Town and Country Planning Act 1971 — Application for judicial review with the object of quashing an inspector’s decision affirming planning authority’s refusal of permission for development consisting of the erection of offices and residential accommodation — Three grounds of complaint were put before the court — The first ground was that the inspector had not found expressly whether the site was intrinsically suitable for the proposed development — The second was that the inspector failed to make a finding as to the effect of the refusal of permission upon the existing use of the site — The third and main ground was that the decision was in conflict with a series of decisions made by the Secretary of State which established a policy in regard to the supply of offices in cases of this kind, namely, that the supply and demand was essentially a matter for determination by market forces — It was submitted that the inspector gave too much weight to the emerging district plan, thus excluding the Secretary of State’s policies from consideration — In this connection the judge, after some hesitation, took note of a recent after-dinner speech by the Secretary of State to which the applicants had drawn attention — Held, rejecting all three grounds of complaint, that the applicants had not justified the remission of the case to the Secretary of State for reconsideration — The judge emphasised that the proceedings before him were not an appeal but an application for judicial review — On the first ground, there was no need for an express finding of suitability; by inference, the inspector would have found the site suitable if he had not rejected the appeal — On the second ground, the inspector accepted implicitly that there was a reasonable prospect of the present use continuing; a definite finding would not have helped the applicants, since the application was rejected on other grounds — On the third ground, as to the Secretary of State’s market-orientated policy, it was dangerous to put undue emphasis on planning decisions as if they were binding precedents and the Secretary of State had himself recognised that the planning system was not always free to respond to market needs; other social and environmental interests had to be considered — The criticisms of the inspector’s decision failed and the application must be dismissed
This was an
application, by the procedure of judicial review, by Dimsdale Developments
(South East) Ltd, to quash an inspector’s decision upholding the London Borough
of Hounslow’s refusal of planning permission for the erection of offices and
residential accommodation at 1 High Street and Hollows Wharf, Brentford.
Kenneth
Bagnall QC and G Fetherstonhaugh (instructed by Turner Kenneth Brown) appeared
on behalf of the applicants; A Moses (instructed by the Treasury Solicitor)
represented the first respondent, the Secretary of State; J Milner (instructed
by T J Simmons, solicitor to the borough) represented the second respondents,
the London Borough of Hounslow.
Giving judgment,
MACPHERSON J said: Mr Bagnall, on behalf of Dimsdale Developments (South East)
Ltd (‘Dimsdale’) moves to quash an inspector’s decision made pursuant to the
relevant provisions of the Town and Country Planning Act 1971. Dimsdale’s
appeal to the inspector was against the London Borough of Hounslow’s refusal to
give planning permission for the erection of offices and residential
accommodation at 1 High Street and Hollows Wharf, Brentford. Mr Bagnall says
that the inspector’s decision is unlawful and also irrational and subject to
review in accordance with well-known general principles summarised by Lord
Diplock in the case of Council of Civil Service Unions v Minister for
the Civil Service [1984] 3 WLR 1174.
The first
ground in the applicants’ notice, namely that the inspector’s reasons were so
confused as to amount to no reasons at all, appears not to be pursued. In any
event, I am bound to say that I found no overall confusion in the decision,
which I have now read many times.
The second and
third grounds survived in argument, but were effectively recast. Mr Bagnall
puts the matter in three ways, and I summarise them as follows. First, he says
that the inspector ought to have found expressly whether or not the appeal site
was intrinsically, that is to say physically and locationally, suitable upon
planning grounds for the proposed outline development, which was largely a
development for offices, and that his failure legally flaws his decision.
Second, he
says that the inspector never properly gave his mind to the evidence as to
existing use; and he says that there was no sufficient consideration of the
evidence or finding of fact by the inspector as to the consequences of his
intention to refuse permission upon the grounds for which he did eventually
refuse it. Mr Bagnall argues in essence that without an express finding that if
permission was refused there would be a probability that the site could and
would continue to be used as a builders’ yard, the inspector’s conclusions are
again legally flawed.
