Town and Country Planning Act 1971 — Appeal from decision of Woolf J who had quashed the decision of an inspector granting the appellant outline planning permission to erect a single dwelling-house in the grounds of his property — Woolf J had quashed the inspector’s decision on the ground of inadequacy of reasons — In the judge’s view the planning authority would not know from the decision letter the basis of the inspector’s decision — It was not clear whether the inspector was disregarding the policy in the structure plan, or saying that it applied, or making an exception to it — Also the inspector did not express any view on one of the grounds for refusal of permission by the planning authority, namely, that the grant of it would create a precedent for further approvals leading to progressive detriment to amenity — Held that Woolf J had correctly decided that the inspector’s reasons were inadequate — Appeal dismissed
This was an
appeal by Rupert Michael Stephenson from a decision of Woolf J quashing a
decision of an inspector appointed by the Secretary of State for the
Environment, who had allowed Mr Stephenson’s appeal from a refusal of planning
permission by the Council of the Borough of St Edmundsbury. The inspector had
granted outline permission for the erection of a single dwelling-house in the
grounds of a house, known as Bradfield House, in the hamlet of Bradfield Combust,
in Suffolk.
P J White
(instructed by Wakelam & Co, of Bury St Edmunds) appeared on behalf of the
appellant; J Howell (instructed by Sharpe, Pritchard & Co, agents for D M
Cuckson, Bury St Edmunds) represented the second respondents, the council of St
Edmundsbury, the planning authority; the first respondent, the Secretary of
State for the Environment, was not represented and took no part in the
proceedings.
Giving
judgment, ROBERT GOFF LJ said: There is before the court an appeal by Mr Rupert
Michael Stephenson against a decision by Woolf J, in which he quashed a
decision of an inspector who, allowing an appeal by Mr Stephenson from a
refusal of planning permission by the local authority, the council of the
Borough of St Edmundsbury, granted outline planning permission for the erection
of a single dwelling-house in the grounds of Bradfield House at Bradfield
Combust in Suffolk.
Bradfield
Combust lies to the south of Bury St Edmunds. It would perhaps ordinarily be
described as a small village, but having regard to the terminology used in the
Suffolk County Structure Plan, which is of considerable importance in this
case, it is safer for me to call it a hamlet. The appellant, Mr Stephenson,
owns a house in Bradfield Combust which was formerly the rectory and which, as
I have said, is called Bradfield House, at which, as I understand it, the
ground floor is used as a restaurant and there is private accommodation
upstairs. The house is situated at the junction of a minor road called Ixer
Lane, with the main road, the A134 which runs through the hamlet, and the land
belonging to the house runs up to the north from the house, with Ixer Lane
running along its eastern boundary and the main road running along its western
boundary.
Mr Stephenson
is anxious to sell a site for development on the land in order to raise some
money to carry out work which he believes to be necessary at Bradfield House.
He first of all applied for planning permission for the erection of a single
dwelling-house at the north-western corner of the property with an exit on to
the A134. Planning permission was refused by the local authority, and on May 18
1983 an inspector dismissed his appeal from that decision. One of the grounds
of objection, which was upheld by the inspector, was that the exit on to the
A134 would lead to unacceptable dangers to users of that road. But the other
ground was that the application was inconsistent with the policy as set out in
the structure plan and that permission if granted would create an undesirable
precedent in the future.
At all events
Mr Stephenson decided to switch his application to the north-eastern corner of
his land, with an exit on to Ixer Lane. It is of some importance to note that
immediately adjoining the site for which Mr Stephenson’s second application for
planning permission was made is a recent development called Parkside, which
consists of a number of houses with a common exit on to Ixer Lane. Mr
Stephenson’s second application was again refused by the local authority, and
he then appealed from that decision. As I have already recorded the inspector
allowed the appeal and granted outline planning permission. That was on March
29 1984. However, on September 5 1984 Woolf J quashed the decision of the
inspector on the ground that the inspector had ‘fallen short in a material
manner of the requirements that are placed upon him to give reasons which can
be understood by an informed and intelligent reader’. It is against that
decision of Woolf J that Mr Stephenson now appeals to this court.
In order to understand
the issues in this appeal it is desirable that I should first of all refer to
the relevant provisions of the Suffolk County Structure Plan of September 1979.
