Planning appeal heard and determined by inspector appointed for the purpose–There is a distinction between such a process and the normal procedure by which the inspector reports to the Secretary of State, who himself decides the appeal, but that does not mean that the inspector need not explain the basis of his decision–Particular decision ‘at best obscure’–Matter to be reheard in manner to be determined by the Secretary of State
This was an
application by Margaret Lucy Hope and others, trustees of the will of Richard
Henry Kennard Hope deceased, formerly of East Harting, Sussex, for an order
quashing the decision of an inspector appointed by the respondent, the
Secretary of State for the Environment, to determine an appeal by the
applicants against the refusal by Midhurst Rural District Council of planning
permission for construction of a dwelling-house on land at the rear of the
Thatched Cottage, East Harting Street, East Harting.
Mr G Ryan
(instructed by Crossman, Block & Keith) appeared for the applicants, and Mr
H K Woolf (instructed by the Treasury Solicitor) represented the respondent.
Giving
judgment, PHILLIPS J said that on May 14 1973 the trustees applied for outline
planning permission for a single dwelling-house on the appeal site. By notice
dated July 26 1973 Midhurst Rural District Council refused the application, and
by notice of appeal dated October 4 1973 the trustees appealed against that
decision. The appeal fell to be determined by an inspector appointed for that
purpose by the Secretary of State, and the inspector’s decision dismissing the
appeal was published by letter dated April 9 1975. There had been a previous
application for permission to build a dwelling-house on the appeal site; that
application had been refused, and an appeal from that refusal (‘the 1968
appeal’) had been dismissed by the Minister of Housing and Local Government by
letter dated April 3 1968.
It was agreed
that the principles to be applied on the motion were those contained in the
judgments of Megaw J in Re Poyser and Mills’ Arbitration [1964] 2 QB 467
and Givaudan & Co Ltd v Minister of Housing and Local Government
[1967] 1 WLR 250. Mr Woolf had however submitted that it would be wrong for the
court to overlook the distinction which arose from the fact that the present
appeal, unlike that in either of those two cases and unlike the 1968 appeal,
was determined by an inspector in the exercise of delegated powers. Where an
appeal was determined by the Minister (said counsel) it was essential that the
inspector’s report should be full and his findings of fact clearly expressed,
for otherwise the Minister lacked the material on which to base his decision
and the applicant could not tell on what basis of fact the Minister had
decided; but where the inspector in the exercise of delegated powers himself
decided an appeal, a short statement of the decision and of the reasons for it
was sufficient. On this point counsel referred to Ellis v Secretary
of State for the Environment and another (1974) 31 P & CR 130. He (his
Lordship) agreed that the distinction to which Mr Woolf drew attention was
important and ought not to be overlooked, but he thought that care was needed.
The very fact that in delegated cases there was no inspector’s report meant
that there was a risk, if the reasons themselves were brief, that the applicant
would not be able to understand on what grounds the appeal had been decided.
Each case no doubt turned on its own facts. The reasons given in the Ellis
case were obviously
read the judgments delivered as laying down that in no circumstances were the
fullness or particularity of the reasons given by the inspector a matter for
consideration. As May J said, the question was whether the reasons were
adequate in the circumstances of the particular case. Often the reasons were
not intelligible unless there was a sufficient statement of the facts to which
they related, and where a number of distinct relevant issues of important fact
had been canvassed on the hearing of the appeal, he (his Lordship) would have
thought that a decision which did not deal with them would be open to
objection. It seemed to him that the decision must be such as to enable the
appellant to understand on what grounds the appeal had been decided, and must
be in such detail as would enable him to know what conclusions the inspector
had reached on the principal important controversial issues. A decision which
did less than this had little value and would leave an unsuccessful party
aggrieved.