Third, and
perhaps this is the leading ground of the application, it is said that the
Secretary of State and his inspectors must strive to be consistent. Mr Bagnall
argues that this inspector’s decision was against the spirit of ‘a series of
decisions’ made by the Secretary of State who has thus, says Mr Bagnall,
established at least a recognisable policy in connection with the approach to
and the materiality of the available supply of offices in cases of this kind.
It is said that that policy is that the supply and demand for offices is
essentially a matter to be determined by market forces and that in his decision
this inspector has been deflected into giving too much if not exclusive weight
to the emerging district plan, has wrongly used evidence as to the availability
of offices (‘pipeline’ considerations) to support his concentration upon the
plan, and has effectively excluded the Secretary of State’s policies from his
mind so that there is inconsistency and faulty reasoning in the conclusions
reached.
I deal with
this case upon the basis of these submissions, although they are not at once or
easily discernible in the formal notice which initiates this application. This
I regard as unfortunate. But I have, of course, considered also the affidavit
of Professor Nathaniel Lichfield and, taking the documents together, it is with
some probing possible to see how Mr Bagnall has distilled his points from the
formal application documents. Furthermore, Mr Moses and Mr Milne have dealt
with all matters raised in argument and I can and will
I bear in mind
throughout that this is an application for judicial review and not an appeal. I
also bear in mind section 29 of the Town and Country Planning Act 1971, which sets
out the discretionary power of the planning authority and the Secretary of
State in determining planning applications and appeals respectively. I also
bear in mind the provisions of Circular no 22 of 1980, and in particular para 2
which sets out the general aim ‘to ensure that development is only prevented or
restricted when this serves a clear planning purpose and the economic effects
have been taken into account’. In parenthesis it should be noted that the
inspector also referred expressly to these sources in his written decision, so
that he plainly considered them as well.
Mr Bagnall
concludes by submitting that for all of his three reasons it would be unfair to
allow this inspector’s decision to stand, and he asks that it should be sent
back for reconsideration by the Secretary of State in the light of his policy,
which Mr Bagnall says emerges from a number of other decisions made in recent
years, and from a recent speech made by the present Secretary of State. To
these decisions, or at least the main ones, the inspector was also referred.
The speech was made on March 14 1985, so that this inspector could not have the
benefit of its content or its message.
I say at once,
since unnecessary suspense is pointless, that I do not propose to send this
case back for reconsideration or to review it, since I am convinced that upon
none of the three grounds does Dimsdale succeed in its attack upon the
inspector’s decision.
First, as to
‘suitability’, it is often if not usually right for an inspector to find expressly
whether the site is intrinsically suitable, and inspectors of course frequently
do so. There is no need for citation of other decisions or of authority to
establish this. But in the present case, as Mr Moses points out, there was
really no dispute as to suitability, and to an informed reader the decision
certainly appears to me to accept that the site is not unsuitable. All the
arguments and ‘material points’ on all the relevant issues are set out
extensively in the decision. Then, in para 6, the inspector sets out the
matters which are ‘not at issue between the parties or are of lesser
significance’ in the appeal. I couple then the rest of para 6, and in
particular subparas 6.1, 6.2, 6.3 and 6.4, with the first part of para 7 in
which the inspector says this:
Following the
above considerations, I have formed the opinion that the decision on this
appeal turns on the acceptability or otherwise of the proposed development in
terms of the council’s office/employment policies.
He does not
say that it is solely the council’s development which influences him, but he
concludes in para 7.7 that the emerging plan
would of
itself be a strong reason for refusing planning permission. Furthermore, in
this case that reason is supported by overdevelopment of the site, albeit only
slight, and by the evidence of a substantial and growing vacancy rate in office
floorspace already built. The planning merits of the proposed development as
well as the policies have been properly considered; together those
considerations amount to sound and clear-cut reasons for refusal of planning
permission.
