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E C Gransden & Co Ltd and another v Secretary of State for the Environment and another

Town and Country Planning Act 1971 — Appeal from decision of Woolf J (as he then was) dismissing an application to quash the decision of an inspector who had upheld the refusal of the planning authority to grant outline permission for residential development at Rainham, Kent — The inspector had decided that, although there was less than a five-year supply of building land available, there were planning objections which overcame the presumption in favour of the proposed development — The objections were mainly to the extension of a built-up area into an open rural area, thus detracting from visual amenities and recreational values and altering the balance between conservation and development — The appellants before Woolf J attacked the inspector’s decision on the ground that, although accepting that there was less than five years’ supply of building land available, he took account of the possibility that a further supply of land might become available from Chatham Dockyard — Woolf J decided that, even if the inspector’s approach might have been inconsistent with the policy laid down in planning circulars, he was right to take the dockyard potential into account — Held by the Court of Appeal, upholding Woolf J’s decision, that the inspector had acted correctly in carrying out the balancing exercise which was his function — He had to take into account the presumption arising from the present insufficiency of building land, but he had also to consider whether the planning objections outweighed the need to make the land available for housing; and it was permissible to take into account the fact that outside the five-year period land might become available from the dockyard — Appeal dismissed

No cases are
referred to in this report.

This was an
appeal by developers, E C Gransden & Co Ltd and Falkbridge Ltd from a
decision of Woolf J (as he then was) rejecting an application to quash a
decision of an inspector appointed by the Secretary of State for the
Environment. The inspector had dismissed an appeal by the appellants from the
refusal of Gillingham Borough Council to grant outline permission for
residential development of 6 3/4 acres at Bakers Field, Station Road, Rainham,
Kent. There was a cross-notice from the Secretary of State.

Michael Barnes
QC and W R Stewart Smith (instructed by Denton Hall Burgin & Warrens,
agents for Kingsley Smith & Co, of Gillingham, Kent) appeared on behalf of
the plaintiffs; Duncan Ouseley (instructed by the Treasury Solicitor)
represented the Secretary of State; the second respondents, Gillingham Borough
Council, were not represented and took no part in the proceedings.

Giving the
first judgment at the invitation of Sir John Donaldson MR, CROOM-JOHNSON LJ said:
On December 18 1981 the appellants, E C Gransden & Co Ltd and Falkbridge
Ltd, made an application to the Gillingham Borough Council for outline planning
permission for 6 3/4 acres of residential development at a place called Bakers
Field, Station Road, Rainham. That was not very far from the now closed Royal
Naval Dockyard at Chatham, and the whole of the appellants’ site and the
Dockyard are within the area of the Medway Towns. Chatham Dockyard being
closed, there is obviously there a good deal of land of which some may well be
available in the future for residential housing.

On April 21
1982 the council refused the application because it was contrary to the housing
policies of the Approved Kent Structure Plan, contrary to the Approved Medway
Towns Map Rural Area, and in particular it would extend the built-up area at
Rainham into an open rural area.

There was an
appeal against that refusal which was dismissed by an inspector after an
inquiry, and the appellants made a further application to quash the inspector’s
decision. By consent, that was quashed by Woolf J (as he then was) on May 19
1983. The result was that there had to be a second local inquiry. That was held
in June 1984, and on September 18 1984 the second inspector gave his decision.
He, too, refused the application, but he gave his reasons at some length. He
began by setting out the state of the countryside and the place to which the
application referred. I think one can take it quite shortly by saying that to
the north of Rainham itself there is a road called Station Road, and it is
alongside Station Road that the 6 3/4 acres, the subject of the present appeal,
are. Beyond that there is, at crossroads, a further building development and,
to put the matter quite shortly, what the inspector had to bear in mind was
that what was being put forward by the council was that if the development took
place on the site which is the subject of the application, it would have the
effect, more or less, of joining up the area of Rainham to the south and the already
existing building development which has taken place to the north.

Having heard
the submissions and the evidence of the parties, the inspector had to make a
decision, and he had to formulate it in a way which is not criticised by the
appellants, which is at para 91 of his conclusions. He said, first of all that
under the policies which were laid down he would have to see, ‘whether in the
terms of current Circulars a five-year supply of building land exists at the
present time [that is when he held the inquiry] in the Medway Towns area, and
consequently whether or not there is a presumption in favour of development of
the appeal site’. Para 91 continues:

Secondly,
bearing in mind the provisions of the Development Plan, whether residential
development would be contrary to any of the strategic housing or countryside
policies which have been invoked by the Council and if so whether an exception
is justified. Thirdly, whether the proposal would materially detract from the
character or appearance of the locality and if so, whether the planning
objections are sufficient to override any presumption in favour of the
proposal.

