Town and Country Planning Act 1971 — Appeal under section 245 against decision of Secretary of State for the Environment dismissing a planning appeal — Application had been for permission for housing development — Permission had been refused on the ground that the development would have been prejudicial to the policy of restraining population growth contained in the relevant structure plan — Complaints by appellant against Secretary of State’s decision included alleged failure to follow guidelines laid down in circulars, alleged reversal of correct onus of proof, and failure to satisfy requirement to give adequate reasons — Majority of criticisms rejected — Conception of burden of proof, as applicable in civil litigation, not appropriate — Reasons on the whole adequate, with a technical omission as to number of years’ supply of building land — But Secretary of State left out of account a new circular, Circular 22/80, which was issued between the submission of the inspector’s report and the decision and appeared to show a change of emphasis in favour of the developer which might be a material consideration — For this reason the decision had to be quashed and the matter remitted to the Secretary of State to reconsider in the light of the policy stated in the circular
The appeal in
this case was by builders, J A Pye (Oxford) Estates Ltd, in respect of the
development of about 5 acres of land at Witney, Oxfordshire. The respondents
were West Oxfordshire District Council and the Secretary of State for the
Environment.
Alan De Piro
QC and Nicholas Jarman (instructed by Darby & Son, of Oxford) appeared on
behalf of the appellants; John Laws (instructed by the Treasury Solicitor)
represented the second respondent, the Secretary of State; the first
respondents, the district council, were not represented and took no part in the
proceedings.
Giving
judgment, MR DAVID WIDDICOMBE QC said: This is an appeal under section 245 of
the Town and Country Planning Act 1971 by J A Pye (Oxford) Estates Ltd against
a decision of the Secretary of State for the Environment dismissing a planning
appeal in respect of development of certain land, about 5 acres, at Witney in
Oxfordshire.
Section 245
gives an aggrieved person a right of appeal to the High Court on the grounds
that the action of the Secretary of State is not within the powers of the Act
or that any of the relevant requirements (as defined in section 245 (7)) have
not been complied with in relation to that action. The court can quash the
decision and remit the matter to the Secretary of State for further
consideration if it is satisfied that the action is not within the powers of
the Act or that the interests of the appellant have been substantially
prejudiced by a failure to comply with the relevant requirements.
The
appellants, who are a firm of builders, applied for planning permission to
develop the land in question with houses. The application was refused by the
local planning authority and the company appealed to the Secretary of State.
The local planning authority gave four reasons for refusal of planning
permission and the inspector, who held the local inquiry and reported to the
Secretary of State, found no sufficient substance for refusal of planning permission
in three of the reasons (namely, ‘prejudice to the local plan’, ‘intrusion into
the countryside’ and ‘adding to commuting’) but did, albeit with some
hesitation, find substance in the other reason relating to the structure plan.
He recommended that the appeal be dismissed.
The Secretary
of State in his decision letter dated March 23 1981 simply says that he agrees
with the inspector’s conclusions and accepts his recommendation. So the
appellants came close to winning the appeal and they now challenge the decision
on the single point on which they failed.
What I have
called the ‘structure plan’ reason for refusal was as follows:
That the
approved structure plan for Oxfordshire provides for the general restraint of
population growth in the county, and for land to be released for a maximum of
1,800 dwellings in Witney during the period up to 1986, possibly together with
some minor additional housing development. Commitments already exist which
would produce substantially more than this number of dwellings and the proposed
development would therefore be seriously prejudicial to the approved structure
plan, and to its policies of restraint in particular in that it would be likely
to result in the maximum level of population growth provided for in Witney up to
1986 being substantially exceeded.
At the local
inquiry the appellants’ main contentions in respect of this ground of refusal
were that the structure plan figure of 1,800 houses for Witney by 1986 needed
upward revision in the light of more recent estimates for household size and
vacancy of dwellings, and that there was not enough land available for
development to meet the Secretary of State’s policy of a five years’ supply of
building land for houses contained in Circular 9/80.
