Town and country planning–Action for declaration against Department of the Environment–Unusual procedure–Questions raised as to position following a decision by Ackner J quashing a decision of the Secretary of State on a planning appeal–Secretary of State’s conclusion that a suggested condition was impracticable was a conclusion to which no reasonable Secretary of State could have come–Argued by developers that after this decision the only course open to the Secretary of State was to allow the appeal, alternatively that he could not take account of any considerations which arose after the date of his original decision–Held that once the decision was quashed it was as if it had never been made, that he must look at the whole matter de novo, and that he was entitled to take into account every material consideration which arose until he made his final decision–Observations by the court on the procedure adopted in this case
This was an
action by Price Bros (Rode Heath) Ltd and Walter Dodd asking for a declaration
and an injunction (the latter claim being subsequently dropped) against the
Department of the Environment for the purpose of clarifying the rights of the
parties following a decision of Ackner J on March 30 1976 which resulted in the
quashing of the Secretary of State’s decision on a planning appeal relating to
land in Staffordshire.
Norman Wise
(instructed by Hancock & Willis, agents for Ellis Moxon, of Crewe) appeared
on behalf of the plaintiffs; K Schiemann (instructed by the Treasury Solicitor)
represented the defendant department.
Giving
judgment, FORBES J said: This is an interesting case which arises in this way.
The action is in form an action for a declaration and an injunction originally
against the Secretary of State for the Environment, now amended properly to the
Department of the Environment, by two persons, one a company and the other an
individual, who had interests in some land in Staffordshire about which there
has been a certain amount of planning history. This is not one of those cases
which comes ordinarily in the Special Paper, with an appellant on a planning
appeal to the Secretary of State alleging that the Secretary of State has
wrongly directed himself in law in some way under the provisions of the Town
and Country Planning Acts, which allow parties to challenge decisions of the
Secretary of State on law in the courts. This is a straightforward action, as I
say, asking for a declaration and an injunction. In fact Mr Wise accepts that no
order for an injunction can be made restraining the Secretary of State from
doing anything. So that part of the claim is abandoned. What remains is that Mr
Wise on behalf of the plaintiffs asks for an order of this court declaratory of
the rights between the parties.
The matter
arose, and I want to take it fairly shortly, in this way. I am not sure that
much of the earlier history matters. Some of it was a little complicated. But
at some stage Price Brothers, who are builders, obtained the freehold of some
25 acres of land near a village called Beckley, which is near Crewe in
Stafford. Walter Dodd, the second plaintiff, had earlier in some way obtained
an option on part of the land. I think in fact that there were some other
relatives of Mr Dodd who were interested in this option. In October 1974 a
planning appeal was heard, an inquiry was set up in Newcastle. At that time the
appellant was a Mr Sutton, and I think Mr Sutton at that stage owned the land.
A planning application had been made for the residential development of this
25-acre site, and the only reasons for refusal given by the planning authority
were what I might compendiously describe as sewage and highway difficulties. It
was said that because of those matters it was either premature or wrong to
allow development on this land. There were no sewage disposal facilities and
the road that served the site was too narrow.
In the course
of the inquiry some arrangement, and I do not need, I think, to go into it, was
made for a proposed section 52 agreement, between the then appellant at that
inquiry and the local authority, concerned with the costs of the improvements
to the highway and the intended improvement of the local sewage disposal works.
Such agreements are part of the Town and Country Planning Act arrangements
which sometimes assist in allowing planning permission to be granted although
what is rather inelegantly called the infrastructure may not be at that stage
in a satisfactory condition.
Really the
only points which were argued (apart from a number of interested persons who
had other matters to argue) at the inquiry were these sewage and highway
factors. That was because the planning basis on which the inquiry proceeded was
a draft structure plan produced by the county council in which the village of
Beckley was said to be suitable for an increase of between 500 and 2,000
people. Indeed the very special site had been shown on an earlier village map
as suitable for development. There was some argument about what was called a
conservation area and some argument about development on the skyline. But
basically the principal planning feature or background to the case was the
existence of the draft structure plan indicating effectively that housing on
the land was in accordance with the county council’s proposals.
