Application for planning permission — Proposals contrary to development plan — Appeal — One inspector hearing appeal — Second inspector holding local plan inquiry — Inspector granted planning permission on appeal — Local plan inquiry inspector recommended site remain as playing-fields — Whether planning appeal inspector entitled to reach his decision
In April 1986
the Order of the Holy Trinity Convent (‘the Order’) applied to Wyre Forest
District Council, the local planning authority, for outline planning permission
for the residential development of certain school playing-fields. The council
refused consent, and one of the grounds of refusal was that the site was zoned
on the local plan for the purposes of a school and grounds. The Order appealed
against that refusal and in February 1988 the Secretary of State for the
Environment, by his inspector, allowed the appeal and granted planning
permission on three main grounds: the unlikelihood of the site reverting to
school playing-field use; the local need for housing land; and the likely
environmental impact.
At about the
same time another inspector was holding an inquiry into the local plan. In
March 1988, this inspector, in his report to the council, recommended that the
site should remain allocated on the local plan as ‘education establishments and
grounds’. The council’s application under section 245 of the Town and Country
Planning Act 1971, to have the decision to grant planning permission quashed,
was allowed by His Honour Judge Marder QC (sitting as a judge of the High
Court) (September 29 1988) primarily on the basis that the planning appeal
inspector’s decision not to defer his decision until after the local plan
inspector’s report was known, or not to dismiss the appeal on its merits, was Wednesbury
unreasonable. The Order and Secretary of State for the Environment appealed
that decision.
Had the
planning appeal inspector decided that it would have been premature to have
granted planning permission before the local plan report, it was doubtful that
any court could properly have interfered with such a decision: see p 93A.
However, the inspector did not so decide and he was entitled to reach the
decision he did for the following reasons: (1) the availability of housing land
was crucial to his decision; he had carefully considered the evidence and
concluded that there was no identified five-year supply in the area, a decision
reached on sufficient material and one that could not be described as perverse;
(2) once he had identified a shortfall in the five-year supply of housing land,
there was the presumption in favour of granting planning permission in Circular
15/84; (3) the uncertain prospects of the site reverting to school use; (4) the
general need to avoid delay in planning matters as recommended in PPG1; and (5)
the uncertainty as to the timing and outcome of the local plan inspector’s
report: see pp 93B-94C and 95.
to in the judgments
Allen v Corporation of the City of London [1981] JPL 685
Arlington
Securities Ltd v Secretary of State for the
Environment [1989] 1 PLR 14
Associated
Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223; [1947] 2 All ER 680; (1947) 45 LGR 635, CA
Davies v Hammersmith and Fulham London Borough Council [1981] JPL 682,
CA
Appeal against
a decision of His Honour Judge Marder QC
This was an
appeal against a decision of His Honour Judge Marder QC (sitting as a judge of
the High Court) (September 29 1988), who had allowed an application by the
respondents, the Wyre Forest District Council, under section 245 of the Town
and Country Planning Act 1971, to challenge a decision of the appellant
Secretary of State for the Environment, who had, by his inspector, allowed an
appeal under section 36 of the 1971 Act against a refusal of planning
permission by the respondents.
Lockhart-Mummery QC and Christopher Katkowski (instructed by Arnold Fooks
Chadwick & Co) appeared for the first appellants, the Order of the Holy
Trinity Convent.
(instructed by the Treasury Solicitor) appeared for the second appellant, the
Secretary of State for the Environment.
Spens (instructed by the solicitor to the Wyre Forest District Council)
appeared for the respondents.
following judgments were delivered.
SLADE LJ: There are before the court appeals by the Order of the Holy Trinity
Convent and by the Secretary of State for the Environment from an order of His
Honour Judge Marder QC, sitting as a judge of the High Court, made on September
29 1988 in a planning matter. The first appellants (whom I will call ‘the
Order’) are the trustees of a charitable trust concerned with education in the
neighbourhood of Kidderminster. Until recently they ran a school known as the
Holy Trinity Convent School at Kidderminster. However, they then found it
necessary to close it. A group of parents successfully negotiated to acquire
and maintain the school as a charitable trust. It was therefore arranged that
the group should acquire part of the land owned by the Order comprising the
school buildings and a tarmacadam games surface. However, the group was not
able to afford to buy the school playing-fields. The Order regarded it as their
duty as trustees, so far as consistent with satisfying the requirements of the
school, to maximise the value of their land not required upon the disposal for
the purposes of the new school.
