Town and Country Planning Act 1971 — Application under section 245 to quash decision of Secretary of State refusing permission for residential development — Refusal on the ground that the development would prejudice the preparation of the local plan — In fact the only real issue was when the development should begin — Duty of Secretary of State to give intelligible reasons, grappling with the issues raised — Secretary of State should have indicated what was in the local plan which might vitiate the conclusion of the inspector (rejected by the Secretary of State) and why — Secretary of State failed to give adequate reasons — Decision quashed
This was an
application by Thornville Properties Ltd under section 245 of the Town and
Country Planning Act 1971 to quash the decision of the Secretary of State
refusing, contrary to the recommendation of the inspector, to allow residential
development on an area of 6.4 acres at Gnosall, Staffs.
Michael Howard
(instructed by Berrymans) appeared on behalf of the applicants; J G Laws
(instructed by the Treasury Solicitor) represented the Secretary of State; the
second respondents, Stafford Borough Council, were not represented and took no
part in the proceedings.
Giving
judgment, SIR DOUGLAS FRANK said: This is an application under section 245 of
the Town and Country Planning Act 1971 to quash a decision by the Secretary of
State refusing planning permission for the development of land at Gnosall for
residential development. The application as originally made was for 9.52 acres,
but by the time the matter came before the Secretary of State’s inspector it
had, by consent, been reduced to an area of 6.4 acres. There were originally
three grounds for refusal, but the only one relied upon by the council was that
‘the development of this site outside the village plan area would prejudice the
preparation of the local plan for Gnosall and its surrounding area’.
The inquiry
was held by the inspector on November 9 1978, by which time the 6.4 acres had
become included in the draft local plan. In reality the only question at issue
at the inquiry was not whether the site should be allocated for residential
development in the local plan but whether the development should begin no
earlier than 1986. The inspector in his conclusions found that the proposal
would be an acceptable rounding-off of the existing development and that there
were no valid objections to it. He did not deal expressly with the question of
postponement to 1986 but necessarily implied that the case for it had not been
made out. Accordingly he recommended that permission be granted. The material
part of the letter conveying the decision of the Secretary of State is as
follows:
The Secretary
of State sees no reason to disagree with the inspector’s conclusions relating
to the suitability of the appeal site for residential development. However, he
takes the view that the inspector has given insufficient consideration to the
effect which the granting of planning permission now might have on the
preparation of the district plan. The district council have carried out public
participation on the draft plan and have indicated their preference for the
appeal site for future residential development. Nonetheless, the draft plan has
to go through further statutory stages before a final plan is adopted; and
modifications to the existing draft plan are possible at any stage. (The
district council’s intention as a result of past public participation, to
introduce a measure of phasing into the draft plan’s residential proposals is
an example of changes which can arise during the statutory stages of the plan’s
preparation.) In the Secretary of State’s view to grant planning permission now
for development of the appeal site could prejudice the remaining statutory
processes in the adoption of a local plan for the area, in that it could well
finalise the residential proposals in the plan
would justify prejudicing the preparation of the local plan in this way.
Consequently, the Secretary of State is unable to accept the inspector’s
recommendation that the appeal be allowed.
As Mr Howard
for the applicants pointed out, there is only one matter which it was alleged
could result from the further procedures on the local plan and that is the
question of phasing, which the inspector impliedly has concluded was not a
valid reason for the refusal of permission. The first question then is whether
the Secretary of State gave adequate reasons for disagreeing with the
inspector’s recommendation. It cannot be doubted that the Secretary of State
was entitled to have regard to the draft local plan but, on the other hand, he
was also bound to have regard to the other material considerations highlighted
in the inspector’s reasons for allowing the development. Taken literally, the
Secretary of State’s reasons for refusing permission would apply to every
planning appeal because, as yet, no local plan has been approved. Therefore the
fact that the local plan here had not been adopted cannot be conclusive as the
Secretary of State had decided by necessary implication. I should say in
passing that in my view the local plan was not in an early stage of its
preparation but in an advanced stage. All that remained was the local inquiry
prior to the final consideration by the council. I understand that the inquiry
has since taken place. In French Kier Developments Ltd v Secretary of
State for the Environment (1977) 244 EG 967 at p 974, [1977] 2 EGLR 143
Forbes J said that it was clear to him that, on the cases, the Secretary of
State had got to give intelligible reasons for his decision and had got to
grapple with the issues which were raised and deal with them (see Lord Denning
MR in Earl of Iveagh v Minister of Housing and Local Government
[1964] 1 QB 395). If he did not deal with the points that arise, he failed in
his duty and the court had to order him to make good the omission.
It may be that
the decision would be unassailable, if this case had been the same as in Price
Brothers (Rode Heath) Ltd v Secretary of State for the Environment
(1978) 252 EG 59, [1979] 2 EGLR 485, where the case for development turned on a
possible allocation of the site in a local plan. However, in the instant case
the inspector found, and the Secretary of State did not dissent, that the
development was such as should be permitted, irrespective of a local plan. It
seems to me, therefore, that if the Secretary of State is relying on the local
plan, he is not grappling with the issues unless he specifies what could be in
the local plan to nullify the assumption that permission should be granted.
Applying the
tests which have been pronounced by successive Secretaries of State, including
the present incumbent, permission should never be refused unless there are
positive reasons against it. Therefore, even if the local plan had been
approved and the development of the appeal site had been phased, it would have
been incumbent on the Secretary of State to show reasons why the phasing should
prevail. In my judgment the Secretary of State’s approach was wrong when he
said: ‘No sufficient reason is seen which would justify prejudicing the
preparation of the local plan in this way.’
He should have said what was in the local plan which might vitiate the
conclusion come to by the inspector and, more particularly, why. He should have
specified in what way the local plan would be prejudiced and in failing to do
so he has not given adequate reasons for his decision. Accordingly, the
decision must be quashed and the appeal redetermined.
Application
to quash Secretary of State’s order granted with costs.