The need to
have a five-year supply of identified sites of building land is to be found in
Circular no 22/80 to which is annexed a provision at Annexe A for planning
permission for private sector housebuilding, para 2 of which reads as follows:

2. For any
given area, the availability of land for housing will be governed primarily by
the policies set out in the development plan. However, development plan
policies do not in themselves ensure that the housebuilding industry can
produce the houses needed. For that there must be an adequate and continuous
supply of land, with planning permission, suitable and available for immediate
development, and situated where potential house buyers are prepared to live.
That is why DOE Circular 9/80 (WO Circular 30/80) asks planning authorities to
identify specific sites providing a five-year supply of housing land in
accordance with structure plan policies and, where the authority is approached
by the housebuilding industry, to discuss with the industry whether that land
is genuinely available for development.

266

A good deal of
evidence was advanced before the inspector as to whether or no there was a
five-year supply of building land, and the council were suggesting and
submitting that in the area of the closed Chatham Dockyard there was a
sufficiency of land which should be included when the inspector came to make
his computation. The appellants were saying that there was not enough there in
the form of identified sites which should be included in the assessment of this
site.

When the
inspector came to draw his conclusions, first of all he accepted the way which
the appellants put forward as to how the computation should be made. At para 92
he came to the conclusion about whether or no there was a sufficiency of
available land as follows:

I agree with
your clients ‘residual’ method of estimating whether a 5 year supply of
building land is available since otherwise the housing provision in policy HEC1
of the Structure Plan might not be implemented and there would be no
opportunity in the later stages of the Development Plan period for catching up
with any backlog from the initial stages. By this method your clients have
suggested that at the present time only a 4.04 years’ supply exists which is
likely to decrease further by next year. This however discounts contributions
from the redevelopment of Chatham Naval Base and ‘fell-in’ sites additional to
those taken account of in the 1983 housing land study. In my opinion it would
be unrealistic to disregard these sources altogether because specific sites
have not been identified. Nevertheless, I am in sufficient doubt about the
extent to which they would contribute to conclude that they cannot fully make
up a five year supply of housing requirements at the present time, even if a
figure of about 300 dwelling units is allowed in respect of the historic part
of the Royal Naval Dockyard. There must therefore be a presumption in favour of
your clients’ [the appellants’] proposal, even though eventually a five year
supply of land may become available.

Having found
in favour of the appellants, therefore, that there was not a sufficient
five-years’ supply of available land, the inspector then had to consider what
would be the effect of that. That is to be found again in Annexe A to Circular
22/80, the crucial paragraph of which is 3, under the heading:

Policy in
the absence of an identified supply of land

3  In the absence of such an identified
five-year supply there should be a presumption in favour of granting permission
for housing except where there are clear planning objections which in the
circumstances of the case outweigh the need to make the land available for
housing. The relevant factors should be apparent from the development plan.
They might for example include the fact that the land was in a green belt;
national park or an area of outstanding natural beauty; that other land of
lower agricultural or landscape quality was available; that essential
infrastructure was absent (or inadequate); that the land was important from the
point of view of nature conservation or should be kept available for the
working of important mineral deposits.

The inspector
next considered, therefore, whether the local structure plan was something
which prohibited the development, and he found in favour of the appellants on
that. But he had then to consider the question, in accordance with para 3 of
Annexe A of the policy, whether there were clear planning objections which had
to be considered, and those had been put forward by the council. The inspector
dealt with the matter in para 94 of his decision as follows:

However, the
site is part of a general rural area between the Medway Towns and the river
estuary over which the Council have but recently decided to exercise informal
control with the object of applying policies from the Development Plan on a
site specific basis, and of making the most of the area’s potential for
informal recreation, without prejudice to its agriculture or wildlife. The site
in its undeveloped state contributes to the open country either side of Station
Road which acts as a visual break between the main built-up area of Rainham to
the south and the houses to the north centred around the junction of Station
Road with Lower Rainham Road. This helps to create the impression that they are
a separate settlement and not part of Rainham itself. If the east frontage were
developed and a continuous built-up frontage created on that side much of the
semi-rural character of Station Road in the vicinity would be lost to the
detriment of the open surroundings generally, which the Council are trying to
protect for the reasons I have already given.

