Application to quash decision of Secretary of State dismissing planning appeal after recommendation by inspector to grant permission for development–Conflict between green belt policy and requirements for housing in a growth area–Court does not accept criticism that Secretary of State, having differed from inspector on a finding of fact, failed to give applicant an opportunity to make representations–Secretary of State’s reasons, however, for throwing over strong presumption in favour of housing development insufficient–Review of cases on duty to give reasons–Decision quashed
This was an
application by French Kier Developments Ltd under section 245 of the Town and
Country Planning Act 1971 to quash the decision of the Secretary of State
dismissing, contrary to the recommendation of his inspector, an appeal by the
applicant against the refusal of the Borough of Surrey Heath District Council
to grant planning permission for the development for residential purposes of 25
acres of land at Windlesham.
A De Piro QC
and R Woodhouse (instructed by Bates, Son & Braby, of Chelmsford) appeared
for the applicant; G Moriarty QC and D Latham (instructed by the Treasury
Solicitor) represented the respondents.
Giving
judgment, FORBES J said: In this case Mr De Piro moves the court for an order
that a decision of the Secretary of State dismissing a planning appeal by the
applicants should be quashed. The matter concerns some 25 acres of land at
Windlesham in what is now the Borough of Surrey Heath District Council area. It
is shown on the map and described in the inspector’s report, but very briefly
it lies on the south-west extremity of the village of Windlesham. Without too
much violence to language it could be said to be, at any rate in part, embraced
by a bit of that development. It is separated from another village called
Lightwater by a belt of open country through which runs the motorway M3.
The
application was for planning permission to develop
as planning authority who gave these reasons:
1 It is intended to preserve the character of
the land not otherwise shown for development within the town map area.
Development other than those categories specified in the written statement
relating to the Surrey development plan will not normally be permitted on such
land and the development proposed in application no BGR 9197/13908 does not
fall within these categories.
2 The development proposed would result in an
undesirable expansion and intensification of the existing pattern of
development, detrimental to its present character, contrary to the policy
outlined above.
Then there was
a third reason relating to a surface water sewer which was later abandoned as
inapplicable.
The Secretary
of State appointed an inspector to carry out a local inquiry as is normal, and
that inquiry took place on June 24 to 26 1975. Mr De Piro himself appeared for
the applicants at the inquiry, which is a matter of useful interest as far as I
am concerned because on a number of matters he has been able to put me right,
which perhaps otherwise he would not have been able to do. The report of the
inspector is dated August 13 1975 and it recommends the grant of planning
permission. The Secretary of State considered that report (and I shall have to
look at his decision letter in a moment), but broadly while accepting the
findings of fact made by the inspector he says that he did not fully accept his
conclusions and dismissed the appeal. That decision was imparted by letter of
February 5 and it is against that decision that Mr De Piro now moves this
court.
I can deal, I
think, with the procedural matters quite simply, because the procedure is very
well known. This arises under the Town and Country Planning Act 1971, section
245. Section 245(1)(b) says:
If any person
(b) is aggrieved by any action on the part of the Secretary of State to which
this section applies and desires to question the validity of that action, on
the grounds that the action is not within the powers of this Act, or that any
of the relevant requirements have not been complied with in relation to that
action, he may, within six weeks from the date on which the order is confirmed
or the action is taken, as the case may be, make an application to the High
Court under this section.
And subsection
(4)(b) of that section reads in these terms:
On any
application under this section the High Court–(b) if satisfied that the order
or action in question is not within the powers of this Act [that does not
arise here], or that the interests of the applicant have been substantially
prejudiced by a failure to comply with any of the relevant requirements in
relation thereto, may quash that order or action.
I can deal with
one point very simply and quickly on that subsection. It has not been suggested
here that if there had been a failure to comply with any of the relevant
requirements, the interests of the applicant have not been substantially
prejudiced, and it seems to me I have not to consider that question. It is
virtually conceded by Mr Moriarty for the Secretary of State.
