Planning appeal dismissed by inspector — Appellant had no reasonable prospects of obtaining rights of access — Whether inspector should have considered Grampian conditions — Whether condition reasonable if no reasonable prospect of compliance
By a letter
dated March 2 1989 the Secretary of State for Wales, by his inspector,
dismissed an appeal by the respondent, Mr R T Jones, against a decision of the
Ogwr Borough Council to refuse outline planning permission for the erection of
a dwelling on land at Ystadwaun, Pencoed, near Bridgend, Mid Glamorgan.
Although the inspector considered that the erection of the dwelling might have
been permitted, he dismissed the appeal because he was not satisfied that there
were reasonable prospects of the respondent obtaining consent for the necessary
vehicular access over common land, not owned by the respondent, as the owner
had refused consent. The inspector considered imposing a condition that
development should not commence until vehicular access over the common land was
obtained, but decided, having referred to the guidance in Circular 1/85, that
no satisfactory condition could be imposed which would not take away the
substance of a planning permission.
His Honour
Judge Marder QC, sitting as a judge of the Queen’s Bench Division, allowed an
appeal by the respondent under section 245 of the Town and Country Planning Act
1971, deciding that the inspector was wrong in not considering the imposition
of a condition as sanctioned by the House of Lords in Grampian Regional
Council v City of Aberdeen District Council (1983) 47 P&CR 633.
The Secretary of State appealed that decision.
Circular 1/85
correctly sets out the law at para 34 and a Grampian condition should be
imposed only where there is at least reasonable prospect of the action in question
being performed. The inspector had concluded there were no reasonable prospects
of the respondent obtaining rights of access over the common land; that was a
proper application of the test to be applied and his decision should be upheld:
see pp 105G-106. The final test is whether the condition is a reasonable
condition. That is a condition which a reasonable planning authority would
impose. Unless there is some evidence that there is a reasonable prospect that
some crucial condition to the consent may be satisfied, then to insist that
that crucial condition should be satisfied must always be an unreasonable
imposition of a condition: see p 109E.
to in the judgments
Grampian
Regional Council v City of Aberdeen District
Council (1984) 47 P&CR 633; [1984] JPL 590, HL
Newbury
District Council v Secretary of State for the
Environment [1981] AC 578; [1980] 2 WLR 379; [1980] 1 All ER 731; (1980) 78
LGR 306; 40 P&CR 148; [1980] JPL 325, HL
Proberun
Ltd v Secretary of State for the Environment [1990]
3 PLR 79, CA
Appeal against
decision of His Honour Judge Marder QC
This was an
appeal from His Honour Judge Marder QC (sitting as a judge of the High Court),
who had allowed an application by Mr R T Jones (September 13 1989) under
section 245 of the Town and Country Planning Act 1971 to quash a decision of
the Secretary of State for Wales, by his inspector, who had dismissed an appeal
against a decision of the second respondents, Ogwr Borough Council, who had
refused planning permission.
(instructed by the Treasury Solicitor) appeared for the appellant, the
Secretary of State for Wales.
Masterman (instructed by Randalls, of Bridgend) appeared for the first
respondent, Mr R T Jones.
respondents, Ogwr Borough Council, did not appear and were not represented.
following judgments were delivered.
PURCHAS LJ: This is an appeal by the Secretary of State for Wales (‘the
minister’) from an order of His Honour Judge Marder QC (sitting as a judge of
the High Court) on September 13 1989. The order was made on a motion by Richard
Thomas Jones (‘the applicant’), by way of appeal under section 245 of the Town
and Country Planning Act 1971. The appeal was from a decision of an inspector
appointed by the minister contained in a letter dated March 2 1989 (‘the
decision letter’), and by his order the judge quashed the decision letter.
The appeal
raises an important question relating to the powers granted by section 29 of
the Town and Country Planning Act 1971 given to a local planning authority to
refuse planning consent or to grant planning consent with or without
conditions.
