Town and Country Planning Act 1971–Decision of Secretary of State allowing housing development on the outskirts of Petersfield challenged–Alleged mistake by inspector by
This was an
appeal from a decision of Slynn J, reported at (1977) 248 EG 43, [1978] 2 EGLR
135, in which, on an application under section 245 of the Town and Country
Planning Act 1971, he quashed an order of the Secretary of State for the
Environment who had allowed an appeal from the decision of East Hampshire
District Council. The council had refused permission for the development of 17
acres on the outskirts of Petersfield for housing purposes. The Secretary of
State reversed this decision and ordered that permission should be granted. The
council applied to the High Court to quash the order of the Secretary of State
and Slynn J quashed it. The developer then appealed to the Court of Appeal
against Slynn J’s decision.
Viscount
Colville of Culross QC (instructed by Hewitt Pim & Dixon) appeared on
behalf of the appellant, Christopher Henry Josephi; G Dobry QC and E Caws
(instructed by Sharpe Pritchard & Co) represented the East Hampshire
District Council; the Secretary of State did not appear and was not
represented.
Giving
judgment, LORD DENNING MR said: Petersfield is a small country town in
Hampshire of about 9,000 people. It is situated in an area of outstanding beauty
near the Downs. A few years ago developers acquired an extensive area of land
(17 acres) in the outskirts of Petersfield on which they desired to put up 226
houses, shops and so forth. They applied to the planning authority for
permission for this development. But the local planning authority, the East
Hampshire District Council, took objection. They said that such a development
was not suitable for their area. They said it was contrary to their planning
policy. They also said there were difficulties with regard to access and
because of the nature of a cul-de-sac. In consequence the application was
referred by the Secretary of State for an inquiry by an inspector. I will read
the council’s objection: ‘Having regard to the amount of land already released
for development and proposals contained in the Petersfield Planning Policy, it
is considered that the need for housing development on this site is
insufficient to outweigh the objections referred to above.’ So there it is. They were saying that it was not
necessary to develop these 17 acres with 226 houses upon it.
The inspector
heard the cases on both sides: and he made a very elaborate report upon the
matter. There are one or two key sentences in it which later came under
examination. The critical sentence is in paragraph 44 of his report. It reads:
‘. . . an increased allocation of development land over that presently
envisaged would appear to be necessary within these overall areas.’ That is rather a technical way of putting it.
It really comes to this. He thought there would be a considerable increase in
population and that this development was necessary to deal with it. The report
went to the Secretary of State for the Environment. On March 10 1976 he gave
his decision. It confirmed the inspector’s report and recommended that
permission should be granted for the 226 houses. But the local planning
authority, the East Hampshire District Council, challenged it. They said that
the inspector had made a mistake in his report. He had omitted some important
considerations which had been given in evidence.
The case came
before Slynn J. He found that there were mistakes in the inspector’s report and
he quashed the decision. Now the developers come to this court and say that the
judge was wrong and the inspector was right–or, at least, the minister’s
decision was right–and planning permission should be granted.
There was
considerable evidence, and important evidence, about the anticipated increase
in population. It appears that at one time it was considered that in East
Hampshire there were large areas each of which was expected to accommodate
population increases of 12,000 people by 1981. That expectation was explained
by the principal planning officer for the authority. He said: ‘That does not
mean that we need extra land to be developed to accommodate those people. What
it means is that they have already been catered for in the existing anticipated
permission and commitments.’ In other
words, they did not need any more land to be allocated for the anticipated increase
because sufficient land had already been allocated in the existing plans. On
that evidence being given, it went far to show that the proposed development
was unnecessary. But unfortunately the inspector did not put it in his report
at all. Quite the contrary. He omitted it altogether and assumed that extra
land was needed for this anticipated increase in population.
On the other
hand, the developer put a contrary view. He said ‘It was accepted that the
appeal site lay on the extreme eastern edge of Planning Area 27, and therefore
in close proximity to Planning Area 23, but this area was also expected to
accommodate an increase of 12,000 above the 1981 forecast, from 160,000 to
172,000. The relevant planning authorities had therefore a clear duty to make
additional land available to enable these revised estimates to be met.’ That was the very case the developer was
making: and it was wrong according to the evidence, because no additional land
was needed to be developed. The anticipated increase had already been catered
for in the provisional plans, permissions and so forth.
So there does
seem to be a material omission and error which the inspector made because he
did not put the evidence of the principal planning officer in his report. It
may well–and the judge certainly thought so–have influenced the minister’s
decision. This point about ‘necessity’ is of the first importance in an area of
outstanding natural beauty. It ought not to be overridden except on evidence of
paramount need.
There is no
need to go into the law at length in this quite exceptional case. The evidence
which took place before the inquiry is uncontradicted and it is accepted that
the report was erroneous. If it was erroneous, how far should it be enquired
into by the court? It seems on the
authorities that if a mistake has been made in an inspector’s report which is
quite likely to have affected the minister’s mind, then it is a case in which
the court in its discretion might think it proper to quash the decision. It is,
after all, only just to the opponents of the development. These reports are
made so that people can see them; and if they contain a mistake the matter can
be brought before the courts and corrected. If the minister had been misled by
the inspector’s report owing to a mistake in it, it seems to me only right that
the decision should be quashed. I regret the expense involved, but in fairness
to the opponents of the development, the mistake should be corrected. At all
events, the decision is not binding.
That is what
the judge held in this case. He has very considerable experience in these
matters. For myself, it seems to me that in all the circumstances it comes
within the powers of the statute. I need not go into all the details, but we
know that if an application is made within six weeks to question the order or
action of the minister on the ground that it is not within the powers of the
Act or that the interests of the parties have been substantially prejudiced by
a failure to comply with the requirements, then the court can quash it. It
seems, and the judge so found and Mr Woolf admitted in the court below, that if
there is an error of this kind and, as in this case, the planning authority has
been substantially prejudiced because the report contained an important error,
then the order can be quashed. It seems to me that Slynn J was quite justified
in the order he made quashing the permission, and I would affirm his decision.
Agreeing,
EVELEIGH LJ said: I would only emphasise that when one speaks of ‘affecting the
minister’s decision,’ I
wrong decision.
SIR STANLEY
REES also agreed.
The appeal was dismissed with costs.