Local plan — Whether recommendation of local plan inspector to be followed by local planning authority — Whether council entitled to prefer contrary views of appeal inspector
In 1988 the
appellant council proposed to include a three-acre site within the green belt
notation of the local plan. Following an inquiry, the council adopted the
inspector’s recommendation which supported their proposal. On appeal to the
court below that proposal was quashed. In January 1992 the council again
proposed including the site within the green belt in the first alteration to
the local plan. The local plan inspector recommended the site be excluded from
the green belt. The respondent owners had applied for, and had been refused,
planning permission for residential development on the site. They appealed. A
second inspector who conducted the planning appeal did consider that the site
together with adjoining land would perform the green belt functions. The
council rejected the recommendations of the local plan inspector and accepted
those of the appeal inspector. That decision was quashed in part in the court
below; the council appealed.
It was
sufficient for the council to express their preference for the reasoning of the
appeal inspector and to regard his views as providing good reasons for
including the site within the green belt. Both inspectors’ opinions were
reasonably and genuinely held. The council when making their decision had both
opinions in mind. It being a question of planning judgment, it was not possible,
objectively, to prove that the local planning inquiry inspector’s views were
wrong or to demonstrate that one set of reasons were better than the other. The
council could not be required to attempt that task: see p31E.
to in the judgments
Poyser
and Mills’ Arbitration, In re [1964] 2 QB 467;
[1963] 2 WLR 1309; [1963] 1 All ER 612; sub nom Poyser v Mills
[1963] EGD 421; (1963) 185 EG 609
R v Elmbridge Borough Council, ex parte Oakimber Ltd (1990) 62
P&CR 82
Westminster
City Council v Great Portland Estates plc
[1985] AC 661; [1984] 3 WLR 1035; (1984) 50 P&CR 34; [1985] JPL 108; sub
nom Great Portland Estates plc v Westminster City Council [1984] 3
All ER 744, HL
Appeal against
the decision of Mr Malcolm Spence QC
This was an
appeal brought by Surrey County Council against the decision
Division) whereby he quashed in part the council’s local plan.
Straker QC (instructed by the solicitor to Surrey County Council) appeared for
the appellant council.
Ouseley QC and Thomas Hill (instructed by McKenna & Co) appeared for the
respondents, Gillenden Development Co Ltd.
following judgments were delivered.
PILL LJ: This is an appeal from a decision of Mr Malcolm Spence QC, sitting
as a deputy judge of the Queen’s Bench Division on December 8 1995, whereby he
quashed that part of the Brooklands local plan first alteration which would
establish green belt notation on a three-acre site (‘the site’) owned by Gillenden
Development Co Ltd in the county of Surrey. The Brooklands referred to contains
most of the former motor racing circuit and at the material time was in Woking
Borough. The appellants are Surrey County Council (‘the council’), whose plan
was, in part, quashed by the learned judge.
The site was
in the approved green belt from the time of the 1958 Woking and District Plan.
In 1988 the council decided to promote the Brooklands local plan with green
belt notation proposed over a large area at Brooklands, including much of the
old racing circuit and the site, which lies outside that circuit. The making of
the Brooklands local plan and the making of the subsequent Brooklands local
plan first alternative, were subject to the Town and Country (Structure and Local
Plan) Regulations 1982.
The procedure
in outline is that a local plan is prepared by the local planning authority.
There is provision for objections to the plan within a prescribed period; there
is provision for a public local inquiry into objections before an independent
inspector who reports to the local planning authority with recommendations on
the parts of the plan subject to objections. By regulation 29, the local
planning authority who prepared the plan:
shall …
consider the report of the person appointed to hold the inquiry or other
hearing and decide whether or not to take any action as respects the plan in
the light of the report and each recommendation, if any, contained therein; and
the authority shall prepare a statement of their decisions, giving their
reasons therefor.
The local
planning authority may then adopt the plan in such form as they see fit,
subject to the above procedure, and therefore have the final say in the content
of the plan.
