Town and country planning–Application to quash order by Secretary of State granting planning permission for development refused by planning authority–Permission sought for development consisting of residential units, shops and old people’s centre–Inspector’s report challenged–Alleged failure to satisfy rule 12 of the Town and Country Planning (Inquiries Procedure) Rules 1974–Report defective in not explaining that a population increase of 12,000 would be catered for by existing planning permission and commitments and would not require the allocation of additional land–Secretary of State’s decision quashed in view of misleading nature of report in this respect
This was an
application by the district council to quash the decision of the Secretary of
State allowing an appeal by Christopher Henry Josephi from the refusal of the
council to permit the development of 17 acres of land south of Durford Road,
Petersfield, Hampshire. The council’s application to quash the Secretary of
State’s order was made under section 245 of the Town and Country Planning Act
1971.
G Dobry QC and
E Caws (instructed by Sharpe, Pritchard & Co) appeared on behalf of the
applicant council; Harry Woolf and D Matheson (instructed by the Treasury
Solicitor) appeared for the first respondent, the Secretary of State; Viscount
Colville of Culross and Mrs S Hamilton represented the second respondent, C H
Josephi.
Giving
judgment, SLYNN J said: In 1974, Mr C H Josephi applied to the East Hampshire
Rural District Council for planning permission to develop 17 acres of land
lying to the south of Durford Road, Petersfield, Hampshire. He wished to build
there 226 units of residential property, five shops and an old people’s
community centre. The local authority refused planning permission on the ground
that the development would be contrary to the provisions of the adopted
Petersfield planning policy. In addition, the council refused on the grounds
(a) that the development of the land would involve the extension of an existing
cul-de-sac to form a cul-de-sac of excessive length and, (b) that, having
regard to the amount of land already released for development and proposals
contained in the Petersfield planning policy, it was considered that the need
for housing development on this site was insufficient to outweigh the
objections which I have previously mentioned. Finally, it was said that the
proposed development would overload the existing crossroads junction of Durford
Road/Heath Road with Pulens Lane.
Mr Josephi
appealed to the Secretary of State and an inquiry was held before an inspector.
In his report dated February 6 1976 the inspector recommended that the appeal
should be allowed and on March 10 1976, the Secretary of State accepted the
inspector’s recommendation. He granted planning permission subject to certain
conditions which are not in issue before me.
The local
authority now apply to the High Court under section 245 of the Town and Country
Planning Act 1971 for the minister’s order to be quashed. In the notice of
appeal it is said first that the decision was outside the powers of the Act and
secondly, or alternatively, that the relevant requirements of the Act and the
Town and Country Planning (Inquiries Procedure) Rules of 1974 had not been complied
with, as a result of which the applicant is prejudiced. Mr Dobry, who has
appeared on behalf of the local planning authority before me, really put his
case on the second ground.
The basis of
the appeal is that the inspector erroneously reported that an increased
allocation of development land appeared necessary in the planning area of which
Petersfield forms part, because of an anticipated population increase of 12,000
persons, but he failed to report that such increase was anticipated because of
the taking up of already existing planning permissions and commitments, despite
evidence to that effect being given at the inquiry. As a result of the report,
it is said that the minister failed to have regard to a material consideration,
namely, that any increased population was anticipated only because of the
taking up of existing planning permissions and commitments; or, put in the
converse way, that he had regard to an irrelevant consideration and that he
wrongly assumed that no proper land had been made available to meet the
anticipated increased population. Although the grounds of appeal refer both to
the Secretary of State and to the inspector, the essential criticism is that of
the inspector. If the inspector was wrong, it follows, it is said, that the minister
acted on a wrong basis.
In his report,
the inspector, having described the land and set out the parties’ contentions,
found a number of facts. None of these is challenged by Mr Dobry. Some of the
findings relate to the grounds of the local authority’s refusal which are not
in issue and I need not read them. I should, however, read a number of other
findings of fact:
6. The appeal
site lies within an unallocated area in the approved (1955) country development
plan and on the submitted review plan, the latter also showing it within an
area of great landscape value. The site also lies within an area designated in
1962 as being of outstanding natural beauty. Both of these notations extend
over the whole of Petersfield and much of East Hampshire.