Subsection (7)
defines the relevant requirements as including any requirements of the rules
made under this Act, and the rules made were the Town and Country Planning
(Inquiries Procedure) Rules 1974, and we are only concerned with rules 12 and
13. Rule 12(2): "Where the Secretary of State (a) differs from the
appointed person on a finding of fact . . . and by reason thereof is disposed
to disagree with a recommendation made by the appointed person, he shall not
come to a decision which is at variance with any such recommendation without
first notifying the applicant . . . of his disagreement and the reasons for it
and affording him an opportunity of making representations in writing within 21
days," or in certain cases of asking within 21 days for the reopening of
the inquiry. Rule 13(1): "The Secretary of State shall notify his
decision, and his reasons therefor in writing to the applicant." That is really all I need read of that rule.
So two things;
first of all if the Secretary of State differs from the inspector on a finding
of fact and because of that is disposed to disagree with the recommendation, he
has got to afford the applicant the opportunity of making representations in
writing before he makes up his mind; and in any event he has to give his
reasons to the applicant when notifying his decision. Now in this case Mr De
Piro takes two main points. First he says that in certain matters the Secretary
of State has differed from his inspector on questions of fact, and secondly
that the reasons he has given, if any, are both insufficient and insufficiently
intelligible. I have been referred to a number of cases on that second point.
Again, the principles are, I think, well known, though some of them, as
enshrined in the cases, I do not find as easy to follow as I might.
A succinct
statement of the matter is to be found in a passage from the judgment of Lord
Denning MR in The Earl of Iveagh v Minister of Housing and Local
Government [1964] 1 QB 395. The Master of the Rolls said: "The whole
purpose of the enactment is to enable the parties and the courts to see what
matters he," that is the Secretary of State, "has taken into
consideration and what view he has reached on the points of fact and law which
arise. If he does not deal with the points that arise, he fails in his duty;
and the court can order him to make good the omission." In another case, Mountview Court
Properties Ltd v Devlin (1970) 21 P & CR 689, Lord Parker CJ
quoted with approval a passage from the judgment of Megaw J (as he then was) in
Re Poyser and Mills’ Arbitration [1964] 2 QB 467, the words he approved
being these: "Parliament having provided that reasons shall be given, in
my view that must clearly be read as meaning that proper, adequate, reasons
must be given; the reasons that are set out, whether they are right or wrong,
must be reasons which not only will be intelligible, but also can reasonably be
said to deal with the substantial points that have been raised."
It seems to me
that those are broadly the principles in the light of which the Secretary of
State’s letter must be examined. Before looking at that letter I think I should
go to the inspector’s report. Experience at the Bar left me with an abiding
respect for the clarity and lucidity with which inspectors in this field
contrive to set out their reports, and experience on the Bench has left that
respect entirely undiminished. The Secretary of State seems to me to be indeed
fortunate in the calibre of his inspectors, and this report, like so many
others, is a model of clarity. Referring back to something I said earlier about
it being useful that Mr De Piro argued the case on the appeal, he has been able
to tell me that the case for the appellants as set out in the report is indeed
an accurate record of the arguments he put before the inspector. It is
necessary, I think, before looking at what the inspector said to give some
account of the geographical circumstances and of the arguments deployed at the
inquiry before one can understand the case which is now being developed in this
court.
The site, as I
have indicated, is 25 acres of land at Windlesham. It was an area which was not
covered by the approved metropolitan green belt notation but fell to be
considered under what might be called the interim green belt policy. This is
succinctly set out as part of the case for the local planning authority at
paragraph 51 of the inspector’s report. I think I should read it.
Green belt
policy in this part of Surrey had evolved over a period of time by the approval
of the development plan in 1959, by the subsequent submission of proposals for
the extension of the green belt, by the approval of the Windlesham town map and
by the strategic plan for the south-east. In the written statement with the
town map it was said that the open character of unallocated land would be
preserved pending consideration of the boundaries of the green belt. In
approving extensions to the green
growth area. The part of the Windlesham town map area which included the appeal
site was one. When notifying the council of the modifications the Secretary of
State said that they did not mean that the land should be released for
development, and that the general principles of green belt policy would
continue to apply to such areas pending the preparation of structure or
informal interim plans.