As appears from chapter 12, which is entitled ‘The Towns, Villages and Rural
Areas’, a policy was adopted which is called the Settlement Policy. We can see
the nature of that policy in para 12.2.1 of the plan, which reads as follows:
The
Settlement Policy indicates in broad terms the application of the County
Strategy to towns, villages and the rural area by guiding development to those
locations where it will be most acceptable economically and socially. It takes
into account the need for the economical provision of community services,
the need to protect agriculture, the availability of jobs and transport and the
need to conserve the character of villages and the countryside. Except in the
towns, the policy will generally discourage estate development and aim to
restrict new housing development to a small scale. This will allow a small amount
of growth which can meet local need providing there is control over occupancy.
The demand by people for housing away from the towns where they work is noted,
although this is likely to decline with the increase in travelling costs.
However, limited provision is made for this in selected small towns and minor
centres and, together with the substantial stock of rural housing already in
existence or committed by planning permission this will extend the choice
available to the public.
There then
follow in the original plan a categorisation of towns and villages into (1)
towns, (2) minor centres consisting of certain selected large villages, (3)
small villages, and (4) other villages. The Secretary of State later
amalgamated categories (3) and (4) which became known, I understand, simply as
villages, and the policy embodied in para 12.2.15 of the plan relating to other
villages then became applicable to the combined category of villages. The
villages which fell within that category were specified in a list which formed
part of the plan. Bradfield Combust was not one of those villages.
Paras 12.2.17
to 12.2.23 inclusive set out the policy relating to rural areas outside towns
and villages. It is not in dispute that that policy applies to Bradfield
Combust. It is necessary for me to refer to paras 12.2.17, 12.2.18 and 12.2.19
which read as follows:
12.2.17. One
of the most important aims of planning is to ensure that the need for building
land is met without spoiling the countryside or wasting agricultural land. If people
were free to build houses wherever they wished in Rural Areas, the face of the
countryside as we know it today would be changed much farmland would be lost
and the cost of extending water, damage and other services over long distances
would be immense.
12.2.18. Much
of the character of the Rural Areas derives from the scatter of farmhouses and
the open pattern of dispersed groups of buildings. The building up of the many
gaps in the open frontages that this traditional pattern of development has
produced would alter the character of the countryside and would be expensive to
service. For these reasons such groups should not be listed as Small Villages
or Other Villages and the policies for the Rural Areas will apply.
12.2.19 is in
capital letters and is obviously intended to embody the policy relating to
rural areas outside towns and villages. It reads as follows:
IN THE
INTERESTS OF AGRICULTURAL, RURAL AMENITY, ROAD SAFETY AND THE ECONOMY OF
SERVICES, NEW HOUSING WILL BE INTEGRATED INTO TOWNS AND VILLAGES. IN RURAL
AREAS, OUTSIDE THE TOWNS, MINOR CENTRES AND OTHER VILLAGES IT IS INTENDED THAT
EXISTING LAND USES WILL REMAIN FOR THE MOST PART UNDISTURBED AND, EXCEPT AS
PROVIDED IN PARAGRAPHS 12.2.21 AND 12.2.23, PERMISSION WILL NOT NORMALLY BE
GIVEN FOR NEW DWELLINGS.
I should add
that the exceptions in paras 12.2.21 and 12.2.23, which relate to the
conversion of barns and derelict buildings and to the provision of houses for
key agricultural workers, are of no materiality in the present case.
The council
gave three reasons for rejecting Mr Stephenson’s second application. The third
of those reasons is not now material and I need not refer to it. The first two
reasons were as follows:
The proposal
would result in an undesirable intensification of sporadic residential
development outside the confines of any specific settlement where it is the
policy of the Local Planning Authority in conformity with the County Structure
Plan that existing land uses will remain for the most part undisturbed and where
planning permission will not normally be granted for new dwellings.
I pause only
to comment that that is plainly a policy objection founded upon para 12.2.19 of
the Structure Plan.
2. Approval of
this proposal would create a precedent for the approval of further similar
applications to the progressive detriment of the amenity and character of the
area.
As I have said
it is plain that those reasons were founded primarily at least upon para
12.2.19, but when the matter came on appeal before the inspector the local
authority prayed in aid in support of their second reason the reasoning of the
inspector on the occasion when he rejected Mr Stephenson’s first application.
When the
inspector came to deal with the matter in his decision letter, he approached it
as follows. He first of all defined what he regarded as the principal issues in
the case as follows:
(1) The
possible conflict between the proposed development and the relevant policy
provisions of the approved Structure Plan; and (2) the likely effect of the
proposal on the character and appearance of the area.