By an
application dated April 28 1986 and received on May 12 1986, the Order
accordingly applied to the Wyre Forest District Council (‘the planning
authority’), the respondents to these appeals, for outline planning permission
for the residential development of the playing-fields comprising some 1.62
hectares of land (‘the site’).
On November 18
1986 the planning authority gave notice of refusal of the application on the
following grounds:
1. The site
is zoned on the Approved Kidderminster Review Town Map for the purposes of a
School and Grounds. The proposal would be contrary to this zoning and the
principles underlying it and would prejudice the use of this area for these
purposes.
2. The
proposed new access and requisite visibility splays would seriously harm the
character and appearance of this particularly attractive area.
3. The
development proposed if carried out would severely restrict the ability of the
present owners of the school to provide adequate playground and playing-field
space.
On May 30 1987
the Order gave notice of appeal to the Secretary of State for the Environment
from the planning authority’s refusal of their application.
The Secretary
of State then appointed an inspector, Mr B E Partridge, to determine the
appeal. The planning authority prepared a written statement of submissions
which were to be made to the inspector at the ensuing inquiry, and these
included the following:
6.1 It will be submitted that the development
proposed by the Appellant is clearly contrary to the zoning of the Appeal site
on the approved Kidderminster Review Town Map, i.e. for the purposes of a
school and grounds.
6.2 It will further be submitted that the
proposed development is equally contrary to the proposed zoning of the Appeal
site for ‘educational establishments and grounds’ in the Wyre Forest Urban
Areas Local Plan. A Public Local Inquiry into the objections to the Local Plan
is currently being held and, in relation to the Appeal site, the Appellant has
objected to the proposed zoning in the Local Plan and has contended that the
Appeal site should be allocated as a new housing site. As the Local Plan
Inquiry Inspector’s findings about objections to the Local Plan may not be
available to the Council until perhaps the early spring of 1988, it will be
argued by the Council as part of their response to the Grounds of Appeal
(paragraph 7.1 below) that the Appeal proposal is premature. The Council will
submit evidence that there is no overwhelming need for additional housing land
which would justify development of this attractive and valued open space. The
Council will submit that the Appeal site should remain designated and be used
for the purpose specified in the Town Map and the Local Plan.
These
references to the local plan perhaps require some brief explanation. Broadly, a
local plan consists of a written statement formulating the proposals of a local
planning authority for the development and other use of land in the part of
their area covered by the plan. The plan, when prepared, is put on deposit.
After the expiry of the period afforded by statute for making objections to the
plan, a local plan inquiry will be held into the objections by one of the
inspectors appointed to hold such inquiries. The inspector so appointed, having
concluded such inquiry, will report to the planning authority and will make
what he considers appropriate recommendations. In so doing (unlike an inspector
hearing an appeal under section 36 of the Town and Country Planning Act 1971
from the refusal of planning permission by a local planning authority), he will
not be performing a function of the Secretary of State. He will be affording
assistance to the local planning authority, which will have the right and duty
to decide whether or not to give effect to his recommendations, and if so with
what modifications (if any). The local plan inspector, in making his report,
will himself decide nothing.
Not
infrequently, however, an inspector hearing an appeal from the refusal of
planning permission by a local planning authority (‘a section 36 appeal’) may
be told either that a local plan inquiry relating to an area including the
appeal site is shortly to take place or that a report following the holding of
such an inquiry is in the course of preparation.
An inspector
determining a section 36 appeal is bound to have regard to ‘the provisions of
the development plan, so far as material to the application, and to any other
material considerations’: see sections 29(1) and 36(5) of the 1971 Act. The
provisions of an emerging local plan, or the fact that the report of a local
plan inspector is shortly to be made, must clearly be capable of being a
material consideration to be taken into account in determining the appeal.
