Planning appeals–Application to quash decision of Secretary of State discussing appeals against refusal of permission for
These were
applications by Seddon Properties Ltd and James Crosbie & Sons Ltd under
section 245 of the Town and Country Planning Act 1971 to quash a decision of
the Secretary of State for the Environment dismissing appeals by the applicants
against the refusal of Macclesfield Borough Council to grant permission for
residential development. The facts are fully set out in the judgment.
A R Vandermeer
(instructed by Freedman & Co) appeared on behalf of the applicants; J M
Sullivan (instructed by the Treasury Solicitor) represented the Secretary of
State. Macclesfield Borough Council were not represented and took no part in
the proceedings.
Giving
judgment, FORBES J said: In this case Mr Vandermeer moves to quash a decision
of the Secretary of State for the Environment whereby he dismissed two planning
appeals by the applicants in this case and refused permission for the
development the subject of those appeals.
Geography
and History
The case
concerns a large area of land at Tytherington Old Hall Farm and Old Bluebell
Farm, Tytherington, near Macclesfield. So far as is material the relevant
geography and history is as follows. The land, a total of 291 acres, lies to
the north of the town of Macclesfield and between that town and the village of
Prestbury. It is roughly triangular and bounded, broadly, on the east by the
A523 which runs north from Macclesfield past the site and joins the A538 about
1/4-mile north of the site. The A538 is a principal traffic road to Wilmslow,
Manchester Airport and Altrincham. The west of the site is bounded by a railway
for the most part on embankment. The northern part of the site has a wood,
Prestbury Wood, covering part of it. Some distance to the cast of the site runs
the line of a proposed inner relief road, while to the west and swinging round
to run across the northern portion of the site is a proposed western bypass.
There is a division of ownership on the site, the larger northern sector being
owned by the first applicants and the smaller southern sector by the second
applicants. Midway along the eastern boundary of this southern sector and
between it and the A523 lies a smaller area of land, not part of the site, on
which a residential estate is under construction. This estate known as the
‘Rowles’ land, has an access to the A523 which is constructed, designedly, to
allow for possible residential development of the applicant’s site or part of
it.
Turning to
history, there had been a previous planning application relating to the
northern sector, and an appeal to the Secretary of State in 1973. Broadly, in
upholding his inspector’s conclusions the Secretary of State decided that there
was a good case for permitting the residential development of the greater part
of the northern sector but that such development had to be properly related to
the future of the southern sector (for which no application was before him)
and, in the absence of a scheme for such comprehensive development, he
dismissed the appeal. Correctly interpreting this letter as the green light for
an application for a comprehensive plan of development for both northern and
southern sectors the present applicants submitted such a plan jointly to the
planning authority. As no decision was issued by that authority within the time
allowed by the statute the appeals, the subject of this application, were
launched, the inquiry into them held from December 16 to 19 1975 and February 3
to 5 1976, and the Secretary of State gave his decision by letter dated March
25 1977.
Principles
affecting judicial review
I need not
rehearse in detail the wealth of authority which governs the principles under
which a decision by the Secretary of State in a case such as this may be
reviewed in the courts. These principles are well-known. There are so far as is
relevant here, five of them:
(1) The Secretary of State must not act
perversely. That is, if the court considers that no reasonable person in the
position of the Secretary of State, properly directing himself on the relevant
material, could have reached the conclusion which he did reach, the decision
may be overturned. See eg Ashbridge Investments Ltd v Minister of
Housing and Local Government [1965] 1 WLR 1320, per Lord Denning MR at p
1326F and Harman LJ at p 1328H. This is really no more than another example of
the principle enshrined in a sentence from the judgment of Lord Greene MR in Associated
Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB
223 at p 230: ‘It is true to say that, if a decision on a competent matter is
so unreasonable that no reasonable authority could ever have come to it, then
the courts can interfere.’
(2) In reaching his conclusion the Secretary of
State must not take into account irrelevant material or fail to take into
account that which is relevant: see eg again the Ashbridge Investments
case per Lord Denning MR loc cit.
(3) The Secretary of State must abide by the
statutory procedures, in particular by the Town and Country Planning (Inquiries
Procedure) Rules 1974. These rules require him to give reasons for his decision
after a planning inquiry (rule 13) and those reasons must be proper and
adequate reasons which are clear and intelligible, and deal with the
substantial points which have been raised: Re Poyser and Mills
Arbitration [1964] 3 QB 467.
(4) The Secretary of State in exercising his
powers, which include reaching a decision such as that in this case, must not
depart from the principles of natural justice: per Lord Russell of Killowen in Fairmount
Investments Ltd v Secretary of State for the Environment [1976] 1
WLR 1255 at p 1263D.