7. In the non-statutory
Petersfield planning policy map (with an accompanying town centre map) adopted
by the former local planning authority in September 1969 the site is shown as
part of an unallocated area beyond the intended limits of development.
8. In the
strategic plan for the South East, published in 1970, the appeal site falls
within the extreme edge of planning area 27, forecast to accommodate a
population of 250,000 by 1981, and immediately adjoining planning area 23,
forecast to accommodate 160,000 persons by 1981.
9. Each of
these planning areas is now expected to accommodate an increase of 12,000
persons over the strategic plan forecast for 1981.
10. The
appeal site does not fall within a ‘growth’ area as defined in the strategic
plan, but one of the Petersfield planning policy map’s objectives is to allow
for some continued growth.
11. Taking
the average figure of housing completions between 1970 and 1974 in the former
urban district area as 60, the number of years’ supply of available housing
land in that area is 18.5.
12. Extending
the calculation to the present district council area, within the limits of
available statistics, there is a theoretical 4.69 years’ supply.
13. No date
can be given for the construction of the A3 trunk road Petersfield by-pass.
The inspector
then set out his conclusions; I should read paragraphs 44 and 45:
44. Bearing
in mind the above facts I am of the opinion that, while the proposed 226 units
development would represent an extension of the existing built-up area of
Petersfield on to land not allocated for residential development on the
non-statutory Petersfield planning policy map, the appeal site is contained to
the south and south-east by a natural feature whose continuation westwards
already forms the established boundary of existing and projected development.
To that extent the proposed development could be regarded as ’rounding-off’ and
the effectiveness of the visual boundary could be enhanced by appropriate
landscape treatment. Although Petersfield does not fall within a growth area,
as defined in the strategic plan for the south-east, it lies within planning
area 27 and adjoins planning area 23, each of which areas are now expected to
accommodate population increases of 12,000 persons over the respective 1981
forecasts of 250,000 and 160,000 and, to that extent, an increased allocation
of development land over that presently envisaged would appear to be necessary
within these overall areas. While the land availability for housing in the area
of the former Petersfield Urban District Council amounts to 18.5 years supply,
the restricted administrative boundary employed appears to conceal an overall
figure of about 4.69 years supply for the whole District Council area, as far
as statistical limitations permit this to be estimated. There is therefore at
least some doubt as to whether 5 years supply is available in the terms of
Circular 102/72 and neither circulars 10/70, 102/72 nor 122/73 treat this
figure as a maximum.
45. In common
with the built-up area of Petersfield, the appeal site is defined as being
within an area of great landscape value in the submitted first review plan, and
within an area designated as of outstanding natural beauty. While the appeal
site provides an open outlook for residents adjoining or overlooking the site,
I do not consider that it contributes to the overall landscape value of the Hampshire
Downs to a greater degree than other open land on the periphery of the town.
While other potentially developable land may be appropriately demarcated when
the projected Petersfield by-pass is finally constructed, it seems unlikely
that such land will become available within the time-scale envisaged by
circular 102/72 for housing land availability.
The minister
in his decision of March 10 1976 set out these paragraphs and he continued:
The Secretary
of State sees no reason to disagree with the Inspector’s conclusions and
accepts his recommendation.
In substance,
the criticism before me is directed at one sentence in paragraph 44 where it is
said that planning area 27, including Petersfield, is ‘expected to accommodate
population increases of 12,000 persons over the respective 1981 forecasts of
250,000 and . . . to that extent, an increased allocation of development land
over that presently envisaged would appear to be necessary within these overall
areas.’
The Town and
Country Planning (Inquiries Procedure) Rules of 1974 lay down certain
requirements as to the conduct of the inquiry. Rule 12 provides that the person
appointed shall make a report in writing to the Secretary of State including
his findings of fact and his recommendations. In a number of cases, the courts
have indicated the nature and extent of the inspector’s duty in writing this
report, to which I need not refer in detail.