Considerations of this nature may make it necessary for the inspector hearing
the section 36 appeal to determine whether it is appropriate to deal with the
application at that stage or whether he should treat the application as
premature. Nevertheless, it is plain that the existence of an emerging local
plan or of a pending report of a local plan inspector does not necessarily and
as a matter of principle prevent him from proceeding to hear the appeal on its
merits any more than it will necessarily make it wrong as a matter of principle
for a planning authority to perform their functions by finally dealing with a
planning application in such circumstances: see and compare Allen v Corporation
of the City of London [1981] JPL 685 and Davies v
case the inspector hearing the section 36 appeal will have a wide discretion in
deciding how best to proceed.
The existence
of such discretion is confirmed by Circular 22/84 dated September 7 1984 and
issued jointly by the Department of the Environment and the Welsh Office. Para
1.12 explicitly states:
. . . the
fact that a local plan is in the offing or that there are proposals for
alteration or repeal or replacement of a structure plan or a local plan is not,
in itself, a reason for refusing planning permission.
More recently,
Planning Policy Guidance Notes PPGI* — dated January 1988, and issued jointly
by the same two bodies, has emphasised the need to avoid ‘delay and
uncertainty’ and the need to achieve ‘promptness, relevance and efficiency’ in
planning matters. Para 6 states as a general principle that ‘planning
applications should normally be decided within eight weeks’ and that for
inquiry cases decided by inspectors the aim is to achieve a ‘median time’ of 17
weeks from the lodging of the appeal to the issue of the decision.
*Entitled General
Policy and Principles.
Before turning
to the decision of the inspector on the section 36 appeal in the present case,
it will be convenient to refer to another circular, no 15/84, dated July 4
1984, issued by the Department of the Environment, headed ‘Land for Housing’,
which in the first sentence expresses the concern of the Secretary of State
that ‘the planning system should provide an adequate and continuing supply of
land for housing’. Paras 2 and 3 of Annex A to this circular, so far as
material, provide as follows:
Supply of
Land
2. For any
given area, the availability of land for housing will be governed primarily by
the policies set out in the development plan. However development plan policies
do not in themselves ensure that the housebuilding industry can produce the
houses needed. For that there must be an adequate and continuous supply of
land, with planning permission, suitable and available for immediate
development, and situated where potential house buyers are prepared to live.
This is why DOE Circular 9/80 (WO Circular 30/80) asks planning authorities to
identify specific sites providing a five year supply of housing land in
accordance with structure plan policies and, where the authority is approached
by the housebuilding industry, to discuss with the industry whether that land
is genuinely available for development.
Policy in
the Absence of an Identified Supply of Land
3. In the
absence of such an identified five year supply there should be a presumption in
favour of granting permission for housing except where there are clear planning
objections which in the circumstances of the case outweigh the need to make the
land available for housing. The relevant factors should be apparent from the
development plan . . . .
In para 13 of
this circular, the Secretary of State emphasised that a five-year supply of
housing land is a minimum requirement.
In the present
case the inspector appointed by the Secretary of State held an inquiry into the
Order’s section 36 appeal on November 30 and December 1 1987. Meantime, on
various dates in October and November, the quite separate local plan inquiry
had been proceeding before another inspector; it continued in December.
Submissions,
on the lines foreshadowed by the planning authority’s written submissions (to
the effect that the Order’s application for planning permission was premature)
were made to the Secretary of State’s inspector. However, by a full and careful
decision letter dated February 12 1988 he
for the residential development of the site, subject to certain conditions. In
para 2 of his decision letter, the inspector identified what were in his view
the three main issues:
. . . The
first is the need for the appeal land to revert to school playing-field use,
and the likelihood of its so doing in the event of either the refusal or the
grant of planning permission for residential purposes. The second is the need for
the land for housing purposes, in the context of the requirement for a 5-year
housing land supply and of current local plan proposals for further land
allocations for that purpose. The third is the likely environmental impact of
the proposed development, in visual and in traffic terms.