(5) If the Secretary of State differs from his
inspector on a finding of fact or takes into account any new evidence or issue
of fact not canvassed at the inquiry he must, if this involves disagreeing with
the inspector’s recommendations, notify the parties and give them at least an
opportunity of making further representations: Rule 12 of the Inquiries
Procedure Rules.
There are
other peripheral principles. If he differs from the inspector on an inference
of fact he must have sufficient material to enable him to do so: per Lord
Denning MR in Coleen Properties Ltd v Minister of Housing and Local
Government [1971] 1 All ER 1049 at p 1053C. Otherwise the courts can
interfere in accordance with the first principle stated above. If it is a
matter of planning policy he is free to disagree with the inspector’s
conclusions or recommendations without bringing into operation rule 12: Lord
Luke of Pavenham v Minister of Housing and Local Government [1968] 1
QB 172; but, of course, he must make clear what the policy is and its relevance
to the issues raised at the inquiry in accordance with the third principle
above. If there has been conflicting evidence at the inquiry it seems to me
that he may, if he wishes, prefer one piece of evidence to another, though the
material must be there to enable him to do so, he must give reasons for doing so,
and if he is disagreeing with a finding of fact by the inspector he must apply
the procedure of rule 12. Since the courts will interfere only if he acts
beyond his powers (which is the foundation of all the above principles) it is
clear that his powers include the determination of the weight to be given to
any particular contention; he is entitled to attach what weight he pleases to
the various arguments and contentions of the parties; the courts will not
entertain a submission that he gave undue weight to one argument or failed to
give any weight at all to another. Again in doing so he must, at any rate if
substantial issues are involved, give clear reasons for his decision.
In considering
whether or not the Secretary of State has acted contrary to any of these
principles the materials upon which the court may come to a conclusion are, in
general, the inspector’s report and the letter of the Secretary of State
setting out his decision. In approaching this task it is no part of the court’s
duty to subject that decision letter to the kind of scrutiny appropriate to the
determination of the meaning of a contract or a statute. Because the letter is
addressed to parties who are well aware of all the issues involved and of the
arguments deployed at the inquiry it is not necessary to rehearse every
argument relating to each matter in every paragraph.
Planning
arguments
In order to
understand the submissions which have been made in this case it is necessary to
have a clear idea of what were the planning arguments which the inspector, and
the Secretary of State, were being asked to consider. They are conveniently set
out in the first paragraph of the inspector’s conclusions:
Bearing in
mind the above facts I am of the opinion that the determining issues in this
case are whether the proposed development would be unacceptably intrusive;
whether the development would cause Macclesfield and Prestbury to merge;
whether the traffic generated by the development and an access to the trunk
road A523 from the northern sector of the site would be likely to cause a
deterioration in traffic conditions on main roads leading to the north and
north-west to an unacceptable extent, and whether approval of the development
would be likely to prejudice the structure plan, having regard to its stage of
preparation.
Now the first
and second of these issues need not detain us. Both inspectors at both
inquiries found that the development would not be intrusive and would not cause
Macclesfield and Prestbury to merge. These views appear to have been accepted
by the Secretary of State and no issue about them has been raised in this
application. The remaining two issues, however, have proved to be the subject
of argument during the course of this application. They can conveniently be
called the road access point and the structure plan point. In addition there
was a further issue, namely whether there had been changes in circumstances
since the decision in 1973 which invalidated the conclusions contained in that
decision–the change of circumstances argument.
Road
access point
The A523 is a
busy road. To overload a road is a disadvantage to traffic using that road; to
construct a new access-point on a busy road is to increase the chance of
accidents. Both are therefore in highway terms to be deprecated. In this case
residential development of the applicants’ site would involve providing for the
traffic generated by the development to have access to the A523. Of course the
mere weight of such traffic would add to the burden of the A523. The inner
relief road when built would relieve the pressure on the A523. From this aspect
therefore the rate of development, so ran the argument, would need to be
controlled so that an unacceptable burden would not be thrown on the A523
before the inner relief road was opened. After that road was opened there
seemed and seems to be no argument: the development of the 181 acres of the
site to which house building was to be restricted would not produce
unacceptable levels on the A523 once the relief road was open. So far as access
is concerned there was already one access, namely that through the Rowles land.
