Town and Country Planning Act 1971–Appeal by planning authority against decision of Secretary of State quashing enforcement notices served by the authority and granting planning permission–Enforcement notices related to the conversion of two terraced houses into flats without planning permission–Complaint that Secretary of State took a DOE circular about under-occupied housing into account without giving authority an opportunity to comment, did not give adequate reasons for his decision, and did not mention authority’s policy or show that he had taken it into account–No substance in any of the grounds of complaint–Secretary of State entitled to apply his policy of encouraging more housing without giving authority an opportunity to comment on the circular, which was in any case not specifically in point–Reasons for decision tolerably clear–No need to spell out his grounds for not accepting authority’s policy–Appeal dismissed
In these
proceedings Hyndburn Borough Council appealed to the High Court under section
246 of the Town and Country Planning Act 1971 against the decision of the
Secretary of State to quash enforcement notices served by the council and to
grant planning permission to Mr W Banks, the second respondent to the present
appeal, to use each of two terraced houses owned by him in Accrington as two
flats.
J Sullivan
(instructed by Sharpe, Pritchard & Co) appeared on behalf of the appellant
planning authority; H H Sebag-Montefiore (instructed by the Treasury Solicitor)
represented the respondents.
Giving
judgment, SIR DOUGLAS FRANK QC said: The second respondent owns two terraced
houses in Accrington. At some time prior to December 1975 he converted one of
them into two flats and did the same to the other house some time before March
1976. The applicants served enforcement notices requiring the second respondent
to cease using the property as two flats and to restore their use as single
dwellings. The second respondent appealed to the Secretary of State, who dealt
with the appeals by written representations and decided to grant planning
permission for each of the houses to be used as two flats and, accordingly,
quashed the enforcement notices. The applicants appealed to this court, and I
shall deal with each of the grounds in turn as submitted by Mr Sullivan.
Ground one.
The Secretary of State took Circular 76/77 into account, although not featured
in either party’s representations, without giving the applicants an opportunity
to comment.
This and the
other grounds of complaint are derived from the Secretary of State’s reasons
for granting permission which were stated to be:
On the
planning merits of both appeals the council’s views are accepted that both
developments are open to objection on grounds of the limited space available
for each unit of accommodation, the lack of on-site car-parking facilities, the
lack of direct access from the upper unit to the yard and the possibility of greater
noise disturbance to neighbours. However, bearing in mind the policies outlined
in the Department Circular no 76/77 on ‘Better Use of Vacant and Under Occupied
Housing,’ the view is taken that these objections do not provide sufficiently
strong reasons for withholding planning permission in the circumstances
pertaining in either of these two properties.
Mr Sullivan
submitted that the Secretary of State had regard to policies which were not
referred to in the written representations, namely, the policies contained in
the circular, and, thus, there had been a breach of the rules of natural
justice. He developed this argument at length citing a number of authorities,
but, in my judgment, the objection fails and my reasons I can put shortly. In
doing so I intend no disrespect to Mr Sullivan’s erudite and able argument.
As I
understand the law, it is well settled that a minister is entitled to have a
policy and to apply that policy without giving parties to an appeal the
opportunity of commenting upon it. There are a whole string of cases to that
effect and I take the law to be so well settled as not to require authority. As
I see this case, the Secretary of State decided, as a matter of policy, that
although there were objections to conversion into two flats, they were not
sufficiently strong to justify the withholding of planning permission. I think
that the reference to the circular in passing is nothing to the point and the
fact that the decision would have been valid without the reference to the
circular does not make it bad because the circular is referred to. Although the
circular is long and the Secretary of State did not state which particular part
he had in mind, in my judgment the title of it, namely, ‘Better Use of Vacant
and Under Occupied Housing,’ speaks for itself. Mr Sullivan argued that this
being an enforcement notice case, the protection afforded by rule 12 of the
Town and Country Planning (Inquiries Procedure) Rules 1974 does not apply. I
agree that the rules do not apply but I do not accept that rule 12 is a
protection of the Secretary of State; on the contrary, the purpose of it is to
extend or explain rather than restrict or limit the rules of natural justice.
Accordingly,
in my judgment, the Secretary of State was under no duty to give the applicants
the opportunity of commenting on his reasons for giving his decision.
Ground two.
Even if the Secretary of State was entitled to take the circular into account,
merely to refer to it was not the giving of adequate reasons for the decision.
I agree that
the contents of the circular, which are advice on a range of measures to get
better use of empty and underused housing, do not specifically relate to the
circumstances of this case, other than by implication. Thus I think that the
decision would have been better had the Secretary of State not referred to the
circular at all but merely to a general policy which is well known.
Nevertheless, I think it is tolerably clear to the reader of the decision that
the Secretary of State’s reason was that the conversion of these two houses
would provide more homes, which it is his policy to encourage, and that the
objections were not sufficiently strong as to overcome that policy.
It is a
borderline case, but I bear in mind that the applicant claiming to be aggrieved
is a local planning authority well equipped by knowledge and experience to
comprehend appeal decisions and I do not believe that there can be any real
doubt as to what was in the mind of the Secretary of State in deciding to grant
permission. What he had in mind was that the grant of the permission would
provide two more homes and although there were planning objections, they were
not sufficiently strong as to outweigh the advantage of the provision of two
more homes.
Ground
three. The local planning authority’s policy deserved a mention, which it did
not get, nor does it appear that it was taken into account.
Mr Sullivan
did not advance much argument on this ground and I think for the good reason
that the Secretary of State is concerned with the application of his own policy
and not with that of the local planning authority, in the sense that if as a
matter of policy he thinks that a planning permission should not be granted,
then the planning authority’s policy becomes at that point irrelevant. What concerned
the Secretary of State were the facts of the case, and it is clear that he had
regard to the factual objections to the development and it is from those facts
that he arrived at what he considered to be the right policy decision. It
necessarily follows, as a matter of deduction, that the Secretary of State,
deciding that his policy was the right one in the circumstances of this case,
decided that the local planning authority’s policy was the wrong one.
In view of all
the foregoing, this appeal will have to be dismissed.
The appeal was dismissed with costs.