In paras 3 and
4 the inspector referred to points drawn to his attention respectively by the
Order and the planning authority in the context of the playing-fields issue.
While the purchasers of the school had previously fully acquiesced in the
retention by the Order of the appeal site and in their seeking permission to
develop it for residential purposes, they had now opened an appeal for funds so
that they could buy it and use it for its former purpose. ‘However’, stated the
inspector, ‘they [the Order] were bound to sell the land at full market value,
and therefore still sought a residential permission. If this was forthcoming,
they may be able to sell to the school trustees, or to some other purchaser,
subject to the Charity Commissioners’ consent. If permission were refused, the
Order would retain the land. Dismissal of the appeal would not therefore mean
that there was any reasonable prospect of the land being made available again
for playing-field purposes’. On the other hand, while the school had
recreational facilities that amply complied with local authority school
standards, the council considered that there was still a need for permanent
playing-fields for the school. The inspector said:
. . . The
appeal land was allocated on the current statutory plan, the Kidderminster
Review Town Map, for educational purposes. When the Wyre Forest Urban Areas
Local Plan was being prepared it appeared that the land had been lost to the
school on its change of ownership, and residential use was suggested. It now
seemed that there was a good prospect that the school, which had launched an
appeal for funds and had raised a substantial proportion of the necessary
purchase price, would be able to acquire the land, which was ideally suited to
resume its previous use. In the light also of an indication that wider
community use would be permitted the council now felt that playing-field use
was preferable to the previously proposed residential use, and had accordingly
changed the allocation on the Local Plan to ‘education establishments and
grounds’. An objection to this allocation had been heard in the course of the
recent Local Plan Inquiry.
In the light
of these submissions, the inspector (in para 5) accepted that on the
playing-fields issue ‘taken for the moment in isolation’ the case had been made
out for the renewed use of the land as playing-fields for the school. He said:
. . .
Although in theoretical terms the school may have enough recreational space
already, there is clearly advantage in having suitable permanent grassed areas
immediately adjacent to the buildings, and the school trustees are obviously
seriously intent on acquiring these extra facilities. Whether there is a
reasonable prospect of land being made available for this purpose seems to me
inconclusive from the evidence; from the conflicting submissions on this matter
I take the view that this prospect will depend on further discussions between
the parties, which are likely to continue whatever the result of the present appeal.
Accordingly I conclude that playing-field use would be an appropriate one in
planning terms, and that the strength of the case for that use must go into the
balance against the competing residential use which has been applied for.
The inspector
then dealt with ‘the housing land availability issue’ (which was of importance
because it would determine whether the usual presumption set out in Circular
15/84 would apply). As to this issue, he expressed his findings and conclusions
thus:
6. Despite
differing conclusions, there was some consensus between the principal parties
on this issue. From the figures submitted by the council it was clear that at 1
April 1987, and using the strict residual method of assessing availability,
there was only 3.8 years’ supply of housing land. The Council argued, however,
first that by adding the sites allocated in the deposited Local Plan, this
could be increased to 5.1 years’ supply, and secondly that by using the ‘past
completions’ method referred to in Departmental News Release 220, which they
said was appropriate to Wyre Forest, an ample supply of 11.4 years was found to
be available. For the appellants however it was said that it was not
appropriate to take account of the Local Plan allocations, many if not most of
which would not be available within 5 years, and were much less suitably
located for housing development than the appeal site, and that the ‘past
completions’ method was not the proper assessment method.
7. In my
opinion there is no convincing reason why the residual method of calculating
the housing land supply, which News Release 220 indicated should be the usual
method to apply, should be abandoned in this case. Although the housebuilding
rates in Wyre Forest have been significantly lower in the past than in other
districts in Hereford and Worcester, there is no real indication of the reason
for this, and the recent trend has been upwards. The council have not
demonstrated to my satisfaction, accordingly, that low demand is likely to
remain a factor important enough to justify departing from the usual methods of
assessing housing land supply.