In the present
case, a number of affidavits have been filed on the application before me
dealing with what had been said at the hearing and seeking to amplify or
explain the evidence. In my judgment, there are limits to the extent to which
evidence of this kind is admissible on an application under section 245. In a
number of cases cited, of which Ashbridge Investments Ltd v Minister
of Housing and Local Government [1965] 1 WLR 1320, Errol v Essex
County Council (1962) 14 P & CR 95 and Boyer (William) & Sons
Ltd v Minister of Housing and Local Government [1968] 20 P & CR
176 are typical, it has been emphasised that in a hearing of this kind, it is
not for the court to go into the matter afresh; it is for the inspector to find
the principal facts established before him and to record them. He does not have
to record everything. If his account is challenged, then, unless there is
agreement as to what occurred, the court will not usually intervene. It is,
however, possible for evidence to be given as, for example, to show that proper
procedures have not been complied with or to show that there was no material
upon which an inspector properly directing himself could have reached one of
his conclusions. Much of the evidence sought to be put in before me seemed to
me to go beyond what is permissible and I declined to take it into account. Mr
Dobry in effect conceded that this was the right course for me to take.
It is however,
in my view, permissible for evidence to be filed to show that a particular
matter of real importance in the case of an applicant for planning permission
or in the case of the local authority–and they must in my judgment for this
purpose be on the same footing–has been wholly left out of the report so that
the Secretary of State is unaware of it. If this were not so, an applicant or
the local planning authority would have no means of ensuring that the final decision
of the minister was based on the real grounds relied upon. Similarly, evidence
may be admitted in my judgment to show that a particular matter of importance
has been completely misunderstood or put in an entirely wrong or misleading way
so that the Secretary of State never has the real picture. If there is
agreement that the matter has been wrongly excluded or misstated, the court can
consider whether in consequence there is a failure to comply with the rules,
and prejudice, or an act of the Secretary of State which is outside his powers.
If the matter complained of is not important then an inspector may be justified
in leaving it out altogether. Equally, if there is disagreement as to whether
an important matter was left out, then this court may not be in a position to
resolve the dispute and the applicant may fail to satisfy the court that there
has been a failure to comply with the rules. Again, if the evidence given or
the point taken is challenged, the inspector is entitled to record his own
conclusion and an applicant cannot necessarily complain if in the inspector’s
conclusions he sets out the view opposite to that contended for by the
applicant, so long as the applicant’s case is fairly recorded.
In the present
case, Mr Wheeler, the applicants’ solicitor, refers to evidence given at the
inquiry by Mr Kilsby on behalf of the applicant for planning permission. In his
affidavit, Mr Wheeler says this:
5. Evidence
was given for the East Hampshire District Council by Mr K J Kercher who is the
principal planning officer of the local planning authority. After he had read
the statement of the East Hampshire District Council given under rule 6 of the
Town and Country Planning Appeals (Inquiries Procedure) Rules 1974 I asked him
to comment on Mr Kilsby’s statement that planning area 27 might be expected to
have to accommodate 12,000 more people by 1981 than the previously estimated
population figure of 250,000. Mr Kercher explained in terms that the
anticipated increase of 12,000 was based on the likely future population in the
strategic planning area referred to resulting from the taking up of existing
planning permissions and commitments and that therefore no further allocation
of residential land would be required to accommodate this increase.
7. The
evidence set out in paragraph 6 hereof was not retracted or in any way altered
or withdrawn by Mr Kercher in cross-examination. No evidence after this as set
out herein was before the appointed person at the inquiry.
This was
supported in an affidavit filed before me by Mr Kercher himself, the principal
planning officer of the Hampshire Rural District Council, who says in paragraph
5:
I then was
asked to comment on Mr Kilsby’s evidence that planning area 27 was expected to
have to accommodate 12,000 more people by 1981 than the previously estimated
figure of 250,000. In reply, I explained to the inspector appointed to conduct
the inquiry that the anticipated increase was based on the likely future
population in strategic planning area 27 resulting from the taking up of
existing planning permissions and commitments to housing development and
that, therefore, no further allocation of residential land would be required to
accommodate this increase. The increase was expected only because land was
already available and allocated for residential development.
