Application to build motorway service station – Inspector recommending application be refused because of doubt as to construction of access road – Doubt removed by subsequent events – Secretary of State adopting inspector’s recommendation without giving further reasons – Whether applicant substantially prejudiced by inspector’s failure to give reasons – Judge quashing decision of Secretary of State – Appeal dismissed
In 1992 the then government adopted a policy to upgrade the A1 trunk road to motorway standard. As a result, it became necessary to consider where to develop motorway service areas (MSAs) to serve the motorway once the road was upgraded. Applications for planning permission to build MSAs were made to the second respondents, Harrogate Borough Council, by: (i) Macgay Ltd (Macgay), for a site within the north-east quadrant of the proposed Kirk Deighton interchange of the A1(M) motorway, on the outskirts of Wetherby; (ii) Heather Ive Associates (Heather), for a site at Kirby Hill; (iii) JJ Harrison Properties Ltd (Harrison), for a site at Arkendale; and (iv) Swayfields Ltd, for a site at Allerton.
The council favoured the Allerton site, against the advice of their planning officer, who favoured Kirk Deighton. They selected Allerton for allocation in the deposit version of the local plan, and resolved to give outline planning permission for the scheme. That application was called in by the Secretary of State. Macgay was refused planning permission by the council in February 1995, and appealed to the Secretary of State. In respect of the other two applications, no decision was made within the specified time and, accordingly, Heather and Harrison also appealed to the Secretary of State.
The inspector appointed to carry out a public inquiry in relation to the four applications recommended that conditional planning consent should be given for Heather’s application. The inspector considered, inter alia, that the Macgay application should be rejected, because it was contingent upon a stretch of motorway being constructed, in that the proposed site was not on the current trunk road, and there was no certainty of whether, or when, such a stretch of motorway would be constructed. In March 1999 the Secretary of State confirmed the recommendation of the inspector.
The council and Macgay applied, pursuant to section 2885(b) of the Town and Country Planning Act 1990, for the Secretary of State’s decision to be quashed. It was contended that the Secretary of State had not been entitled merely to adopt the inspector’s reasons, since there could have been no real doubt at the time of the Secretary of State’s decision that a motorway to the site proposed by Macgay would be constructed, in accordance with government policy. The judge allowed the appeal, holding that the council and Macgay had been substantially prejudiced as a result of the defect in the Secretary of State’s reasons for rejecting the Kirk Deighton site. The Secretary of State and Heather appealed.
Held: The appeal was dismissed.
The inspector had rejected Macgay’s application for planning permission upon the basis of uncertainty as to whether, or when, the motorway to its proposed site would be completed. Although subsequent events had removed that uncertainty, the Secretary of State had simply accepted the inspector’s conclusions and recommendations without giving any reasons of his own. He should have taken into account the removal of the uncertainty, but his failure to give reasons in his decision letter made it impossible to know whether he had carried out that exercise, and also implied that he had not. Accordingly, the judge had been entitled to conclude that the appellants had been substantially prejudiced by the lacuna in the Secretary of State’s reasoning, which raised substantial doubts as to whether his decision was one that could be made under the Town and Country Planning Act 1990, and gave rise to a suspicion that there had been a flaw in the decision-making process: Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 applied.
Richard Drabble QC and Jonathan Milner (instructed by Marrons, of Leicester) appeared for Heather Ive Asssociates; Gregory Stone QC and James Strachan (instructed by Harrogate Borough Council) appeared for the council; Robert Fookes (instructed by Dibb Lupton Alsop) appeared for Macgay; the Secretary of State did not appear and was not represented.
Thomas Elliott, barrister