8. Although
it was argued on the appellants’ behalf that no account should be taken of the
Local Plan allocations, since these were still the subject of many objections
and might well not appear in the finally approved and adopted plan, I have in
mind that the plan has reached a late stage in its development, and its
provisions must therefore carry substantial weight in my consideration of this
case. By the council’s own figures, even if all the allocations were to be
approved there would only be 5.1 years’ supply, or 5.4 years if the figures
were to be modified by the County Council’s amended annual housing needs for
1991-1993. The position at its best is therefore very close to the margin, and
bearing in mind that the 5-year supply suggested by Circular 15/84 is expressed
to be a minimum only, and that there is an obvious possibility that not all the
Local Plan sites will become available during the next 5 years, on the evidence
produced by the appellants, I am satisfied that at the present time there is no
identified 5-year housing land supply in Wyre Forest, and that the presumption
in favour of granting permission set out in Annex A to the Circular should
operate.
Having referred
to certain matters relating to the environmental aspect, in para 12 of his
decision letter the inspector expressed his conclusion thus:
My conclusion
is that although school playing-field use is one that would be entirely
appropriate, and would avoid having to build over an attractive open area,
there is no convincing real need for that facility sufficient to override the
identified housing need in the district which the development under appeal
would help to meet. I have taken into account the suggestion that a permission
now might prejudice or conflict with any recommendations arising from the
recent Local Plan Inquiry, but am of the view that a decision in this case can
be determined on its own merits and need not await decisions in the wider context
of the local plan.
The inspector,
by his decision letter of February 12 1988, accordingly allowed the Order’s
appeal from the planning authority’s decision of November 18 1986.
In the event,
the local plan inspector signed a written report on March 18 1988 stating that
he agreed with the council’s decision and recommended no change in the use
allocated for the site in the local plan, ‘education establishments and
grounds’.
The decision
of the Secretary of State’s inspector given by the letter of February 12 1988
fell to be treated as a decision of the Secretary of State under section 36 of
and Schedule 9 to the Town and Country Planning Act 1971 (‘the 1971 Act’). On
March 23 1988 the planning authority issued a notice of motion joining as
respondents the Secretary of State and the Order and seeking an order that the
decision of February 12 1988 allowing the Order’s appeal against the planning
authority’s decision of November 18 1986 refusing outline planning permission
for the residential development of the site should be quashed.
On September
29 1988, His Honour Judge Marder made an order in these terms. Both the Order
and the Secretary of State now appeal from the judge’s order.
The judge, in
giving judgment, rightly reminded himself that the planning authority could
challenge the inspector’s decision to grant outline planning permission only on
the narrow grounds provided for by section 245 of the 1971 Act and that the
burden on the challenger was a heavy one based, as it was, on unreasonableness
in the Wednesbury sense.
Of the three
grounds of appeal argued before the learned judge, the first two represented
objections to the manner in which the inspector had dealt with the important
question of the adequacy or otherwise of the supply of housing land in
Kidderminster. The judge, in my opinion rightly, rejected these objections,
holding that they concerned matters of judgment falling within the inspector’s
‘competence and expertise’. There is no respondent’s notice seeking to
resurrect these first two grounds.
The third
ground of appeal argued before the learned judge, upon which he ultimately
decided that the appeal succeeded, was that (p 15 of the transcript):
. . . it was
quite unreasonable for this inspector, in the circumstances of this case, not
to do what had been suggested to him, i.e. either to refuse planning permission
on the ground that it was premature to release this land for housing
development in advance of the inspector’s conclusions in the context of the
Local Plan inquiry, or to defer a decision to await the light that his
colleague’s report was bound to throw both on the general question of housing
land availability in the district and on the necessity for the development of
this site as opposed to other possibilities in order to meet any shortfall
there may have been.