The facts may
be shortly stated. The applicant owned land at Ystadwaun, immediately to the
north of Pencoed, near Bridgend, Mid Glamorgan. This included a site of about
one-fifth of a hectare in extent which he wished to develop as a single
residence of high quality including, as well as the house, stables, garage,
courtyard and swimming pool. I shall refer to this as ‘the appeal site’. He
applied for outline planning permission on February 22 1988 and his application
plan included a driveway from the appeal site to a nearby access road, Heol
Ystadwaun, to be constructed along an access over which he had rights of access
for agricultural purposes to his own land which was agricultural land. The land
over which the driveway was to be constructed was owned by the Dunraven
Estates. On April 7 1988 the local planning authority, the Ogwr Borough
Council, refused planning consent and gave five reasons for so doing, which need
not be detailed in this judgment.
The applicant
appealed. The minister appointed an inspector to hold a local public inquiry
and to decide the appeal. The inspector heard evidence and inspected the appeal
site on December 1 1988, and his conclusions were contained in the decision
letter. In that letter the inspector rejected all five grounds upon which the
council had based their refusal of the planning application. It is necessary
only to read four paragraphs from the decision letter which are relevant to the
issues in this appeal. They relate to the means of vehicular access to the
appeal site:
13. Turning
now to the means of vehicular access to the site, I was requested at the
inquiry to grant planning permission for your client’s proposed dwelling and
allow him to resolve the question of access at a later date. The reason for
this is that vehicular access is proposed to be gained over
Ystadwaun which runs through the common. It is stated that the Dunraven
Estates, as freeholders, would not grant consent for such an access in the face
of opposition from both the Association of Commoners and the Coity Wallia Board
of Conservators.
It is clear
from the record of the inquiry that among the interested persons who gave
evidence were the clerk and surveyor to the Conservators of the Coity Wallia
Common and the town clerk to Pencoed Town Council.
14. In my
opinion the proposed means of vehicular access to the appeal site is a
fundamental part of the application. I accept that the amount of vehicular
traffic that would be generated by one additional dwelling would not have such
a dramatic impact on the safety of other persons using the accommodation road
as to justify a refusal of planning permission on highway safety grounds alone.
— I interpose
that that was one of the five grounds upon which the planning authority had
refused consent —
Nevertheless
on the evidence before me I am not satisfied at this stage that there are
reasonable prospects that consent for vehicular access would be granted from
persons or bodies alleged to control the grant of the vehicular right of way
which is required to serve the proposed development.
15. I have
considered whether it would be appropriate to grant planning permission for the
proposed dwelling subject to a condition requiring that development should not
commence until consent had been obtained for the construction of a proposed
vehicular access across the common. However, in view of the present opposition
expressed by those who allegedly control such consent, I find no satisfactory
condition which would be in accord with the guidelines on conditions set out in
Circular 1/85 and which would not take away the substance of any planning
permission since your client does not appear to have sufficient control over
the land in question to enable the proposed vehicular access works to be
carried out.
16. I am
therefore led to the conclusion that, whilst I am of the view that the proposed
development is acceptable on planning grounds in the terms of Welsh Office
Circular 30/86, it is nevertheless premature pending any agreement for securing
a satisfactory means of vehicular access to the site.
I would add
that Circular 30/86 dealt with the exceptional grounds upon which the consent
should be granted in accordance with the circular from the Welsh Office in the
particular circumstances pertaining then and which had not been accepted by the
planning authority in their grounds for refusing consent. Those, then, are the
relevant paragraphs of the decision letter.