He then went
on to describe the appeal site and to set out the rival contentions of Mr
Stephenson and of the local authority. He summarised the local authority’s
contentions as follows in para 5:
The Council
adheres to the Structure Plan policy at paragraph 12.2.19 which excludes
development in locations outside the hierarchy of settlements Category I-III.
Growth is encouraged in those villages where services and social facilities
exist; they are largely absent from Bradfield Combust. Only agriculture,
forestry, or the conversion of disused buildings can justify development in a
village such as this. Also, the Council considers that the rural character of
Ixer Lane will be spoiled by any frontage development as now proposed; and the
trees on the site, notwithstanding the loss of the copper beach tree, should be
made the subject of a tree preservation order. A dwelling on this site will
encourage other similar proposals which the Council would find increasingly
hard to resist.
I pause to
point out that the last sentence reflects the second reason upon which the
council had rejected Mr Stephenson’s second application.
The inspector
then set out his conclusions with regard to the two main issues which he summarised,
giving the first in para 6 and the second in para 7. Para 6 reads as follows:
I have
carefully considered the policy objection in the light of the form of the
village and the character of the site and its immediate surroundings. There is
no village plan or village envelope, but it is in my view clear that if a
village envelope were to be described it would include the appeal site as well
as the recent development to the north, Parkside, and Bradfield House to the
south. I do not consider that a dwelling in this position, on a site which as
it stands adds nothing to the general appearance of the area, will be out of
character with its surroundings or at odds with the intentions of the Structure
Plan.
Then, dealing
with the second issue in para 7, he had this to say:
In this case
there are no objections from neighbours, nor to the proposed access in a
relatively quiet lane. I agree with the Council that care should be taken in
such development to site the access carefully and to minimise the loss of hedges
and trees. But the character of the lane has been so transformed by the
adjoining Parkside development that I do not consider a serious environmental
problem can arise by the construction of a new access. Therefore, after taking
account of all the matters raised in this case I have come to the conclusion
that your proposal for a single dwelling on the site, away from the A134 and
with a sole access from Ixer Lane, is an acceptable proposition.
On that basis
he allowed the appeal and granted outline planning permission.
It is the
passage of the decision letter contained in paras 6 and 7, and in particular in
para 6, which has been criticised by the local authority as failing to give
adequate reasons. There has been no dispute before us, nor was there I understand
before the learned judge, as to the principles we have to apply with regard to
reasons. An inspector is under a duty to notify his decision and his reasons
therefor in writing to certain specified persons, which include the appellant
and the local planning authority — see para 16 (1) of the Town and Country
Planning Appeals (Determination by Appointed Persons) (Inquiries Procedure)
Rules 1974. There is ample authority that the reasons which the appointed
person gives, although they may be brief, must be proper, adequate,
intelligible to an intelligent and informed reader and must deal with the
substantial points which have been raised — see Westminster City Council
v Great Portland Estates plc [1984] 3 WLR 1035 at pp 1044-1045 per Lord
Scarman, citing with approval a passage from the judgment of Megaw J (as he
then was) in Re Poyser and Mills’ Arbitration [1964] 2 QB 467 at p 478.
Furthermore, if the inspector decides to allow an application which departs
from the structure plan it is his duty to say so and to make his reasons clear
— see Ynystawe, Ynyforgan and Glais Gypsy Site Action Group v Secretary
of State for Wales and West Glamorgan County Council [1981] JPL 874 at p
878, per Glidewell J.
The learned
judge accepted a submission of Mr Howell, for the local authority, who has also
appeared for them before this court, that the reasons of the inspector did not
comply with that standard. The relevant passage in his judgment reads as
follows (p 10 of the transcript):
Mr Howell went
on to submit that, where there is an objection on a policy ground, such as
12.2.19, the decision letter should indicate whether or not there is, in the
inspector’s view, a conflict with the structure plan and whether or not there
is one of the exceptions applicable in existence. If the inspector allows the
appeal, he should indicate whether he is doing so on the basis that he does not
regard the proposal as being contrary to the provisions of the structure plan,
or is allowing it as an exception to the policy contained in the structure
plan. Here, he submits that when one looks at the decision letter as a whole,
one does not know whether or not the inspector was saying that this is a case
where there was no departure from the structure plan or whether he was
saying that a departure was proposed, but it was a situation where it should be
allowed as an exception to the structure plan.