Objections to
the 1988 proposal were received and an inquiry was held. The inspector
recommended that the green belt be adopted as proposed and the council adopted
his recommendations. That decision was challenged in the High Court by another
objector, and Hodgson J in R v
quashed the entirety of the proposed green belt holding, inter alia,
that he was:
… unable to
find anywhere in the inspector’s report or Surrey’s decisions any finding as to
whether or not the green belt notation would, in fact, fulfil [a] green belt
function …
By documents
deposited in January 1992, Surrey again proposed the green belt in the
Brooklands local plan first alteration. They proposed it so as to include the
site. The respondents, along with others, objected to the proposals and took
part in the public local inquiry which was held in October and November of
1993. The deposited documents stated at para 1:
Surrey County
Council propose to make an alteration to the adopted Brooklands Local Plan. It
is proposed under section 37 of the Town and Country Planning Act 1990 to alter
the Written Statement and the Proposals Map to the effect that the land known
as the central area, ie the open runway area and adjoining land, as shown on
the Proposals Map, shall be included within the Green Belt.
Reasons for
that proposal are set out at para 13 of the deposited document:
It is the
view of the County Council and the adjoining Borough Councils that the central
runway area and adjoining open land in the past fulfilled, and continues to
fulfil, a Green Belt function, namely the prevention of coalescence.
The defining
of a green belt is almost always a difficult exercise involving difficult
planning judgments. To put it generally, it is rarely easy to determine
precisely where the town ends and the country begins, and there will inevitably
be differences of opinion among experts in town and country planning, as well
as lay people, on that question.
The government
guidance relating to the green belt and its boundaries, is set out in PPG 2
published in January 1988.
The inspector
reported to the council on February 23 1994 and recommended that the plan be
modified by the exclusion of the site from the green belt. The respondents had
also applied for planning permission for residential development on the site.
On February 21 1994 another inspector (the section 78 appeal inspector) had
determined an appeal under that section of the 1990 Act in respect of specific
proposals for the development of the land. The inspector dismissed the
respondent’s appeal against the refusal of the local planning authority to
grant planning permission. In November 1994 the council published their
statement of decisions following the public local inquiry into the local plan.
The local plan inspector’s recommendation in respect of the site was rejected,
and the council resolved to include the site within the green belt.
In their
statement of decision, the council set out the conclusions of the local plan
inspector, which are as follows:
38 Along with
Sopwith Drive and its open verges, the site seemed to me on the ground to be a
gap in otherwise continuous development of no real significance. Its close
relationship with development on both flanks, allowing for the intervening
road, makes for a sense of generally continuous development to the north of
Parvis Road. The set back of Viscount Gardens does not affect that. I see it as
no more than typical treatment of a highway boundary. The same applies to the
open strip between Parvis Road and the Green Lane Close development, itself
proposed as part of the Green Belt designation. There is still the sense of
being in a built up area.
39 It is the
boundary between the Weymede housing development and the river bank which
effectively now marks the limit of Byfleet. I repeat my view that the adjoining
strip of open land along the river separates the town from Weybridge. That
perception is acute at Plough Bridge, particularly. And that finger of land,
unlike the projecting land including the site, is to be connected at each end
to other land forming continuous Green Belt, with the designation of
Brooklands. In those circumstances the site plays no part in helping to avoid
coalescence.
40 It is true
that to leave open any land at the edge of a town must to that extent prevent
the sprawl of that town. But the limit of development would be more uniform if
the site were not in the Green Belt, and a defensible boundary would remain.
That would be the line of the public footpath, which also marks the Woking
Borough boundary. Thus the site in its open state does not materially prevent
the sprawl of Byfleet.
Paras 43 to 52
of the decision come under the heading ‘Comment’, and include a statement of
the conclusions of the section 78 appeal inspector as follows. (I add to what
is expressed in the document the first part of para 14 of the inspector’s
report which the council plainly also had in mind):
14 You say
[the respondents to the present appeal] that the appeal site is a small,
isolated open area surrounded by residential development. However, as already
noted, the appeal site is adjoined to the north and south by open land. Despite
the existence of permitted housing east of the site at Weymede, Green Lane
Close and Coombe Way, and despite some boundary screening on the site, I
consider that visually this appeal site appears as part of the larger area of
open space in this gap between Byfleet and Weybridge. Although not as extensive
as the central open parts of the Brooklands Central Area, nonetheless in my
opinion this appeal site, together with the adjoining parts of the Brooklands
Central Area to the north and the wooded land to the south, forms an important
green wedge which helps to maintain the break between Byfleet and Weybridge.
