Town and Country Planning Act 1971, section 245 — Application by gravel company to quash a decision of the Secretary of State dismissing an appeal in respect of development of land for a hotel — Applicants wished to build hotel on surplus land left after working out of pit — Local planning authority had refused permission for the development, the site being within the metropolitan green belt — The inspector had, after the public inquiry, recommended to the Secretary of State that the planning authority should be overruled and approval given to the development — The Secretary of State did not accept this recommendation and dismissed the company’s appeal from the authority’s refusal — The company now applied to the High Court to quash the Secretary of State’s decision — The inspector had taken a more flexible approach than the Secretary of State had considered justifiable in regard to the application of the green belt policy to the land in question — The applicants put forward a number of criticisms of the Secretary of State’s decision, including an allegation that he had differed from the inspector on a finding or inference of fact without affording the applicants an opportunity of making representations; had failed to give reasons for his stricter approach to green belt policy; had failed to take account of the fact that permission had been given in 1964 for a motel near the present site; and had failed to give adequate reasons for his decision generally — The judge rejected all the criticisms as lacking in substance — He pointed out that the difference in the approach to the green belt question was a matter of planning policy or planning opinion, not an issue on a finding of fact — Application dismissed
This was an
application by Hall Aggregates (Thames Valley) Ltd under section 245 of the
Town and Country Planning Act 1971 to
applicants against the refusal of the Royal Berkshire County Council, the
planning authority, to grant planning permission for a hotel on land belonging
to the applicants at Wraysbury in Berkshire.
R Vandermeer
QC and K J Lindblom (instructed by Freedman & Co) appeared on behalf of the
applicants; N Pleming (instructed by the Treasury Solicitor) represented the
first respondent, the Secretary of State for the Environment; the second
respondent, Royal Berkshire County Council, the planning authority, were not
represented and took no part in the proceedings.
Giving
judgment, MR DAVID WIDDICOMBE QC said: This is an application under section 245
of the Town and Country Planning Act 1971 to quash a decision of the Secretary
of State for the Environment dismissing an appeal in respect of the development
of land for a hotel at Wraysbury in Berkshire. The applicants, to whom I shall
refer as ‘the company’, are a gravel company with a worked-out pit who wanted
to build a hotel on the surplus land left after the workings. The Berkshire
County Council, the local planning authority, refused planning permission. The
company appealed. A local inquiry was held and the inspector reported to the
Secretary of State recommending approval. However, this recommendation was not
accepted by the Secretary of State, who dismissed the appeal.
The inspector,
in his report, described the site as follows:
4 The appeal site is an area of partly worked
gravel enclosed by the minor Wraysbury Road to the south and south-west, the
Wraysbury slip road to the north and north-west, the elevated and newly
constructed M25 roundabout and interchange which, with its approaches,
dominates the skyline to the north-east and east. These roads curve around the
appeal site whose sole access is from Wraysbury Road opposite a row of small
country houses in the settlement known as Hythe End.
5 The appeal site is now a little over half
lake following sand and gravel working, possibly some clay working, by the
appellants. The remainder is partly filled land, land from which the topsoil
has been removed, and extensive concrete standings for the plant which had been
working the gravel. A few temporary buildings for contractors are now on the
concrete.
6 The surroundings to the north, east and
south-east are commanded by the M25 and A30 roads system which obliterates any
Green Belt or rural aspect. The west and north-west Green Belt lands comprising
old gravel workings which are now Keynes Lake, Heron Lake and Wraysbury
Reservoir, and which with the appeal site and the roads system are within the
area defined as the Colne Valley Regional Park, are beyond the slip road and
not readily visible from the appeal site unless one goes to the western
extremity where the slip road meets Wraysbury Road at a small roundabout at a
level only a little above that of the appeal site. The hotel itself would be
clearly visible from the north and west but largely out of view from the
elevated motorway interchange from the south-east.
