Application to quash Secretary of State’s decision upholding refusal of outline permission for warehouse and distribution centre–No evidence that Secretary of State had disregarded material considerations such as alternative powers to impose conditions or to purchase compulsorily–No failure to take account of a section 52 agreement as no such agreement completed–Application dismissed
This was an
application by Tarmac Properties Ltd under Section 245 of the Town and Country
Planning Act 1971, for an order quashing a decision by the Secretary of State
for Wales given on November 28 1975 dismissing an appeal against the refusal by
the predecessors of the second respondents, Gwent County Council, of planning
permission for the development of 90 acres of land near Chepstow.
K C Bagnall QC
and Miss K L Megarry (instructed by Church Adams Tatham & Co) appeared for
the applicant, and H K Woolf (instructed by the Treasury Solicitor) represented
the first respondent. The second respondents took no part in the proceedings.
Giving
judgment, DOUGLAS FRANK said: The matter arises in the following way. The
applicants are the owners of some 90 acres of disused farmland lying
immediately to the south of Junction 22 on the M4 motorway just on the Welsh
side of the Severn/Wye Road Bridge. In September 1973 the applicants applied
for planning permission for ‘the development of land as a warehouse and
distribution centre by the layout of roads, services and landscaping.’ The application was expressed to be an
outline application. On November 16 1973 permission was refused by the local
planning authority, at that time the Monmouthshire County Council, on 18
grounds. Accordingly, the applicants appealed to the Secretary of State. A three-week-long
public inquiry commenced on September 29 1973, held by K G Robbins, an
inspector appointed by the Secretary of State. One of the matters which arose
at the inquiry concerned the reservation of land so as to provide a possible
means of access in the future from the elevated roundabout at Junction 22
through the application site to land to the west which might be released for
development. During the inquiry the applicants had stated that they were
willing to enter into an agreement under section 52 of the Act of 1971. The
inspector in his report of the inquiry summarised the applicant’s case in this
respect in these words:
‘186. It was
entirely proper that the authority should be concerned to keep growth
strategies open, and it was recognised that any development on the appeal site
should not be allowed to preclude access from Junction 22 to other land which
might, at some future date, be released for development. The appellants were
quite prepared to allow access to other land and, if the authority were not
satisfied that this could be secured through normal powers of development
control, the best way to deal with this would be by way of an agreement under
section 52 of the Act.’
Section 52 of
the Act of 1971 provides for agreements which regulate the development or use
of land. Under Section 52(1):
‘A local
planning authority may enter into an agreement with any person interested in
land in their area for the purpose of restricting or regulating the development
or use of the land, either permanently or during such period as may be
prescribed by the agreement; and any such agreement may contain such incidental
and consequential provisions (including provisions of a financial character) as
appear to the local planning authority to be necessary or expedient for the
purposes of the agreement. (2) An agreement made under this section with any
person interested in land may be enforced by the local planning authority
against persons deriving title under that person in respect of that land. . .
.’
In his report
the inspector set out 26 findings of fact of which the last was in these terms:
‘In the event of the development at Rogiet/Caldicot/Portskewett. And although
the 22 the range of structural plan options would be reduced. The appellants
have suggested that such potential access could be secured by a section 52
agreement.’ The reference there to the
range of structure plan options was to the possible future development of the
land to the west which I have already mentioned. The inspector in accordance
with the usual procedure then went on to state his conclusions of which the
following are relevant for the purpose of this case, paragraphs 271 and 272.
‘271. As to
the fear that the recommendations of the South Gwent Study (and hence,
possibly, the policies of the structure plan) would be seriously pre-empted
were the appeal to succeed, in my view the present site could be considered
independently. It falls within an area divorced from the main Caldicot levels
by development at Rogiet/Caldicot/Portskewett. And although the proposed estate
is very substantial (compared with a run-of-the-mill application) in the
context of the whole study area and the potential Uskmouth port and maritime
industry its scale seems less impressive. Nevertheless the site is critical because
of its relationship to a motorway access point, and in my view it is essential
that the range of structure plan options should not be restricted by the
non-availability of Junction 22.
