Refusal of planning permission — Change in Government policy between receipt by Secretary of State of inspector’s report and issue of decision letter — Special presumption in favour of releasing land for housing removed — Secretary of State allowing appeal against refusal of planning permission — Whether Secretary of State took account of change in policy — Whether applicant should have had opportunity to make representations — High Court quashing decision
The council refused planning permission to develop land between the northern edge of the built-up area of Stratford-on-Avon and the southern boundary of the West Midlands green belt for the purposes of a residential estate and open space. Appeals against that refusal were determined by the Secretary of State following a public inquiry in October 1991 and on an inspector’s report dated December 19 1991. The Secretary of State agreed with the inspector’s conclusions and allowed the appeals and granted planning permission. That decision letter was dated August 20 1992.
In January 1988 the Secretary of State had issued PPG3 — Land for Housing. Under PPG3 there was a special presumption in favour of releasing land for housing where a five-year supply of housing land was not identified. A consultation draft circular of a proposed revision of PPG3 was before the inspector at the inquiry which indicated that the special presumption was to be removed. In March 1992 the Secretary of State should have explained why he had followed the inspector’s recommendation in the wholly different policy context pertaining in August 1992.
Held The decision was quashed.
1. The Secretary of State should be assumed to take account of his own policies: see Hewlett v Secretary of State for the Environment [1985] EGLR 170.
2. A lawful policy required the body determining the planning application to have regard to the policy and if that body was going to depart from the policy clear reasons had to be given so that the recipient would know the grounds upon which it was made: see EC Gransden & Co Ltd v Secretary of State for the Environment [1986] JPL 519.
3. The evidence indicated that the inspector applied the special presumption from the former PPG3, but the documentation did not indicate whether he had regard to the withdrawal of that presumption. The presumption in Hewlett applied. The Secretary of State should be treated as having paid regard to the withdrawal of the special presumption.
4. Thus, the Secretary of State had acted contrary to the rules of natural justice in that he took into account the change to national policy but failed to afford the applicant opportunity to make representations. The change in national policy was of fundamental importance to the determination of this finely balanced case and the operation or non-operation of a presumption could be crucial. It was only fair that the applicant should have been given the opportunity to make representations, particularly where the Secretary of State was completely silent as to what significance, if any, he attached to the new approach.
John Taylor QC and Ian Dove (instructed by the solicitor to Stratford-on-Avon District Council) appeared for the council; Christopher Katkowski (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Robin Barratt QC (instructed by Evershed Wells & Hind, of Birmingham) appeared for the second defendants, Bryant Homes Central Ltd.
