Town and Country Planning Act 1971–Refusal of outline planning permission for housing development–Appeal against inspector’s decision–Inspector would have been wrong if he had justified refusal on the ground that the proposed development would be uneconomic, but he did not decide on this ground–Inspector was considering possibility that, owing to severe design constraints, a scheme could not be devised for which planning permission ought to be given–Inspector also not in error because he decided that he could not make a final judgment on access proposals without details of the form of the rest of the development–Appeal dismissed
This was an
appeal by David William Walters against the decision of an inspector appointed
by the Secretary of State for Wales to determine an appeal from the refusal of
Swansea City Council to grant outline planning permission for the erection of
five houses with garages on land at Uplands, Swansea. The inspector upheld the
refusal of the city council to grant permission.
G Bartlett
(instructed by Collyer-Bristow & Co, agents for Collins, Woods &
Vaughan Jones, of Swansea) appeared on behalf of the applicant; H K Woolf
(instructed by the Treasury Solicitor) represented the Secretary of State, the
first respondent. The second respondent, Swansea City Council, was not
represented and took no part in the proceedings.
Giving
judgment, SIR DOUGLAS FRANK QC said: This is an appeal under section 245 of the
Town and Country Planning Act 1971 against a decision by M I Montague-Smith
BArch MCD RIBA MRTPI, an inspector appointed by the first respondent to
determine an appeal against a refusal by the second respondents to grant
planning permission. The planning permission applied for was outline permission
for the erection of five detached houses with garages on land at Uplands,
Swansea. The inspector decided to dismiss the appeal on grounds which are
summarised in his decision letter in these terms:
13. In
conclusion, while it may be possible to design a scheme of acceptable quality
and appearance, it is not certain that this could be achieved within the limits
imposed by road safety requirements, economic factors, and market demand. This
is not a case, I feel, where outline approval can be granted with matters of
access, layout, and external design left as reserved matters to be decided
later. This information is needed at the outset before a firm decision can be
made on whether the site is in fact capable of being developed to an acceptable
standard. In these circumstances I do not feel that I should grant outline
planning permission in the absence of satisfactory details.
The
inspector’s decision is attacked on two grounds and I shall deal with them in
turn. The first is that ‘in concluding that it was not certain that a scheme of
acceptable quality and appearance could be designed he had regard to
considerations which were irrelevant, namely, economic factors and market
demand.’ Mr Bartlett for the appellant submitted
that although there may be cases where financial considerations are relevant,
in general they are not in themselves relevant and it cannot be relevant to
consider whether the development would be economic. He said in effect that it
was for the developer to decide whether to carry out the development and that
it was not the purpose of planning control to ensure that development was
carried out. He referred to J Murphy & Sons Ltd v Secretary of
State for the Environment [1973] 2 All ER 26 where Ackner J held that a
planning authority was concerned with the question how the land is to be used
and not whether the proposed development would be a wise commercial venture,
and so the Secretary of State on appeal was not entitled to have regard to the
cost of developing a site in determining whether planning permission should be
granted. He recognised that Forbes J said in the subsequent case of Sovmots
Investments Ltd v Secretary of State for the Environment [1977] 1 QB
414 at p 424:
If Ackner J
was intending to say that costs can never be a relevant consideration either in
a planning appeal or on a compulsory purchase order . . . then I find myself
unable to agree with him.
However, in a
later case of Hambledon and Chiddingfold Parish Councils v Secretary
of State for the Environment (1976) JPL 502, Ackner J said:
Having had
the benefit of reading Forbes J’s judgment, my present impression is that I may
have stated the general proposition, which I still think is correct, too
widely.