‘272. In my
judgment a section 52 agreement between the parties would be necessary to
secure such potential right of access beyond peradventure. Had such a document
been forthcoming (as appeared to be the intention at the inquiry) I would have
felt able to recommend that permission be granted for development in the terms
defined by the appellants, subject to conditions to the following effect,’
and he there
sets out the conditions. Then followed his recommendation: ‘In the absence of a
section 52 agreement which would safeguard potential access via the site to
Junction 22, I recommend that the appeal be dismissed.’
Following the
inquiry, discussions and correspondence took place between the applicants and
the Gwent County Council (who had become the local planning authority) with a
view to entering into an agreement under section 52. The inspector was aware of
these discussions and caused inquiries to be made on the progress of them, and
had delayed the submission of his report until September 29 1975. On November
28 1975 the decision of the Secretary of State was conveyed in a letter to the
parties. The letter first set out the inspector’s conclusions and then went on:
‘The
inspector recommended that, in the absence of a section 52 agreement, the
appeal be dismissed. The Secretary of State agrees generally with the inspector’s
conclusions and accepts his recommendation. He makes no comment on the question
of a section 52 agreement since this, and the details of any conditions which
may be imposed on any subsequent issue of planning consent, would be matters
for consideration by the local planning authority in the first instance. For
the reasons given the Secretary of State hereby dismisses your client’s
appeal.’
I must now
return to the discussions which took place concerning the section 52 agreement.
The correspondence was initiated by letters headed ‘Without Prejudice’ and
began with one of June 16 from the applicants to the county council’s chief
executive officer. I think I should quote some of this correspondence as the
applicants attach great importance to it. In the letter of June 16 the
applicants said:
‘At the
planning appeal relating to the above site, it was indicated on behalf of
Tarmac Properties Limited that they would be prepared to enter into an
agreement under section 52 of the Town and Country Planning Act 1971 to
accommodate, if possible, the reasonable requirements of the county council to
have access to the land adjoining the appeal site in the event
vague at the inquiry and we would be grateful if you would now submit to us a
draft agreement so that we can have this approved on behalf of our clients and
then submit it to the inspector and to the Welsh Office.’
Then they went
on to discuss some matters concerning a possible agreement. The chief executive
officer replied on June 19. In his letter he said: ‘I have asked the county
planning officer to let me have details of his requirements for such an
agreement, but of course consultations will also have to be carried out with
the county surveyor and also Professor Goss. While, therefore, I will do my
best to let you have a draft agreement as soon as possible, I anticipate it may
be some weeks before I am able to do so.’
Then followed some unimportant correspondence. Then on September 5 the
chief executive officer wrote enclosing a draft agreement and saying ‘I must
stress, however, that the draft merely represents the personal views of the
writer as to what was suggested at the recent planning inquiry. The comments of
the county planning officer have yet to be received and further amendments may
be required. Also of course, in the event of your client company being
successful in its appeal, the approval of the council will be necessary prior
to entering into such an agreement.’
There is then further correspondence. On November 6 the chief executive
officer wrote again and said: ‘I am taking final instructions as to the draft
section 52 agreement and plan, kindly submitted, and hope to be able to confirm
that the same is approved in the course of the next few days.’ On October 10 the applicants had written to
the Welsh Office reporting that they had received a draft agreement and were
arranging a meeting to resolve matters of detail and said that they would keep
the Welsh Office advised of developments. On November 4 the applicants told the
chief executive officer that the draft agreement was acceptable to them, and
then there was a reply as I have mentioned.