That is the
planning situation of this particular piece of land, and the effect of the
green belt policy, as I think is well known, is highly restrictive of possible
developments anywhere upon it. One should remind oneself of the provisions of
the still extant circular which refers to this, and that is Circular no 42 of
1955.
Paragraph 3 of
that circular sets out the purposes of the green belt, the three purposes: to
check the further growth of a large built-up area, to prevent neighbouring
towns from merging into one another, and to preserve the special character of a
town. In paragraph 5 that circular goes on to indicate the restrictive policy
which is to be applied: "Inside a green belt approval should not be given
except in very special circumstances to the construction of new buildings or
for the change in use of existing buildings for purposes other than
agriculture, sport, cemeteries, institutions standing in extensive grounds, or
other uses appropriate to a rural area."
And paragraph 6: "Apart from a strictly limited amount of infilling
or rounding off within boundaries to be defined in town maps, existing towns
and villages inside a green belt should not be allowed to expand further."
Those I think
are the principles of green belt policy set out succinctly in that circular
and, as I understand the matter, never departed from thereafter. Running
counter to that green belt policy, however, for some time has been an
acknowledged need to release land for housing, particularly in areas near to
London. There has been a succession of circulars from the Minister or Secretary
of State, the latest relevant ones being circulars 102 of 1972 and 122 of 1973.
Both of these indicate the need for local planning authorities within
"growth areas" to look closely at land within their area to see what
might be released for building. These circulars, and I shall certainly have to
refer to circular 122 shortly, even include in one of the guidelines a
suggestion that there should be a strong presumption in favour of housing in
growth areas only to be overriden by exceptionally compelling planning
objections. The appellant’s land was within one such growth area. In the
Bagshot area there were recently a number of occasions on which the Secretary
of State had allowed appeals relating to the residential development of land. And
these appeals, or the decisions upon them, had alarmed the local planning
authority to this extent, that they commissioned a study known as the Bagshot
Study to identify (at least this was their purpose) the available land
within that particular area. And that study, approved by the local planning
authority, showed some considerable areas of land as available for residential
development within the Bagshot area. There were five, most of them largish
sites, of 33 acres, 26 acres, 24 acres, 30 acres, all within what one might
call unallocated land and one, a matter of some 6 acres, an old goods yard at
Bagshot Station which of course was within the envelope of development. But
some considerable areas were identified as being suitably available for housing
within the unallocated land in the Bagshot area. The appellant’s land was not
included in any of those areas.
In summary,
therefore, the position of the appellant’s land was that it was within a growth
area and at the same time within an area which the Secretary of State had for
the time being excluded from the proposed extension of the green belt, with
this proviso that the general principles of green belt policy should apply
until more definite plans were made.
The arguments
for the applicant are fully set out in paragraphs 10 to 47 of the inspector’s
report, and the case for the planning authority between paragraphs 48 and 56.
The applicant’s was a long and careful argument and quite clearly supported by
a very considerable amount of highly technical evidence and information. But
taken very shortly, and I hope I am not doing an injustice to the argument, it
was this. The appellants were contending that as the site was in what was known
as a growth area, there was a strong presumption in favour of housing. Secondly,
that the figures for land available for housing given by the local planning
authority and extracted from other documents and information was misleading,
and that the overall supply of such land was in fact inadequate, particularly
in the Bagshot area. Thirdly, that so far as the question of green belt was
concerned, there was a difference between interim green belt and approved green
belt and, as is set out in paragraph 45, the planning authority were wrong
"in implying that interim green belt should be treated as approved green
belt. The presumption did not run that way. It was not a case where it had to
be shown that the proposed development was in a special class which could be
allowed in green belt. The question was what green belt functions did the site
fulfil." It followed, went the
argument, that there was here an over-whelming case for releasing this land for
housing.
So far as the
local planning authority was concerned, their arguments can perhaps be
summarised in this way, with all proper apologies for curtailing the argument.