7 The south, south-west and west-south-west
aspects comprise Wraysbury Road, Colne Way and Bell Weir Close and their modest
country or village houses which are a substantial part of the Hythe End
settlement.
8 Further south is the Staines Reservoirs
Aqueduct with a gravel lake next to it at the A30 roadside. The latter is known
as the greyhound stadium site for which there was an earlier permission for
motel development.
He made
findings of fact of which the only two I need read are nos 12 and 13:
12 The hotel building if sited as proposed near
the elevated M25 interchange roundabout will be inconspicuous when the appeal
site and extended Green Belt are viewed from the south-east.
13 The hotel building if sited as proposed will
be conspicuous when viewed from the west, north-west and north, ie from the
embanked Wraysbury slip road and the roundabout junction with the old Wraysbury
Road.
His
conclusions were as follows:
61 Strict adherence to Green Belt policy and
Thames Water policy for the flood plain should mean dismissal of this appeal.
62 On the other hand the appeal site is
dominated by the new roads system which almost surrounds it. Little open
country can be seen from the site itself. The only aspects truly rural and open
are to the west, north-west and north and these are unlikely to be affected by
a 2-storey hotel tucked into an arm of the high interchange roundabout.
63 The brutish effect of this interchange and the
converging system of roads with lorries thundering along them, is likely to be
softened by an hotel almost immediately in front of it, if built as shown in
the submitted drawings.
64 A flexible approach to Green Belt policy, as
distinct from a purist view of the principles at stake, favours building the
hotel. I commend this less than strict application of policy because the appeal
site’s contribution to Green Belt objectives is now muted; the hotel’s visual
impact on the open or rural scene will be modest or even negligible; and the
employment, business and prosperity which is likely to result from this class
of hotel development may be considerable. Similarly the policy or strategy for
the Colne Valley Regional Park need not be unduly prejudiced by the proposed
development and should not be a reason for refusing it.
Para 65 deals
with the flood plain, and after considering certain technicalities the
inspector concluded:
. . . I
believe it is not a strong enough reason for dismissing the appeal although it
is a technical matter of such complication that one cannot be certain about it.
66 Two other matters are important namely (1)
the opposition from the District Councils and local residents; and (2) the
possible weakening of Green Belt policy and development control which may
result from allowing the appeal.
67 On the first point I believe it could be
better for the local residents to have a modest hotel on a properly regulated
site beneath the overhead motorway, hidden behind the trees, than have some 10
to 11 acres of reconstituted but vacant quarry land opposite their houses and
for most practical purposes uncontrollable on a day to day basis. The presence
of an hotel in the position proposed in the application would leave much of the
open view across the appeal site unchanged. The opposition by the District
Councils is part of the local planning authority’s case (the County Council)
and has been well presented by their witnesses and advocate.
68 This leads to the second matter namely the
possible weakening of development control throughout the county. I do not doubt
that a decision to allow the appeal will be quoted by future appellants as a
reason for allowing development on Green Belt land which they claim has been
made redundant for Green Belt purposes by adjacent motorway interchanges and
slip roads. The present case is, however, distinguished by the fact of a 1964
planning permission for a motel on similar Green Belt quarry land a few yards
south of the old Wraysbury Road, loosely referred to as the greyhound stadium
site. If the sand and gravel workings on this site had not taken place, or had
been less extensive, a motel or hotel might have been built. The Green Belt
policy circular 42/55 was then current as it is today.
69 The 1964 permission might be a good reason
for resisting a further weakening of Green Belt policy if this would result
from allowing the present appeal. On the other hand it could favour the appeal
by distinguishing it as an exception to the overall Green Belt policy which would
not make it a precedent for weakening of Green Belt policy and development
control at motorway intersections. This is a matter for decision. My
recommendation is that allowing the appeal should not, and need not, weaken
development control and Green Belt policy.
70 I finally conclude that bearing in mind the
facts stated the appeal should be allowed subject to conditions.