When the
Secretary of State considered his inspector’s report it became apparent that
the report recommended that the appeal should be allowed subject to certain
special conditions, and the important special condition about which all the argument
arose was that the dwelling-houses to be erected on the site should not be
occupied in advance of the improvement to the highway and improvement to the
sewage works. I should perhaps add for completeness that the improvement to the
highway was to be paid for entirely by the developer and was included in the
highway proposals at the time, and the sewage improvements were at that stage
(and we are now talking about October 1974) programmed to take place over a
nine-month period in the financial year 1976-77. So that was the situation when
the Secretary of State came to consider the matter.
He published
his decision letter on June 26 1975. Having set out in full, as these letters
commonly do, the inspector’s conclusions, the letter went on in this way, and I
think I should read the passage in full:
Paragraph 3:
The Secretary of State agrees with the inspector’s view that the completion of
improvements to the sewage treatment works and access road in the manner
proposed would effectively remove the local planning authority’s original
reasons for refusal of planning permission. However, it is not practicable for
the Secretary of State to accept the inspector’s suggestion that a condition
should be imposed on any planning permission granted to the effect that
occupation of dwellings should not be permitted until completion of proposed
improvements. Such a condition would be improper in that the planning
permission would be dependent upon the completion of works outside your
client’s control. Therefore in view of the present sewage disposal and highway
problems the view is taken that it would be wrong to grant the planning
permission sought. The inspector’s remaining conclusions have been carefully
considered, in particular his views have been noted about the acceptability of
the proposed development in relationship to the housing strategy contained in
the submitted Staffordshire structure plan. However, the general question of
housing strategy for North Staffordshire is currently before the Secretary of
State for his consideration in the context of the Staffordshire structure plan
as a whole, and it is therefore felt that at this stage it would be
inappropriate for the Secretary of State to comment on this particular aspect
of your client’s proposal.
That decision
was appealed by one of the present plaintiffs, Mr Dodd, he being a person
aggrieved by that decision,
in the Special Paper before Ackner J on March 30 1976. Ackner J quashed the
decision. I do not want to read in full Ackner J’s judgment. I think, however,
I must read certain passages of it. On p 6 of the judgment, which as far as I
know is not reported, he said this:
The first
question which I have to decide is what is the proper interpretation of the
Secretary of State’s decision? I am
anxious not to be unreasonably censorious, but I do think that appellants and
interested parties are entitled to expect, particularly in view of the time taken,
that the Secretary of State’s decisions be recorded in language that does not
require a day’s argument in court to make sense of it. However, despite the
inelegance of the second, third and fourth sentences in the penultimate
paragraph of his letter
and that is
the paragraph I have just read
I accept Mr
Woolf’s submission that I am not obliged to hold that the draftsman was so
inarticulate as to be unable, if so minded, to express the simple proposition
that the condition suggested by the inspector was unlawful or illegal or ultra
vires. No such expression is used in the letter. The words ‘not
practicable’ do not suggest legal considerations. On the contrary, they suggest
practical considerations. Despite the unnecessary complication introduced by
the words ‘improper’ and ‘wrong,’ the reason given by the Secretary of State
for dismissing the appeal was not that he had no legal power to impose the
condition, but that he did not consider that the inspector’s suggestion that
such a condition be imposed, was practicable. If I am correct in the view I
have just expressed, then the next question is, was the Secretary of State’s
conclusion one to which on the evidence he could reasonably come?
I pause there
to say two things. First of all it is quite clear that Ackner J was (and, if I
may say so with respect, I entirely agree with him) making it clear in terms
that there is nothing in the letter to suggest that the Secretary of State
thought imposition of this type of condition was ultra vires or illegal,
but merely said it was impracticable. The second thing I observe is that it is
clear from the last sentence I have read that Ackner J is then approaching the
problem on what I might broadly call the ‘Wednesbury principle.’ Could the Secretary of State, reasonably
directing himself on the available evidence, have come to the conclusion to
which he did come? The judgment goes on:
Mr Woolf, on
behalf of the Secretary of State, conceded that the letter is far from clear as
to why the Secretary of State considered that the inspector’s suggestion was
not practicable. I consider that that part of the letter is clear. The
Secretary of State gave as his reason that ‘the planning permission would be
dependent upon the completion of works outside your client’s control.’ That was the appellant’s control. That was
not strictly accurate. What would be dependent upon the completion of such
works would be the occupation of the dwellings. But that is of course
axiomatic. It states the problem created by the condition, but it does not
answer the questions which the Secretary of State purported to decide: is it
practical to impose such a condition?