It is now
convenient to turn for a moment to the authorities which are relevant to the
consideration of this appeal. I start with the case of Newbury District
Council v Secretary of State for the Environment [1981] AC 578. It
is necessary to refer only to a short passage from the speech of Lord Lane. As
Mr Ouseley pointed out in his submissions, it summarises what is stated in the
other speeches in a convenient and short form. At p 627B, dealing with the
wording of section 29 of the 1971 Act providing for conditions, Lord Lane said:
Despite the
breadth of the words ‘subject to such conditions as they think fit,’ subsequent
decisions have shown that to come within the ambit of the Act and therefore to
be intra vires and valid a condition must fulfil the following three
conditions: (1) it must be imposed for a planning purpose; (2) it must fairly
and reasonably relate to the development for which permission is being given;
(3) it must be reasonable; that is to say, it must be a condition which a
reasonable local authority properly advised might impose.
This appeal is
concerned solely with the third of those conditions. The other two are clearly
fulfilled.
The other
authority to which we were referred was Grampian Regional Council v City
of Aberdeen District Council (1983) 47 P&CR 633. That case concerned
circumstances similar to those with which this appeal is also concerned. Again
it is necessary only to refer to one short passage in the speech of Lord Keith
of Kinkel, at p 637, which concerned the question of traffic and access:
The only
aspect of them which he regarded as disadvantageous was the traffic problem
they would be likely to cause at the Findon House junction. That problem was capable
of being solved by the closing of the southern part of Wellington Road,
something which had at least reasonable prospects of being achieved under
statutory powers to that effect. In the circumstances, it would have been not
only not unreasonable but highly appropriate to grant planning permission
subject to the condition that the development was not to proceed unless and
until the closure had been brought about.
I pause to
comment that the issue in that case was whether it was appropriate for the planning
authority to impose negative conditions. That question was firmly decided in
the Grampian case and we are not concerned with that on this appeal. As
Judge Marder commented in his judgment, they have since this case become known
as ‘Grampian conditions’. The issue with which we are concerned is
whether that part of the speech in particular and the authority in general is
to be read as putting a restriction upon the use of Grampian conditions
to those circumstances in which there is some evidence that there was at least
a reasonable prospect of the circumstances or the removal of the obstacle to
which the condition is applied coming to pass within a reasonable time, which
it seems to be common ground would be the time envisaged in the planning
statutes as the life of a planning consent.
Shortly after
that case was decided in the House of Lords, and I suspect during that time,
the minister was preparing a circular to give guidance to planning authorities
on the imposition of conditions under section 29 of the 1971 Act. We were told
by Mr Ouseley, and I would be astonished if it were otherwise, that this
circular, at whatever stage it happened to be in draft, was looked at with the
speeches in the Grampian case in mind. I must refer very shortly to one
main paragraph of that circular upon which considerable reliance is placed. To
introduce it, however, para 1 of the Annex to Circular 1/85 emphasises this:
Conditions
may only be imposed within the powers available. Advice on these powers is
given below. This advice is intended to be a guide, and it must be stressed
that it is not definitive. An authoritative statement of the law can only be
made by the courts.
Para 24, which
I do not propose to read, deals with reasonableness of enforcement of
conditions when there are positive conditions such as the carrying out of
works, and so forth, in association with the planning consent.
The important
paragraph is para 34. It comes under a section of two paragraphs headed: Conditions
depending on others’ actions. Para 33 deals with positive conditions. But
para 34 I should read in toto:
Although it
would be ultra vires, however, to require works which the developer has
no power to carry out, or which would need the consent or authorisation of a
third party, it may be possible to achieve a similar result by a condition
worded in a negative form, prohibiting development until a specified action has
been taken.
I pause to
interpose that that goes straight to the decision in the Grampian case.
The test of
whether such a condition is reasonable is strict; it amounts to
performed.
That is
directly challenged by the respondent in this appeal and the applicant in the
court below.
Thus, for
example, if it can be shown that, although current sewerage facilities were
inadequate for a new housing estate, improvements were under way which would be
completed not long after the houses, it might be right to grant permission
subject to a condition that the houses should not be occupied until the
relevant sewerage works were complete. In an appropriate case, too, it might be
reasonable to use a condition requiring that the development should not
commence until a particular highway had been stopped up, or diverted, if there
were reason to suppose that the Highway Authority would be able and willing to
take the necessary action. The reasonableness of such a requirement will in all
cases depend upon the likelihood of the precondition being fulfilled within
such time as to enable the development to be commenced within the time limit
imposed by the permission.