The
inspector’s conclusions on this issue, which as I have said were accepted by
the Secretary of State, were as follows:
51. Bearing in
mind the above facts, whilst I recognise that in Oxfordshire general policies
of restraint will apply, Witney has, nevertheless, been selected as one of the
country towns to which most future housing and employment provision will be
steered. In the circumstances some additional residential development in the
period up to 1986 is clearly appropriate.
52. One of the
main points at issue in this case is whether there is any valid reason to doubt
the appropriateness of the structure plan forecasts, and proposals for the
allocation of additional population in the county. The
in mind the projections given in Department of the Environment document SH(79)
10 (document 5) but I have noted that whilst these county projections have been
prepared for the guidance of local authority and other users the document
stresses that it was not possible to take fully into account local
circumstances or changes since 1971 which are likely to affect household
formation. In the circumstances it would appear that the forecasts contained in
this document may not accurately reflect the situation within the county. On
the other hand local monitoring of actual household sizes indicates that the
county household size is broadly on course for the projected figure of 2.63 in
1986 and that the household size in Witney remains higher than that in the
county generally. On the evidence presented, therefore, I am not satisfied that
the household size forecast in Department of the Environment document SH(79) 10
is likely to be more accurate than the locally derived and monitored figure
used by the council.
53. With
regard to the vacancy rate of dwellings there are indications that in England
and Wales this may be as high as 6 per cent in 1986. In the circumstances and
bearing in mind the relationship between vacancy rate and mobility, a
re-assessment of the situation in Oxfordshire may indicate that some revision
of the figure used in the preparation of the structure plan would now be
appropriate. However, I consider that a detailed investigation would be
required to established what revised figure, if any, would now be appropriate
and to assess how this may affect the requirement for dwellings in the county.
54. Dealing
now with the provision of land for housebuilding in Witney the appellant
company accepted that planning permission had been granted for the erection of
1,024 dwellings but did not consider that the bulk of the other land allocated
by the council for residential development is readily available. On the
evidence presented however, whilst I accept that there are some constraints
relating to the development of certain sites, I consider it likely that there
will be land available for the erection of 1,357 dwellings in Witney up to
1986.
55. Although
I consider that there will be sufficient land available for housebuilding in
Witney to meet the requirements of the structure plan up to 1986 the records
show that only 530 dwellings had been completed by July 1980. Department of the
Environment Circular 44/78 indicates that there is a limit to the rate at which
dwellings can be sold on any one site whatever its size and that the phasing of
development is one kind of marketing constraint which is commonly overlooked.
Having regard for this factor and also bearing in mind the number of houses
completed I consider that a very determined effort now would be required to
achieve the maximum number of 1,800 new dwellings by 1986 envisaged in the
structure plan. In this respect I understand the appellant company’s argument
that the appeal site could be an additional generator of dwellings but I also
appreciate the council’s view that the structure plan figures are maxima rather
than targets to be aimed at.
I omit
paragraphs 56, 57 and 58 which are not material to this issue, and I go to
paragraph 59:
In conclusion
I do not find serious objections to the development of the appeal site in
principle providing there is a demonstrated requirement for additional housing
land in the town. However, in this respect I am not convinced that it has been
clearly demonstrated that the immediate release of the site would be justified
bearing in mind the overall restraint policies proposed in the structure plan.
Whilst I have reservations regarding the future building and completion rate of
houses in relation to the structure plan maxima of 1,800 new houses by 1986, I
am not satisfied that there is a serious shortfall at present in the allocation
of available building land in Witney having regard for the provisions of the
structure plan. I am of the opinion, however, that the council should examine
carefully the question of the vacancy rates in the area and also keep under
constant review the position regarding the availability of the land which they
have allocated for residential development. The council maintained at the
inquiry that they could respond quickly to any indications of a shortfall in
land supply. If it does become evident that additional land needs to be
released to accord with the aims of the structure plan and the requirements of
Circular 9/80 I am of the opinion that the council could consider the release
of the appeal site without serious prejudice to the existing Witney Town Map or
any future local plan for the area.
