Planning appeal — Outline planning permission — Development plan — Whether inspector correctly applied test in section 54A of the 1990 Act
The appellant
council refused to grant outline planning permission for residential
development to the second respondents. In allowing the second respondents’
appeal and granting planning permission the inspector in his decision letter
referred to section 54A of the Town and Country Planning Act 1990. The
appellants alleged that the inspector incorrectly stated the effect of the
section and therefore applied the wrong test in arriving at his decision.
Although the
section 54A test was incorrectly stated, it was correctly applied by the
inspector. The inspector had the correct test in mind when he used the expression
‘must be taken into account’, when considering the development plan; what he
intended to express was ‘shall be made in accordance with’, the expression used
in section 54A. The inspector’s reasoning supports the fact that he applied the
correct test: see pp57G-58.
to in the judgments
R v Canterbury City Council, ex parte Springimage Ltd [1993] 3
PLR 58; [1994] JPL 427
Appeal against
the decision of Mr Gerald Moriarty QC
This was an
appeal by North Yorkshire County Council against the decision of Mr Gerald
Moriarty QC, sitting as a deputy judge of the Queen’s Bench Division, who
dismissed a motion to quash a conditional planning permission granted by the
Secretary of State for the Environment following an appeal by the second
respondents, M J Griffin and D Griffin.
Harris (instructed by Rees & Freres, London agents for North Yorkshire
County Council) appeared for the appellants.
Lieven (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for the Environment.
respondents, M J Griffin and D Griffin, did not appear and were not
represented.
following judgments were delivered.
PILL LJ: This is an appeal from Mr Gerald Moriarty QC, sitting as a deputy
judge of the Queen’s Bench Division, whereby on July 17 1994 he
Secretary of State, the first respondent, on appeal from a decision of the
North York Moors National Park Committee of North Yorkshire County Council.
The appellants
refused outline planning permission. The permission sought was for the erection
of a dwellinghouse and garage on land known as The Workshop, Mires Lane, in the
village of Newholm. The appeal was determined by an inspector appointed by the
first respondent following written representations and a site inspection. The
decision letter is dated December 17 1993. The appellants seek to quash the
planning permission on the ground that the inspector misdirected himself in law
in the test he applied when determining the appeal, and, in particular, in his
approach to the development plan. It is further submitted that the inspector
has failed to give adequate reasons for his decision. The further points that
were taken before the deputy judge are not pursued upon this appeal.
Section 70(2)
of the Town and Country Planning Act 1990 provides that:
In dealing
with such an application the authority shall have regard to the provisions of
the development plan, so far as material to the application, and to any other
material considerations.
That section
applies to a decision by the Secretary of State on appeal as it does to the
local planning authority to whom the application for planning permission is
made. Section 54A reads:
Where, in
making any determination under the planning Acts, regard is to be had to the
development plan, the determination shall be made in accordance with the plan
unless material considerations indicate otherwise.
Section 54A
was included within the 1990 Act, we are told, by reason of a late amendment to
the Bill.
It is common
ground that, in a case such as the present, a different approach is required,
by reason of the addition of section 54A, when considering the development plan
in relation to other material considerations.
The
development plan in the present case, in the context of which the planning
application fell to be considered, was policy H3 of the then recently approved
North Yorkshire Moors local plan. The policy provides that:
No new housing
development will be permitted within the villages listed except where it
comprises suitable ‘infill’.
Infill
development is defined as the filling up of small gaps, capable of being
developed for only one or two houses, in an otherwise continuously built up
frontage.
The policy
goes on to consider in what circumstances even such limited development as is
defined would be permitted.
The
appellants’ submission is that, having rightly determined that the
application for the construction of a dwellinghouse did not accord with the
development plan, the inspector misdirected himself upon the effect of section
54A of the Act, when he allowed the appeal and granted outline planning
permission subject to conditions. The inspector referred to section 54A in para
13 of the decision letter:
Where, as in
this case, a development plan is a material consideration section 54A of the
1990 Act requires that such plan must be taken into account unless material
considerations indicate otherwise.
Before
considering whether the inspector directed himself correctly, it is appropriate
to refer in more detail to his decision letter. The inspector, as is customary,
described the site and its context. He referred to planning policy guidance
documents issued by the Secretary of State. He referred to policy H3. The
inspector then considered in some detail whether the proposal can be considered
to be infilling within the meaning of policy H3 and therefore within the
meaning of the development plan. Having considered the site, he concluded at
para 10:
In my opinion
this site, as part of a larger gap, does not constitute infilling and as a
result would not meet the aims of Policy H3.
It is common
ground that in using the expression he did, the inspector was stating that the
proposed development was not in accordance with policy H3. The inspector then
considered the previous planning application and appeal in relation to the site
and stated that he agreed with the previous inspector who had refused planning
permission, that some loss of rural character would occur due to part of the
long undeveloped frontage being filled. The inspector then noted the
development in the village since the decision of the previous inspector in
1985. He stated, and this is not in issue:
… that the
decision in this case rests on the effect of the proposal on the character and
appearance of this part of the village.