The inspector
was not apparently invited to adjourn the inquiry at the hearing. In the light
of the opposing submissions made to him, there were for practical purposes four
courses open to him, namely: (a) to dismiss the Order’s application for
planning permission, on a ‘without prejudice’ basis, on the grounds that it was
premature; (b) to defer his decision until after the local plan inquiry; (c) to
dismiss the Order’s application on its merits; or (d) to proceed to grant the
planning permission sought. He considered that course (d) was the appropriate
one and followed it. On the face of it, this was as much a matter of judgment
for his competence and expertise as was the question of the adequacy or
otherwise of the supply of housing land in Kidderminster. However, Mr Spens, on
behalf of the planning authority, who no doubt presented his argument in the
court below as attractively as he has presented it in this court, succeeded in
persuading the learned judge that the inspector’s decision to adopt course (d)
as opposed to course (a) or (b) was in all the circumstances so unreasonable
that no reasonable inspector could have made it. Before this court he has made
the like submission, at the same time
account any material factor which he should have taken into account.
It is not
submitted on behalf of the planning authority that there is a general rule that
an inspector hearing a section 36 appeal must in all cases defer a decision or
refuse planning permission on the grounds of prematurity merely because a local
plan is in the course of preparation. As the judge himself said (at p 14D), any
such proposition would be quite obviously too wide. However, Mr Spens submitted
that when it came before the inspector the present case was a special one for
three reasons which were accepted by the judge.
First, it was
said, the question of housing land availability was a key issue. Though the
inspector was eventually satisfied that at the present time there was no
identified five-year housing land supply in Wyre Forest, he recognised that the
situation ‘at its best’ was ‘very close to the margin’.
Second, it was
submitted on behalf of the planning authority, on the evidence before the
inspector it by no means followed that the site would be used for housing, even
if planning permission were granted. The Order had a duty to obtain the best
price they could for the site. The owners of the school wanted the land for playing-fields
if they could afford it. Thus, to quote the judge’s words (at p 7):
. . . the
decision whether or not to build houses on this site, and thereby contribute to
any shortfall in housing land supply, would rest ultimately not on the
district’s needs for housing land but on the ability of the school’s owners to
buy the land for playing fields at the enhanced price that the benefit of
planning permission would confer.
Third, it was
pointed out, at the time when the inspector issued his decision letter, the
report and recommendations of the local plan inspector were imminent. In the
words of the judge (at p 8):
. . . That
inquiry and the report would, of necessity, be district wide and would deal in
detail with whether or not the existing supply of housing land was adequate;
whether or not further allocations were required to be made, and would
presumably consider and advise the local planning authority if further
allocations were required — where and on what scale they might best be made;
and where objections had been taken to proposed allocations (including the
allocation of this land for educational purposes) whether those objections were
sustainable. All those are matters that were within the remit of the inspector
for the purposes of the local plan.
As regards the
second of these three points, there can never be any certainty that planning
permission will be acted upon if granted; no one can be compelled to act upon
it. As at February 12 1988, however, it could have been forecast with a fair
degree of confidence that the planning permission, if granted, would be likely
to be acted upon unless the trustees of the new school were able to
raise the substantial funds which would be required to purchase the site; and
no one knew whether they would be able to do so.
The first and
third of Mr Spens’ three points, which are closely connected with one another,
are in my judgment by far the more important. In considering his decision, the
inspector could and no doubt did have in mind that the report and recommendations
of the local plan inspector, when produced, might well contain features of the
nature referred to by the judge in the passage cited above, which could be of
assistance to the inspector if he were to defer his decision, or could be
material if the present application of the Order for planning permission were
dismissed as being premature and a further application had to be made. If, in
the exercise of his judgment, he had decided that in all the circumstances it
would be premature to grant planning
were available, it might well have been a decision with which no court could
properly have interfered. We were referred to an unreported decision, Arlington
Securities Ltd v Secretary of State for the Environment (October 3
1988)* on the particular facts of which this court held that it had been open
to the Secretary of State to treat an application for planning permission as
premature, because its implications required investigation and consideration by
the local plan process, and refused to interfere with his decision.
*Reported at
[1989] 1 PLR 14.
However,
without much hesitation, I respectfully differ from the learned judge’s view
that in the circumstances of the present case any reasonable inspector acting
reasonably would have been bound to adopt course (a) or course (b) above.