The applicant
challenges that paragraph as being an accurate statement of the law as laid
down in the cases to which I have already referred.
In the appeal
to Judge Marder the applicant contended that the inspector relied upon para 34
and that the circular was wrong in law in stating that, before a Grampian
condition could be imposed, there had to be reasonable prospects of the
developer being able to benefit from the permission as a result of the
pre-condition being fulfilled. This contention found favour with the judge, and
I propose to read some very short extracts from his judgment in this respect.
Referring to
Mr Ouseley’s submissions in support of the reasonable prospect test, he said:
In every
case, it is submitted, where there is an obstacle to development of this kind,
then the inspector is bound as a matter of law to determine that question of
whether there is a reasonable prospect of its removal, and if the answer to
that question on the facts is no, then he is bound to refuse planning
permission.
As I
understand Mr Ouseley’s submissions before us, that stance is maintained.
In my
judgment, Mr Ouseley’s propositions are far too sweeping. It may well be a
matter of common sense in the examples given in para 34 of the circular to
refuse planning permission.
The judge goes
on to deal with the examples to which I have already referred and then says:
However, to
elevate that proposition into a principle of law or indeed to the status of an
inflexible matter of policy is to my mind wrong and not warranted by authority.
Mr Ouseley
concedes that the circular cannot be a statement of the law and if and in so
far as an inspector blindly followed the recommendations and policy contained
in such a circular, without considering the factual circumstances with which he
was concerned, that would also be a denial of his authority and status.
However, Mr Ouseley submits that where the circular does describe a policy and
an approach to the exercise of discretion, which is clearly to be seen in
section 29 of the Act, then it is open to the inspector, having once
familiarised himself with the circumstances with which he is concerned and
having found it appropriate to follow that direction and policy, so to do. The
judge, in this passage to which I have just referred, does not
light of the circular in this way.
The judge then
considered the Grampian case and continued:
The reference
by Lord Keith to the reasonableness of any condition being considered in the
light of the circumstances of the case appears to me to be contrary to the
proposition that Mr Ouseley puts forward. The plain fact of the matter, in my
judgment, is that this inspector unfortunately misconstrued or failed to pay
adequate attention to the guidance offered him in Circular 1/85. Here was a
simple case of a single house, and the inspector had found ample good reasons
why the construction of that house should be permitted. In any event there is a
general presumption that development ought to be permitted unless there is some
good planning reason shown for refusal.
I acknowledge
that that sentence is merely a comment. It is not to the appeal either before
the judge or before this court.
The position
was at the inquiry that those who had the power to consent to making up an
access-way across the common had shown no present intention of giving
such consent.
(Emphasis
provided)
I have already
read the findings of the inspector in terms. With respect to the learned judge,
I find it difficult to agree with his reading of the inspector’s decision
letter and the findings recorded there. The present comment was not that those
who had power to give consent were not minded to do so at the time of appearing
at the inquiry but might well change their mind in the future. There was no
evidence to support a suggestion of that kind at all. The only possible way of
introducing a prospect of consent was really a hypothetical approach that
anything can change and, in theory, the obstacle might be removed. But, in my
reading of the law, it needs more than that to justify granting planning
consent subject to conditions in the Grampian form where there is no
evidence to show that there is any reasonable prospect of the obstacle in fact
being capable of removal. That may well be the point at which the learned
judge, in my judgment, misconstrued the findings of the inspector. He goes on,
on the basis of that approach and reading of the decision letter, to say:
In those
circumstances, the obvious course to take and the one that was contemplated by
Circular 1/85, in particular by para 24 of the annex and by the model
conditions, was to grant planning permission subject to a Grampian type
condition, thus leaving it to the applicant to implement his planning
permission if and when he obtained the consent he needed
Para 24, as I
have already mentioned, relates to positive conditions and the reasonableness
of imposing them. It may be that the judge meant to refer to para 34, but that
is not clear from the transcript. If it was para 34 it would, of course, be
dealing with the Grampian type condition but, as I have already
commented, the basis upon which the judge was considering para 34 was the
misinterpretation, as I think it was, of the finding by the inspector.