On behalf of
the appellants Mr de Piro challenges the decision on three of the grounds in
his notice of motion, namely, grounds 2, 3 and 7, which are as follows:
2. The
inspector in his conclusions in paragraph 52 of his Report failed to apply the
burden of proof correctly.
3. The
inspector in his conclusions in paragraph 59 of his Report applied the wrong
burden of proof.
7. The
inspector in his conclusions of his Report failed to refer to or to attach any
or any proper weight to Circular 9 of 1976 and the Secretary of State in his
said decision wholly ignored Circular 22 of 1980 and he failed to adhere to his
stated policies without giving reason therefor.
The other
grounds in the notice of motion were not pursued.
Mr de Piro
amplified these grounds. His contention in summary was that the inspector and
the Secretary of State had failed to follow the guidelines for dealing with
planning appeals laid down in ministerial circulars, and in particular the
special policies for housing land. Mr De Piro said that he had referred at the
inquiry to Circular 9/76 (and this was accepted by Mr Laws for the Secretary of
State) but that the inspector makes no reference to it and had clearly ignored
it.
Circular 9/76
contains the following statement in paragraph 2(i):
the basic
principle is that planning permission should be granted unless there is a sound
and clear-cut planning reason for refusal. The onus therefore lies on the
authority to show that proposed development is not acceptable, rather than on
the applicant to show that it is.
The
inspector’s use of phrases such as ‘I am not satisfied’ (in paragraph 52),
‘demonstrated requirement for additional land’, ‘I am not convinced’ and ‘I am
not satisfied’ (in paragraph 59) showed that he was placing the onus on the
appellants to show that planning permission should be granted rather than on
the local planning authority to show why it should not be granted. Mr de Piro
said that he had also relied on Circular 9/80, and that, although the inspector
had referred to this, the inspector in his conclusions had made no reference to
the policy laid down in the circular of a five years’ supply of building land
for houses, notwithstanding that that issue had been canvassed in detail by
both sides at the inquiry.
Mr de Piro
also said that he had referred the inspector to the draft or consultation
version of Circular 22/80, also dealing with the policy for granting planning
permission and with the supply of land for houses. However, the circular itself
was not issued until after the inspector had reported to the Secretary of
State.
I can deal
with this point now. In my judgment a draft circular is not a relevant
consideration for a planning decision. It may never be issued at all or it may
be issued in an amended form; the inspector was quite right to ignore it.
However, it was issued on November 28 1980, before the Secretary of State’s
decision, and the question therefore does arise of whether the Secretary of
State left it out of account.
Finally, Mr de
Piro contended that in any event there was a breach of the requirement to give
reasons for the decision, in that ‘clear and intelligible’ reasons had not been
given.
Mr Laws for
the Secretary of State defended the decision. He accepted that ministerial
circulars were a relevant consideration which must be taken into account, but
contended that they did not create rules of evidence and that phrases like
‘burden of proof’ were inappropriate to a planning decision. He said that in
any event the phrases used by the inspector such as ‘I am not satisfied’ etc
were not used with any significance as to burden of proof. He examined the
inspector’s conclusions in detail to show that they were in line with the
requirements as to a five years’ supply of land in Circular 9/80. As to
Circular 22/80, he said that it did not introduce a new policy but merely
amplified an existing one and that it should not be assumed that the Secretary
of State ignored it merely because he did not mention it. In any event there
was nothing binding on the Secretary of State in it.
I agree with
Mr Laws that the term ‘burden of proof’ as it is used in civil litigation
between parties is not appropriate in the context of planning appeals. The
decision which section 36(3) of the Act requires the Secretary of State to take
is a decision in the public interest. The phrase in Circular 9/76 ‘the onus
lies on the authority’ is not in my judgment a particularly happy one, and it
is not without interest that Circular 22/80, which cancels Circular 9/76 and
reiterates the policy that planning permission should be granted unless there
are sound and clear-cut reasons for refusal, does not repeat the statement
about ‘onus’.