In para 8 he
says:
I have taken
account of all other matters raised in relation to this appeal, but I have not
found them sufficient to outweigh the considerations which have led to my
conclusion.
I quote these
passages in full to indicate that the inspector has, in my judgment, said
clearly why he upholds the council’s refusal, and to stress that neither he nor
the council say anything adverse as to the intrinsic suitability of the site:
see p 269 for the council’s reasons for refusal. Given that both the council
and the inspector reject the application and say precisely why they do so,
there was, in my judgment, no need to give any more express or positive view as
to suitability as such. By inference, the inspector would have found the site
suitable if he had not been going to reject the appeal as he did, but that is
not a necessary finding which he must invariably express. Indeed, there are
sound arguments for leaving the matter as he did, since this was an outline
application and in any event a positive express finding would not create some
sort of estoppel in favour of the applicants should they return to the fray.
Planning
permission does of course enure for the benefit of the land, but this
application was refused and parts of a refusal which favour an applicant do not
enure to the benefit of a later application. It can be pointed out in any
argument in any later application that there does not appear to be any
criticism in this instant application of the site’s suitability as such nor any
suggestion that it is thus unsuitable either before the inspector or indeed in
this court. But even a positive finding of suitability would not create any
rights or form any kind of estoppel in favour of the applicants on any future
occasion. I see no necessity or obligation binding the inspector to be more
positive than he was and I reject this complaint made by the applicants.
Similarly, as
to the second ground I find that the inspector had before him adequate relevant
material. In para 7.6, after commenting reasonably upon some of the less
desirable aspects of the present use, the inspector says this:
That is not
to say that redevelopment must or should take place. It
meaning the
site
could remain
in its present use, but with another occupier or occupiers, or some minor
changes and improvements could be made which would not involve such extensive
site works and high development costs.
While [it is
said for the current user that they] find the present use barely profitable in
their terms (see para 3.1), it was pointed out by the local planning authority
that the existing use had been continuous for 50 years, that there was no
adequate reason why the present use should change, that the present buildings
had a useful life ahead and that favourable consideration would be given to
their use for warehousing or storage purposes (see para 4.1) which were
presumably the ‘minor changes’ envisaged by the inspector.
In my
judgment, again, the inspector must have accepted implicitly that there was a
reasonable and probable prospect of the present use continuing. Since he was
rejecting the appeal and upholding the council’s refusal, he would surely have
stated any positive ground for refusal, as indeed would the council, if there
was another one additional to those expressed. Neither a positive nor a negative
finding would help these applicants, since the inspector was in any event
turning down the application on other valid and important grounds. I therefore
reject this argument as well.
It is
furthermore, in my judgment, impossible to say, either as regards the
‘suitability’ or the ‘present use’ arguments, that the inspector has acted so
unreasonably that his decision should be reviewed by this court. I could not
possibly say that the inspector’s failure expressly to find the site suitable
or unsuitable, or to find that the present use was likely or unlikely to
persist, was illegal or improper or reviewable in terms of Lord Diplock’s
guidelines set out in the CCSU case.
Lastly upon
this topic, I have considered the case of Westminster City Council v British
Waterways Board [1984] 3 WLR 1047 to which Mr Bagnall referred. But that
was a landlord and tenant case, in which different considerations arose, and I
am bound to say that I did not find it particularly helpful in resolving this
application for judicial review, although I have taken its planning aspects
into account.
There remains
the ‘policy’ point. Of course it is right that since 1943 consistency and
continuity have been the required general aims of planning. It is also right,
as Mr Bagnall submits, that all the provisions of the 1971 Act, in particular
sections 11 and 29, must be fully and properly applied. It is also right, as Mr
Bagnall submits, that the council and the inspector are not required to comply
slavishly with any district or other plan. It is also right that any general
lines of policy should be considered and respected, particularly if they are
affirmed by the Secretary of State in circulars or stated by any official
pronouncement to be specific directives or guidelines.