…
16 In the
light of my site observations, I share the views of the Inspectors, as set out
above [see para 48], that the larger area of undeveloped land of which this
appeal site forms part has an open character, which makes an important
contribution in maintaining the existing break between Byfleet and Weybridge. I
therefore regard the housing at Weymede, Green Lane Close, and Coombe Way as an
island of built development within an otherwise open area which serves a Green
Belt function in separating the towns of Byfleet and Weybridge.
17
Accordingly, I consider that the appeal site serves a Green Belt function in
terms of the advice in PPG2, both in checking the unrestricted sprawl of
the built-up area of Byfleet, and helping to prevent the merging of the towns
of Byfleet and Weybridge. Accordingly, in the context of this appeal I find no
reason to question the proposed inclusion of the site within the Green Belt,
pending final determination of Green Belt boundaries upon the adoption of the
Brooklands Local Plan First Alteration.
The comments
continued at para 47:
The appeal
decision is clearly contrary to the recommendation of the Inspector at the
Local Plan inquiry, although the appeal Inspector did qualify his comments in
his paragraph 17 above in relation to the local plan. In terms of the
conclusions of the respective Inspectors the issue of the Green Belt is finely
balanced. This site has, however, been considered by other Inspectors in the
past and their decisions are also relevant.
Para 48 in the
document goes on to consider planning decisions in the area in 1979, 1986 and
1992. The decision continues:
49 The normal
process is for the local plan to determine the detailed Green Belt boundary.
This is set out in paragraph 8 of PPG2 (Green Belts) which states ‘Green Belts
are established through development plans’. Consequently the decisions of the
Local Plan Inspector, who has considered all the issues, should normally be
accepted unless there are good reasons to the contrary.
50 In this
instance the decision and reasoning of the Inspector who conducted the planning
appeal concerning this site in December 1993 can be considered to be such
reasons. He also considered all the issues relating to this site, including its
relationship to the wider central runway area and the part it plays in
preventing coalescence. This decision is in accordance with those of earlier
inspectors which give support for retaining this site in the Green Belt.
Para 51
refers, inter alia, to the former notation of the site as part of the
green belt, and to the decision of Hodgson J in 1990.
52 In this
case, therefore, there are considered to be good reasons not to accept the
Local Plan Inspector’s recommendation concerning this particular site.
Consequently it is considered that in this instance his recommendation should
not be accepted.
The council
also set out in para 4 of the decision a general conclusion:
The
Inspector’s recommendation at paragraph 42 has been considered very carefully.
However, it has not been accepted by the County Council. The County Council’s
evidence at the local plan inquiry was that this particular site, with
adjoining land, performed the Green Belt functions, as set out in PPG2, of
preventing neighbouring towns from merging into one another and checking the
unrestricted sprawl of large built up areas and should, therefore, be included
within the Green Belt. Although this was not supported by the Local Plan
Inspector, a second Inspector, who conducted a planning appeal on this site a
month after the local plan inquiry, considered that the site, with adjoining
land, did perform these Green Belt functions. The
earlier history, are considered by the County Council to be good reasons for
not accepting the conclusions and recommendations of the local plan Inspector
to exclude this site from the propose Green Belt.
The
respondents submit that the reasons for the decision to include the site within
the green belt are inadequate. Irrationality is not alleged. In circumstances
such as this reasons must be ‘proper, adequate and intelligible’, Westminster
City Council v Great Portland Estates plc [1985] AC 661 at p673; the
reasons must ‘deal with the substantial points which have been raised’, In
re Poyser and Mills’ Arbitration [1964] 2 QB 467 at p478. It is submitted
by the respondents that their duty to provide adequate reasons should have been
observed with particular care in present circumstances, first because the
council were proposing to overturn the recommendation of the inspector
appointed with the specific purpose of considering the green belt in the
vicinity of the site. This, Mr Duncan Ouseley QC submits, is the one point at
which the plan is subject to independent scrutiny.
Second,
attention is drawn to the council’s acceptance that the recommendations of the
local plan inspector should normally be accepted, unless there are good reasons
to the contrary. Third, it is submitted that a decision as to whether or not
land should be included within the green belt has serious implications for the
owner of the land. Particularity of reasoning, it is submitted, is of great
importance.