Having set
that out, the inspector then had to come to his decision in para 95, which
reads as follows:

The
residential development would be a material intrusion into open country and
detract from the visual amenities, and could well lead to further development,
and sterilisation of other sites in the riverside area, by providing them with
‘hope’ value. Bearing in mind the importance attached by the Council to
maintaining the present character of this land north of Rainham because of its
pleasant riverside features and value for recreational purposes, in my opinion
the planning objections to the proposal are sufficiently strong in the terms of
paragraph 17 of Annexe A to Circular No 22 of 1980 to overcome the presumption
in favour of the development, bearing in mind that a sufficient supply of
building land may become available at some future date from the Chatham
Dockyard.

I have not
referred to para 17 of Circular 22/80, but it does deal with the expansion of a
town where it goes into the surrounding countryside, and it says:

Expansion of
a town into the surrounding countryside is objectionable on planning grounds if
it creates ribbons or isolated pockets of development or reverses accepted
policies for separating villages from towns. . . .

I do not think
one need read any more of that.

So what the
inspector was doing was taking that test and saying that it amounted to a clear
planning objection so far as this proposed development was concerned.
Accordingly, he came to the conclusion that the considerations which he had
recited in paras 94 and 95 of his reasons were sufficient to convince him that:

. . . in the
interests of amenity and good planning and of striking a balance between
conservation and development it would be right at the present time to refuse to
allow residential development to spread further north along Station Road, even
in the absence of an identified 5 year housing supply. I have taken into
account all the other matters raised at the inquiry including the view that it
would be premature to grant permission in the absence of a Local Plan, but they
are not such as to affect my decision.

FORMAL
DECISION

For the above
reasons, and in the exercise of the powers transferred to me, I hereby dismiss
your clients’ appeal.

It was,
therefore, for the reason of a clear planning objection that he dismissed the
application and dismissed the appeal, and really for no other reason.

The appellants
appealed, seeking to quash that decision of the inspector, to Woolf J, and the
point principally taken before the learned judge and taken in this court today
was that the inspector misdirected himself. Having excluded, in accordance with
the policy and deciding on the five-year supply of land, consideration of the
land which might become available from the Dockyard at Chatham, it is said he
was wrong to bear it in mind when he came to his decision on the clear planning
objection. I repeat what he said at the end of para 95:

. . . in my
opinion the planning objections to the proposal are sufficiently strong in the
terms of paragraph 17 of Annexe A to Circular No 22 of 1980 to overcome the
presumption in favour of the development, bearing in mind that a sufficient
supply of building land may become available at some future date from the
Chatham Dockyard

What was
submitted before Woolf J and submitted to this court was that that was a
contradiction: he excluded Chatham Dockyard from consideration in seeing
whether there was a sufficient available supply of land, so it was wrong to
bring it in by the back door in coming to his conclusion whether the
presumption should be overridden.

The hearing
before Woolf J took a somewhat unusual course, because Woolf J himself took the
view that the inspector had been entitled to take into account in coming to his
decision the fact that land might become available for housing in the future. I
should read a passage from his judgment before I deal with the rest of it very
shortly. What the learned judge said at p 12 at B of his judgment was this:

This issue
[was] . . . the inspector was not entitled to take into account the fact that
land might become available for housing in the future. [Counsel] is here
referring to the fact that in his contention the Inspector took into account
the prospects at Chatham Dockyard in deciding that the presumption had been
rebutted. Mr Vallance [who was appearing for the Secretary of State] argued to
the contrary. I have no doubt that in performing the exercise of weighing up
the factors which were adverse to the proposed application the Inspector did
indeed have regard to the fact that a supply of building land might become
available at some future date.

The first
question, therefore, which arises is whether such an approach is inconsistent
with the policy set out in the circulars. Unassisted by counsel I am bound to
say that I would have come to the conclusion that there was nothing
inconsistent in these circulars in doing what the inspector did, namely, taking
into account the fact that land might become available. As it appears to me the
intent of the circulars is that there should be a two-stage exercise. The first
stage of the exercise is one which involved ascertaining whether or not a
five-year supply of land is available. If the answer is ‘No’ then there is a
strong presumption in favour of the grant of planning permission, a different
situation from that which will normally exist. It is then necessary to carry
out the second stage of the exercise, looking at all the material circumstances
against the background of the strong presumption to which I have made reference.