Notwithstanding the force of the factors relied on by Mr Spens, a number of
factors were drawn to our attention either by Mr Lockhart-Mummery, on behalf of
the Order, or by Mr Pannick, on behalf of the Secretary of State, which could
be said to point in the other direction, ie in favour of course (d) (which the
inspector adopted). Of these, the more significant, in my judgment, were the
following:
(1) As the inspector himself appreciated, the
housing land availability issue was crucial to his decision. Having carefully
considered the evidence before him relating to that issue, he made a finding
that there was no identified five-year housing land supply in Wyre Forest. The
planning authority had had the full opportunity to place before him any
evidence relating to that issue on a ‘district wide’ basis which they thought
relevant. He was satisfied that he had sufficient material before him to reach
a conclusion on that issue and it is not suggested that that conclusion was
perverse.
(2) Having reached that conclusion, he was, in my
judgment, entitled also to regard as applicable the presumption in favour of
the grant of planning permission, stated in Annex A to Circular 15/84. The
learned judge said that it was clear that ‘if it were not for what the
inspector perceived to be a pressing shortage of housing land he would have
upheld the local planning authority’s refusal of this permission and dismissed
the appeal’. A little later he said (at p 13E-F):
there was no
reasonable basis upon which he could conclude that the need for housing land
was such as to justify overriding the strong objections which he had identified
to loss of this open playing-field.
With respect, I
do not agree. The learned judge appears to have overlooked the existence of the
presumption, to which he never explicitly referred. The inspector was, in my
view, fully entitled to have regard to this presumption once he had concluded
that there was no identified five-year land supply — though the weight which he
attached to it would have been a matter for him.
(3) The inspector was entitled to regard as
uncertain the prospects of the site becoming available for renewed use as
playing-fields. (In the event, the solicitors acting for the trustees of the
new school informed the Order’s solicitors by a letter of August 16 1988 that
it would not be possible for the trustees ever to buy the site.)
(4) The inspector would also have been entitled
to have regard to the general need to avoid delay in planning matters recently
and forcefully stated in PPG1, and the maximum period of 17 weeks therein
recommended as a target. The Order’s appeal had in fact been lodged on May 13
1987, substantially more than 17 weeks before the issue of the inspector’s
decision letter.
(5) The inspector, in announcing his decision,
(a) would not have known how many weeks would have to elapse before the local
plan inspector issued
would shed on the issues which he, the inspector, had to decide; (c) would have
appreciated that the report when produced would in any event bind no one and
that it might be many months before it was known whether or not the planning
authority were proposing to adopt its recommendations, and if so with what
modifications.
I see the
force of the submissions made on behalf of the planning authority and have some
sympathy with the learned judge’s approach to this case. However, particularly
in the light of the five factors which I have listed, taken together, I think
that the circumstances did not justify his substituting his own opinion for
that of the experienced inspector who, having conducted a full inquiry and
heard all the evidence, had concluded that the right course was to give an
immediate decision in favour of the applicant Order. The inspector specifically
directed his mind to the relevance of the local plan process in the context of
his decision. In my view, he was fully entitled as a matter of discretion to
determine the appeal when he did, in favour of the Order, instead of obliging
them to wait for an indeterminate period until their application, or a renewed
application, could be dealt with. Whether or not the court below or this court
would itself have followed the same course, it was not a course which no
reasonable inspector could reasonably have taken in all the circumstances.
I would
accordingly allow this appeal. I would set aside the order of the learned
judge, and restore the decision of the Secretary of State’s inspector dated
February 12 1988.
LLOYD LJ: Like Slade LJ I have sympathy with the judge’s approach in this
case. I also have sympathy with his conclusion, more especially as the local
plan inspector, in his report dated March 18 1988, recommended that there be no
change in the existing use. I quote from his report:
For the
Council it was argued that on educational grounds the use of the land as school
playing-fields was preferable to residential use. There was no doubt that the
present Trustees regarded the use of this land as essential for the operation
of the school since they had opened an appeal to purchase the site and restore
the land to its former use as playing-fields. The Council considered that
adequate provision for future housing needs has been made elsewhere and that
this site is no longer required for that purpose.
