Procedural issue — Two decision letters in response to two applications — Inspector not regarding it as necessary to issue formal decision on the second appeal — Notice of motion entered timeously within statutory six weeks but served later — Whether served out of time — Whether court has jurisdiction to entertain appeal — Service need not be within six-week periodSubstantive issue — Inspector finding need for low-cost housing — Council granting planning permission for low-cost housing in another site — Council’s decision present in inspector’s mind — Decision letter issued post factum — Whether housing needs effectively likely to be met — Whether inspector’s decision unreasonable — Decision quashed
The decisions appealed against concerned refusal of outline planning permission for low-cost rural housing on land at Parsonage Lane, Chilcompton, Somerset. Two appeal decision letters were issued, which were virtually identical because there had been two applications before the inspector, the first specifying 14 units, and the second “in outline”, but illustrating the same number of units. Initially the inspector believed that having allowed the appeal in respect of the specified number, it had been unnecessary to issue a formal decision on the second appeal. Following representations, the inspector issued a formal decision on the outstanding appeal and it was then felt necessary for the local planning authority formally to challenge the second decision letter lest it remained valid by default.
Preliminary issue
The procedural issue was addressed to the first decision letter, but applied equally to both. The notice of motion was issued within the time-limit and the solicitors to the second respondents, who were the developers, were served by fax. The hard copy was received after the expiry of the six-week limit. The second respondents argued, inter alia, that the time-limit was absolute; that it was calculated from the date of the decision letter; that the purpose of the time-limit was to ensure certainty about the status of the decision under potential challenge; that purported service of an originating process could not be served by fax; and that an application to quash a decision was made by entry and service within the time-limit: see Ord 94, r2(1), of the Rules of the Supreme Court, which did not distinguish between the two for the purposes of the time-limit.
The substantive issue
The main issue on the appeal to the inspector by the developers. Castle Housing Society Ltd and CFH Developments Ltd. concerned whether houses on the site would “detract from the rural character of its surroundings and if so, whether the proposal for low cost houses to meet local needs outweighs such an objection”. In the event the inspector granted planning permission subject to conditions. He stated that the proposed development was unacceptable save within policies for low-cost housing and he noted that the council had agreed to grant planning permission for a nearby site. He then stated that he was not “convinced that there is a firm prospect of the council’s preferred site becoming available before the appeal site”. He continued that “until the houses are built and ready for occupation a housing need cannot be said to be satisfied”. However, the post-inquiry correspondence showed that planning permission was about to be issued for the council’s preferred site.
Held The application was granted.
1. With regard to the preliminary issue, the court had jurisdiction to hear the appeal. There was no reason advanced as to why it should not exercise its discretion to do so and to extend time. In Summers v Minister of Health [1947] 1 All ER 184, the court considered the question whether the application to the High Court included both the entering of the originating notice of motion and the service on any persons who had to be served. It was held that if the service was not within the period specified by the rules as opposed to the statute, then there would be power in the court to enlarge the time so as to permit the applicants to present their case. The present case was governed by Summers.
2. On the substantive issue, the inspector had been informed that the council had decided to grant planning permission for low-cost housing on a site nearby to the appeal site. He knew of this before the decision letter was issued. Therefore his reasoning that he was not satisfied that low-cost housing needs would be met was unclear. He had recognised that houses on the site would be unacceptable in terms of an unnecessary extension into the countryside and that affordable housing could be an exception to planning policies on small sites. The change between the inquiry date and that of the decision letter had resolved the issue with regard to local need.
Barry Payton (instructed by Sharpe Pritchard, agents for to Mendip District Council) appeared for the local planning authority; John Hobson (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Peter Towler (instructed by Batten & Co, of Sherborne) appeared for the developers.
