Metropolitan green belt — Site shown on draft district plan as within green belt — Owners objected to draft plan — Inspector’s recommendation that site be excluded from green belt — Inspector recommending that further study should be undertaken of the site’s future land use and access — Local planning authority rejected recommendations and decided to retain site within the green belt — No recommended study undertaken — Policy on green belt use study — Appellant owners applied for outline planning permission for development of site — Applications deemed refused and appeal to Secretary of State dismissed — Appellants challenging modifications of the district plan — Allegation of procedural irregularity — Challenge to decision of Secretary of State to refuse planning permission — Allegation that decision contained error of law — Secretary of State had taken into consideration irrevelant material — Whether Secretary of State’s decision might have differed had he not taken into consideration irrelevant material
The
Hertfordshire structure plan was approved in 1979. It provided for the
maintenance of the metropolitan green belt in the south of the county. St
Albans District Council produced their first draft district local plan in 1981;
this stated that the whole of the district, with certain specified exceptions,
would be treated as being within the green belt. The appellants were the owners
of a 39-acre site at London Colney which was included within the draft district
plan as green belt. In 1981 the appellants put in objections to the draft plan,
arguing that their site should be excluded from the green belt and that it
should be available for residential or light industrial purposes. Together with
many other objections to the local plan, these objections were considered at a
public local inquiry in 1982. In April 1983 the inspector published his report
and recommended that the site should be excluded from the green belt and be
made the subject of a special comprehensive study as to its future pattern of land
use and access. However, the local planning authority, by its planning
committee, after considering the recommendation, and reports prepared by its
officers, decided to retain the site within the green belt. Although the
inspector’s recommended study was not undertaken the planning committee
resolved to make a study of green belt uses. The proposed modifications to the
district plan were published in January 1984 and the appellants recorded their
objections to the proposed modifications in that they failed to accommodate all
the views of the independent inspector with regards to their site.
Later the same
year the local planning authority adopted the modified district plan and,
despite an earlier indication on the part of the Secretary of State for the Environment
that he might issue a direction under section 14(3) of the Town and Country
Planning Act 1971, he decided in the event not to call in the plan for his
consideration. Meanwhile, in January 1984 the appellants submitted two
applications for outline planning permission for the development of the site;
these were deemed to have been refused and their appeals to the Secretary of
State were dismissed notwithstanding his inspector’s favourable recommendation.
The appellants then instituted two appeals: (1) They appealed under section 244
of the 1971 Act, as persons aggrieved, questioning the validity of the district
local plan and its alteration on the grounds that the local planning authority
had not complied with Part II
Regulations 1982 (SI 1982 no 555). (2) In the second appeal the appellants
appealed under section 245 of the 1971 Act alleging that as a result of an
error of fact on the part of the Secretary of State, who had wrongly assumed a
study of the area had been carried out, the Secretary of State had taken into
consideration matters which he was not entitled to consider in carrying out his
duty under section 36 of the 1971 Act and/or was in breach of the second proposition
of Forbes J in Seddon Properties Ltd v Secretary of State for the
Environment (1978) 42 P&CR 26.
The two
appeals having been dismissed by Otton J (July 29 1987), those decisions were
further appealed. In the first appeal it was submitted that Otton J had been in
error, and failed to exercise his discretion properly, in dismissing the
original appeal on several of the grounds averred. In the second of the appeals
it was submitted that although the judge accepted the Secretary of State had
made a mistake, the judge had been wrong in exercising his discretion to
dismiss the original appeal.
dismissed and the second appeal allowed and the Secretary of State’s decision
to refuse outline planning permission quashed.
1. Otton J had
exercised his discretion properly in deciding that on the facts there had been
no failure of the local planning authority to comply with the Town and Country
Planning Act 1971 or the Town and Country Planning (Structure and Local Plans)
Regulations 1982 in relation to the preparation and modification of their
district local plan. Although there was an admitted failure to prepare and
publish a statement, giving any or any adequate reasons for the decision to
keep the appeal site within the green belt contrary to the inspector’s
recommendations and to propose modifications to the plan which included a
special study of green belt uses, contrary to regulation 29(1) of the 1982
regulations, Otton J had sufficient grounds for exercising his discretion not
to grant relief for this failure: see pp 35H and 36C. He was also entitled to
hold that the local planning authority had not been in error in: (1) failing to
publish modifications to the plan for a further green belt study, or to receive
objections or give reasons for rejecting any objections, as required by
regulation 31(c)-(d), as on the evidence the further objections
received merely reiterated points already made and considered; (2) failing to
make a proper decision to keep the appeal site within the green belt, as the
evidence showed their committee had; (3) failing to take into account or
misunderstanding the recommendations and conclusions of the inspector as the
documents demonstrated conclusively that they had faithfully carried out their
duties; and (4) deciding to order a policy study of green belt uses as this was
not ultra vires section 11(3)(a) of the 1971 Act and a delegation
of a policy to a non-statutory document as the study was an implementation of
an established policy and not a deviation from it (Westminster City Council
v Great Portland Estates plc [1985] AC 661 distinguished): see pp 34-35.