Mr Ryan, for
the appellants in the present case, had raised a number of points of criticism
of the inspector’s decision. One allegation was that the inspector in paragraph
4 treated this application for outline permission as though it were a final
application. It seemed quite clear, however, that what the inspector was doing
in the passage concerned was expressing the opinion that any house, however it
might be designed, would not be without its effect on the visual amenities of
the appeal locality. The two remaining criticisms required more detailed
consideration, and in order to understand them it was necessary to know
something of the circumstances of the 1968 appeal. The inspector then reported,
and the Minister accepted, that while one more new house in East Harting Street
would not spoil the village it would make it difficult to resist demands which
might be expected to follow for developing adjacent land, development which
should only be contemplated when available permissions elsewhere in the village
had been taken up and possibilities of infilling and rounding-off in
established village areas nearby had been exhausted. When the 1975 appeal was
brought, the appellants sought to meet the ‘thin-end-of-the-wedge’ argument of
1968 by offering to enter into two agreements under section 52 of the Town and
Country Planning Act 1971. The inspector dealt with this matter in his decision
as follows. Paragraph 3:
. . . In my
opinion the only other material change in circumstances since the previous
appeal is the offer to enter into the two section 52 agreements, the one
restricting further development of the appellants’ land in perpetuity, the
other restricting development of the field to the south of the appeal site for
10 years. Apart from these changes, my findings of fact are substantially the
same as those of the previous inquiry.
Paragraph 4:
Although the
section 52 agreements may not be binding on successors in title to the land I
think it fair to assume that they would effectively prevent development of the
land for a number of years. So the concern that one house on the site would
lead to others to the east and to the south may be removed for the present.
Paragraph 7:
. . .
Secondly, if permitted, it would prejudice any future plan for the ‘island,’ in
that if further development north of High Hollist-Oakmare Cottage is not
intended it would not conform with this intention, and if further development
is intended the land would have become sterilised by the section 52 agreements.
. . .
Counsel for
the appellants said, and he (his Lordship) agreed, that there were here two
errors of law. As to paragraph 4, the fact was that section 52 agreements did
bind successors in title to the land, and as to paragraph 7, it was wrong to
say that the land would be sterilised, for the planning authority, if its
policy changed, could always release the other party to the agreements. The
first error might not be of much consequence, for the inspector was prepared to
accept that the agreements would effectively prevent development for a number
of years. The second was more serious, for it led the inspector to take a wrong
view of the situation which would obtain if development of the applicants’ site
should be intended in the future. Mr Woolf said that the readiness of the
planning authority to enter into the section 52 agreements showed that this was
an unreal possibility, but the inspector mentioned it, and he (Phillips J)
thought it wrong to assume that it was a matter of no importance. So here was
an error of law invalidating one of the conclusions, albeit perhaps a minor
one, on which the decision was based.
The second of
Mr Ryan’s two points of substance concerned the use to which the appeal site
was put. After the 1968 appeal the site ceased to be used by a neighbouring
farmer and was returned to its pre-war use as amenity land for the Thatched
Cottage. It was fenced off from the neighbouring land, a summer-house was
erected on it and trees and shrubs were planted, all of which was accepted as
permissible from a planning point of view. Nowhere in his report in 1975 did
the inspector refer to this resumption of non-agricultural use in 1968, and in
paragraph 6 he appeared to take the view that there was still no reason why the
site should not be used as farmland. Mr Woolf argued that all that the
inspector was saying here was that the actual ground considered as ground was
suitable for agricultural use, but if that was all that was meant, what weight
was being given to the resumption of non-agricultural use in 1968? Surely it would be wrong to ignore this and
regard it as irrelevant to the question whether truly agricultural user was
ever likely in the future? On this point
the decision was at best obscure. At the end of the day Mr Woolf, while
conceding that there was an error of law in respect of the section 52
agreements and at least some obscurity on the question of user of the land,
submitted that these matters were immaterial. Counsel said, and he (his
Lordship) accepted, that the decision should be read as a whole. So read,
counsel submitted, it was clear that the basis of it was the inspector’s
conviction that a new dwelling-house on the appeal site would be an
unwarrantable intrusion into a hamlet set in a beautiful rural area. This was a
telling point of considerable force. It was, however, clear from the decision
that the inspector considered there were three main issues — visual amenity,
access, and whether the proposal would represent a natural extension of
existing development consistent with the relevant planning policy. From
paragraph 8 it was plain that in reaching his decision he took into account
what he felt were the relevant considerations under each of those headings, and
not merely those under the first. In relation to the third he made a not immaterial
error of law, and also expressed his decision in a manner which either was
erroneous, or disregarded an important fact, or at least was so obscure that
its meaning was uncertain. In such circumstances he (Phillips J) had no doubt
that he should quash the decision and order a rehearing. The motion would be
allowed and the decision quashed. It would of course be a matter completely
within the Secretary of State’s decision to determine what form the necessary
rehearing should take.