If in the
outcome he failed to get the conservators’ consent, he would not be able to
build his house and eventually the planning permission would lapse by effluxion
of time.
Instead of
taking that obvious and appropriate course, the inspector not only refused
planning permission but in para 16 of his decision, which I have already read,
he indicated that no planning permission would be forthcoming until an
agreement for access had been reached. Even if one were to apply Mr Ouseley’s
‘reasonable prospect’ test, that was putting the case against the applicant too
high and reinforces my view that the inspector failed to give proper
consideration to the advice in the circular. He thus reached a conclusion which
was unreasonable in the light of the facts that were before him.
That was the basis
upon which the judge quashed the decision letter.
On this appeal
Mr Ouseley has submitted, first, that the circular correctly sets out the law.
He stands by his submission that unless there is some evidence of a reasonable
prospect of the obstacle being removed, then a Grampian condition should
not be applied but the proper course, and the only course, he would submit,
open to the planning authority or, on appeal, the minister, would be to refuse
consent.
Mr Ouseley was
anxious that the court should not proceed to decide the appeal, and I
sympathise with his submissions, on the basis of the exercise of discretion. He
was anxious to establish not merely that the inspector had an election between
two methods of dealing with the appeal, ie to refuse consent or to impose a
condition, and which of those two courses he chose was purely a matter of his
discretion. If that was the simple state of affairs, the appeal would be
hopeless. However, Mr Masterman submits that if the judge was right that the
inspector misunderstood the circular or, alternatively (which was his first
point but not a ground upon which the judge based his judgment), that the
circular was wrong in law, in either case the exercise of discretion by the
inspector in the selection of his two alternatives would be flawed, so that it
is proper for this court to go forward to consider the more important point as
to whether, first of all, the circular is wrong in law and, second, whether
there is any substance in the submission made by Mr Masterman. It is another
way of saying the same thing, namely, that the test was too high, that is that
there should be evidence of a reasonable prospect, of the obstacle being
removed but the condition would be open to be imposed by the inspector as long
as there was a prospect, not necessarily a reasonable one, but any prospect, of
the obstacle being circumvented, leaving it upon the developer to take the
chance of the planning developments and the risks there involved.
That isolates
the issue in this appeal. The latter alternative is to be found in the last
paragraph of the speech of Lord Keith in the Grampian case. Having dealt
with the imposition of the condition, he said, at p 637:
As to the
argument on uncertainty, it is sufficient to notice that the provisions of
sections 38 and 39 of the [Town and Country Planning (Scotland) Act 1972],
about the limit of duration of planning permissions, indicate the recognition
that development which is the subject of planning permission may not be carried
out within any particular time scale or at all. There is nothing to compel any
successful applicant for planning permission to carry out his development, so
uncertainty may be said to be a natural feature of the planning process.
Here, Mr
Masterman submits that the proper course to take would be to impose a
condition, leaving the applicant to do his best in one way or another to cause
the removal of the obstacle. In my judgment, that approach is not justified on
the law as it stands and the provisions of section 29 as they have been
enacted. As I have said, the starting point is really the speeches in the Newbury
case and the third condition there specified in the judgment of Lord Lane.