The inspector
then deals with the proposed conditions.
The Secretary
of State gave his decision on the appeal by letter dated February 28 1985.
After citing the inspector’s conclusions, he said:
3 The Secretary of State has considered the
inspector’s conclusions. He takes the view that the main issue in this case is
that of the policies applying in the Green Belt. There is general agreement
between the parties that the appeal site is included within the Metropolitan
Green Belt in the approved East Berkshire Structure Plan and the deposited
Green Belt Local Plan for Berkshire. It is noted from the latter plan, which
the Secretary of State regards as a material consideration of some weight, that
the Metropolitan Green Belt in Eastern Berkshire was formally approved as Green
Belt in or before 1974. The policies of these plans provide that within the
Green Belt permission will not be given, save in very special circumstances,
for development other than that falling within certain specified categories;
the appeal proposals do not fall within these categories.
4 The Secretary of State has said that the
general presumption against development in the Green Belt is not affected by
the M25 and that there should continue to be the strongest restraint on
development there. He notes the inspector’s conclusions about the visual impact
of the new roads system in the area of the appeal site, but in his opinion this
does not invalidate the contribution of the appeal site in preventing the
coalescence of the existing built up areas to the west and east and the smaller
settlements of Hythe End and Horton. He also considers that the proposed use
and its associated activities would be out of keeping with the open or rural
scene. The Secretary of State recognises that there would be some commercial
and employment advantages resulting from the appeal proposals but in his
opinion these do not constitute sufficient justification for making an
exception to Green Belt policy. It is noted that planning permission was
granted in 1964 by the planning authority for motel development on a site to
the south of the appeal site. However, every planning application must be considered
on its merits having regard to all the facts and the Secretary of State does
not consider that the 1964 permission is any justification in this case for
development now in conflict with Green Belt policy.
5 The Secretary of State notes the inspector’s
comments about the effect of the proposed development on the flood plain. He
regards the evidence as inconclusive but as he considers the policy objections
to your clients’ proposals to be over-riding he is of the opinion that he does
not need to take a view on this matter.
Mr Vandermeer,
for the company, attacked his decision on five grounds. He referred, for
general principles, to Seddon Properties Ltd v Secretary of State for
the Environment (1978) 248 EG 950, [1978] 2 EGLR 148.
(1) He criticised the first sentence of para 4:
‘The Secretary of State has said that the general presumption against
development in
the strongest restraint on development there.’
He said that at the inquiry it was common ground that the general
presumption against development in the green belt was not affected by the M25.
The Secretary of State had so stated in a policy letter dated March 23 1984 and
the company at the inquiry had not questioned that policy. That was why there
was no reference to it in the inspector’s report. However, the Secretary of
State had introduced it without explanation of its significance, thereby
inevitably giving rise to the suspicion that he had misunderstood the argument
at the inquiry and/or that he had taken account of that policy in some
unspecified way without giving the company a chance to make submissions on it.
(2) He contended that in the sentence in para 4,
‘He also considers that the proposed use and its associated activities would be
out of keeping with the open or rural scene’, the Secretary of State is
differing from the inspector on a finding of fact without offering the company
an opportunity of making representations in breach of rule 12(2) of the Town and
Country Planning (Inquiries Procedure) Rules 1974. He referred to Coleen
Properties Ltd v Minister of Housing and Local Government [1971] 1
All ER 1049 to show that findings of fact included inferences of fact.
(3) He contended that the Secretary of State had
rejected the inspector’s ‘flexible approach to Green Belt policy’ (see para 64
of the report) in favour of a strict approach but without giving any reasons.
He said that there was no, or no sufficient, evidence before the Secretary of
State to lead him to a different conclusion from that of the inspector.
(4) He contended that the Secretary of State had
failed to have regard to a material consideration, namely the grant of planning
permission in 1964 for a motel on green belt quarry land a quarter of a mile to
the south of the appeal site. He had failed to understand and deal with the
inspector’s view of this planning permission.