That question can only be answered by evaluating what was likely to
happen. When were the works likely to be completed? There is, however, no hint in his letter that
the Secretary of State has carried out this process at all. Such evidence as
existed pointed clearly to the practicability of imposing the condition.
Then Ackner J
went on to review some of the evidence concerned with it and proceeds:
These factors
all supported the practicability of the inspector’s recommendation and, as he
so said, effectively removed the two reasons for the original refusal of
planning permission. I can find no material, and the Secretary of State has
certainly suggested none in his letter, to justify the assertion that the
proposed condition in this case was not practicable.
Now that, it
seems to me, is a plain finding that the conclusion of the Secretary of State
about practicability was one to which no reasonable Secretary of State
reviewing the evidence could have come, because there was simply no evidence in
front of him or no evidence recorded in the decision letter on which he could
have come to that conclusion. Ackner J goes on:
Mr Woolf
submitted that what the Secretary of State was in effect saying in his letter
was that in his planning judgment this type of condition was undesirable,
because it resulted in planning permissions being granted which might be
outstanding a very long time before being implemented, and that such a state of
affairs was against the policy of the Act.
Then Ackner J
referred to a number of passages from certain circulars which no doubt Mr Woolf
had used in his argument and proceeded in this way:
Be that as it
may, if the Secretary of State has promulgated such a policy as suggested by Mr
Woolf, and his decision in this case was based upon the existence of such a
policy, he did not say so in his decision letter. He chose to base his decision
upon the impracticability of the inspector’s recommendation. If he had in truth
and in fact other grounds for his decision, then they had to be unequivocally
recorded in his letter.
Those seem to
me to be the important passages from Ackner J’s decision.
Again I come
back to the point that what Ackner J was saying was that on his interpretation
of the Secretary of State’s letter the only reason advanced was that the
imposition of such conditions was impracticable and that there was no evidence
on which a reasonable Secretary of State could have come to that conclusion. It
should be noted that Ackner J did not advert, and there was no reason why he
should have adverted, to the remaining half of the paragraph from the decision
letter which I have read in which the Secretary of State refers to the question
about the structure plan, and that is a matter to which I shall have to return
later.
Following that
decision of Ackner J, who as I say quashed the decision by the Secretary of
State, there was correspondence and I have been taken through it. I think it is
sufficient to say that for a long time after the decision was quashed there was
correspondence between the Secretary of State and firms of solicitors appearing
either for Mr Sutton or for the Price Brothers or Mr Dodd, or for any two of
them at any one time, concerned with the question of further information or
representations about the questions of sewage and highway problems. And it was
not until a comparatively late stage that any question arose about the
provisions of the structure plan or any modifications thereto. The situation is
that still today the Secretary of State has not issued a decision on the
planning appeal of Mr Sutton, the decision which was quashed by Ackner J, and
that really forms the gravamen of the complaint by Mr Wise in this case.
Mr Wise’s
arguments can, I think, be summarised in this way. The Secretary of State’s
original decision amounted to this, that he considered that the only impediment
to his grant of planning permission was that he could not practicably impose
the conditions suggested by the inspector. That is the first premise. The
second is that when Ackner J obligingly informed the Secretary of State that no
such impediment existed, the only thing left for the Secretary of State to do
was to allow the appeal, the sole impediment to doing that having been removed
by the judgment of Ackner J. That is really Mr Wise’s first point. His second
series of points arises in this way. He says that in the situation in which the
Secretary of State found himself, when his original decision was quashed, it
was not open to the Secretary of State to take into account any other
consideration which arose after the date of his original decision. He makes a
considerable complaint about the length of time which has elapsed since the
holding of the inquiry without any such decision. And he also complains about a
matter on the structure plan which perhaps I should explain at this stage. I am
very grateful to counsel for their explanation to me of the procedure for
structure plans which arises under the 1971 Town and Country Planning Act. They
took the place of the old county development plans in effect. The structure
plan is, as I understand it, drafted or drawn up
provision for advertisement and so on. But instead of the inquiries which used
to be held on proposed development plans there is an example of what I believe
is called public participation in decision making. Instead of having a formal
inquiry before an inspector, there is a less formal meeting for discussion with
what is known as a panel, which, as I understand it, normally may well consist
of a lawyer in the chair and an inspector from the department and somebody else
from the department who is concerned with planning policy. The panel having
considered the representations which are made, and there is a somewhat
complicated procedure for dealing with those, eventually makes a report to the
Secretary of State. The Secretary of State considers that report and publishes
what he proposes as draft modifications to the plan. Those in their turn are
open to representations by those affected. The Secretary of State then
considers his draft modifications together with the representations which have
been made about them and issues a second set of draft modifications taking into
account, or not as he wishes, the representations which have been made. That
second set of modifications is again the subject of further representations and
finally the Secretary of State comes to a conclusion and approves the plan with
such amendments as he wishes.