In the event
the draft agreement never got beyond that stage and was not executed. Two
points are taken against the Secretary of State, and I will deal with them in
the order in which they were argued. First it is said that the Secretary of
State had a number of powers which would have enabled him to ensure that part
of the application site was reserved so as to be available as an access to the
area to the west. It is said that he could have imposed conditions by reasons
of the provisions of sections 29 and 36 of the Act of 1971; alternatively that
there are powers of compulsory purchase for the provision of roads contained in
section 112 of that Act and section 215 of the Highways Act 1959. Mr Bagnall
argues that these powers are material considerations within the meaning of
section 29 (1) of the Act of 1971 and that the Secretary of State was bound to
have regard to them. He cited a number of authorities in support of the general
proposition that the Secretary of State has power to impose conditions reserving
land for a future road, and as Mr Woolf did not challenge that proposition it
is unnecessary for me to refer to them. I think the right approach to this
matter is to ask myself whether there was any evidence that the Secretary of
State failed to take a material consideration into account, and if so whether
in the circumstances of this case he should have granted permission. There is
no positive evidence that the Secretary of State disregarded his power to
impose a condition or overlooked the powers of compulsory purchase. However, it
seems to me that these questions were never realistic and are not realistic
today. In order for the Secretary of State to reserve part of the application
site for a future road he would have needed to have had evidence before him
upon which he could determine with precision the boundary of the land to be
reserved. I have searched in vain for any such evidence. Mr Bagnall’s answer to
this difficulty was that the Secretary of State could have made inquiries of
the applicants and of the county council which would have enabled him to
delineate the land needed for access. He pointed to the plan attached to the
draft agreement showing such land. Whether or not the Secretary of State could
have obtained adequate information for that purpose seems to me to be
irrelevant, because although he has power to receive further evidence after the
close of the inquiry, in my judgment he has no duty to do so. If he has no duty
to make inquiries and need apply his mind only to the evidence given before the
inspector, then it seems to me that it was impracticable or indeed impossible
to impose a suitable condition. In truth it was the applicants’ failure to lead
evidence necessary for the imposition of a suitable condition which has made it
impossible for the Secretary of State to have imposed one. It seems to me,
therefore, that there is no material consideration before the Secretary of
State which he failed to take into account.
As to the
exercise of compulsory purchase powers, I do not think that this was a matter
which he was bound to take into account. He was being asked to give planning
permission for a distribution depot, and that permission (which would
necessarily have extended to the whole of the application site) would be
inconsistent with a concurrent intention that at some future time compulsory
powers would be exercised for the carrying out of some development, namely the
construction of a road, which as to part would frustrate the very permission
which he purported to grant. Moreover the applicants would be entitled to
develop the whole site, which in the event of the road being constructed would
commit the highway authority to the payment of compensation appropriate for the
taking of land which by then would have formed part of the distribution centre.
In any event I do not think that any party contended before the inspector that
this matter or problem concerning the reservation of land for access should be
dealt with other than by a section 52 agreement. Mr Bagnall says that paragraph
186 of the report shows that he had submitted that a condition could be
imposed. I do not read that paragraph in that way. On the contrary, I think he
was putting aside the question of a condition, or indeed, had he had a
condition in mind he would have expressed it with sufficient precision to
enable the minister to have drafted it for inclusion in his decision. It
follows from what I have said that the Secretary of State did not fail to take
into account a material consideration, if for no other reason, because there
was no way in which he could have taken it into account. Moreover, I think the
Secretary of State’s approach to this matter was that contended for by the
applicants themselves.
I turn then to
the second ground on which the decision is challenged, which is that the
Secretary of State acted unreasonably in not taking into account the section 52
agreement. Had the section 52 agreement been executed and transmitted to the
Secretary of State before he gave his decision, there might be something in this
point. However, as no agreement had then been executed–nor has been yet–I
cannot see how it could possibly be said that the Secretary of State acted
unreasonably in not taking into account a non-existent agreement. Accordingly,
I consider this point misconceived.
In the
circumstances the application is dismissed.
The
application was dismissed with costs.
