Applicants seeking planning permission for motorway service area – Inspector finding a degree of need and recommending grant of permission – Change in government policy – Secretary of State refusing to grant application – Applicants challenging Secretary of State’s decision – Whether Secretary of State misinterpreting policy – Application dismissed
The applicants applied for planning permission for an infill motorway service area (MSA) on the south side of Lyde Green Farm, Bristol. After an inquiry, the inspector made a report identifying the main factors to be considered in assessing the need for a new MSA in light of the Secretary of State’s then current policy, as set out in PPG13 and roads circular 1/94. He pointed out the possible benefits of the proposed MSA in terms of “driver comfort, convenience and increased choice” and concluded that they were sufficient to establish a degree of need.
However, by the time of the Secretary of State’s decision, the government had issued an MSA policy statement, dated 31 July 1998, that contained a revision of the policy as set out in the circular and PPG13 in respect of spacing and need. Increased competition and choice were no longer sufficient justification in themselves for infill provision. The policy statement provided, inter alia, that planning permission for infill MSAs should be granted only “exceptionally and where clear and compelling need has been established”. The Secretary of State found, inter alia, that the applicants had not shown “exceptional need” and refused to grant the application.
The applicants challenged the Secretary of State’s decision under section 288 of the Town and Country Planning Act 1990, raising two principal grounds. First, the Secretary of State had misapplied or misinterpreted his own policy. It was submitted that the policy statement of July 1998 did not alter the degree of need that the applicant had to establish, and that the Secretary of State was in error in interpreting it as a change in policy, requiring the applicant to show “exceptional need”. The applicant contended that the Secretary of State had elided two separate topics, namely the degree of need to be established, which was a “clear and compelling” one, and the concept of an exceptional grant. The second ground of challenge was that the applicants were misled by a letter from a minister at the crucial time, and were denied a proper opportunity to put their case to the Secretary of State.
Held: The application was dismissed.
The starting point of the applicant was flawed, since the policy statement of July 1998 did alter the character of the need that had to be established. While the Secretary of State could have structured his approach differently, perhaps reflecting a more textural approach to the policy, he was not led into any error in his approach towards the application. Faced with a changed policy, he was bound to reconsider the facts as found by the inspector. He made a planning judgment on the basis of need, in light of the new policy. The meaning attributed to the policy statement by the Secretary of State was not perverse. He did not err in drawing together the two concepts and describing the required need as “exceptional” where, even if the need was established, it was only intended to lead to a grant of permission in exceptional cases. There was no evidence to support the claim that the applicants had been misled by the letter. Nor had they been denied an opportunity to make representations.
Anthony Smith QC and Nadir Sharif (instructed by Kingsford Stacey Blackwell) appeared for the applicants; Timothy Mould (instructed by the Treasury Solicitor) appeared for the respondent.
Sarah Addenbrooke, barrister
