Town and Country Planning Act 1971 — Appeal against decision of Secretary of State dismissing appeal against refusal by local planning authority of permission for housing development — The first ground on which the Secretary of State’s decision was challenged, namely, that it was inconsistent with an earlier decision relating to a nearby site, was rejected by the judge, who considered the cases distinguishable — The second ground was that the Secretary of State had misinterpreted the planning authority’s local planning policy — The inspector’s report, which the Secretary of State had approved, had failed to indicate that the development site had been excepted by the authority from a restrictive policy towards residential development in the area — Hence the Secretary of State had not taken into consideration a matter which he ought to have considered and on the principle of Ashbridge Investments Ltd v Minister of Housing and Local Government the decision would have to be quashed
This was an
application by J A Pye (Oxford) Estates Ltd to quash an order made by the
Secretary of State for the Environment whereby he dismissed an appeal by the applicants
against the refusal of Cherwell District Council to grant planning permission
for the erection of houses on a site of 4.25 acres at Yarnton, near Oxford.
Alan de Piro
QC (instructed by Darby & Son, of Oxford) appeared on behalf of the
applicants; Simon Brown (instructed by the Treasury Solicitor) represented the
first respondent, the Secretary of State; the second respondent, Cherwell
District Council, was not represented and took no part in the proceedings.
Giving
judgment, SIR DOUGLAS FRANK QC said: This is an appeal against a decision of
the Secretary of State dismissing an appeal by the appellants against a refusal
of planning permission by the second respondents. The planning permission
sought was for the erection of 28 houses on a site of 4.25 acres at Yarnton.
There was a second application but that was for a smaller area within the same
site and it will be unnecessary to refer to it again. Yarnton is a village
about 1 1/2 miles from the most northerly suburb of Oxford and adjoins the
western side of the Woodstock Road (A34). It is triangular in shape, bounded on
the south by Cassington Road and on the west by Rutten Lane, which has a
junction with Woodstock Road. The appeal site lies just below the apex of the
triangle between those two roads and is bounded on the south for the most part
by Aysgarth Road. The inspector recommended that the appeal should be dismissed
on the general ground that he ‘found no reason to question the inclusion of the
major part of the appeal sites in the proposed green belt, pending definition
of its boundary in the forthcoming local plan and approval of the green belt
proposals as a whole’. He also said that the proposed development would extend
the village built area northwards on to agricultural land, albeit low grade.
While the flanking hedges would substantially screen them from the view from
Rutten Lane and the A34, the proposed houses would, because of the slope of the
appeal site and the relatively open nature of the sites’ southern boundary,
represent a major intrusion into the view from Aysgarth Road.
In this court
the decision was challenged on two grounds, namely:
(1) that the Secretary of
State had ignored or failed to give any or due weight to one of his own
previous decisions; and
(2) that he had wrongly
ignored or misinterpreted a local planning policy.
The first
ground relates to a site at the southern end of the village which I shall call
the Wimpey land. That was the subject of an appeal inquiry held in January 1980
against a refusal of permission to erect 45 houses. On May 20 1980 the
Secretary of State allowed the appeal. That was about two months before his
decision in the instant case. There the inspector had concluded that the
exclusion
recommended that the appeal be dismissed on the ground that the future use of
the site should be left for determination by the local plan which he thought
should not be long delayed. The Secretary of State, however, concluded that
there was no substantial objection to the development of the site on the
grounds of amenity and that it would represent a logical rounding-off of the
adjacent housing estates. Therefore he considered that the release of the site
should not compromise the application of the structure plan and council
policies aimed at restraining development in the area and, that being so, there
was no justification for delaying a decision on the future use of the site
until the local plan was available.
Mr de Piro for
the appellants said that each and every one of the points referred to by the
Secretary of State applied to the Pye site. He said they were identical
applications decided differently within two months. That, he said, was a
material consideration which the Secretary of State was bound in law to take
into account.
I cannot find
that these were virtually identical applications; there were two cogent
distinguishing features. In the Pye case the Secretary of State accepted the
inspector’s conclusion that he found no reason to question the inclusion of the
major part of the appeal sites in the proposed green belt, pending definition
of its boundary in the forthcoming local plan and approval of the green belt
proposals as a whole. That contrasts with the inspector’s conclusions in the Wimpey
case that the exclusion of the site from the green belt would not have any
significant effect. Secondly, in the Pye case the Secretary of State agreed
with the inspector’s conclusion that the proposed houses on the Pye site,
because of its slope and the relatively open nature of its southern boundary,
would represent a major intrusion into the view from Aysgarth Road. That
contrasts with the Secretary of State’s opinion that there was no substantial
objection to the development of the Wimpey site on grounds of amenity. It
follows that in my judgment this ground of appeal has not been made out.
I turn to the
second ground of appeal, which is that the inspector’s conclusion proceeded on
a false basis of fact relating to the council’s planning policies.
The first
document is expressed to explain the development of the interim rural
settlement policy proposed to be adopted by the council and a summary of the
findings of a survey of the factors determining the development potential of
individual villages. It was expressed to have been amended in step with the
then emerging structure plan. The villages were dealt with in two appendices;
the first setting out those not having any growth potential other than
infilling and the others appearing to have potential growth and warranting
detailed study. In the second appendix, which summarised the results of the
investigation, one of the villages specified is Yarnton, where five sites with
potential growth were considered but only two were recommended, namely the Pye site
and the Wimpey site. Of these it was said that ‘development of these sites,
which are fairly well screened, would relate to the existing settlement and
have well-defined boundaries’.
The other
document sets out the policies which the council has adopted for determining
proposals to build dwellings in the rural area. It is stated that it is
intended that the policies will, after approval of the structure plan and
subject to such amendments as may be necessary, be adopted as a local plan
under sections 11-15 of the Act of 1971 and, pending approval, the policies
will be operated on an interim basis. It is stated that exceptions to the
general policy (which is one of restraint) ‘will be considered for proposals in
villages with a primary school, a shop and a bus service every weekday and do
not amount to infilling where sites are available free from objection on
agricultural or other valid planning grounds but in no case will other than
minor development be permitted’. There is an appendix which lists the villages
which have a primary school, shop and weekday bus service; Yarnton is included.
The first
finding of fact made by the inspector was that in the policy to which I have
just referred ‘the village of Yarnton is regarded as one where new residential
development will generally be restricted to infilling within the existing
village limits’. That plainly was at the best misleading and at the worst
wrong. It certainly could not have drawn the Secretary of State’s attention to
the fact that the Pye site was one at least regarded as likely to be shown for
residential development in the local plan. It seems to me, therefore, that the
Secretary of State has failed to take into consideration that which he ought to
have done and for that reason the decision should be quashed: see Ashbridge
Investments Ltd v Minister of Housing and Local Government [1965] 1
WLR 1320 at p 1326. Mr Brown argued that it was clear that the inspector had
taken account of and accurately stated the policy. For the reasons I have
stated, I do not think that the policy was accurately and certainly not
sufficiently stated and even if the inspector took it into account, he did not
draw the attention of the Secretary of State to it.
The appeal
was allowed with costs.