Town and Country Planning Act 1971–Appeals from decisions of inspector under delegated powers–Council’s refusal to approve matters reserved under outline permission and to sanction extension of development site–Complaint that inspector took into account irrelevant matter, namely, effect on a bridleway already recognised in grant of outline permission–Also that inspector had relied on another matter affecting layout not in issue in the written statements of case without giving appellants an opportunity to comment–Natural justice–‘Fair crack of the whip’–Appeals allowed and decisions quashed
These were
appeals by Lewis Thirkell Ltd from two decisions of an inspector appointed by
the Secretary of State for the Environment under Schedule 9 to the Town and
Country Planning Act 1971. The matters arose from planning decisions given by
Mid-Sussex District Council following outline permission to develop a site at
Sharpthorne, near East Grinstead, Sussex. It was agreed between the parties
that the inspector’s decisions should be based on written representations
submitted by the parties.
K Schiemann
(instructed by James B Bennett & Co, of Crawley, Sussex) appeared on behalf
of the appellants; Harry Woolf (instructed by the Treasury Solicitor)
represented the Secretary of State for the Environment. The second respondents,
Mid-Sussex District Council, were not represented and took no part in the
proceedings
Giving
judgment, WILLIS J said that the appellants had secured outline planning
permission to develop a site at Sharpthorne, Sussex, by building 23 houses upon
it, and later applied, in accordance with article 5 (2) of the General
Development Order 1977, for approval of certain matters reserved by the
original permission for later consideration. It was against the council’s
refusal to approve the submitted details that the first appeal was made. The
second appeal was, in effect, against the council’s refusal to sanction an
extension of the development site by increasing the number of houses to be
erected from 23 to 34.
The first
appeal raised two interesting points. It was agreed that if the appellants
failed on both they would fail also on the second appeal. On the other hand Mr
Woolf conceded that if the appellants succeeded on either of these points the
second appeal must be decided similarly, unless the inspector’s decision on the
second appeal was based solely on a ground untainted by the grounds of his
decision on the first. In his Lordship’s view the inspector’s words indicated
that he had decided the second appeal on three grounds, two of which were in
fact the grounds on which he had dismissed the first appeal, the third being a
different one, namely, that any development should stop at the boundary
permitted under the outline permission.
Among the conditions
attached to the grant of outline permission in April 1976 was that the existing
public right of way across the site should remain undisturbed unless stopped-up
or diverted by due process of law. This was a reference to a bridleway. In
November 1976 a meeting took place between the appellants and their
professional advisers, the planning officers of the council, and
representatives of the Mid-Sussex and West Sussex highway, engineering and
building control departments. The purpose was to discuss, and if possible agree
upon, the reserved matters which should be submitted for approval. Details were
submitted to the council in January 1977 and in the submission letter it was
stated that ‘6. Application has been made for the diversion of the public right
of way across the site’. The details were stated to be ‘for roads, sewers,
layout of plots, plot levels and public open space only, and details relating
to the form and design of houses are for illustrative purposes only.’
In April 1977
the appellants amended their plans to accord with requests of the district
planning officer, including ‘Section through Rats Alley,’ but on April 19 the
application was refused by the council, overruling their planning officer’s
advice. The council said that insufficient information was provided to enable
them to determine the application. They expressed the view that development of
the site in the manner proposed would be detrimental to the amenities of the
locality, and that a satisfactory assessment of the proposal could not be made
until the submission of all reserved details. They added that in any
event the layout of the plots indicated the diversion of bridleways in a manner
which would detract from the amenities of the pleasant rural area.
In their
written statement to the inspector the appellants drew attention to their
compliance with the highway authority’s requirement as to the alignment of the
cul-de-sac with Rats
of the existing bridleway in the scheme. The planning authority’s written
statement was mainly confined to the need for the submission of more detail. No
reference was made to the alignment of the cul-de-sac road with Rats Alley. On
the question of the bridleway the authority said that the proposed diversion
was unsatisfactory and preferred a different route. In reply the appellants
pointed out an error in the authority’s suggested route and put forward an
amendment to meet it.
In his
decision letter the inspector described the main issue as to whether the
proposed layout would provide satisfactory development, bearing in mind the
cul-de-sac junction with Rats Alley and the future of the bridlepath.
In paragraphs
8 and 9 the inspector set out his reasons for rejecting the layout before him.
In paragraph 8, he said that the layout did not achieve the maximum benefit
from the natural landscape or present the dwellings to the best advantage with
the minimum disturbance to existing amenities; and some attempt should be made
to merge the line of the new estate road to flow with the existing line of Rats
Alley regardless of whether that road were to be used or not. Once the new road
was formed any question of future emergency and possible use of Rats Alley
would be defeated by the existing angle of approach, and it would be a physical
impossibility to negotiate a heavy-duty vehicle such as a fire engine . . . In
paragraph 9, the inspector observed that the bridleway would disappear, and no
alternative provision appeared to be shown on the layout plan, but he assumed
that it was intended to divert the bridlepath along the line of the new road.
There then followed the words which Mr Schiemann criticised: ‘If that is so I
cannot agree that its urbanisation represents a reasonable substitute for its
delightful rural character.’
Mr Schiemann
complained: (1) that the reason contained in paragraph 8 was not in issue
before the inspector, and it was contrary to natural justice to have relied on
it without giving an opportunity to comment on the possibilities of such a
finding: and (2) that the reason relied on in paragraph 9 relative to the
bridleway was an irrelevant factor to take into account in reaching the
decision.