This was a case, said the planning authority, of conflict between the
restrictive policies of the green belt and the expansive policies of growth
areas. The question, they said, was whether it was right to release the land
from green belt control. So far as land availability was concerned, there was
enough land released by the local planning authority in their area including
that in the Bagshot Study for all local needs. As the appeal site was not
included within the land proposed for housing in the Bagshot Study there was no
case for releasing that or any other areas for housing.
Those were, it
seems to me, the main issues raised at the inquiry. It is apparent, I think,
when one looks at the case for the local planning authority that it did not
wholly grapple with the case put forward by the appellant, but that, one
suspects, is not infrequently the case. So when I say there there were issues
arising, it does not necessarily mean that issue was joined on all of them.
The first of
Mr De Piro’s two main submissions in this case is that the Secretary of State
in his letter is in effect disagreeing with the inspector on findings of fact
without giving an opportunity to make representations. I should therefore now
refer to the Secretary of State’s letter. It is dated February 5. The first
paragraph is introductory. The second paragraph sets out verbatim the
inspector’s conclusions in paragraphs 75 to 87 and ends up: "The inspector
recommended that the appeal should be allowed conditionally." Then there are the two paragraphs about which
all the argument has arisen:
3 There is no disagreement with the inspector
on his findings of fact or any question of fact but his conclusions are not
fully accepted. He found the arguments about the availability of housing land
inconclusive but it is thought that more account should be taken of the Bagshot
Study, a copy of which was submitted at the inquiry. The study identified 102
acres of land for housing development. The appeal site, which is on the fringe
of the growth area, was not among those identified by the study. The local
planning authority considered that there was sufficient land available to meet
present local needs and no reason is seen for disagreeing with their opinion.
Indeed, the inspector found that there was no suggestion that development of
the site was required to meet a strictly local need for more dwellings in
Windlesham, although he thought it right to look at the contribution it would
make to the needs of a wider area.
4 The proposed development would substantially
increase the size of the village and would have a marked effect upon its
character. As there is no evidence of special need, it is thought
that the proposed extension of the village would not be justified and that at
least until a structure plan identifying areas for future growth is prepared,
no compelling reason for questioning the application of green belt policy to
the site is apparent. The inspector’s view that there is force in the
contention that the M3 motorway forms an effective barrier preventing the
merger of Windlesham and Lightwater is not accepted. It has been concluded that
the inspector’s recommendation to allow the appeal, subject to conditions,
should be rejected. Instead, for the reasons given above, the Secretary of
State hereby dismisses the appeal.
Having read
that one can go back to Mr De Piro’s first submission in a little more detail.
First he says that although in that letter in paragraph 3 the Secretary of
State says he accepts the inspector’s findings of fact, in reality he differs
in two respects. First of all he disagrees with the conclusions without saying
which conclusions he accepts and which he rejects. And some of the conclusions
are mixed fact and opinion. It follows, says Mr De Piro, that the Secretary of
State may well be disagreeing with some findings of fact of the inspector.
Secondly, Mr De Piro says that in disagreeing with the inspector about the M3
he is disagreeing upon or rejecting a finding of fact.
As to the
first of those more detailed submissions, in view of the authorities to which I
have been referred and which I will have to refer to in a moment, I would be
ready to hold that a general statement by the Secretary of State that he
disagrees with some of the inspector’s conclusions without stating which and
without indicating whether he is disagreeing on fact, if fact is included in
any of those conclusions, is a wholly unsatisfactory reason. It falls, it seems
to me, within that lack of precision of which the Master of the Rolls was
speaking in the Earl of Iveagh’s case. But I do not here think the
argument can be sustained that he is in reality differing on a question of
fact. The complaint really is not that he does differ but that it cannot be
said whether he differs or no. It seems to me that such a complaint falls into
Mr De Piro’s second main submission, which is that the reasons are
unintelligible or that you cannot follow them properly. So I propose to deal
with that matter as falling under his second main submission.