Evidence on
behalf of the respondent to the present application, so far as I have admitted
it, is contained in the affidavit of Mr Kilsby and of Mr Josephi himself. In
paragraph 3 of his affidavit, Mr Kilsby says that he attended the inquiry and
gave evidence on behalf of Mr Josephi. He goes on:
In the course
of that evidence I drew the inspector’s attention to a document entitled
‘Strategic Plan for the South East–Population Pressure and Population Change, A
Monitoring Report–January 1975’ and to the fact that table 22 on page 58
indicates a ‘New County Forecast’ for 1981 in planning area 27 of 262,000
persons which is an increase over the original strategic plan for the South
East forecast for the same planning area of 250,000.
4. The
monitoring report referred to above gives no indication of the basis used by
the Hampshire County Council in compiling their forecast. It is readily
apparent from paras 4.10 to 4.14 on pages 7 and 8 of the report that differing
methods were used not only from county to county but also within counties.
5. In
answering the material question put to him by Mr P Wheeler the Council’s
technical witness, Mr K Kercher, did not cite any written authority or source
of verification for his response, neither did he produce any documentary
evidence in support of his contention.
Mr Josephi at
paragraph 5 of his affidavit says:
I was present
throughout the hearing of the Appeal on the 8th October 1975 and in particular
was present when Mr Kercher gave evidence in the terms referred to in the
second paragraph numbered 5 of the said affidavit of Mr Wheeler.
6. Mr Kercher
produced no documentary evidence to support the explanation which he gave in
the terms mentioned in the second paragraph numbered 5 of the said affidavit by
Mr Wheeler. I understood that this uncorroborated explanation was merely a
personal interpretation by Mr Kercher confined solely to the anticipated
increase of 12,000 in the previously estimated population figure for planning
area 27. It appeared to me that the explanation did not refer to the
neighbouring planning area 23. Moreover the explanation did not effectively
controvert any other evidence which had been given by Raymond Francis Kilsby
referred to in the said affidavit of Mr Wheeler.
I do not read
Mr Kilsby and Mr Josephi as challenging that evidence was given by Mr Kercher
in the terms which Mr Wheeler and Mr Kercher have set out in their affidavits;
what they challenge is the weight to be attached to what was said and the
proper conclusion to be drawn from it in the light of all the other evidence.
The local
authority’s case before me is that the report gives a wholly misleading
picture. True, 12,000 people could be expected to inhabit the area. But these,
it is said in the evidence, were not 12,000 people who would need to be found
houses, but 12,000 people who would only live in the area firstly because
planning permission had been given for specific land or because land had
already been committed or allocated for housing, and, secondly, if houses were
actually built on that land which does not include the land which is the
subject of the present application. Thus, it is said that the inspector could
not properly conclude that ‘an increased allocation of development land over
that presently envisaged would appear to be necessary within these overall
areas.’ This, said Mr Dobry, was an
issue of fundamental importance and had the Secretary of State known the real
position he could not possibly have come to the same conclusion. Mr Dobry
stresses that this is an area of outstanding natural beauty where planning
permission should only be given if there is an exceptional need for housing.
Mr Woolf, on
behalf of the Secretary of State, says that the matters debated at this inquiry
were all highly controversial. There was clear evidence that the land
considered to be available could not in some cases be made available for some
time, particularly a parcel of 103 acres which could not be released until the
Petersfield by-pass had been built, perhaps many years ahead. He stressed that
there was a real issue between the parties as to whether the land considered to
be available was satisfactory for future planning needs. The point, he says, as
to the 12,000 population increase was not significant and if the report was
taken as a whole, it could not affect the Secretary of State’s decision.
Lord Colville,
for Mr Josephi, also stressed that the report must be read as a whole. His
argument was that the need for housing was not a crucial point in this case.
