded that it would be unreasonable to
consider the capacity of the appeal site in terms of dwellings as having any
material significance in the context of the strategic plan. He then went on to
say:
Accordingly,
in my opinion, the position of the appeal site at this edge of the rural
countryside which separates Bisley from Chobham, Horsell and Knaphill, where
interim green belt restrictions apply, is of critical importance pending the
submission and approval of the statutory structure plan. I have no doubt that,
if this appeal site were now released for housing development, the Borough
Council would find it difficult to resist other and perhaps more extensive
residential development in the area. Furthermore, I consider that such
development could here seriously undermine a main purpose of the interim green
belt which is to prevent neighbouring settlements from merging into one
another.
I may say,
although it is referred to as an interim green belt, the area was incorporated
as part of the Metropolitan Green Belt by an amendment to the statutory
development plan.
Now, taking
that paragraph on its own, it seems to me that the inspector is there saying
that this land is in the approved green belt and not only is there no reason
for taking it out of the approved green belt, but to do so would have serious
consequences. However, the letter does not stop there but then deals with
housing need, about which the inspector said:
A
satisfaction of this housing need, however, and, if deemed appropriate, of the
housing demand, are matters which should be set in the context of the confirmed
metropolitan green belt and the approved structure plan. Pending any material
change in the statutory planning policy affecting Bisley and the appeal site
and in the absence of any evidence of housing need in Bisley sufficient to
override the established policy of preventing general development in this area
where green belt restrictions apply, I am of the opinion that the proposals are
premature and that planning permission should be withheld. I have considered
whether the appeal site has been appropriately included in the proposed green
belt, but I can find no reason to question its inclusion for the time being,
pending a decision on the green belt proposals as a whole.
Mr Dinkin, for
the applicants, submitted that what was uppermost in the inspector’s mind was
the question of prematurity; he did not consider green belt policy as it is,
but merely decided the appeal on the prematurity of the application, pending
the approval of the structure plan for the county.
I do not
agree. I read this decision letter, and I do not find it particularly
ambiguous, in this way: the land is in an approved green belt. As things stand
it is properly included in the green belt, at least there is no reason for
saying that it should not be included in the green belt. Moreover, if this land
were developed, contrary to the green belt policy, it would injuriously affect
that policy. Therefore, on those grounds, this development is not to be
permitted. However, a draft structure plan has been published; this will be
subject to examination in public and approval by the Secretary of State and it
is possible that the land may be shown as an area for development. However,
that is not the present state of affairs, as the land is now green belt. For
those reasons I must dismiss the appeal. Further, it seems to me, on a fair
reading of the inspector’s description of what took place at the inquiry, that
the parties, including the expert witness called on behalf of the applicant,
clearly were arguing that it would not be premature to grant this permission
now, eg in paragraph 27 he said:
Changes that
had taken place since the appeal decision of April 1976, however, emphasise the
need to release the appeal site for development in the short term pending the
resolution of strategic policies.
Mr Dinkin,
faced with that, said that strategic policies did not refer specifically to the
structure plan but to, eg the document called the ‘Strategy for the
South-East,’ but, I think, really that cannot be so. This area, it is commonly
agreed, is subject to numerous non-statutory plans, including those of a
strategic nature, and I think that the strategic policies can only be resolved
by one means and that is by the structure plan. That is its purpose and that, I
have little doubt, is what the applicant’s expert had in mind when he referred
to the resolution of the structure plan. Then again, there is a reference to
the structure plan in a number of other paragraphs in the report, and it seems
to me that it cannot be said that the structure plan was not a matter
considered at the inquiry and that the applicants were not aware that it was
being said, namely, that as things stand this development should not be allowed
unless following a change of policy contained in the structure plan. Under the
circumstances, I find on the facts of this case that there has been no breach
of the rules of natural justice or any failure to comply with the requirements
of the Act. I think that the matter was decided on issues canvassed at the
inquiry and under the circumstances the appeal must be dismissed.
The appeal was dismissed with costs.