As I have
indicated, originally the draft structure plan was very favourable to the
developers in this case, because it showed the land effectively as proposed for
residential development. I have heard, and I accept, and it is extremely
unfortunate for the developers that it should be so, that they bought the land
at the sort of price one would expect to buy land with that kind of planning
background. They bought it in 1972. They have been unable to make any use of
it, and they have incurred very considerable loan charges on the purchase price
since, to the extent, I am told and I accept, that the capital commitment is
now in the region of £150,000. But be that as it may, the structure plan was submitted
in February 1974, that is before the date (October 1974) of the inquiry on
which the Secretary of State gave his decision which was quashed by Ackner J.
The public examination before the panel was in November 1974, a month after
that inquiry. The panel reported to the Department in June 1975 and the first
round of modifications were in July 1976, the second round in September 1977
and the final approved plan with amendments was issued in April 1978. (Ackner
J’s decision was on March 30 1976.) When
that plan was approved, and I think I am right in saying even at the
first-round modification stage, the Secretary of State had made a serious and
considerable amendment affecting the developer’s land. What he had done in
effect was to say that so far from Beckley Village being a village which was to
accommodate up to 2,000 extra inhabitants, it was to be a village which was to
accommodate fewer than 300. This of course in effect meant that the appellant’s
land ceased to be, or to all intents and purposes ceased to be, a realistically
developable piece of land.
As I
indicated, Mr Wise argued one of his points that the Secretary of State was not
entitled to take into account his own proposal (because it was his own proposal
and nobody else’s) to modify the structure plan in this way. But all those
matters seem to me to be conveniently included in Mr Wise’s main submission on
this point that the Secretary of State is not entitled in reconsidering a
decision which has been quashed by the High Court to take into account any
matter which has risen since the date of the original decision.
Mr Schiemann,
on the other hand, says that the Secretary of State is entitled and indeed
must, if he is to do his job properly, take into account every relevant
consideration which arises until the actual date on which his decision is made.
That is the main line of battle between Mr Schiemann and Mr Wise on that point.
So far as Mr
Wise’s first point is concerned, namely that all the Secretary of State had to
do when faced with Ackner J’s decision was to allow the appeal, Mr Schiemann
says not so. The situation is, he says, that Ackner J’s judgment does not have
the effect for which Mr Wise contends, and the Secretary of State, quite apart
from the matter that he is bound to take every circumstance into account before
he makes his final decision, quite apart from that, there were other matters
which even at the time of the decision he was entitled to take into account in
promulgating a further decision.
I think
perhaps the first and most sensible thing to do is to look very quickly at what
are the Secretary of State’s duties under the statute. The statute is the Town
and Country Planning Act 1971. I do not propose to deal at length with the
procedure. It is very well known to those practising in these matters. But
section 29(1) of the Act provides for the determination of applications for
planning permission by the local planning authority. It enjoins upon the local
planning authority this duty, that in dealing with the applications they have
to ‘have regard to the provisions of the development plan, so far as material
to the application, and to any other material considerations.’ Now when an appellant appeals to the
Secretary of State, as he may do, against a planning refusal, the Secretary of
State’s duty to hear the appeal is laid down in section 36 of the Act.
Subsection (3) is in these terms:
Where an
appeal is brought under this section from a decision of a local planning
authority, the Secretary of State, subject to the following provisions of this
section, may allow or dismiss the appeal, or may reverse or vary any part of
the decision of the local planning authority, whether the appeal relates to
that part thereof or not, and may deal with the application as if it had been
made to him in the first instance.
The last words
of that paragraph seem to me, as Mr Schiemann argued and I think he is right,
to indicate that the hearing before the Secretary of State is a hearing de
novo; in other words the inspector whom the Secretary of State deputes to
hold the inquiry is concerned with whatever has happened up to the time when he
is holding that inquiry. He is not confined to what the circumstances were at
the date when the planning authority refused planning permission.