It was conceded that another access to the A523 would be needed to serve the
181 acres when fully developed. From the highway point of view there was a
maximum number of houses which could be allowed to use the one access without
producing unacceptable traffic conditions. There was also a highway objection
to installing another access before the inner relief road was opened. It
appears to have been accepted by all parties that the traffic from up to 500
houses through the Rowles land to the existing access would be acceptable before
the inner relief road was open. There was however a subsidiary objection: a
‘cul-de-sac’ development of 500 houses was said to be unacceptable. Of the 500
houses regarded as acceptable on traffic grounds 105 were to be built on the
Rowles land. It will thus be seen that on traffic grounds no more than 395
houses should, it was argued, be built on the applicants’ site before the inner
relief road. It was further argued that even that was unacceptable as
cul-de-sac development, and that the cul-de-sac argument could not be
side-stepped by providing another access because that itself would produce an
unacceptable traffic hazard before the advent of the inner relief road. These
then were the traffic issues.
Structure
plan point
The modern
method of planning for future development involves production of structure
plans and local plans. Structure plans provide the framework; they should
(inter alia) indicate the levels of population for which it is desirable to
make planning provision in broad areas: the actual allocation of land for
particular types of development to cater for the anticipated population is the
business of local plans. In the north-west of England there was in addition
what was called the ‘strategic plan for the north-west.’ This was designed to provide the broader
background against which the various structure plans for this large and
important region could be set. The plan was accepted with some modification by
the Department of the Environment and this acceptance was known as the
‘government response.’ The strategic
plan and the government response were to be read together as providing the
appropriate planning background for the north-west region. The strategic plan
was published in 1974 and the government response in December 1975.
The preparation
of the relevant structure plan was the duty of the Cheshire County Council. The
final plan would then, after the necessary public consultation, be submitted to
the Secretary of State for approval. At the time of the second inquiry the plan
was said to be ‘in a fairly advanced state of preparation.’
One of the
arguments against the grant of permission for residential development on the
applicants’ site at this stage was that this would prejudice or pre-empt the
provisions of the structure plan. The applicants’ case at the inquiry countered
this argument in the following ways, so far as is relevant to the present case:
first, the strategic plan had suggested selective release for residential
development along a ‘Macclesfield corridor,’ that is an area of land stretching
from Macclesfield towards Manchester and within which the applicants’ land was
situated: it was argued by the applicants that the government response had
endorsed this principle and, by implication, had therefore approved in
principle the proposed development. Alternatively it was argued that, even if
the government response did not approve the Macclesfield corridor concept, the
release of the applicants’ land for development could not be regarded as a
precedent for release of other land in the corridor. Secondly the applicants
averred that they would accept a programme of phasing the construction of their
houses so that the total numbers built on their land would be less than the
total anticipated as being required in the Macclesfield area up to 1986, the
furthest point to which population projections were being made; this, it was
argued, might pre-empt particular allocations of residential land in local
plans but would not significantly affect the structure plan.
Change of
circumstances argument
The first
three of the four main issues at the 1975 inquiry–namely whether the
development would be intrusive, whether it would cause Macclesfield and
Prestbury to merge and whether the traffic generated could be acceptably dealt
with–had been the main issues at the 1973 inquiry. Those three issues had,
broadly, been determined in the applicants’ favour by the 1973 decision. The
fourth issue in 1975–namely the possible prejudice to the structure plan–had
not arisen in 1973. The argument in 1975 was therefore whether any, and if so
what, circumstances had changed since 1973 so as to make it impossible to rely
on the favourable determination by the Secretary of State of the first three
issues of that date.
Inspector’s
conclusions and the decision letter
The decision
letter of March 25 1977 sets out in full the inspector’s conclusions as
included in his report. Of the four main issues already referred to no question
arises in this case on the first two, intrusiveness and merger. I shall have to
return in more detail to the conclusions in relation to traffic and the
structure plan later. It is sufficient at this stage if I quote the paragraph
in which the inspector summarises his conclusions:
I am
therefore of the opinion that the proposed development attracts no compelling
planning objections and that consideration of the release of the site or part
thereof for residential purposes should not await approval of the structure
plan, even though the plan appears to be in a fairly advanced stage of
preparation. I am also of the opinion that, although there have been changes
since the inquiry of 1973 into the previous appeal, principally concerning the
regional and structure plan policies and the inner relief road, none has been
sufficient to cause the views expressed in the decision on that appeal to be
changed. In time scale the date for the construction of the inner relief road
is little different from that expected in 1973. I have considered the arguments
concerning circulars 102/72 and 122/73 but feel that none is sufficient to
affect the considerations that led me to my conclusions on the determining
issues.
His
Lordship then read the Secretary of State’s decision dismissing both appeals
and considered the various grounds of complaint put forward on behalf of the
applicants. He concluded that the applicants were entitled to succeed on five
out of the 13 grounds on which they attacked the Secretary of State’s decision.
Three of these five grounds were based on the failure of the Secretary of State
to give adequate reasons. The other two grounds (nos (4) and (10)) were
explained in his Lordship’s judgment as follows:
The next
ground–(4)–relates to the numbers of houses which might be erected on the land.
