Planning inquiry–Council’s failure to produce documents deplorable, but probably not, on the facts, a breach of the statutory requirements–No substantial prejudice to appellants–No element of surprise, documents in question disregarded by inspector in any event–No ground for quashing Secretary of State’s decision confirming refusal of permission
This was an
application by Performance Cars Ltd, of Great West Road, Brentford, for an
order quashing a decision of the respondent, the Secretary of State for the
Environment, dismissing an appeal by the applicants from the refusal by the
London Borough of Hounslow of planning permission for use of a two-acre site at
Brentford, Middlesex, for storage of contractors’ plant and machinery and for
parking of motor vehicles.
Mr N Primost
(instructed by Loxdales) appeared for the applicants, and Mr H K Woolf
(instructed by the Treasury Solicitor) represented the respondent.
Giving
judgment, MR FRANK said: This is an application under section 245 of the Town
and Country Planning Act 1971 to quash a decision of the Secretary of State for
the Environment dismissing an appeal by the applicants against a refusal of
planning permission to use about two acres of land at Brentford for the storage
of contractors’ plant and machinery and for parking of motor vehicles. The land
had been what was at one time described as railway land. The permission had
been refused by the London Borough of Hounslow, the planning authority, for the
reason that ‘the general activities, including noise, associated with the
present use of the site are considered to be detrimental to the amenities of
nearby residential properties, and furthermore, the present use is
unsightly.’ There had been previous
applications for permission to develop this site, and I now refer to one in
particular, which was dated June 2 1972 and was for the same purposes as the
application which is the subject of the present proceedings. That previous
application had given rise to a number of letters on the part of local
residents. In fact there were 17 residents’ letters and a petition signed by 77
persons. There was also a later letter in September 1972, and there had been
some letters of complaint rather earlier, in February 1972. Following the
present application there were five letters from local residents. All of the
letters, and the petition, objected to the grant of the permission sought by
the applicants.
Following the
lodging of the appeal by the applicants, the local planning authority served a
statement as required under rule 6 of the Town and Country Planning (Inquiries
Procedure) Rules 1974 (SI no 419) setting out a summary of their case, and in
it they said: ‘The appellant company’s activities on the appeal site have given
rise to a substantial volume of complaints from nearby residents. The
complaints include noise from vehicles, particularly at night and in the early
hours of the morning, smoke and fumes from the burning of rubbish, fire
hazards, eyesores, vermin, hazards to pedestrians resulting from the movement
and manoeuvring of heavy vehicles, damage to pavements caused by lorries, the
breaking up of vehicles and the repair of vehicles.’ This description of those complaints is a fair
summary of the complaints as set out in the letters to which I have referred.
The statement continued: ‘Having regard to its adverse effect upon local
residential amenities, it is considered that the development is out of place
and should not be permitted.’ Then came
a heading, ‘Documents and matters not referred to above and which may be
referred to at the forthcoming local inquiry,’ and there was mentioned the
extract from the ordnance survey and the written statement to the initial
development plan. It was said, ‘The above documents are available for
inspection.’ Mr Woolf, for the Secretary
of State, has conceded that this statement is somewhat ambiguous in that it
does not clearly define the documents which may be inspected. I have formed the
clear impression that that part of the statement referred only to the ordnance
survey and the written statement to the initial development plan. It is thus
clear that that statement did not say that the letters of complaint or the
petition could be inspected.
There followed
an inquiry held by an inspector appointed by the Secretary of State, the
applicants having declined, as they were entitled to do, to dispense with a
hearing. I now refer to some correspondence. In a letter on July 26 1974 the
applicants had requested the council to let them have all the documents and
statements described by the Town and Country Planning Act 1971, and more
specifically, ‘Photostat copies of all letters and details of an alleged
petition from 77 people of Layton Road as mentioned in the Evening Mail
on Monday October 9 1972; copies of applications, plans and approvals, of
letters and circulars sent, and of letters (includ-
completion in Layton Road.’ Then there
is a mention of other matters which I think are not relevant. That was followed
up, so I am told, by an oral request for the documents referred to in the
letter, and it is a matter of comment — indeed it is an important part of the
applicants’ case — that that request was ignored. I feel that the council’s
failure to respond to that request is to be deplored. Then at an early stage in
the inquiry before the inspector, the applicants stated that they had made a
request for the documents to be made available to them but had not been
provided with them, that without them they had not had sufficient time to study
them in detail, and that it was therefore impossible for them to prepare their
case. Accordingly they requested an adjournment of about 30 days with costs.
The inspector concluded that certain of the documents asked for would not help
in reaching a decision in the case, and he therefore did not grant the
adjournment requested, although he said he would report the matter, but to
enable the applicants to study the other documents, particularly the letters,
he granted them a long luncheon adjournment of 1 hour and 40 minutes for
consideration of the recent letters which had not been available to either
party until the start of the inquiry.
The hearing
proceeded, and the inspector reported on September 10 1974. In his report there
were findings of fact, and, as is not always the case with such reports, they
were findings of fact. He described the site and its present use, and he also
said: ‘The proposal would result in its use primarily as a lorry-park and
secondly as a car-park.’ He said that
the site was ‘a long narrow strip lying between a railway and Layton
Road.’ He found: ‘There is urgent need
for a lorry-park in the Brentford area and none is at present available. Layton
Road and to a lesser degree Brook Lane North suffer from traffic congestion.
