Town and Country Planning Act 1971–Appeal against refusal to permit gravel extraction–Secretary of State’s decision challenged–Rules of natural justice–Audi alteram partem–Decision based on conclusion that removal of gravel would adversely affect supply of moisture to the detriment of crop yields–Applicants not given opportunity to deal with this issue–Breach of rules of natural justice–Decision quashed
In these
proceedings H Sabey & Co Ltd applied under section 245 of the Town and
Country Planning Act 1971 to the court to quash a decision by the Secretary of
State for the Environment (APP/4401/A/73/18173, dated July 8 1976) dismissing,
after a public inquiry before an inspector, the applicants’ appeal against a
refusal of permission for gravel extraction from land at Sipson, Middlesex.
M Fitzgerald
(instructed by Braby & Waller) appeared on behalf of the applicants; Harry
Woolf (instructed by the Treasury Solicitor) represented the first respondent.
The other respondents, the Greater London Council and the London Borough of
Hillingdon, were not represented and took no part in these proceedings.
Giving
judgment, WILLIS J said: This appeal under section 245 of the Town and Country
Planning Act 1971 raises a short point, whether the decision of the Secretary
of State dated July 8 1976 dismissing the applicants’ appeal against a refusal
to permit gravel extraction was contrary to the rules of natural justice and so
of course outside his powers.
The land in
question consists of 66 acres classified by the Ministry of Agriculture as
grade I agricultural land, albeit at present used only for pony grazing. The
applicants applied
Objection was raised by the Ministry of Agriculture among a number of other
objectors, and after a long inquiry which ranged over many topics the inspector
finally based his recommendation to dismiss the appeal on what can broadly be
described as agricultural grounds. The remaining issues have been resolved in
favour of the applicants. The Ministry of Agriculture’s objection was reflected
in the second ground of refusal of the Greater London Council which stated:
Extraction
and subsequent filling would be likely to reduce seriously the agricultural
quality of the land. This would in turn reduce the agricultural productivity of
the land and there is consequently an objection on agricultural grounds to the
proposal.
There was no
dispute at the inquiry that the land was rightly classified grade I and its
capacity for supporting intensive horticultural operations was recognised by
the applicants (see report paragraph 60). However, it was said by them that
agricultural or horticultural operations appropriate to such quality land were
quite uneconomic. The applicants devoted a great deal of their evidence towards
meeting the objection that the agricultural quality of the land would be
seriously reduced as alleged in ground 2 of the refusal. Evidence was given to
support the expected achievement of grade II status after restoration, and, as
the report shows in paragraphs 84 to 114 inclusive, there was detailed evidence
of the proposed method of working, equipment and restoration.
Reference is
made in the report to the evidence on behalf of the Ministry of Agriculture.
There appear the following references germane to the question at issue in this
case.
Paragraph 182:
The
underlying gravel by virtue of its structure is an important asset in the
production of ground moisture.
Paragraph 184:
Movement,
storage and subsequent replacement of the soil in accordance with the
appellant’s proposals . . . would present major practical problems of
compaction to soil structure by the passage of heavy site machinery. The
moisture content of soil is a critical factor and no matter how well the site
be operated . . . there would inevitably be occasions when the structure of wet
soil would be damaged by heavy equipment during the all-year-round general site
operations; damage which could not be rectified. . . .
Paragraph 185:
The ministry
is monitoring restoration works in the area and while some results are
encouraging it has not yet been proved that land of this type can be restored
to its former quality.
After setting
out his findings of fact the inspector came to his conclusions of which I set
out the material parts.
Paragraph 213:
. . . the
major issues to be balanced . . . are those of the undisputed local gravel
demand against the potential loss of highquality grade I agricultural land. I
have no reason to doubt that the company could restore the land to a condition
at least equal to that demonstrated on nearby workings and return it to an
agricultural use.
Paragraph 214:
It appears to
me, however, that an essential feature governing the quality of the unique
overlying brick earth is the ability of the underlying gravel to provide
through its structure, water essential to intensive market gardening
operations. The removal of the gravel and its replacement with various
materials must put at risk the supply of moisture compatible with the demands
of high yields which could be expected from this grade I land. While I accept
that an agricultural crop could be obtained, experiments now in their early
stages have not yet demonstrated that high yields or several annual market
garden crops could consistently be obtained from restored land.
The Secretary
of State in his letter of decision set out the inspector’s conclusions
verbatim, and in paragraph 3, after agreeing with the conclusions and accepting
the recommendation to disallow the appeal, said (inter alia):
. . . the
agricultural objection is of major importance, having regard to the
Government’s policy of protection of agricultural land of the highest quality.
The inspector’s view that the removal of the underlying gravel from the land
and the consequential alteration in its fundamental characteristics would be
likely to result in a decline in its quality, even if carefully restored, is
accepted.