Mr Masterman,
in a valiant and attractive argument, tried to construe the speech of Lord Keith
in a way that would justify his contention that the reasonable prospects of the
obstacle being removed really were not anything more than a subordinate part of
the sentence involved. I find I am unable to follow that submission. In my
reading of the speech of Lord Keith, he clearly had in mind that a condition of
this kind would be reasonable and, in certain circumstances, more than
reasonable, but only if and in so far as it was established that there was a
reasonable prospect of the removal of the obstacle being achieved. In the Grampian
case there was a ready solution in the form of the statutory rights available
to the Secretary of State to authorise a stopping
granting and exercise of consent.
Mr Masterman
also referred to the transcript of a recent judgment delivered in this court by
Glidewell LJ in Proberun Ltd v Secretary of State for the Environment*.
Having dealt with the issues that were germane to the appeal, which related to
the imposition of a negative condition, Glidewell LJ said:
But even if I
were wrong about that, there is no evidence in this case that there is any
prospect that the developers could, or might, acquire the necessary rights over
adjoining land to create a different form of junction or a junction of Medham
Lane with Newport Road at a different place. In the absence of such evidence,
there was missing the factual ingredient which rendered the Grampian
condition reasonable in that case.
*Editor’s
note: Reported at p 79 ante: see p 87D
Mr Masterman
relied upon that passage in the words that there was no evidence in this case.
But in my reading of that judgment, an introduction to an approach of
reasonable condition in the Grampian authority and, subject to anything
which may fall from my lords subsequently, I would not read the judgment of
this court in that case as being any justification for departing from the test
of reasonable prospects which is to be culled from the speech of Lord Keith.
Mr Ouseley
made a further submission which, in my judgment, I found impressive. That is
that it would be on its face unreasonable to grant consent to a development on
the application of a developer with one hand and then withdraw it, in effect,
with the other hand by placing a condition precedent upon the exercise of the
consent of which there was no reasonable prospect of fulfilment. That is not in
any way an authoritative or legal approach, but it has the value of making
sense with the approach that Mr Ouseley submits should be that derived from the
speech of Lord Keith.
The final
test, therefore, is whether the condition is a reasonable condition. That is a
condition which a reasonable planning authority would impose. In my judgment,
unless there is some evidence that there is a reasonable prospect that some
crucial condition to the consent may be satisfied, then to insist that that
crucial condition should be satisfied must almost always be an unreasonable
imposition of a condition.
For those
reasons I would allow this appeal and reinstate the decision letter.
NOURSE LJ: I agree. In para 14 of the decision letter the inspector expressed
the opinion that the proposed means of vehicular access to the appeal site was
a fundamental part of the application. Having then accepted that a refusal of
planning permission on highway safety grounds alone would not be justified, he
continued:
Nevertheless
on the evidence before me I am not satisfied at this stage that there are reasonable
prospects that consent for vehicular access would be granted from persons or
bodies alleged to control the grant of the vehicular right of way which is
required to serve the proposed development.
That is an
unimpeachable finding that the applicant had no reasonable prospect of
obtaining the vehicular right of access to the appeal site, which, in the
inspector’s opinion, was a fundamental part of the application.
If planning
permission had been granted subject to a condition that the development should
not commence until such a right had been obtained, it would necessarily have
followed that the condition, being one with no reasonable prospect of
fulfilment, could not reasonably be imposed. The condition would thus have
failed to meet the third of the requirements for a valid condition which were
authoritatively stated by the House of Lords in
[1981] AC 578. It must be unreasonable to impose a condition which at once
shuts out any reasonable prospect of the permission’s being implemented.
In order to
arrive at this conclusion it is not really necessary to rely on the later
decision of the House of Lords in Grampian Regional Council v City of
Aberdeen District Council (1983) 47 P&CR 633, where the precise
question with which we are confronted was not in point. But there is certainly
nothing in the speech of Lord Keith of Kinkel which is inconsistent with the
conclusion and, on a reading of what he said at pp 636-637, I think it highly
likely that he and the others of their lordships would have agreed with it.
For these
reasons, I, too, would allow this appeal.