As to the
natural justice point, Mr Schiemann accepted that the Secretary of State was
not bound by an agreement between the appellant and the local planning
authority on a particular aspect of the appeal. The nub of his submission was
that, on the facts of this case, where it was plain that the parties were ad
idem on the detail of the estate road and Rats Alley junction, and so
advanced no argument for or against it, the inspector should have given the
appellant the opportunity to deal with his adverse criticisms if he was going
to treat them as a reason for dismissing the appeal. Mr Schiemann contended
that the appellants had not had a ‘fair crack of the whip.’ See Fairmount Investments Ltd v Secretary
of State for the Environment [1976] 1 WLR 1255, per Lord Russell of
Killowen at p 1266.
On the
bridleway point, Mr Schiemann put his submission first upon the broad ground
that the possible alternative treatment of a public highway which traversed a
proposed development site was an irrelevant factor on a planning application.
Such a highway could be built on unless it was ordered to be stopped-up, he
said, and whether it was to be stopped-up, diverted, or left as it was depended
upon a procedure independent of the planning application, namely, under Part X
of the 1971 Act; or possibly under Part VI of the Highways Act 1959. Alternatively,
Mr Schiemann submitted that on a narrow ground on the particular facts of this
case where, outline permission having been granted for the erection of 23
houses, the existing character of the bridleway would inevitably be urbanised
to some extent, the inspector was wrong in an appeal on reserved matters in
dismissing it on a ground which had already been decided in principle in the
appellants’ favour at the outline planning stage.
Mr Woolf
accepted–in his Lordship’s view rightly–that while the rule audi alteram
partem could not apply to the simplified procedure on written statements,
the duty of the Secretary of State to act fairly was as compelling under this
procedure as under the inquiry procedure; but he submitted that the applicants
should have understood that, even though the local planning authority indicated
no opposition, they had to adopt a ‘positive attitude’, as he puts it, to all
questions relative to the roads both in principle and detail, and the
applicants could not now complain that their appeal had been turned down on a
matter which they did not argue in their written statement and which lay within
the inspector’s competence.
As to the
bridleway Mr Woolf submitted that the existence and character of a bridleway
must be a material consideration on a planning application, whether it lay
within or without a proposed development site, and that it was inherent in Part
X of the 1971 Act that planning permission should have been obtained before an
application was made to stop-up or divert a highway. As to Mr Schiemann’s
narrow ground Mr Woolf accepted that the outline planning permission had
inevitably had a potential urbanising effect on the rural character of the
bridleway but that the inspector was entitled to consider how the details
before him diminished or contributed to that effect.
In his
Lordship’s view, apart from their comments on the local authority’s expressed
attitude to the bridleway in the grounds of refusal, the appellants’ written
statement indicated clearly that their understanding of the issue was the
sufficiency or otherwise of the details. Again, apart from a reiteration of
their objection to the line of the bridleway diversion, the written statement
of the local planning authority showed that their understanding of the issue was
the sufficiency or otherwise of the details and in particular it was silent on
the question of the Rats Alley junction. The appellants were entitled to assume
that the case they had to make was on the issue of sufficiency, and it was
highly likely that they did so assume. If that were so it would be manifestly
unfair that the appeal should fail on a ground that was quite outside any issue
appearing on the documents without an opportunity being given to deal with it.
But whether or not the appellants were entitled to, and did, make the above
assumption, his Lordship thought they were entitled to complain that fairness
required that they should have been given the opportunity, both in their own
interest and that of the highway authority, to deal with the inspector’s
criticism of the alignment of the Rats Alley junction, when one remembered that
it was the highway authority’s line, accepted by the appellants, and this fact
was known to the inspector, and the planning authority’s statement was silent
on the matter.
Accordingly
his Lordship held that the decision was contrary to natural justice on the
first point. As to the bridleway point, it was clear that the local planning
authority in granting outline planning permission had, as both counsel put it,
‘sold the pass’ in relation to the bridleway and if the development of the area
with 23 houses was to take place its existing rural character was bound to be
affected, or ‘urbanised,’ by the development. Further, if that development were
to take place the bridleway would almost certainly have to be stopped-up or
diverted. This was recognised in the outline permission. But during the period
covered by the documents before the inspector, and at the date of his decision,
it was impossible to say whether, when the necessary application came to be
made, the bridleway would be stopped-up or diverted, and if the latter on what
line, and whether within or without the development area. The inspector’s
criticism of the line seemed to assume that the bridleway would be diverted
rather than stopped-up, and, if diverted, that it would be on the line shown on
the plan before him, stated to be the line then preferred by the highway
authority. If, therefore, the appellants had stated that they intended to apply
in the future to stop-up the highway it did not seem that the inspector could,
on an appeal on reserved matters, have dismissed it on the ground that it
should not be stopped-up. The future of the bridleway, and, if
Lordship thought outside the matters relevant to the consideration of any issue
before the inspector, notwithstanding that the local planning authority raised
objection to the diversion shown on the plan of details. The local authority had
given outline permission from which they were not entitled to resile, which had
the inevitable consequence of altering the rural character of or urbanising the
bridleway if it were to be diverted within the development site. The grounds of
their refusal rather suggested that they regretted having done so, but the
criticism of the ‘urbanisation’ of the area did not seem permissible at a
reserved matters appeal if that urbanisation was in truth the inevitable
consequence of the development permitted in outline.
Having found
in favour of Mr Schiemann on his narrow ground, his Lordship did not find it
necessary to express a concluded view on his broad submission, that where a
bridleway ran within a development site it could never be a relevant
consideration on a planning application.
The first
appeal was allowed and the decision quashed on both grounds set out in the
notice of motion; by reason of Mr Woolf’s concession and his Lordship’s
findings on the second appeal, the same result followed in that appeal also.
The
appellants were awarded the costs of both applications.