(5) This was a general ‘mopping-up’ point, that
‘The Secretary of State failed to give proper and adequate reasons for his
decision and/or his decision is unintelligible.’
Mr Pleming,
for the Secretary of State, joined issue on these contentions. He cited Lord
Luke of Pavenham v Minister of Housing and Local Government [1968] 1
QB 172 in addition to the cases cited by Mr Vandermeer.
I have
carefully read the whole of the inspector’s report and the Secretary of State’s
letter in order to establish the context of the passages in issue. I will take
Mr Vandermeer’s points in order.
(1) I accept Mr Vandermeer’s explanation that the
M25 in a strategic sense was not part of the company’s case at the inquiry,
which is why the inspector did not refer to it in his conclusions. The
Secretary of State has, however, referred to the policy statement on the M25.
Mr Pleming invites me to read the first sentence of para 4 of the letter as
‘Lest it be thought that the M25 makes any difference . . .’. However, I do not
think that such rewording is necessary when paras 3, 4 and 5 of the letter are
read as a whole. I think it is apparent that the Secretary of State is merely
recording the undisputed fact that the presence of the M25 in its strategic, as
opposed to its physical, sense is not a point in the company’s favour. No doubt
it was not necessary for him to say that, but the fact that he has done so is
quite harmless to the company. I do not find any misunderstanding by the
Secretary of State of the arguments at the inquiry or any possibility that he
has taken the M25 policy into account in some hidden way. This point of Mr
Vandermeer must therefore be rejected.
(2) As regards the sentence ‘He also considers
that the proposed use and its associated activities would be out of keeping
with the open or rural scene’, Mr Pleming pointed out to me that this sentence
comes from para 52 of the report, where evidence of the local planning
authority is recorded to the effect that ‘a hotel would be harmful to that open
and rural character. Its use and the associated activities would be alien to
this stretch of countryside.’ The
inspector dealt, in the company’s favour, with the visual aspect of the hotel
(see para 64), but he did not refer in his conclusions to the use of the hotel.
It appears that the Secretary of State has taken up this point against the
company. He is not differing from the inspector’s conclusion on the visual
aspect, he is relying on a factor which was raised at the inquiry but not dealt
with by the inspector. In my judgment he was fully entitled to do so and this
point of Mr Vandermeer has no substance in it.
(3) As regards the issue of the ‘flexible’ versus
the ‘strict’ approach to green belt policy, it is clear, as Mr Vandermeer
points out, that the Secretary of State has not endorsed the inspector’s
flexible approach. In my judgment this is a matter of planning policy or planning
opinion and not a finding of fact. There is no requirement that the Secretary
of State should afford the parties an opportunity to make representations about
it. I think it might have been better if the Secretary of State had said
expressly that he disagreed with the inspector on this, but the fact he did so
is clear enough, particularly from para 3 of his letter, where he stated the
strict green belt policy which he was going to apply. Accordingly I reject this
point of Mr Vandermeer.
The same
reasoning applies to the other two sentences from the inspector’s report
referred to in ground 3 of the notice of motion; they are matters of planning
opinion.
(4) I find no substance in Mr Vandermeer’s fourth
point, about the planning permission for a motel granted in 1964. The Secretary
of State has had regard to this point and in my judgment he has not failed in
any way to understand the inspector’s view of it.
(5) Generally I find that the Secretary of State
has given the necessary ‘clear and intelligible’ reasons for his decision.
I can
understand the company’s disappointment at having won before the inspector but
lost before the Secretary of State, especially now that almost all planning
appeals are decided by inspectors alone, but that possibility is inherent in
the planning appeals procedures and this court can interfere only if the
Secretary of State has exceeded his powers or broken one of the procedural
rules. That has not been established in this case and the application must
therefore be dismissed.
The
application was dismissed with costs