Mr Ouseley
submits that reliance should have been placed upon the recommendation of the
local plan inspector. He had the specific task of recommending boundaries for
the green belt and he was considering the green belt issue as a whole and not
by reference to a particular site. It is submitted that the reasons for the
decision are inadequate. The conclusions of the local plan inspector should
have been addressed specifically by the council. In particular, it is
submitted, the geography of the area required further reasoning, having regard
to the decision to which the council had come, and the local plan inspector’s
reasoning as to a defensible green belt boundary should have been considered
specifically. The points could not be dealt with, it is submitted, simply by
reference to the expressed opinions of the section 78 appeal inspector. There
should have been an explanation as to what was wrong with the reasoning of the
local plan inspector.
It is further
submitted that reliance upon the planning history of the site is misplaced. In
particular it is submitted in relation to the proposed designation as green belt
land in the earlier local plan, that the designation was quashed by the High
Court on the basis that it did not have regard to the appropriate policy
criteria, and any planning decision taken in that way has no value. Further,
the earlier decisions dealt with different areas of land, and also
circumstances had changed in the locality since the earlier decisions were
taken.
I say at once
that, in my judgment, there is force in Mr Ouseley’s submission that by the
bare statement in para 69 ‘this decision is in accordance with those of earlier
inspectors which gave support for
overstating the position. However, there are statements in the earlier reports
which give some support to the council’s decision and, in my view, the council
were entitled to have regard to them. Further, in my judgment, the council’s
decision is essentially based upon their acceptance of the reasoning of the
section 78 appeal inspector, as appears from the paragraphs to which I have
referred, and reliance upon the history is not central (and was not intended to
be central) to the decision.
The learned
judge upheld the submissions of the present respondents. He stated at p15 of
the transcript:
There is no
reasoning as to why one inspector’s approach is to be preferred to the other. I
do not accept Mr Straker’s submission, that the reasons of the planning inquiry
inspector are to be considered as sufficient reasons for the purpose of the
local plan objection, because his reasons do not deal with the local plan
inspector’s conclusions. Nowhere is it said what is wrong with the local plan
inspector’s conclusions.
The judge goes
on to consider the reasoning of each inspector.
For the
appellants it is submitted by Mr Timothy Straker QC that the judge has exceeded
his function and based his decision upon his own view of the planning merits. I
see the expression of planning views by the judge as intended merely to support
his conclusion that the situation required further comment upon the reasoning
of the local plan inspector if that were to be rejected, and Mr Ouseley
substantially puts the point in that way. I would also accept that there may be
circumstances in which reasoning, to be adequate, must include specific comment
upon contrary opinions.
In my
judgment, in the present case it was sufficient for the council to express
their preference for the reasoning of the section 78 appeal inspector and to
regard his views as providing good reasons for including the site within the
green belt. Both inspectors expressed opinions which were relevant to and
covered the question at issue. The appeal inspector was put in a position of
having to consider that issue in determining the appeal of the present
respondents for planning permission for residential development. Both
inspectors’ opinions were reasonably and genuinely held. It is clear that the
council, when making their decision, had both opinions in mind. They were, in
my view, entitled to prefer the views of the appeal inspector, which had some
historical support, and to adopt his reasons as their own, which is what they
did. This being a question of planning judgment, it was not possible,
objectively, to prove that the local planning inquiry inspector’s views were
wrong or to demonstrate that one set of reasons was better than the other. The
council could not be required to attempt that task.
The local
planning inspector’s views are plainly inconsistent with the views of the
appeal inspector. The reasons of the appeal inspector were sufficiently stated.
He expressed the view that the site appeared visually as part of, and formed
part of, a larger area of open space which forms an
undeveloped land with an open character.
The acceptance
of those views necessarily involved the rejection of the views of the local
plan inspector. The reasoning of the council was, in my judgment, sufficient. I
would allow this appeal.
WARD LJ: In light of Pill LJ’s judgment, it is sufficient for me to say
that, for the reasons given by him, with which I agree, I, too, would allow the
appeal.
LEGGATT LJ: I agree.
Appeal
allowed.