Subsection (5)
applies, among other sections, section 29 of the Act in relation to an appeal
to the Secretary of State under the statute. So that the Secretary of State in
considering an appeal is bound, as is the planning authority, in considering
the initial application to have regard to the provisions of the development
plan so far as material to the application and to any other material
consideration. It seems to me that there can be no doubt therefore that
when the Secretary of State is considering his inspector’s report before making
his decision on an appeal, he himself is entitled to take into consideration
every material matter which has occurred up to the time of that decision. I do
not think Mr Wise in fact challenges that. He says yes, thus far, but no
further. If that decision is quashed the Secretary of State has to go back to
the circumstances that existed at the time he made the decision which had been
quashed.
I pause merely
to add one other matter, and that is that the Town and Country Planning
(Inquiries Procedure) Rules 1974 (SI 1974 No 419) Rule 12, Procedure after
Inquiry, subrule (2):
Where the
Secretary of State (a) differs from the appointed person on a finding of fact,
or (b) after the close of the inquiry takes into consideration any new evidence
(including expert opinion on a matter of fact) or any new issue of fact not
being a matter of Government policy) which was not raised at the inquiry, and
by reason thereof is disposed to disagree with a recommendation made by the
appointed person, he shall not come to a decision which is at variance with any
such recommendation without first notifying the applicant . . . of his
disagreement and the reasons for it and affording them an opportunity of making
representations in writing. . . .
So quite
clearly the procedure rules envisage the Secretary of State taking into account
new matters between the date of
in accordance with good commonsense and certainly not to be gainsaid by anything
which appears in the statutes or the rules.
What about the
situation when the Secretary of State’s original decision is quashed? I think Mr Schiemann is right, that once the
decision is quashed it must be treated as not having been made. Therefore the
Secretary of State has, as it were, a blank sheet and he has to make another
decision, of course in accordance with any view of the law which the court may
have indicated at the time of making its decision to quash the Secretary of
State’s order. Mr Schiemann points out that under section 245 of the Act of
1971 in this jurisdiction the court may quash a decision of the Secretary of
State, which is what Ackner J did. But that in another jurisdiction concerned
with enforcement notices and governed by section 246 there are different
procedures, because that provides for the Secretary of State to state a case.
The matter goes before the Divisional Court and the powers of the court in
dealing with enforcement notices are quite different, because section 246 provides
for rules to be made ‘prescribing the powers of the High Court or the Court of
Appeal with respect to the remitting of the matter with the opinion or
direction of the court for rehearing and determination by the Secretary of
State’ and so on. Mr Schiemann points out that under Order 55, rule 7(5), which
is the order made pursuant to that power, the provision reads:
The Court may
give any judgment or decision or make any order which ought to have been given
or made by the court, tribunal or person and make such further or other order
as the case may require or may remit the matter with the opinion of the Court
for rehearing and determination by it or him.
Although the
situation is that the Divisional Court not infrequently makes an order
remitting the matter back to the Secretary of State for decision, the power to
make any order the court thinks fit instead is there. That is in stark contrast
to the power of the court under section 245 which is merely to quash the
decision.
What happens
in between is perhaps a difficult question as far as law is concerned, but one
derives some assistance, it seems to me, from a decision of Sachs J as he then
was in Hartnell v Minister of Housing and Local Government [1963]
3 All ER 130. At the very end of his judgment, p 138D, there is this passage.
The facts of the case and the rest of it are of no importance so far as this
case is concerned, but this passage may be.
In those
circumstances, the minister’s order, in so far as it dismisses the appeal to
him in relation to those two conditions, must be quashed. It is, however, to be
noted that under the terms of s 31(6) of the Town and Country Planning Act
1959, which govern the present application to the High Court, it is not open to
this court to substitute any order for that made by the minister: the order
quashing the minister’s decision is thus in the present case somewhat akin to
an order remitting the matter to him for further consideration. The result is
that the appeal to him as initiated by the notice dated December 12 1961 is
still pending. It is thus for him in due course to make such order as he may
deem proper after ascertaining such further facts as may be necessary to enable
him to make a decision in accordance with a correct view of the law.
When the case
went to the Court of Appeal there is a very brief passage in the judgment of
Danckwerts LJ which is material. The case is reported in [1964] 2 QB 510. The
passage occurs at p 539. I need only, I think, lift this very short sentence:
‘. . . the provisions of section 31 of the Town and Country Planning Act 1959 .