So far as he
argues that disagreeing about the M3 is a disagreement on fact I confess that I
do not follow the argument. I do not think Mr De Piro perhaps is pushing this
argument as hard as he is pushing some of his others. The sentence is this:
"The inspector’s view that there is force in the contention that the M3
motorway forms an effective barrier preventing the merger of Windlesham and
Lightwater is not accepted." It
seems to me that that is very far from a finding of fact. The inspector has not
actually found that the M3 is an effective barrier. All he said is that there
is some force in the appellant’s contention that it is. This is an opinion
which the Secretary of State does not accept. But even if the situation is that
the inspector has found that the M3 motorway forms an effective barrier
preventing the merger of Windlesham and Lightwater, one has to look and see in
what context he is saying that. It seems to me that whether or not in planning
terms the motorway is an effective barrier or even a barrier at all to the
coalescence of the two settlements referred to must be a matter of planning
judgment on which the Secretary of State is entitled to differ from the
inspector without bringing into play the requirements of rule 12. It is not a
barrier in the ordinary meaning of language. The inspector is not saying it is
a barrier. He is saying it is not in his view an effective barrier to prevent
coalescence. As I say, that to my mind must be a matter of planning judgment,
not of fact. So I am not really impressed with the arguments here that the
Secretary of State differed from his inspector on matters of fact, and I would
reject Mr De Piro’s contentions on those matters.
One then has
to pass to his second main submission, which is that the reasons are
unintelligible or not coherent. Mr De Piro started off with this proposition,
that the inspector’s report is a clear and coherent document and cannot be
upset without clear and coherent reasons. He cannot merely say, says Mr De
Piro, "I disagree" or "the inspector is wrong." The Secretary of State must give reasons for
disagreeing with his inspector. I think to some extent Mr De Piro has resiled
from that proposition to which I could not assent. Instead he has put up what I
think is a much more attractive and compelling argument which runs in this way.
The Secretary of State is bound to give reasons for his decision, and where the
issues which have been raised in the inquiry are dealt with by the inspector
and conclusions come to in favour of the appellant, the Secretary of State has
a duty to deal with those issues as they arise; and of course if this involves
differing from his inspector then he is under a duty to give reasons for that
difference. I think that is a much more attractive way of putting the
proposition than the one with which Mr De Piro started. It is one which seems
to me to be wholly supported by the authorities. I am not going to go through
those authorities. They are, as I have indicated, well known. I should perhaps
detail them. The two cases to which I have already referred, Lord Iveagh’s
case and the Master of the Rolls’ judgment and Lord Parker in Mountview
were quoted to me, as of course was the case of Poyser and Mills’
Arbitration [1964] 2 QB 467, Megaw J’s first enunciation of the principles
which he later expanded in Givaudan & Co Ltd v Minister of
Housing and Local Government [1966] 3 All ER 696 or (1967) 18 P & CR
88. Then there was Vale Estates (Acton) Ltd v Secretary
of State for the Environment (1971) 69 LGR 543. Hope v Secretary
of State for the Environment (1975) 31 P & CR 120. Boyer (William)
& Sons Ltd v Minister of Housing and Local Government (1968) 20
P & CR 176 and Elliot v Southwark Borough Council [1976] 2
All ER 781. In addition I have been given a transcript of two cases; one, Kent
Messenger Ltd v Secretary of State for the Environment, which is a
decision of Phillips J on January 30 1976; a case called French Kier
Developments Ltd v Secretary of State for the Environment and Thurrock
Borough Council, a judgment of Willis J on October 19 1976; and a much
older case, Weymouth v Minister of Housing and Local Government and
Brentwood District Council, a decision of the late Lyell J on June 10 1966.
There were other cases, I think, which have been referred to in passing, but
those are the main authorities on which the parties have relied.