Pausing with
Mr Howell’s submissions at that point, it seems to me that there are grounds
for saying that, in this particular decision letter, the inspector has fallen
short in a material manner of the requirements that are placed upon him to give
reasons which can be understood by an informed and intelligent reader. If Mr
Sales
Counsel for Mr
Stephenson
is right that
the proposal could be regarded as being in accordance with the policy set out
in paragraph 12.2.19, then the inspector has not in any way indicated whether
or not he so regarded this proposal. If Mr Sales is not right in that respect,
which is my provisional view, then the problem with the decision letter is that
it gives no basis as to the reasoning of the inspector for regarding this
particular proposal as being one in relation to which an exception should be
made. He has dealt, in general terms, with certain features of the proposal
which make it one which could be regarded sympathetically, but he nowhere and
in no way indicates that this would amount to a sufficient view to make this a
development in relation to which an exception could be made from the intentions
of the structure plan.
Furthermore,
as Mr Howell pointed out, in the opening paragraphs of his decision letter,
where the inspector set out his view as to what the principal issues were, he
described one of those as the possible conflict between the proposed
development and the relevant provisions, raising a doubt as to whether or not
he is regarding it as in fact being a proposal which is in conflict with the
relevant policy provisions. However, he does use the phrase at the end of para
6 of his decision letter ‘at odds with the intentions of the structure plan’,
but he does not give any reasons for why it is not at odds with the intentions
of the structure plan. I was minded to read that phrase as being a reference to
the spirit of the structure plan. Whether or not that is right, the fact
remains that, as I would understand the structure plan, it is inconsistent with
development of this sort normally being allowed and, if an inspector is going
to say that this is a case which is entitled to be treated abnormally, then it is
my view that he must at least give some reason for indicating why he takes that
view.
The learned
judge, having dealt with other matters, concluded as follows (p 14 of the
transcript):
I have come
to the conclusion that the reasoning here is really well below that of the
required standard. The authority can rightly say, with regard to this decision,
that they do not know the basis on which it is taken. Is the inspector
disregarding the policy? Is the inspector saying that the policy applies? Is
the inspector making an exception to the policy? The authority is entitled to
know the inspector’s views and the decision letter does not state them.
Before this
court Mr White, to whom we are much indebted, has challenged the learned
judge’s decision, and in the forefront of his argument he put this point. He
referred us to para 12.2.19 of the structure plan and he referred us in
particular to the fact that the policy there set out is stated in qualified
terms. It does not appear on its face to be an absolute policy, but is
described in one of the relevant sentences, ‘For the most part the existing
land uses will remain undisturbed’, and in the other, ‘Permission will not
normally be given for new dwellings’. So, says Mr White, this is a case of a
policy which has inbuilt flexibility, and in those circumstances if we look at
the decision letter of the inspector, we see that the inspector is having
regard to that inbuilt flexibility, and when, having set out certain
considerations, he stated that the development was in his opinion not at odds
with the intentions of the structure plan, the inspector must have been
regarding his decision as being within the tolerance permitted by this flexible
policy statement, and therefore within the structure plan. It follows, of course,
that Mr White was drawing a distinction from a departure from the policy which
was within the structure plan and a departure from the policy which was a
departure from the structure plan itself, and he was submitting that, reading
the decision letter fairly, this was a case where the inspector was making his
decision within the former of those two categories.
I find
difficulty with this submission. Mr Howell, to whom we are also much indebted,
referred us to the speech of Lord Scarman in Westminster City Council v Great
Portland Estates plc, and in particular to a passage at p 1045 which was
concerned with the expression of a policy as being subject to exceptional or
special circumstances. Lord Scarman said (although in a different context)
that:
Development
plans are no inflexible blueprint establishing a rigid pattern for future
planning control. Though very important, they do not preclude a local planning
authority in its administration of planning control from considering other
material considerations: Section 29 (1) of the Act of 1971. Further, it is
accepted that exceptional hardship to individuals or other special
circumstances may be treated in some cases as a material consideration. A
reference, therefore, to exceptional or special circumstances in a plan is not
improper, though, strictly, it is never necessary.
Mr Howell
submitted, with the aid of that statement by Lord Scarman, that it would be
wrong to attach much significance to the use of such a word as ‘normally’ in
para 12.2.19; and indeed I must point out that, having looked through the
structure plan, there are many statements of policy in the structure plan which
are expressed in exactly the same way, with the same qualification. In my
judgment, there is great force in Mr Howell’s submission. Indeed, there is a
certain unreality about the distinction which Mr White has sought to persuade
us to draw. In truth, if we ask ourselves what is the policy in para 12.2.19,
the answer is that the policy is the norm, and any departure from that norm is
a departure from the policy. So if the inspector here thought that he was
departing from the policy as embodied in that norm, he ought to have given
reasons, stating why he thought it right to do so, in accordance with the statement
of Glidewell J in the Gypsy Site Action Group case.