GLIDEWELL
LJ: The inspector in his decision letter said that
there were two main issues for his decision, first, whether Mr Jones’ proposal
for a dwellinghouse:
would be in
conflict with approved national and local planning policies which relate to
such proposals for new residential development adjoining the boundary of an
existing established settlement and whether the proposed vehicular access is
available and satisfactory to serve the proposed development.
He dealt with
the first of those matters in detail, and he held that the proposal did comply
with the relevant policies, particularly that set out in Welsh Office Circular
30/86. He dismissed the appeal, however, because, at the time of the inquiry,
there was no evidence before him that Mr Jones had a reasonable prospect of
obtaining the necessary rights to construct a vehicular access over the common,
which access was an integral and necessary part of the proposed development.
Indeed, there was evidence that the freeholder of the common would not grant
such consent. Mr Jones was, and is thus, in the frustrating situation that he
had overcome the borough council’s objections to the development but he was
faced with a practical problem to which he had been unable to supply an answer.
An application
to the High Court under section 245 of the 1971 Act may be made on the grounds
that the decision was not within the powers of the Act or on an alternative
ground which does not arise in this case. Mr Masterman submits, as was
submitted to Judge Marder, that the inspector’s decision was not within the
powers of the Act in that it was based on an error of law. The suggested error
of law is that the inspector adopted the wrong criteria for deciding whether to
grant permission subject to a negative condition, which has become known as a Grampian
condition, or whether to refuse the appeal.
Mr Masterman,
in his able submissions to us, makes two points. First, that the prospects of
the obstacle being overcome within the life of the planning permission, that is
to say within the normal five-year period within which details of an outline
permission must be sought, is only one of the matters to be taken into account.
In his speech in the Grampian case Lord Keith of Kinkel, at p 636, said:
In the second
place the reasonableness of any condition has to be considered in the light of
the circumstances of the case.
Mr Masterman
submits that when, in Circular 1/85, the Secretary of State said, in the middle
of para 34,
The test of
whether such a condition is reasonable is strict; it amounts to whether there
are at least reasonable prospects of the action in question being performed
he was wrong,
because he was restricting the test to one matter when he should have taken all
relevant matters into account. But this argument ignores the
where in every other way the development is desirable and should be permitted —
such a case as this. So, in my view, a planning authority confronted with this
situation or an inspector or the Secretary of State confronted with it on
appeal should, in short, ask two questions. The first is: Apart from the practical
problem, is there any other reason why a permission should not be granted? If the answer to that question is ‘no’, then
the second question is: What are the prospects that the problem can be overcome
within the life of the permission?
It is that question
to which the circular is addressed and which, in my view, the inspector here
properly asked himself and answered in the negative: ‘There is no reasonable
prospect’.
The second
submission by Mr Masterman is that the proper question to be asked is not: ‘Is
there a reasonable prospect of the problem being overcome?’ He submits that it is only where there is no
prospect whatever of its being overcome that permission should be refused. But,
like my lords, I am confident that this submission cannot be correct. For the
reasons which have already been explained in my lords’ judgments, the
condition, if it is to be imposed, has itself to be a reasonable one and it
cannot be reasonable to impose a condition where there is no reasonable
prospect of the problem being overcome, since this would inevitably stultify
the permission.
It follows
that, in my judgment, para 34 of Circular 1/85 accurately summarises the law
and gives proper guidance as to the proper approach in a matter of this kind.
Para 24 of the circular is to be read subject to what follows in paras 33 and
34. The inspector, contrary to what the learned judge thought, both correctly
understood those passages and applied them correctly. He asked himself the
right question. The answer to which he came, as I have already said, is that
there was no reasonable prospect of the practical problem being overcome shown
on the evidence before him. That was a decision on the evidence, correctly
applying the law, and, of course, that decision on the evidence is not one
which the court could overturn.
For those
reasons, in addition to those given by my lords, I, too, would allow this
appeal.
Appeal
allowed with costs.