The Secretary of State had ample material from which he could as a matter of
planning policy reach his conclusion. Having analysed the relevant circulars
and referred in detail to the history of planning thought in regard to this
area through the statutory development plan, the Petersfield planning policy
and the monitoring reports on the strategic plan for the south east, Lord
Colville submitted that there was not in this area a five-year supply of land
which could be relied on to comply with circular 102/72. Moreover, all other
planning objections, he said, were overcome in relation to this particular
site. I accept Lord Colville’s arguments that there are strong grounds to
support the minister’s decision. His clients put forward considerable and carefully-prepared
material to show that the land apparently available for future housing was
either likely to have been overstated or not to be available for a long time.
The evidence called by his clients served to eliminate the planning objections
peculiar to this site and he can point to passages in the various circulars and
report which support his case for planning permission to be given in respect of
this proposed development. All of this, including the detailed proof of Mr
Kilsby, had been clearly and carefully summarised by the inspector in his
report in a way which cannot be faulted.
On the other
hand, one cannot get away from the fact that the applicant in his evidence
relied upon, and stressed, the significance of the increase of 12,000 in area
27 as in area 23. In paragraph 4 sub-paragraph 5 of his evidence, Mr Kilsby
said this:
It is
incumbent upon both the county councils and district councils concerned to
orientate their policies and day to day decisions towards making additional
land available to enable these revised estimates to be met.
The inspector
summarised the applicant’s case in paragraph 12 of his report as being:
The relevant
planning authorities had therefore a clear duty to make additional land
available to enable these revised estimates to be met.
I accept that
it was open to the inspector to find this increase of 12,000 to be wholly
irrelevant or to say that he rejected the local authorities’ explanation of how
the figure was arrived at. He does neither of these. There was no challenge to
the explanation given of how the figure of 12,000 was produced. But I am not
satisfied from the report that he addressed his mind to the evidence which was
outlined and rejected it. It is accepted that Mr Kercher did give the
explanation and it was not recorded. It seems to me that it has been
inadvertently omitted.
It can clearly
be said, as it is said on behalf of Mr Josephi, that there are other
conclusions which support the recommendation. At paragraph 44, the inspector
was satisfied that this proposal could be regarded as ’rounding-off’ of
existing development and on that basis was unobjectionable. Equally, the
inspector doubted whether the five-year supply of land was available. But not
only did the applicant attach importance to the increase of 12,000 people which
was anticipated, the inspector relies upon it in his conclusions in paragraph
44. Accordingly, it seems to me, the Secretary of State ought to have been told
how the figure was arrived at. Since the explanation which was not given is, in
my judgment, capable of affecting the weight to be attached to the anticipated
increase–what weight it has is, of course, for the Secretary of State–it seems
to me that the report does not give an adequate explanation of the point and is
to that extent misleading. There was accordingly a non-compliance with the
requirements of rule 12 as indicated in the authorities. Mr Woolf conceded that
if there was such a non-compliance then in this case the applicants established
substantial prejudice, and Lord Colville did not argue to the contrary.
It may well be
that all the other factors relied on are such
That, it seems to me, should not in this case affect the result in this court.
I cannot be sure how much importance the Secretary of State attached to the
anticipated increase of 12,000 or whether he would have come to a different
view if he had known that the 12,000 population increase only arose because of
planning permissions or commitments already given or made. It is a matter for
consideration whether, when the Secretary of State looks again at the case, it
is possible for the matter to be dealt with by an agreed statement of Mr
Kercher’s evidence being added to the report so that a further hearing is
unnecessary. That however is a matter for the parties to consider.
Accordingly, I
quash the decision of the Secretary of State and the matter must go back to
him.
It was ordered
that the decision of the Secretary of State be quashed and the matter remitted
to him for further consideration. The Secretary of State was ordered to pay the
costs of the district council in relation to the appeal and the hearing before
the judge. No order was made as to the costs of Mr Josephi. The judge also gave
directions as to the costs of interlocutory proceedings.