In the present
case, Mr Bagnall has exhibited documents, namely the papers and decisions in
other planning matters, which he says demonstrate that the Secretary of State’s
policy is that little if any attention should be paid to the general or local
picture as to available supply of offices, or offices in the pipeline. These
are matters for the market to determine and Mr Bagnall says that the Secretary
of State has said so in terms. And the argument runs, this inspector has not
only considered the pipeline evidence to be material but he has fallen into
error by using a circular argument. He has been dominated, says Mr Bagnall, by
the emerging district plan and has then used the vacancy rate figures (see para
4.5) in order to lift up or support the plan. This, says Mr Bagnall, is to
elevate the plan by pulling it up by its own bootstraps. The argument is put in
several ways, but that is the gist of it.
I do not
propose to refer to the details of the letters and decisions to which I have
been referred, although I have of course seen them all more than once in
argument and privately while considering my judgment. Among other references,
we have looked at a letter on costs concerning 41 High Street, Brentford, and
decisions on the
and so on.
I say at once
that in particular instances it is of course right that the Secretary of State
has played down the weight of ‘pipeline’ evidence and has stressed the
importance of market considerations. I take that into account in each case in
the context in which it was said. But it is, in my judgment, dangerous to
overuse decisions in other planning matters as if they had the force of some
kind of binding authority or precedent. I expressed my disquiet about this early
in the case, and I repeat it now. Of course, I do have the feel and detect
readily the spirit of all those other decisions, but in my judgment they should
not loom too large and do not greatly help me in the present case. Each case in
the end must be looked at upon its own facts in the light of the general
principles which apply.
When I had
started to prepare my judgment in this case I was asked to come again to court
for further argument by Mr Bagnall. On April 1 1985 I came back and Mr Bagnall
cited to me extracts from an after-dinner speech made by Mr Patrick Jenkin, the
present Secretary of State for the Environment. I have not personally heard
such citation made before in court, but although I wondered at first whether to
receive it at all I have thought it best to take it into account, although I am
bound to say that I doubt whether such manifestations should be used in
argument.
What Mr
Bagnall relied upon, from what the present Secretary of State said on March 14
1985 at the dinner of the County Planning Officers’ Society, was really
twofold. First, he showed disapproval of stale development plans. But it must
be stressed that he was referring to really stale and unmodernised plans, and
in the present case the evidence was that the local emerging district plan had
undoubtedly been recently considered. It may well have been based on older
plans, but it is impossible in my judgment to say that the emerging plan relied
upon in the present case was one which had gathered so much dust that Mr Jenkin
would, or could properly, disapprove of its use. I take his cautionary words
into account nevertheless.
Next, we see
that the Secretary of State stressed that the presumption must be in favour of
development and advised future planners to be market orientated and indeed to
draw up future plans with a clear view of the demands of the market. These
exhortations are of course perfectly reasonable and in conformity with Circular
no 22 of 1980, but it should be noted that the Secretary of State also referred
to the ‘powerful pressures which must constrain the freedom of the planning
system to respond to market need. Many of these [said the Secretary of State]
represent sound social and environmental interests’. I have no reason
whatsoever to doubt that Circular no 22 of 1980 was in the inspector’s mind. He
was expressly referred to it. It has certainly been in my mind, since I have
now been referred to it several times.
I do not
believe that from this speech any fresh or extensive help is given in the
resolution of this application. Even accepting it as Mr Bagnall puts it before
me, it has not changed my preliminary view reached as I started to consider my
judgment. The fact that the speech is post-prandial rather than ex cathedra
may not damage it as a general policy statement, but in all the circumstances,
while giving it all due weight, I am not convinced that it gives much, if any,
additional impetus to the applicants’ case. I have in any event taken it into
account in my consideration of this case, as I am asked by Mr Bagnall to do,
even though I wonder whether it is a fair weapon to use in argument.
Where evidence
shows that a plan is intrinsically suitable and there is no district or other
plan opposed to it, or the pipeline figures are wide or diffuse, then certainly
the Secretary of State has said that market forces are most important and
perhaps even of primary importance.