In these
circumstances, I find myself to be entirely in agreement with the approach
adopted by the learned judge. He was clearly concerned with the fact that, when
he read through para 6 of the inspector’s decision letter, he found that it set
out certain considerations which, as the learned judge said, might incline one
to regard the proposal sympathetically but which, as he also said, do not
indicate that these considerations would amount to a sufficient view to make
this a development in relation to which an exception could be made from the
intentions of the structure plan. That was his initial reaction to the
considerations there set out.
The learned
judge was then faced with an argument, as we were, that there were two
alternative ways of reading the decision letter; on one basis the approach of
the inspector could be regarded as being within the structure plan, and on the
other his approach could be regarded as being a departure from the structure
plan. But if those two approaches are possible, then the question arises: which
of them was the inspector adopting? On the face of this document it is not
possible to answer that question. He certainly did not say so, and it is not
possible to infer from the document which of the two he chose. That is
precisely the point upon which the learned judge felt that this decision letter
failed to provide adequate reasons, and that is why, at the end of his
judgment, we find him saying: ‘The authority can rightly say, with regard to
this decision, that they do not know the basis on which it is taken. Is the
inspector disregarding the policy? Is the inspector saying that the policy
applies? Is the inspector making an exception to the policy?’ I find myself to be
in agreement with the reasoning of the learned judge. Of course, if the
inspector had said specifically which approach he was adopting, then it might
have been open for the authority to say, ‘This is what the inspector was doing
and we say that that reasoning is perverse’. But until they can identify the
basis upon which the inspector made his decision, they cannot decide whether to
pursue that particular point.
But there is a
further point which I must confess also troubles me about the inspector’s
reasons. As I have already recorded, when the local authority reached their
decision they did so on two grounds, and the second ground was that approval of
this proposal would create a precedent for the approval of further similar
applications to the progressive detriment of the amenity and character of the
area; and that matter, as we can see from para 5 of the decision letter, formed
part of the authority’s submissions before the inspector. The inspector nowhere
dealt with that point in his decision letter. Woolf J inclined to the opinion
that that of itself would not be a fatal defect, but he felt it was also a
matter which he should take into account when demonstrating the inadequacy of
the reasons in this letter. I myself incline to the opinion that this was a
substantial point, raised at the appeal before the inspector, which should have
been the subject of a reasoned decision by the inspector. Yet there is a total
absence of any reasons given by the inspector in relation to that point. So to
me, in addition to the point raised by Woolf J with which I agree, there is a
separate and distinct defect in this decision letter.
There is one
further point which I must mention. It was submitted by Mr White that, in all
the circumstances, the authority were not substantially prejudiced by any
inadequacy of the reasons. I can deal with this point very briefly, because it
appears to me that an absence of reasons in a decision letter of this kind must
lead to substantial prejudice to the local authority, which has to interpret
these decision letters and take them into account when making further decisions
in the future.
For those
reasons I would dismiss the appeal.
Agreeing,
BROWNE-WILKINSON LJ said: I agree for all the reasons
the inspector to deal with the objection raised by the local authority of the
grounds of precedent. I too am inclined to the view that the failure to deal
with that matter was in itself a failure to give reasons which would render the
decision invalid.
Also agreeing,
SIR EDWARD EVELEIGH said: I would not wish to express a firm view as to the
argument that if there is a departure from the norm within the particular
provisions of a particular plan, and indeed the one with which we are dealing,
that must necessarily amount to an exception. I observe that in the passage in Westminster
City Council v Great Portland Street plc which has been referred to
in the speech of Lord Scarman at p 1045, having said that the development plans
are no inflexible blueprint and that they do not preclude the authority from
considering other material considerations, he then goes on to refer to special
circumstances, introducing his words by the word ‘further’. I feel that there
may possibly be a situation within the wording of the particular plan that may
not follow the norm, but at the same time could not be regarded as exceptions
to the plan, because a plan may have opposing considerations in it, and where
one consideration applies there may be a normal course to be followed, but
where both apply one has to give way to the other. I would prefer to say
nothing on that subject.
However, I do
think for the reasons stated by my lords, that it is not possible in this case
to be sure of the reasons of the inspector for granting permission, and I agree
that this appeal should be dismissed.
The appeal
was dismissed with costs, not to be enforced without the leave of the court.
Order made for costs against the Legal Aid Fund, the Law Society being given
liberty to apply within 10 weeks.