As I say, I
find Mr De Piro’s last submission attractive. It seems to me that if in a
careful and reasoned report drawing careful conclusions the inspector puts
forward certain views which are clear and intelligible and the Secretary of
State desires to differ from those conclusions and views, it is necessary in
order to discharge his duty that he should give reasons for his decision to
differ from the conclusions and views of the inspector and do it in such a way
as to explain to the applicant why it is that he is differing. Mr De Piro says
that in this case that was not done. He analysed the wording of paragraphs 3
and 4, as did Mr Moriarty. Mr Moriarty maintained that the Secretary of State,
while he has to give reasons for his decision, does not have to justify
disagreeing with his inspector. I would be inclined to think that it is right
to say he has not to justify disagreeing with his inspector, but I think, as I
have indicated, that Mr De Piro has resiled from that position. I think that
the argument is that if the inspector has come to careful conclusions and the
minister in order to find as he does must necessarily disagree with those
conclusions, it is incumbent upon him in a proper case to indicate the reasons
he has for doing so.
An analysis of
these paragraphs is perhaps difficult. Mr Moriarty himself accepted that the
two paragraphs were not exactly a model of clarity. And of course there is
plenty of authority for saying that one must not approach the minister’s
decision letter in the guise of a schoolman or subject it to too much logical
analysis. What it has got to do
authority and any other person who is interested, why it is that the Secretary
of State has come to the conclusion he has. Looking at these paragraphs I hope
it may not be necessary for me to follow all the different interpretations or
possible interpretations put on the words by Mr De Piro on one side and Mr
Moriarty on the other. One has first to consider what it is that the Secretary
of State meant to say. It seems to me, having regard to the arguments reported
by the inspector, the documents to which I have been referred, and the ministry
circulars which enshrine the policy of the minister (and it is not without
significance that it is to all these matters one has to look in an attempt to
construe these paragraphs) that probably, though I put this forward
tentatively, what was intended to be conveyed by paragraphs 3 and 4 was an
argument on these lines: The arguments about the availability of housing land
have been found by the inspector to be inconclusive, but those arguments were
based on looking at a wider area. The local authority has shown what in their
view is the right amount of land to be made available within the Bagshot Study
area and that that is sufficient for local needs. When it comes to looking at a
structure plan the needs of a wider area may well fall to be considered, and
when that is done, that consideration may or may not show that this land should
go for housing. At present, however, it performs some useful green belt
function, and until that structure plan is produced it is better to retain it
as green belt with all that implies. That I think was probably what were the
Secretary of State’s thought processes in coming to a conclusion contrary to
that of his inspector. The question is has he at all expressed that, or indeed
any intelligible, reasoning in setting out paragraphs 3 and 4? Let us look at those paragraphs. "He
found the arguments about the availability of housing land
inconclusive." That is true; that
is exactly what the inspector did find. "It is thought that more account
should be taken of the Bagshot Study, a copy of which was submitted at the
inquiry. The study identified 102 acres of land for housing development. The
appeal site, . . . was not among those identified by the study." (I have deliberately missed out the
parenthetic phrase.) That seems to me to
be intelligible on its own, though I confess I cannot follow the logical
development from finding the arguments about the availability of land
inconclusive to a suggestion that more account should be taken of the Bagshot
Study, because the arguments about the availability of housing land included
the availability of land shown within the Bagshot Study itself. The argument,
as I understood it, was that when one looked at growth area circulars the land
available within the Bagshot Study area and indeed in this part of Surrey was
not sufficient. It did not come up to the requirements of the later circulars.
What I think the letter was intended to convey was that more account should be
taken not of the Bagshot Study but of the desirability of releasing land for
local needs only. The parenthetic phrase I omitted was "the appeal site,
which is on the fringe of the growth area." That as a statement may or may not be
accurate, but nothing seems to depend upon it, except that it is the only time
that the fact that this land was within a growth area is mentioned in these
paragraphs at all.
The letter
goes on: "The local planning authority considered that there was
sufficient land available to meet present local needs and no reason is seen for
disagreeing with their opinion. Indeed, the inspector found that there was no
suggestion that development of the site was required to meet a strictly local
need for more dwellings in Windlesham, although he thought it right to look at
the contribution it would make to the needs of a wider area." There was some argument by Mr De Piro as to
whether one could equate the words "strictly local needs" in the last
sentence with the "present local needs" in the sentence before it.