However, in
other cases supply must be directly relevant. For example, in the present case
the emerging district plan is against the proposed development, so that local
policy does conflict with the developer’s ideas. Furthermore, in spite of all
that is said as to the nature of the user of this whole street, I am
unconvinced that it is really an ‘office’ street in its general aspect. In any
event, in my judgment, it must in such a case be relevant and right to look at
local need, other than that expressed by the developer’s own wishes and his own
assessment of the market.
There is,
incidentally, here no positive or specific evidence of demand by any buyers or
users and the local authority is surely entitled to say, and the inspector to
receive evidence, that a proposed development which is contrary to the local
plan may remain empty because of absolutely up-to-date figures as to local
vacancy. I stress the particular emphasis upon local considerations and vacancy
figures (see para 7.4) which are recent and closely related to the area of the
appeal site compared with figures used in other cases where the vacancy rate
referred to was much wider and more general. But of course it was not in any
event solely because of those figures or the plan that this application was
refused. Certainly, the vacancy figures themselves were not so conclusive as to
warrant refusal, and the inspector said so: see para 7.4. The plan itself was
not enough, although it was itself a strong reason or pointer: see para 7.7.
But taking the plan, and the figures, and a degree of overdevelopment, slight
but reckonable, all together, the inspector concluded that the council’s refusal
was justified; and he said in terms that taking into account the planning
merits and policies (see para 7.7), there were sound and clear-cut reasons for
refusal after taking account of all other matters raised in relation to the
appeal (see para 7.8).
I am bound to
say that I see nothing wrong or confused or faulty in his conclusions and
certainly nothing which can properly bring this case within any of the grounds
for judicial review.
Finally, and
as to the policy matter raised before me, I add that Mr Moses in the course of
argument told me in terms that his client, the Secretary of State, does not
have any cast-iron or rigid policy such as that for which Mr Bagnall contends.
This would not be necessarily conclusive if other evidence showed that it was wrong,
but in my judgment, there is certainly not the material available to Mr Bagnall
to support his argument that there is here such inconsistency as to render the
Secretary of State and/or this inspector guilty of breach of their statutory
duty in exercising their powers. That kind of breach was alleged by Mr Bagnall
to be present here, but I reject that approach upon the evidence before me in
this particular case.
I have taken
into account all that is said in criticism of this decision which affirms the
council’s clear rejection of this application to develop and, in my judgment,
there are no grounds here for review.
From a
practical point of view this is also, in my judgment, the right result. Mr
Bagnall urges me to say that the matter should be quashed so that the Secretary
of State can review the decision in the light of his current policies, but I
doubt very much if the Secretary of State would give any different view from
that already expressed, and I see no reason in any event to return the case for
his consideration.
I have
considered all the cases to which I was referred in the course of the arguments
in this case, but I do not intend to refer to any of them except British
Oxygen Co Ltd v Board of Trade [1971] AC 610 at p 625 where Lord
Reid accepts that a minister or large authority may evolve a policy so precise
that it could well be called a rule. That I also wholly accept, although I do
not see such precision in the present case. In any event, Lord Reid also says
in this context that while there is no objection to the evolution of precise
policies or rules, the authority must still be willing to ‘listen to anyone
with something new to say’. Policies must not, in my judgment, be given the
force of law, even if they are precise or fairly precise. Here we do not, in my
judgment, begin with any such precision in policy, and as in so many planning
cases the matter turns and should turn primarily upon its own facts, as did the
other very different planning decisions to which I was referred, bearing in mind
the force of Circular no 22 of 1980 and all the other matters raised before the
inspector and before myself.
Lastly, I
stress once more that this is not an appeal but an application for judicial
review. I see no reason to apply to the inspector’s refusal any of the possible
orders which such a review would entail, and in those circumstances this
application is refused.
The
application was refused with costs to be paid to the Secretary of State and the
London Borough of Hounslow.