The applicants had offered to accept a phasing of their development if this was
necessary. The inspector had correctly and succinctly put it in this way:
‘According to submissions on their behalf the appellants consider that
something like 1,000-1,250 dwellings would be erected on the site by 1986, unless
asked to increase or decrease the rate of development.’ The italics are mine. The Secretary of State
had concluded that the minimum number would be 1,000-1,250 and went on: ‘Thus
even on the basis of the lowest likely number of dwellings, your clients’
proposals would amount to well over half the number of additional houses which
the structure plan work would indicate as needed by the study area as a whole,
and the proportion might be as much as two-thirds or even more.’ This is one of the premises upon which depends
the final conclusion of the paragraph: ‘It is not considered that to pre-empt
such a large part of the housing land needs of a district by making an
allocation on the scale of your clients’ proposals would allow the structure
plan, and subsequent local plans, any real measure of flexibility.’ Mr Vandermeer points out, parenthetically as
it were, that, as it took more than a year for the Secretary of State to make
up his mind, even the minimum figures on which he appeared to work should be
reduced to take account of the loss of a year’s building time. I do not think
that the Secretary of State should have taken into account the probable
situation at the time of writing the decision letter; indeed in later
objections Mr Vandermeer castigates the Secretary of State for supposedly
having taken into account circumstances not existing at the time of the
inquiry. I do not think that this parenthetical point has any substance.
However, it seems obvious to me that the Secretary of State had overlooked or
ignored the offer of phasing and the inspector’s mention of it. In other words
he failed to take into account a relevant consideration, and this failure
vitiates his final conclusion in this paragraph.
Ground (10)
refers to the following sentence: ‘The effect of this condition might well be
to leave the developers with a permission which had expired because of
circumstances outside their control.’
The condition was, of course, that no more than 395 houses should be
erected before completion of the relief road. In fact, as Mr Vandermeer points
out, outline planning permission cannot be said to ‘expire’ except under the
provisions of section 42 of the Act of 1971. These provide in normal cases for
three years in which to make application for approval of reserved matters and
for five years in which to begin the development, but that this is subject to
the power given, in this case, to the Secretary of State himself to enlarge
these periods, as appropriate, because he himself would be imposing the
condition. If the reference to expiry is meant to include the procedure for
termination of planning permission where the work has been begun but not
completed then this procedure too is subject to the power of the Secretary of
State to extend the period. In either event the Secretary of State is master of
the situation; the time-limit would be one imposed by him, and he has advanced
no reason for imposing any period which would not be sufficient to cover the
time at which the relief road came into operation. Indeed it seems to me that
it would be a farce, and therefore an abuse of powers on the Wednesbury
principle, for the Secretary of State to grant planning permission subject to a
time condition and at the same time impose a time-limit designed to ensure that
the permission was illusory. The best that Mr Sullivan could do was to suggest
that this, too, was only an aside and that the conclusion on prematurity with
which the paragraph ends was valid without it. But again it is impossible to
say how much weight was given to the possible expiry of the condition; it is
the only specific reason advanced in this paragraph for rejecting the
inspector’s recommendation of the grant of permission subject to that
condition. . . .
Grounds (4)
and (10) succeed because the Secretary of State took into account irrelevant
considerations or failed to take into account relevant considerations, ie his
action was unreasonable and not within the powers of the Act. The distinction
may be of some importance because under section 245(4) of the Act of 1971 where
the failure complained of is a failure to comply with the relevant requirements
the court must be satisfied that the interests of the applicant have been
substantially prejudiced thereby. Mr Sullivan argues that there is no
substantial prejudice to the applicants arising out of the failure of the
Secretary of State to give adequate reasons in this case. In this connection it
is worth quoting a passage from the judgment of Lord Denning MR in Earl of
Iveagh v Minister of Housing and Local Government [1964] 1 QB 395:
‘The whole purpose of that enactment is to enable the parties and the courts to
see what matters he (the minister) has taken into consideration and what view
he has reached on the points of fact and law which arise.’ The value to a developer of knowing the
reasons for a decision by the Secretary of State is well demonstrated in this
case by the importance attached by all parties (and the Secretary of State
himself) to his previous decision in 1973. If a landowner does not know
precisely why his appeal is turned down he cannot plan the future of his land
with any precision and this
the landowner. Even if this were not so there is no statutory necessity to show
substantial prejudice in the case of an order which is not within the powers of
the Act, and as I have indicated it is on this basis that grounds (4) and (10)
succeed.
In the
circumstances Mr Vandermeer’s application succeeds and the decision must be
quashed.
The applicants
were awarded the costs of the application with the exception of the costs of an
abortive appearance on December 14 1977, which were awarded to the Secretary of
State.