There may or may not be a difference. I do not think it is a difference of any
great weight. What those two sentences mean together is, I think this, first
that the local planning authority’s case was that there was enough land for
local need, and the inspector really took the view that there was not any
argument about that. And indeed there was not, because the whole of the
argument for the applicant proceeded on the basis that one was not here looking
at local need, however one might define that term; what one was looking at was
this piece of land as part of a growth area near metropolitan London: in other
words, what one was bound to do was to look at it in the context of what the
inspector has called a wider area. The paragraph then, and secondly, shows that
the Secretary of State realised that the inspector took that view; but nowhere
does it indicate that he disagreed with the inspector about looking at the
contribution the land would make to the needs of a wider area. I suppose it is
implicit when one reads the way it is set out that the Secretary of State did
so disagree. But if so, if he did disagree, it is apparent that nowhere has he
given any reasons for saying why it was wrong to look at the needs of a wider
area.
Then when one
comes on to paragraph 4 it seems to me again (I am not going to pursue it in
detail) that that paragraph was dealing with the point that this particular
site in the view of the Secretary of State does perform some useful function as
green belt land, at any rate for the moment. And that of course was one of the
issues which arose in the case, and I think it can just possibly be read as
grappling with that particular issue. I have already dealt with the question of
the M3 motorway forming an effective barrier. But the letter goes on: "at
least until a structure plan identifying areas for future growth is prepared,
no compelling reason for questioning the application of green belt policy to
the site is apparent." And Mr De
Piro’s main submission really, certainly the main submission he made in reply,
was this, that when one looks at the modern development of the green belt
policy it is not sufficient any longer to say that green belt policy means no
development except the type of matter which is referred to in circular 42 of
1955. He says the green belt policy is now a much more complex matter, taking
into account its interrelation with growth areas and so on. The matters set out
in the annex to circular 122 of 1973 would indicate indeed that within a growth
area the presumption should be in favour of housing unless there are exceptionally
compelling planning objections to development.
Now it is
quite clear to me from paragraph 86 of the inspector’s report which is set out
at the top of the last page of the Secretary of State’s letter that it was
looking at it in that way which led the inspector to the conclusion that he
came to. He in effect has rejected the argument of the local planning authority
that it is only local need at which one need look. He says he has taken into
account the guidance in the two circulars 102/72 and 122/73, and noted the
strong general presumption in favour of housing in growth areas set out in
those guidelines. I am not going to refer in full to both circulars. We have
looked in the course of the arguments in this case to circular 102/72, but I
think it is sufficient for these purposes to look at the later circular and at
the guidelines contained in annex A. If one looks at paragraph 4 of that annex
it starts off: "In growth areas planning applications must be considered
against the background of a strong general presumption in favour of housing.
But as a growth area is a general location only, this strong general
presumption applies only to those parts of the area that clearly would fall to
be considered for inclusion in any specific growth area plan." And then very importantly: "For those
parts the presumption should only be overriden if there are exceptionally
compelling planning objections to a development which in the circumstances of
the case outweigh the need to make the land available for housing. Such
objections would, for example, include the fact . . . that the development was
proposed on land situated in green belt . . .
defined."
Now this land,
as I indicated earlier, but perhaps not with the clarity I should have done,
was land to which really two conflicting possible policies applied. The one was
green belt. It was land which in the phrase used in the Secretary of State’s
letter in confirming the Windlesham Town map with modifications said this: it
did not mean that the land should be released for development and that the
general principles of green belt policy would continue to apply in such areas
pending the preparation of structure or informal interim plans. So there we
have got this land put as interim green belt, because nobody has yet done the
final planning which would decide whether it should become approved green belt
or not. In the meantime it should be preserved against anything which would
prejudice that future decision. That is as I read it, the interim policy. As
against that it was also within a growth area, and there we have got in
paragraph 4, annex A, "as a growth area is a general location only this
strong general presumption applies only to those parts of the area that clearly
would fall to be considered for inclusion in any specific growth area
plan." No specific growth area plan
of course had been produced. So this site is also subject, as it were, to
another interim notation, if I may use that expression, as a possible growth
area. And nobody can decide finally whether a particular piece of land in a
growth area should be subject to the growth area policies until a detailed
specific growth area plan is produced.