Having
referred to section 54A of the Act in para 13 of the decision letter, the
inspector went on to consider the submissions made to him on behalf of the
applicants for planning permission as to why the appeal should be allowed,
notwithstanding that it conflicted with the development plan. The point made
and set out by the inspector in his report was the importance of permitting the
village to remain lively and active. It is common ground that that is a
material consideration. The inspector referred to PPG 7 (1992) — The
Countryside and the Rural Economy — which recognises the need to permit housing
in certain circumstances to sustain the health of the rural economy and the
viability of village communities.
The decision
of the inspector is in substance set out in para 17 of the decision letter:
Bearing in
mind the fact that the site is well screened, both from surrounding roads and
the public footpath to the east, I consider that there is sufficient reason in
this case to override Local Plan Policy H3 in order to counter any recent net
loss in housing provision in the village and to ensure its continued viability.
In the
following paragraph the inspector set out the effect — very limited, as he sees
it — upon the general character of the street and rural scene which the
development would have. It is clear that he had that factor in mind when
deciding to allow the appeal.
Mr Russell
Harris, on behalf of the appellants, submits that para 13 demonstrates that the
inspector has applied the wrong test. He need not have set out section 54A but,
having done so, he has not correctly set out its effect in para 13 of the
decision letter and it follows from that and the overall content of the
decision letter, it is submitted, that the inspector has applied the wrong
test. The correct application of the test was fundamental to the present
application and, that being so, the permission should be quashed.
Mr Harris has
referred to the decision of Mr David Keene QC, sitting as a deputy judge of the
Queen’s Bench Division, in R v Canterbury City Council, ex parte
Springimage Ltd [1993] 3 PLR 58. That was a case in which it was sought to
quash a planning permission on the ground that the council’s planning officer,
in presenting his report to the members of the planning committee, had
misdirected himself as to the effect of section 54A. Mr Harris referred to the
similarity of the advice or directions given by the planning officer to the
members of the committee with the wording of para 13 of the inspector’s letter
in this case. The deputy judge held that the planning officer had misdirected
the members of the committee. However, he declined to exercise his discretion
to quash the planning permission. That situation is quite different from the
present situation. Not only are there differences in terminology, to which I do
not find it necessary to refer, but the situation where a planning officer
gives advice or directions to lay members of a planning committee is quite
different from and is to be approached differently from the decision letter of
a professional inspector who can be expected to be well versed in the planning
statutes.
In my
judgment, the issue in this case is whether the inspector had in fact applied
the correct test or whether, because of the terminology he used and the context
of the report, he misdirected himself. There is no doubt that the section 54A
test was not accurately stated in para 13, but I have no doubt that the
inspector had the correct test in mind when deciding this appeal and applied it
when reaching his decision. Para 13, with respect, is slackly drafted. In my
judgment, when he used the expression ‘must be taken into account’, when
considering the development plan, what he intended and what he had in mind was
the expression ‘shall be made in accordance with’ the expression used in
section 54A.
I have come to
that conclusion, first, because of the manner in which the inspector has
reasoned his decision and set out the various
he applied the test correctly. Second, and in particular, having set out the
considerations which favoured permission, he used the word in para 17
‘override’ the development plan. That word makes good sense in the context of
the section 54A test. It does not fit easily with a section 70(2) test where a
balancing of considerations without the need for one to override the other
would be expected. Third, a literal reading of para 13 does not make sense. It
would involve an approach by which, if material considerations indicate
otherwise, the development plan need not be taken into account at all. That
would be nonsensical and cannot have been the inspector’s approach. That does
not, of course, reflect credit on the words used by the inspector. However,
once the test as literally expressed in para 13 cannot be accepted as a test
which was or could have been applied, it is necessary to look at the decision
letter as a whole to decide what test was applied. In my judgment, the section
54A test was applied. The words of para 13 give no support to the view that a
section 70(2) test was applied.
The second
submission, namely that the decision is inadequately reasoned, also falls once
one accepts that the correct test was applied. The decision was, in my view,
admirably reasoned on the basis of a section 54A test. The inspector started
with the development plan. He then carefully set out the material
considerations which, in his view, led to a conclusion that the provisions of the
development plan should, in the case before him, be overridden. For those
reasons, I would dismiss this appeal.
HENRY LJ: I agree. Section 54A is an important section in government policy
to make planning become plan led. I cannot accept that the inspector was
ignorant of the import of that section. Para 13 excepted, everything in his
judgment is consistent with the inspector following section 54A. Nothing in his
judgment is inconsistent with it. The fault is one of form. It lies in the
words of para 13 and not in his process of reasoning or in the result which he
reached, which I am satisfied was in accordance with section 54A.
BUTLER
SLOSS LJ: I agree with both judgments. This appeal
will be dismissed.
Appeal
dismissed with costs.