. . did not permit the High Court on appeal to substitute any order for that of
the Minister but only allowed the court to quash the decision of the
Minister.’ That is a conclusion, as I
say, to which it is not really difficult to come when comparing sections 245
and 246 as they now are in the current Town and Country Planning Act.
It seems to
me, therefore, that we have got to the stage where the decision of the court to
quash the decision of the Secretary of State means that the Secretary of State
must look at the matter again. What is he to do? Is he to put his mind in blinkers at that
stage, despite the fact that he may know of a whole series of highly material
considerations which have arisen since the date of his first decision, and
decide it only on those matters which were before him at that time? Or is he to be able to say: ‘As my first
decision is wiped out, I now have to come to a fresh decision, and in doing
that I am entitled to look at every material consideration which exists at
present’? I have no doubt at all about
the answer to that question. Section 36 of the Act, importing section 29,
regulates the duties of the Secretary of State in relation to a decision on a
planning appeal. He has to take into account inter alia any material
consideration. If his initial decision is quashed, that decision is wiped out
as if no decision had been made. In coming to a fresh decision he must, it
seems to me, be entitled to take into account any material consideration which
has arisen whether before his original decision or after it. He must, it seems
to me, necessarily take into account any material consideration which affects
the matter up to the very moment of his own decision. I think that there can be
no doubt that that is the situation, and that the Secretary of State must be
entitled to take into account every material consideration then known to him.
So, in my
view, Mr Wise’s point that the Secretary of State can only take into account
those matters which arose up to the date of the decision that was quashed is a
wrong view of the law, and the proper view is the one that I have stated. That
does not, however, deal with what is really Mr Wise’s first point, namely that
the result of the order of Ackner J was to leave the Secretary of State with no
alternative but to allow the appeal. Before moving on to that matter, I think
in fairness to Mr Wise I ought to mention one other matter which I do not
believe is persisted in at this stage, and that is that there is something
concerned with the length of time, some independent argument concerned with the
length of time which has elapsed. It seems to me the length of time that has
elapsed is only one of the factors which Mr Wise is urging as showing
effectively how unfair it was that the Secretary of State should take into
account fresh considerations. It may be and I do not think that I am called
upon in this case to decide it, that continued procrastination about giving a
decision on a planning appeal could lead to the court’s granting some relief in
an appropriate case. But it does not seem to me that this is that sort of case.
The matters that have arisen, and we have gone through the correspondence, and
the time which has elapsed seemed to me to have been due to the raising of
various matters and to necessary procedural steps which have taken place since
the decision of Ackner J and the present day. So I do not think time or
inordinate delay is a separate issue in this case at all.
May I turn now
to the question of what is the position about Ackner J’s decision and whether
or not the only thing left to the Secretary of State when receiving that
decision was simply to allow the appeal. I have read Ackner J’s judgment or the
relevant parts of it, and as I indicated it seems to me that first of all my
brother Ackner was at pains to point out that the Secretary of State did not
say and was not purporting to say that he could not impose conditions of this
kind because it would be illegal to do so. What the Secretary of State did say
was that it was not practicable, and the ratio of Ackner J’s decision is
that he could find no evidence on which a reasonable Secretary of State could
have found that it was impracticable to impose these conditions. If no more had
occurred it seems to me that nevertheless the Secretary of State would be
perfectly entitled to come back and issue a fresh decision letter saying: ‘I
did not mean to say impracticable,’ and, when one reads the passage in the
letter, I myself have no doubt that that is not really what he meant to say.
But I think he is perfectly entitled to come back and say: ‘I did not really
mean that it was impracticable. I meant
would mean that the whole quesion of whether he could develop this land
realistically would be out of his control and instead placed in those of the
highway and sewage authorities.’ He
could, it seems to me, have come back making his original position clear,
because all that Ackner J has said was not that conditions of this kind can
never be imposed, but that there was no material on which the Secretary of
State could have found in this case that it was impracticable to impose
conditions of this sort. So the first thing to my mind is that the Secretary of
State could in fact have turned around and said: ‘The letter did not express
what I truly meant. I am issuing a fresh decision letter which does.’ And of course if in the fresh letter he has
not made it clear, or if there was not any evidence for the view he took, then
that matter could again have been challenged in the courts. But it seems to me
that the Secretary of State must be entitled to do that if that is what the
situation is.