There are dwellings along the north side of Layton Road with the building line
for the most part 10 or 12 ft from the edge of the carriageway. Traffic
emerging from the appeal site bound eastwards along the Great West Road has to
use Layton Road rather than Brook Lane North. Present usage involves about 8 to
10 movements of lorries to or from the appeal site in 24 hours.’ He then went on to express his conclusions in
these terms: ‘Bearing in mind the above facts, I consider that the continued
use of the appeal site as a lorry-park on the present scale would be
detrimental to the well-being of the occupants of the dwellings in Layton Road,
particularly in the eastern half. An intensification of this use would be
likely to follow from the granting of planning permission and this would be
intolerable for local residents I consider that these objections outweigh the
need, urgent and important as it is, for a lorry-park in this area. There would
be no objection to car-parking only. The storage of plant and machinery would
be detrimental to the amenities of the neighbourhood in proportion to the scale
of the activity.’ He then recommended
that the appeal should be dismissed. That recommendation was subject to
planning permission being required, which proviso was made because it had been
argued that planning permission was not required. Although that question was
raised in the notice of motion, Mr Primost, for the applicants, decided not to
pursue it.
By a letter
dated January 7 1975 the Secretary of State, having set out the inspector’s
conclusions and recommendations, said that he agreed with both and dismissed
the appeal. The applicants contend that that decision should be quashed. They
rely firstly on the failure of the council to make available to them the
documents to which I have referred: they say that there has been a failure to
comply with rule 6 of the rules. Secondly, they say there has been a failure to
comply with rule 10, paragraph (5) of the rules. It is quite clear that rule 6
requires that a local planning authority, where they intend to refer to or put
in evidence at an inquiry documents, including maps and plans, shall with their
rule 6 statement, as it is called, set out the times and place at which the
documents may be inspected by the applicant. It is said by the applicants in
this case that the letters already described were documents to which the
planning authority intended to refer. I am not at all sure that was the case.
Looking at the rule 6 statement and the case as put by the planning authority,
I cannot find it anywhere said that they relied upon those letters, and it
appears from the inspector’s report that it may well have been the applicants
who raised the question of the letters. It is certainly true that the
complaints which have been made have been recited in summary form. It does not
necessarily follow that those complaints were part of the authority’s case, and
they may well have been included only for information. In any event the summary
gave the applicants clear descriptions of the complaints which had been made by
the local residents. But I shall assume in favour of the applicants that the
complaints in the letters were referred to, or intended to be referred to, by
the council.
I must now
turn to rule 10, paragraph (5), which says: ‘The appointed person may allow the
local planning authority or the applicant or both of them to alter or add to
the submissions contained in any statement served under paragraph (2) or (6) of
rule 6 or to any list of documents which accompany such statements so far as
may be necessary for the purpose of determining the questions in controversy
between the parties, but shall (if necessary by adjourning the inquiry) give
the applicant or the local planning authority, as the case may be, and the
section 29 parties, an adequate opportunity of considering any such fresh
submission or document; and the appointed person may make in his report a
recommendation as to the payment of any additional costs occasioned by any such
adjournment.’ So it is said that in
effect the inspector allowed the council to alter or add to their list of
documents the letters of complaint, and that he should accordingly have
adjourned the inquiry to give the applicants an adequate opportunity of
considering those documents. I am by no means satisfied that the inspector
failed to give the applicants an adequate opportunity to consider the
documents. They were already aware of the nature of the complaints which had
been made against them, and having seen the letters I feel that these add
little, if anything, to the summary which had been set out in the rule 6
statement. It seems to me that it does not lie with the applicants to say that
they were in any way taken by surprise by these complaints, or that the
adjournment which they were given was anything but adequate to consider the
letters. Therefore, on that ground alone I would not be willing to hold that
the applicants have satisfied me on the requirements of subsection (4) of section
245 of the Act of 1971, which states: ‘On any application under this section
the High Court . . . (b) if satisfied that the order or action in question is
not within the powers of this Act, or that the interests of the applicant have
been substantially prejudiced by a failure to comply with any of the relevant
requirements in relation thereto, may quash that order or action.’ It seems to me that the applicants were not
substantially prejudiced by failure on the part of the council to afford them
the opportunity of inspecting these letters, nor by the failure of the
inspector to grant a longer adjournment.
But I do not
think the matter ends there, because looking at the facts as found by the
inspector and at his conclusions, I have no doubt that when the inspector
reached his conclusion, he did not do so by reference to these letters or
complaints at all. He did it entirely on the evidence before him. He had heard
a description of the proposed use, had heard of the description of the proposed
use, had heard of the description of the site and its location and proximity to
these houses, had then in accordance with the usual practice viewed the site
and the area, and had come on that evidence, and quite independently of the
letters, to the conclusion which I have already stated. So not only were the
applicants in my judgment not prejudiced, but further, those letters and those
complaints were disregarded by the inspector, and he reached his conclusion
solely on the evidence other than the complaints which had been made. In all
those circumstances I hold that there is no ground upon which the court can
quash the Secretary of State’s decision.
The motion
was dismissed with costs.