I think the
correct way of stating the position is that the local planning authority when
they refuse planning permission put forward as the grounds of refusal what they
consider to be the sound and clear-cut planning reasons for the refusal. The
local planning authority having stated their view of the matter, the inquiry
inevitably in practice takes the form of the appellant challenging the grounds
of refusal and the local planning authority defending them, but this should not
lead to a comparison with civil litigation. In my judgment the task of the
inspector on an appeal is to consider the facts and contentions put before him
by the parties at the inquiry (including any third parties) and in the light of
what he ascertains at the inquiry and his view of the site to advise the
Secretary of State as to whether there are any sound and clear-cut reasons for
refusal of planning permission. In doing this there is nothing objectionable in
the inspector saying in his report ‘I do not accept the contention’ of
one party or another, or ‘I am not satisfied that such and such a point has
been made out’, provided it is clear that it is in the overall context referred
to above. It would often certainly be helpful if inspectors made a clear
finding whether there is or is not a sound and clear-cut objection to the grant
of permission, thus showing that they have followed the Secretary of State’s
policy, but a decision is not invalidated because it does not use that precise
language.
I have
carefully read all the relevant parts of the inspector’s report, and, while I
think paragraph 59 could have been better phrased, the purport of it is to me
quite clear. The inspector is saying that the restraint policies of the
structure plan do constitute a sufficient reason for refusal of planning
permission, at least at the present time. His use of the expressions objected
to by Mr de Piro are references to contentions of the appellants which he does
not accept, but in the overall context of considering on everything put before
him whether there is objection to the grant of planning permission. The
principle in Circular 9/76 is known to everyone at planning inquiries, and
there is no significance in the fact that the inspector did not expressly
mention it, provided his conclusions when examined are consistent with the
policy, as in the present case I am satisfied that they are.
The same
applies to the use of the expression ‘I am not satisfied’ in paragraph 52.
As regards Mr
de Piro’s contention that the inspector makes no reference to the policy in
Circular 9/80 of providing a five years’ supply of building land, I think this
was an omission on the inspector’s part which does constitute a breach of the
requirement to give reasons. This issue was accepted by both the appellants and
the local planning authority as a significant one at the inquiry and should
have been mentioned. But when I study the facts I can well understand why the
inspector did not mention it as a separate point.
In paragraph
54 of his report the inspector made a finding that there would be land
available for the erection of some 1,357 dwellings in Witney up to 1986. At the
structure plan rate of building (180 per year — see paragraph 21 of the report)
which, per paragraph 4 of Circular 9/80, is the rate to be taken, this gives
more than five years’ supply. If the actual building rate of 118 per annum is
taken (see paragraph 21), the supply is even greater. So the inspector’s
finding on land availability concludes the matter. The appellants are fully
aware of the facts of the case and are in my judgment in no way prejudiced by
the inspector’s failure to refer to the five years’ supply. The breach of the
rules is a technical one only and does not call for the decision to be quashed.
The remaining
point is whether the Secretary of State left out of account Circular 22/80,
which was issued between the submission of the inspector’s report and the
decision. In my judgment the Secretary of State must take his decision in the
light of the relevant considerations in existence at the time of the decision,
and if a relevant new circular comes into existence before the decision it is a
material factor of which account must be taken. I think both counsel accepted
this to be the law. The Secretary of State does not refer to Circular 22/80,
but adopts the usual formula for endorsing the inspector’s recommendation. If
he had had it in mind I am sure he would have referred to it, and in my
judgment it was left out of account.
Was it a
material consideration? It is true, as
Mr Laws contends, that on the relevant matters the circular in substance
repeats the previous policy, but I think there is some change of emphasis in
favour of the developer, and paragraph 8 of Annex A, dealing with land for
housing to which Mr de Piro drew special attention, is a new addition to the
statement of the policy. In my judgment the circular was a material factor, it
was left out of account and the decision must therefore be quashed. It may be
that consideration of Circular 22/80 by the Secretary of State will not lead to
any different conclusion on the appeal, but I cannot be sure of that and in my
judgment the appellants are entitled to have it considered by the Secretary of
State. The decision will therefore be quashed and the matter remitted to the
Secretary of State to reconsider in the light of his policy in Circular 22/80.
The
appellants were awarded costs.