If I may take
an analogy from cases with which I am fairly familiar in this particular field
of endeavour; not infrequently the complaint about the Secretary of State’s
letter is that it is unintelligible. Ever since In re Poyser and Mills’
Arbitration [1964] 2 QB 467 and Megaw J’s decision in that case it has been
plain that reasons for refusing a decision must be plain and intelligible and
grapple with the issues which have been raised at the inquiry. Sometimes one
gets a letter which it is almost impossible to construe as indicating what the
reasons were, and the courts will quash it and quash it on the grounds that the
reasons given are unintelligible. It must be open to the Secretary of State, it
seems to me, in those circumstances to come back and say: ‘The draftsman of the
original letter did it so infelicitously that the appellant could not
understand what it was about. I now propose to draft another letter that will
make it perfectly clear.’ He must be
entitled, it seems to me, to do that. So I find nothing in this decision letter
which supports Mr Wise’s first and main proposition that the only thing which
was left to do for the Secretary of State when he received Ackner J’s decision
was to allow the appeal. It seems to me that he could, as I have indicated,
have written what we might call a further and better decision letter making the
matter perfectly clear.
But the matter
does not end there, because the second half of the paragraph to which I have
referred makes reference to the submitted Staffordshire Structure Plan. At that
stage it is plain that that plan was before the Secretary of State. Indeed it
was before the Secretary of State to this extent, that he must by that stage
have made arrangements or seen that arrangements were made for the public
examination of the proposals which took place in fact only a month later. He
refers to that in the second half of that paragraph, and he refers to it
clearly it seems to me for this reason. Having come to the conclusion, the
reasons for which were wholly infelicitously expressed, that it would be wrong
to grant planning permission because he thought it was impracticable to impose
conditions, then that was the end of the matter. He had turned down the appeal
for that reason, and it was unnecessary for him at that stage to add any other
reason. But he did in fact go to the extent of pointing out, as it were as a caveat,
that his decision was not to be taken as in any way overlooking the fact that
the structure plan was before him and that in so far as the inspector’s
conclusions rested on what was in the submitted plan, that was a conclusion
which in the end might be unjustified if the plan was altered. ‘The general
question,’ he said ‘of housing strategy for North Staffordshire is currently
before the Secretary of State for his consideration in the context of the
Staffordshire Structure Plan as a whole. It is therefore felt that at this
stage it would be inappropriate for the Secretary of State to comment on this
particular aspect of your client’s proposal.’
Even if the situation were, therefore, that the initial impediment about
granting planning permission subject to a condition was removed, there still
remained the question of the structure plan. Again, it seems to me that the
Secretary of State would have been quite entitled to say: ‘I will leave the
question of condition as a bar to granting planning permission in this case,
but there is before me an argument about the structure plan which is the very
basis on which the appellant’s case lay and on which the inspector’s conclusions
were founded. If that structure plan is altered, then of course the whole basis
for allowing this appeal may be altered too.’
He would have been entitled in those circumstances, it seems to me, to
have issued a further decision saying that the first reason having gone, he
nevertheless dismissed the appeal because of its prematurity because there
might be alterations to the plan which would mean that residential development
on the appeal site was not in the interests of proper planning for the area. Whether
such development should be allowed of course is not a matter for the courts. It
is always and should be a matter for planning decision. As I say, I can see no
reason why, even if he had felt that the making of conditions was no impediment
to his granting permission on that ground alone, he was not entitled to
consider that there still remained the question of the structure plan on which
he could, had he wished, have founded another decision dismissing the appeal.
So for all
these reasons it seems to me that I cannot accede to Mr Wise’s argument that
the only matter left for the Secretary of State once he received the court’s
order quashing his decision was to allow the appeal. The matter in those
circumstances seems to me to go back and is again at large so far as the
Secretary of State is concerned. He is entitled to take into account every
material consideration which arises until he makes his final decision, and the
argument to the contrary has no real foundation.
I ought to
advert to one last matter and that is a procedural point. Mr Schiemann takes
this point and the way he put it, neatly I thought, was that he wished to
register a non-concession. In other words the Department does not wish it to be
taken that they concede that this particular way of bringing a matter before
the court is the proper way. As I indicated at the start of my judgment, this
is a rather extraordinary case in the sense that it is a straightforward action
for a declaration. It is not a case challenging the Secretary of State’s
decision on a point of law in the Special Paper such as one is much more
familiar with. This is a straightforward action asking for a declaration,
relief in other words declaratory of the rights between the parties. Mr
Schiemann makes the point that the new procedure whereby the subject can apply
to the Divisional Court for judicial review means that it is not appropriate,
at any rate not appropriate in cases covered by the new procedure, to go
instead to a judge of first instance for a declaration. I invited him to guide
me on the question whether or not mandamus lay against the Department of the
Environment, but perhaps very properly he avoided that invitation. It is a
field of considerable difficulty. That, as I understood it, is one of the
reasons for the new procedure.