I agree with
the Council’s decision and recommend no change in the use allocated for this
site in the Plan.
As the judge
pointed out, it does no credit to the planning system when different inspectors
reach conflicting results within a few weeks or months of each other. But where
judgment is concerned, there is always room for difference of opinion. The fact
that the decisions of the two inspectors were conflicting does not mean that
one or other was unreasonable in the Wednesbury sense, so as to justify
intervention by the courts.
Having set out
verbatim the crucial paragraph of the decision letter dated February 12 1988,
the judge said:
That
conclusion is . . . so unreasonable in the circumstances of this case that I do
not consider that a reasonable Inspector, having in mind the relevant facts and
background that I have referred to, could have reached it.
There are two
strands to be discerned in the judge’s reasons. At p 13 he says:
As I see it,
there was no reasonable basis upon which he could conclude that the need for
housing land was such as to justify overriding the strong objections which he
had identified to loss of this open playing-field.
I find myself
unable to agree that there was no reasonable basis for the inspector’s
conclusion. The balancing of the need for housing land against the
sacrifice of an open playing-field was essentially a matter for the inspector’s
planning judgment. One may regret his decision. Other inspectors might have
reached a different conclusion. But I do not see how it could be said that the
decision was one which no reasonable inspector could reach.
The second
strand in the judge’s reasoning is to be found at p 14:
. . . I
consider that it was quite unreasonable for this inspector, in the
circumstances of this case, not to do what had been suggested to him, ie either
to refuse planning permission on the ground that it was premature to release
this land for housing development in advance of the inspector’s conclusions in
the context of the Local Plan inquiry, or to defer a decision to await the
light that his colleague’s report was bound to throw both on the general
question of housing land availability in the district and on the necessity for
the development of this site as opposed to other possibilities in order to meet
any shortfall there may have been.
I find this
second way of justifying the judge’s conclusion more convincing than the first.
For the question whether to defer a decision, pending the publication of the
local plan inquiry report, or for whatever other reason, does not involve the
exercise of a planning judgment. The question is the same as it would be in any
other field, and depends, not on any special skill or experience in the
planning field, but on common sense.
Mr
Lockhart-Mummery accepted that if the report of the local plan inspector had
been, as he put it, ‘just round the corner’, then it would have been sensible
for the appeal inspector to wait; ‘it would’, he said, ‘have been silly to do
otherwise’. This must be so, even though the recommendations in the local plan
report would not have been binding on anyone. Since the question whether the
local plan was ‘just round the corner’ is one on which the court is equipped to
form a view, I can imagine circumstances in which the court would be ready to
intervene where an inspector refuses to defer his decision. The court would not
be usurping the inspector’s planning judgment.
But the
question whether the inspector should have deferred his decision, though not
involving any exercise of his planning judgment, was still a question for his
discretion. When we are asked to disturb his discretion the same rules apply in
this field as in any other. There is no rule that an inspector must
defer his decision when a local plan report is awaited.
Are there,
then, grounds on which we would be justified in interfering with the
inspector’s discretion in this case? The
judge answered that question in the affirmative. In his view, the local plan
report was so imminent, and so relevant to the question which the
inspector had to decide, that any reasonable inspector would have waited. I
sympathise, as I say, with that conclusion. But on the facts I take a different
view. In my judgment, there were grounds here on which the inspector could
exercise his discretion in the way he did, ie against deferring his report.
Those grounds are fully set out in the judgment of Slade LJ. It would serve no
purpose for me to repeat them in my own words. For the reasons which he gives,
the inspector was entitled to go ahead. There is no other ground on which we
could disturb his conclusion. Accordingly I agree that the appeal should be
allowed.
SIR GEORGE
WALLER: I entirely agree with the judgment of Slade
LJ. The problems which the inspector had to face permitted of more than one
answer. The inspector made a decision and in my view it was one which he was
reasonably entitled to make.
Appeal
allowed with costs.