Here,
therefore, is this piece of land temporarily in limbo, because nobody has made
up his mind as to which ultimate policy should apply to it, growth area policy
or green belt policy. That I think is what the planning authority were very
rightly saying was really the main issue in this case. "The issues in this
case," paragraph 48 says as part of their opening in their case, "had
been clarified and had resolved themselves into the conflict between the
restrictive policies which had been applied to green belt land for many years
and the expansive policies in growth areas which were of recent
origin." They do not there really
state what is the other dimension in the argument, and that is whether that
conflict, as they put it, between those two policies should be resolved now or
only when a detailed plan for the area was produced. This is why in my view
what the Secretary of State was probably trying to say was that the status quo
should be preserved, because this land had some function as green belt, until
that further study and detailed plan from both aspects was produced. The
question is has he said it clearly enough?
I have indicated already, as Mr De Piro argued, that although he
mentions the inspector’s looking at the contribution this land would make to
the needs of a wider area, he nowhere, except possibly by implication,
disagrees with that view. Not only does he not explicitly disagree with that
view, it is apparent that in order to make any sort of sense out of his
decision one has got to supply the statement that he does disagree with that
view. Unless he disagreed with that view he could not have come to the
conclusion that green belt policy should be applied to this area at least until
a structure plan had been prepared. What the applicant is entitled to know,
says Mr De Piro, is why, if that is the conclusion he came to, he should have
come to such a conclusion. Why was it not right to look at the contribution
this site made to the needs of a wider area?
Why was it necessary to throw overboard the presumption of planning
permission for residential development being given in a growth area? In order to do that the Secretary of State
would have to find exceptionally compelling planning objections, and nowhere
has the Secretary of State indicated what those are, and in those circumstances,
says Mr De Piro, he has failed to give intelligible reasons.
As I think I
have indicated, I believe that one can come to a tentative conclusion after a
great deal of analysis as to what the Secretary of State probably intended to
say. It may well be that the reason why he thought it wrong at this present
stage to look at the contribution this site would make to the needs of a wider
area is because on all views of the matter he thought no irrevocable decision
about the future of that land should be taken until a structure plan had been
prepared. If that is the reason, as I strongly suspect it is, it is apparent
that it is not expressed, not expressed at all, whether intelligibly or
unintelligibly. That is a lacuna of which it seems to me the applicant is
entitled to complain.
I confess I
have not found this question at all easy. It is clear to me that, on the cases,
the Secretary of State has got to give intelligible reasons for his decision.
He has got to grapple with the issues which are raised and deal with them. That
is Lord Denning in The Earl of Iveagh’s case. If he does not deal with
the points that arise, he fails in his duty and the court must order him to
make good the omission. It seems to me that within those rules if it is merely
a question of the weight to be attached to particular arguments or contentions,
that the courts could not possibly interfere merely on the ground that the
Secretary of State has given undue weight to one matter or failed to give any
weight at all to another. But where it is plain, as I think it is here, that
necessarily the Secretary of State has disagreed with a carefully argued
conclusion of his inspector on what on all counts must have been one of the two
conflicting principles to apply, where he disagrees with his inspector on that
it seems to me that it is incumbent upon him to give at least some inkling of
the reason for that disagreement, and I can find no cogent reason expressed in
this letter.
In the
circumstances it seems to me that I must accede to Mr De Piro’s submission that
the letter is not expressed with the clarity with which it should have been,
that no sufficient reason has been given for differing from the inspector’s
view that one should look at the needs of a wider area, and that no real expression
of a reason has been given by the Secretary of State as to why he has in this
case rejected the strong presumption in favour of housing development expressed
in his policy circulars. In those circumstances I think this application should
be allowed.
It was ordered that the decision of the Secretary
of State for the Environment, contained in his decision letter dated February 5
1976, be quashed and that the applicant be awarded the costs of the present
proceedings.