At the end of
that exercise if the body having the responsibility of determining the matter
came to the conclusion that proper material considerations are so powerful that
they outweigh the presumption, then the decision could still be adverse to the
grant of planning permission. One of the matters which, in267 performing that exercise, it is quite proper to take into account in the scales
against the presumption in favour of the grant of planning permission arising
out of the lack of a five-year supply, could be the factor that there is a real
likelihood in the very near future of the lack of land being more
satisfactorily provided from an alternative source. This was, as it appears to
me, the approach which was adopted by the inspector and which, unaided as I
have indicated, I would have thought was a perfectly proper approach.

Having
indicated his own view of what he thought the approach should be, the learned
judge, however, did not give effect to it. Both counsel appearing before him
had argued that the approach was not a proper one, and it was urged on behalf
of the appellants what was urged before us today. It was urged by counsel for
the Secretary of State that there had been a departure by the inspector from
the policy, but not to the extent which was fatal to the council’s case. The
learned judge accordingly considered the case upon that basis and, without
going into any detail as to the argument which took place, he came to the
conclusion that even on the basis that there had been a breach of the policy on
the part of the inspector, it would not have made any difference in the end.
That matter has not been argued before us today. Perhaps one might, at any
rate, quote briefly from the learned judge’s judgment, on p 16 of the
transcript, which does have some bearing upon his attitude to the
interpretation of para 95 of the inspector’s reasons. What he said in another
context was this:

In my view
there would have been something wrong if he had not taken Chatham Dockyard into
account. Indeed I go much further. It would be nonsense to consider this
planning application without taking into account the Chatham Dockyard’s
potential. There was clearly very real material which indicated that this was
land which might become available.

He accordingly
dismissed the motion to quash on those grounds.

Before us
there has been a cross-notice, which has been allowed to be put in out of time,
from the Secretary of State. The cross-notice has put forward that the
preliminary view which Woolf J had expressed as his own view, unaided by
counsel, was the right one. In other words, that although the inspector came to
the conclusion that he did at the end of para 95 of his reasons, he was
entirely right. It is, therefore, necessary to consider the argument that has
been advanced today.

Counsel for
the appellants puts his argument in this way. He said that once the inspector
has, as he did here, found that there was an insufficient supply of land
available within the five-year period, and the presumption was raised, the next
point was that if there were to be clear planning objections which were going
to override that presumption, they would have to be something of an exceptional
nature in order to displace that presumption, and that that did not exist here.
He has conceded that under section 29 of the Town and Country Planning Act 1971
the availability of land outside the five-year period could be in exceptional
circumstances regarded as a material consideration which could be taken into
account in seeing whether or no planning permission should be granted. But, his
complaint was that in the present case the inspector had not really had any
evidence suggesting that there were exceptional circumstances of that nature or
that he had said so when he made his findings in para 95.

In my view,
one of the things to do is to look at the exact wording of para 3 of Annexe A.
Having said that a presumption was raised where there is not the identified
five-year supply, it goes on:

. . . except
where there are clear planning objections which in the circumstances of the
case outweigh the need to make the land available for housing.

This seems to
me to require the inspector to undertake a balancing exercise. The presumption
is not something which is absolute. It is not a pillar of presumption, waiting
to see if it will be knocked down by the impact of serious planning objections.
Para 3 clearly requires the inspector to carry out a balancing exercise, he has
to take into account a presumption, he has to take into account whether there
are clear planning objections, but, then, he has to see whether in the
circumstances of the case planning objections outweigh the need to make the
land available for housing. There may be circumstances, for example, where
there is almost no land available, but there are very, very strong clear
planning objections. There may be circumstances where there is almost enough
land available, but not quite, and where there may be clear planning objections
either of a greater or lesser weight. These are all matters which have to be
taken into account by the inspector in exercising his discretion and coming to
his decision.

I take the
view which Woolf J took, that the fact that outside the five-year period land
might become available from the Chatham Dockyard in a sufficient supply of
building land was a permissible factor for him to take into account in coming
to his conclusion. There was nothing which was a departure from the policy in
so doing. Indeed, in doing what he did he was in fact carrying out the policy
perfectly properly, as set out in para 3 of Annexe A to Circular 22/80.

In those
circumstances, it is conceded on behalf of the appellants that if the proper
conclusion is that the inspector got it right, and was entitled to do what he
did, there is no purpose in proceeding with any of the other interesting
suggestions which have been put forward as to why the judgment of Woolf J was
wrong. I have come to the conclusion that the inspector did not misdirect
himself, that he did not depart from the policy and he was entitled to come to
the conclusion which he did, and I would dismiss this appeal.

SIR JOHN
DONALDSON MR and DILLON LJ agreed and did not add anything.

The appeal
was dismissed with costs.

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