Very recently,
on November 2 1978, the Court of Appeal in a case called Uppal v The
Home Office had to consider this question of whether it was appropriate to
go in that case to the Chancery Division for a declaration or instead go to the
Divisional Court of the Queen’s Bench Division. The case of Uppal was a
case concerned with illegal immigration, and it is plain from a passage which
is recorded in the transcript I have of the argument that one of the matters
which very considerably affected the court’s mind was that it was a question of
the immigration laws. Roskill LJ, who gave the leading judgment of the court
and who in fact presided, said this in the course of argument: ‘That’ (namely
the Divisional Court) ‘is the court which has the expertise to deal with these
cases. The Divisional Court gets these cases week after week after week.’ And in the course of his judgment the learned
Lord Justice had this to say:
There is no
doubt that in theory the Chancery Division has jurisdiction to entertain an
application of this kind. But as I said
application for judicial review; and where an application for judicial review
is sought, then as Order 53, rule 3(1) provides, that application must be made
to the Divisional Court. I feel bound to say that I find it not a little
surprising that this form of procedure has been chosen rather than an
application to the Divisional Court for judicial review. It is the Divisional
Court which is equipped by reason of its experience, expertise and long
practice to deal with these matters and to deal with them expeditiously; and I
express the hope that in future it is the Divisional Court to which this type
of problem will be submitted, and that the temptation to deal with immigration
problems by way of an originating summons in proceedings for a declaration in
the Chancery Division will be avoided.
Again it is
clear from that passage that it was the expertise of the Divisional Court in
dealing with problems of that kind which affected the mind of the learned Lord
Justices in the Court of Appeal in the case of Uppal.
I want to make
it plain that so far as this type of case is concerned, when I say this type of
case I mean cases involving the legality or otherwise of the Secretary of
State’s decision in planning matters, it does not appear to me that there is
that dichotomy to which the Court of Appeal referred between the expertise of
the Divisional Court and, if I may put it this way, the practical inexpertise
of the judges of first instance. Judges of first instance have for many years,
ever since the 1947 Planning Act, been dealing in the Special Paper with
questions affecting the Secretary of State’s decision in planning matters. If
there is anything to be said about a body of expertise growing up it seems to
me that that exists among single judges of this division when dealing with
questions on the Special Paper of this kind. But that is not really, it seems
to me, the point that Mr Schiemann is making. What Mr Schiemann is saying
effectively is this, that although this case is couched as a claim for a
declaration, the essence, the basis of it, is equivalent to an order of
mandamus. What Mr Wise is really asking for is effectively a declaration that
the Secretary of State should give a decision, namely to allow this appeal. In
so far as that is the type of thing which might be obtained by mandamus, Mr
Schiemann maintains that, although of course it is discretionary, this is the
sort of case which ought to be brought in the Divisional Court rather than in
the court of first instance. I think there is a very great deal in that. Mr
Schiemann very sensibly has taken the view that it would be wholly wrong to
shut this litigant out from these proceedings by taking this sort of point in
limine. So I have heard two-and-a-half days’ argument about it, and it is
obviously right that I should pronounce upon the argument I have heard. But it
does seem to me that there is a very great deal of force in Mr Schiemann’s
suggestion that cases of this kind, cases asking purely for declaratory relief
between a disappointed appellant and the Department of the Environment, are
matters which would be better dealt with in the Divisional Court on the basis
of their proceedings when such cases are rather in the nature of mandamus than
purely declaratory matters. When I say purely declaratory matters, of course
the relief sought in the Divisional Court under the new procedure could well be
merely a declaration. But they are dealing with a different sort of situation
than that which obtains in a court of first instance.
So while not
ruling on that matter, and I do not think I have been asked to rule upon it, I
think it is right I should express that opinion in relation to Mr Schiemann’s
non-concession point.
The upshot of
it is that it seems to me I should refuse the declaration asked and dismiss the
action.
The action was dismissed with costs.