Mr Fitzgerald
submits that there was no evidence before the inquiry upon which the inspector
could properly reach the conclusion that the removal of gravel and its
replacement with various materials must put at risk the supply of moisture
compatible with the demands of high yields which could be expected from this
land. He said it formed no part of the case of the second respondent or the
Minister of Agriculture, that no questions were put to his witnesses on what
turned out to be this all-important topic, and that the applicants have not
been given the opportunity which they should have had to deal with it if they
could and so have been prejudiced. He sought to put in affidavits by the
appellant’s managing director, Mr Penfold, and Dr Lloyd, his agricultural
expert, to the effect that no evidence was given by the Ministry of Agriculture
witness or anyone else which showed or tended to show that removal of gravel
and its replacement by other materials would have adverse effects upon or put at
risk the necessary supply of moisture, nor as to the sufficiency or otherwise
of the moisture supply after the land’s restoration.
Mr Woolf
objected to the admission of this evidence on lines for which there is
authority, but conceded that the words of Lord Denning MR in Ashbridge
Investments Ltd v Minister of Housing and Local Government [1965] 1
WLR 1320 at p 1327: ‘The court can receive evidence to show what material was
before the minister’ were to some extent against his submission in the present
case, and that there was no authority to support the exclusion of evidence
designed to show that there was no evidence before the minister.
Mr
Fitzgerald’s submission is of the second or negative kind, and while I fully
understand Mr Woolf’s insistence that the court must beware of turning itself
into a Court of Appeal on fact, I concluded that, in the exceptional
circumstances of this case, Mr Fitzgerald would be put into the position of not
being able properly to present his point of law unless I allowed the
introduction of affidavit evidence limited to the negative proposition of there
having been no evidence to support the inspector’s conclusion. I therefore did
so, and also granted leave to Mr Woolf to introduce an affidavit by Mr Loveday,
the inspector, who, while agreeing that K H Gordon, the ministry witness, gave
no evidence on the ‘moisture question,’ as I call it, during examination,
cross-examination and re-examination, recalled asking Mr Gordon a question at
the end of re-examination couched in general terms, in answer to which he
confirmed that ‘the underlying sand and gravel strata provide water through
capillary attraction to the overlying top soil.’
Mr Fitzgerald
submits that, even if it is accepted that in this way there was some evidence
as to the ‘moisture question’ which might be said to provide some basis for the
inspector’s conclusions in paragraph 214, nevertheless it came in very much by
a side wind and an opportunity should have been given to the applicants to deal
with the issue before the inspector reached a conclusion which was the basis
for his decision. On this matter he says the applicants have not had ‘a fair
crack of the whip’: see Fairmount Investments Ltd v The Secretary of
State for the Environment [1976] 1 WLR 1255 per Lord Russell of Killowen at
p 1266.
Mr Woolf
submits that the applicants are really trying to have a second bite of the
cherry and to be put in a position to call evidence now which they should have
called at the inquiry as part of their case. He submits that, looking at the
report as a whole, there was sufficient material from which the inspector could
draw the inferences which led him to the crucial words in the conclusion at
paragraph 214. As to the
of critical importance in the consideration of the future agricultural quality
of the land, and even if Dr Lloyd had tried to limit the issues to be debated
in discussions with the Ministry of Agriculture before the inquiry, the onus
was on the applicants to lead evidence to show, if they could, that the
moisture content of the land would not be adversely affected by their
operations, and if they had not done so in chief, they should have realised the
importance of the question during the inquiry and applied to lead such evidence
at a later stage, possibly after adjournment.
I have not
found this question altogether easy, and my mind has wavered during the
argument. I think there is force in Mr Woolf’s submission that the applicants
might have been expected to have included as part of their case a claim that
the supply of moisture through the replacement materials would not adversely
affect the quality of the land. That they did not do so I think was probably
due to the earlier discussions between Dr Lloyd and the ministry designed to
limit the issues. In the result neither the ministry nor the applicants said a
word, or at least no more than appears in paragraphs 182 and 184 of the report,
on the question which critically affected the inspector’s views and the
decision of the Secretary of State. I do not think anything which emerged
during the hearing, including the answer referred to in Mr Loveday’s affidavit,
can fairly be said to have put the applicants on the alert so that they should
have applied to call further evidence. I would not wish anything I have said to
be thought to be critical of the inspector. He had a long and complicated
inquiry to conduct and has produced a careful and lucid report. In it, although
the importance of the underlying gravel is referred to, any risk posed to the
moisture content of the land by its removal and replacement by other materials
really finds no place, in my view. No doubt the inspector considered that he
had the material, perhaps principally by way of inferences which he could
legitimately draw, to justify the view he expressed in paragraph 214.
On the whole,
however, I have come to the conclusion that if there was any evidence upon
which to base paragraph 214 and the Secretary of State’s decision, as to which
I feel very considerable doubt, to have acted upon it as he did without giving
the applicants the opportunity to deal with it if they could, the Secretary of
State acted in breach of his duty audi alteram partem.
In the
circumstances of this case I do not think anyone is to blame, but I am left
with the strong feeling that justice will not be done unless the applicants are
afforded an opportunity to present their evidence on the ‘moisture question’
before the Secretary of State reaches his final conclusion. Accordingly the
decision must be quashed. I only add that while, of course, it is a matter
entirely for the Secretary of State, there being no longer any criticism of the
decision save in this one particular, one can naturally hope that any rehearing
can be limited to this single question.
The Secretary
of State’s decision was quashed, with costs.
