Permission for Lakeland caravan site continued subject to condition imposing time-limit–Secretary of State removes condition and imposes another to do with tree-planting–No breach of rules of natural justice established, nor any failure to comply with the statutory rules–Appeal by local planning authority dismissed
This was an
application by the Lake District Special Planning Board to quash a decision of
the first respondent, the Secretary of State for the Environment, whereby he
allowed an appeal by the second respondents, Lake District Pleasure Pursuits
Ltd, against the imposition of a time-limit upon the grant of planning
permission for a caravan site in the Troutbeck Valley.
Mr M S Rich
(instructed by Sherwood & Co, agents for the solicitor to the board)
appeared for the applicants, and Mr H K Woolf (instructed by the Treasury
Solicitor) represented the first and second respondents.
Giving
judgment, KERR J said that the site in question consisted of a number of fields
in the Troutbeck Valley for which various planning consents had been given at
different times authorising their user as a caravan site known as Limefitt
caravan park, of which the second respondents were tenants and occupiers. All
these consents were temporary in the sense that, pursuant to section 30 of the
Town and Country Planning Act 1971, they were subject to a condition of expiry
within a limited time. The condition of the present consent was that the use as
a caravan site should expire on October 31 1975. The second respondents
appealed against the condition, and a public inquiry was held on March 20 1973.
In his report to the Secretary of State of April 6 1973 the inspector
recommended that the condition be maintained. The inspector referred to the
extent to which the use of this land as a caravan site would conflict with the
natural beauty of the area, in particular on the ground of unsightliness. A
tree-planting scheme to screen the site was then widely canvassed between the
parties, but no firm agreement was reached. So on July 8 1974 the Secretary of
State issued his decision without further communication with the parties. He
allowed the appeal by setting aside the condition, but pursuant to his powers
under section 36 of the Act, imposed a further condition requiring a
tree-planting scheme which the planning board had already welcomed. The
applicants now contended that the Secretary of State’s decision should be
quashed because it was not within his powers under the 1971 Act and because he
had failed to comply with the requirements of the Town and Country Planning
(Inquiries Procedure) Rules 1969 and 1974.
He (his
Lordship) accepted Mr Woolf’s submission that paragraphs 3 and 4 of the
Secretary of State’s decision letter were to be read disjunctively, in the
sense that they were dealing with separate matters, and that paragraph 3
related to the removal of the time-limit, while the new condition relating to
the tree-planting was dealt with in paragraph 4. In his opinion paragraph 3
comprised a self-contained policy decision, stating as it did that it was
‘inappropriate to attempt to retain control of a particular use of land by
means of a series of temporary planning permissions, save in those cases where
the application relates to a change of use, and the effect which the proposed
use is likely to have on the amenities of the area cannot be fully appreciated
until the use has actually begun.’ He
(Kerr J) had also been referred to paragraphs
referred at the inquiry and which set out the departmental policy relating to
temporary permissions. There were minutiae of language here, but there was
nothing whatever to suggest that the decision under paragraph 3 of the decision
letter would have been affected by the pros and cons concerning a condition
imposing a tree-planting scheme. Mr Rich, for the applicants, did not accept
this analysis, and referred in particular to paragraph 6 of the decision
letter, which stated the result of the appeal in relation to both conditions
and began with the words ‘For the reasons given above.’ But he (his Lordship) found these words
entirely appropriate and consistent with the analysis, since paragraph 6 dealt
both with the removal of the condition as to time and the imposition of the
condition as to planting of trees.
Against this
background, one then turned to the particulars of the notice of motion which
contained the applicants’ grounds for asking that the decision be quashed. The
first contended that the Secretary of State had differed from his inspector on
a finding of fact. This related to the applicants’ contention that the
time-limit condition ought to be maintained because changes were taking place
on the appeal site that could not reasonably have been fully foreseen. It was
alleged that in breach of rule 12 (2) the Secretary of State ‘failed to afford
to the parties an opportunity of making representations thereon.’ He (Kerr J) rejected this particular. It was
untenable, because the present case did not involve any change of use which had
not yet begun but concerned a site which had been used for the same purpose for
many years. The second particular contended that the Secretary of State ‘took
into consideration new evidence not raised at the inquiry, namely that the
second respondents had implemented a new tree-planting scheme which was not
‘contrived facilities of a sophisticated nature’ as described in the
inspector’s report; and in breach of rule 12 (2) and of natural justice the Secretary
of State failed to notify the applicants thereof or offer to reopen the
inquiry.’ This referred to a letter of
April 1 1974 sent on behalf of the Secretary of State and not communicated to
the applicants. It referred, inter alia, to the tree-planting
facilities, but there was nothing in it to indicate that the Secretary of State
was disposed to disagree with a recommendation made by the inspector. He (his
Lordship) had reached the conclusion that the nature and extent of the
contrived facilities appeared to have played no part in the mental process of
the Secretary of State at any time. He held that the words ‘by reason thereof’
in rule 12 (2) were not satisfied and that the allegation that the applicants
should have had an opportunity of reopening the inquiry under rule 12 (2)
failed.
The
alternative submission was that the failure to send a copy of the letter of
April 1 to the applicants constituted a denial of natural justice. A
complainant inevitably faced a heavy burden in seeking to establish a breach of
the rules of natural justice when the allegation related to something comprised
within the scope of a statutory procedure which was in itself designed to lay
down the requirements which must be complied with to ensure that justice was
done. He (Kerr J) accepted the submission of Mr Woolf that a breach of natural
justice was not made out ipso facto by the mere receipt by the Minister
of some further representations after the close of an inquiry and the failure
to circulate to everybody concerned. Cases which bore out these views were Local
Government Board v Arlidge [1915] AC 120; Ridge v Baldwin
[1964] AC 40; and Maxwell v Department of Trade and Industry
[1974] 2 WLR 338. In the circumstances of the present case, and in the light of
the authorities, he (his Lordship) was unable to find that any breach of the
rules of natural justice had been established.
It remained
only to say that the Secretary of State had certainly taken into consideration
a new question which was capable of giving rise to an issue between the
parties, namely whether ‘the imposition of an imaginative tree-planting scheme
incorporating local species and providing for suitable care of trees and their
replacement as necessary would help blend the site into the landscape.’ The novel feature of this question was the
issue whether or not an acceptable tree-planting scheme should be imposed as a
condition of the planning permission. The fact that some additional planting
would, though to a very limited extent, ‘help to blend the site into the
landscape’ had been common ground at the inquiry, but the question whether or
not a tree-planting scheme should be made a condition of planning permission
had never been canvassed. Having raised this question in a letter of January 10
the Secretary of State was obliged, under the rules of natural justice, to give
the parties an opportunity of making representations on it before making any
decision about it. But this he had done, and it then turned out that there was
no issue between the parties on this point either. In all these circumstances
he (his Lordship) could not see what scope, let alone useful purpose, there
would be if the inquiry were reopened on this aspect. He could not see how ‘the
possibility of remedying the present shortcomings in the landscaping and
screening of the site’ could be said to raise any new issue of fact. The motion
therefore failed, and there would be judgment with costs for the two
respondents.