Mr Woolf first
drew attention to para 2 of the decision letter, in which the inspector said
that the determining issue was whether it was possible to decide the likely
effect of the proposal on the surrounding area in the absence of any details
showing means of access, site, design and external appearance of the proposed
development. Thus, it follows from that paragraph read in conjunction with para
13 that the reasoning underlying the inspector’s decision was that this case
could not be decided on a bare outline application in the absence of detailed
plans showing how the development would be carried out. He therefore left open
the question whether if a full application were made permission should be
granted. Dealing specifically with economic matters and market demand, he said
it was proper for the Secretary of State to take into consideration whether
there was any likelihood of the development being carried out. That is
particularly relevant with an outline permission so that it can be seen whether
difficulties can reasonably be overcome or, on the other hand, if the expenditure
would be out of proportion. He submitted that if a development was unlikely to
be carried out for economic reasons, it would be proper to refuse permission in
order to avoid an accumulation of planning permissions. He referred to one as
yet unreported case, Brighton Borough Council v Secretary of State
for the Environment (June 29 1978), in which I held that it was not
improper to take into account the financial consequences of granting planning
permission because the money realised would be used for the maintenance of a
listed building.
I have no
doubt that in certain circumstances it is proper to take into account the
financial consequences of a planning permission, as in the Brighton case
and in Niarchos (London) Ltd v Secretary of State
(1978) 35 P&CR 259. However, in neither of those cases was the question the
same as it was assumed to be in this case, namely, whether it would be feasibly
economical for the development to be carried out, nor did they remotely touch
on that point. With respect to
would make a difference if the applicant were an eccentric millionaire
indifferent to the financial consequences of carrying out the permitted
development. In my judgment, the grant of planning permission cannot depend on
the resources and intentions of the applicant. It is for the developer to make
the economic decision whether to carry out the development and not the local
planning authority. The examples given by Forbes J in the Sovmots case
related to inquiries other than those concerned with the grant of planning
permission. The prevention of an accumulation of sterile planning permissions
which Mr Woolf gave as a justification for an economic inquiry is taken care of
by the time conditions imposed by the statute.
If the
inspector’s letter is to be construed as conveying that permission would be
refused if it were shown that the development could only be carried out at a
loss because of the design constraints and the market demand, then I would hold
that he was wrong. However, I have come to the conclusion that that is not the
right construction to put on his letter. In my judgment, reading para 13 of the
letter in the context of the letter as a whole, the inspector was saying that
it was conceivable that because of the severe design constraints which he had
already described there was a possibility that it would be impossible to devise
a scheme for which planning permission ought to be given. I do not think that
he was intending to convey that if a satisfactory scheme was submitted, that
permission should be refused on the ground that it would be uneconomic. I
consider that the statement challenged by the appellants was no more than an
observation and was not germane to the decision. Accordingly, I hold that the
appeal fails on the first ground.
I turn now to
the second ground in the notice of motion, which is that the inspector erred in
law in that ‘he concluded that without any access details it was not possible
to judge whether road-safety requirements could be met without sacrificing
important planning considerations’ whereas plans showing access details were
tendered to him in evidence. In paras 11 and 12 of his letter the inspector had
dealt with the need to provide suitable access and the possible consequences of
so doing, such as opening up views of the site, and he concluded that ‘without
any access details it is not possible to judge whether road-safety requirements
could be met without sacrificing important planning considerations.’ There were in fact produced to the inspector
three plans showing, among other things, possible means of access to the site
as developed. These plans did not form part of the application but had been part
of applications previously made to the local planning authority and refused. Mr
Bartlett submitted that these plans constituted evidence specifically adduced
to deal with the access point and that in ignoring them in his decision the
inspector had failed to have regard to a material consideration of some
importance. Alternatively, if he had had regard to the plans, then his
expressed reasons were inadequate in that they did not deal with material of
importance, and he referred to Hope v Secretary of State for the
Environment (1976) 31 P&CR 120, and Ellis v Secretary of
State for the Environment (1976) 31 P&CR 130. I do not think it follows
that because the inspector did not mention those plans that he did not have
regard to them. It is not incumbent on an inspector to set out the evidence on
which he relies. Moreover, having heard that the plans were produced, it seems
to me probable that the inspector not only had regard to them but favourably
regarded them, which probably contributed to his conclusion that ‘reasonable
visibility could be achieved.’ However,
it is manifest that it is impossible to make a final judgment on access details
in ignorance of the form of the other development for the approved houses the
disposition of which of necessity had a bearing on the access details. Further,
in my judgment the decision letter, particularly in para 12, adequately sets
out the reasons for requiring access details.
Under the
circumstances this appeal must be dismissed.
The appeal
was dismissed with costs.