2. There was
an error on the part of the Secretary of State in his decision letter refusing
outline planning permission in that his letter indicated that ‘having made a
study of the area’ the local planning authority had decided to retain the land
as green belt. As no study had been made, this error was an undeniably
significant factor in the decision-making process carried out by the Secretary
of State. Accordingly, even if it was not a dominant reason for the decision,
it could not be excluded as ‘insubstantial’ or ‘insignificant’. It could not be
said that the Secretary of State would have come to the same conclusion if he
had not acted on the erroneous factor. Accordingly, Otton J had improperly
exercised his discretion in relation to the admitted error on the part of the
Secretary of State: see p 42.
Cases referred
to in the judgments
East
Hampshire District Council v Secretary of State
for the Environment (1977) 248 EG 43, [1978] 2 EGLR 135; [1978] JPL 182; on
appeal [1979] EGD 1048; (1979) 251 EG 763; [1979] JPL 533, CA
Elmbridge
Borough Council v Secretary of State for the
Environment (1980) 39 P&CR 543; 78 LGR 637; [1980] JPL 463
General
Medical Council v Spackman [1943] AC 627;
[1943] 2 All ER 337, HL
Hanks v Minister of Housing and Local Government [1963] 1 QB 999;
[1962] 3 WLR 1482; [1963] 1 All ER 47; (1962) 61 LGR 76; 15 P&CR 246
John v Rees [1970] Ch 345; [1969] 2 WLR 1294; [1969] 2 All ER 274
R v Broadcasting Complaints Commission, ex parte Owen
[1985] QB 1153; [1985] 2 WLR 1025; [1985] 2 All ER 522, DC
R v Rochdale Metropolitan Borough Council, ex parte Cromer
Ring Mill Ltd [1982] 3 All ER 761
R v Secretary of State for the Environment, ex parte Brent
London Borough Council [1982] QB 593; [1982] 2 WLR 693; [1983] 3 All ER
321; (1981) 80 LGR 357, DC
Ridge v Baldwin [1964] AC 40; [1963] 2 WLR 935; [1963] 2 All ER
66; (1963) 61 LGR 369, HL
Seddon
Properties Ltd v Secretary of State for the
Environment (1978) 42 P&CR 26; 248 EG 950, [1978] 2 EGLR 148; [1978]
JPL 835
Westminster
City Council v Great Portland Estates plc
[1985] AC 661; [1984] 3 WLR 1035; (1984) 50 P&CR 34; [1985] JPL 108; sub
nom Great Portland Estates plc v Westminster City Council [1984] 3
All ER 744, HL
Appeals
against decision of Otton J
These were two
appeals against a decision of Otton J (July 29 1987), who had dismissed appeals
brought, first, under section 244 of the Town and Country Planning Act 1971
challenging the adoption of a modified district local plan by the City and
District of St Albans District Council and, second, against the decision of the
Secretary of State for the Environment to dismiss an appeal against a deemed
refusal of outline planning permission by the same local planning authority.
Barnes QC, Charles George and Jonathan Karas (instructed by Denton Hall Burgin
& Warrens) appeared for the appellants.
(instructed by the Treasury Solicitor) appeared for the respondent Secretary of
State for the Environment.
Horton (instructed by Ottoways, of St Albans) appeared for the respondent local
planning authority.
following judgments were delivered.
PURCHAS LJ: The court has before it two appeals from orders made on July 29 1987
by Otton J in appeals to him under sections 244 and 245 of the Town and Country
Planning Act 1971 (‘the Act’). The appellants or their predecessors in title,
to whom I shall refer comprehensively as ‘Simplex’, challenge certain
provisions in a district plan, made under section 11 of the Act, which related
to some 38.9 acres of land at Napsbury Lane, London Colney, Hertfordshire (‘the
site’). The local planning authority, who are respondents to the first appeal,
are the City and District of St Albans District Council (‘the council’). In
their second appeal Simplex sought from Otton J an order quashing decisions
made by the Secretary of State for the Environment (‘the minister’) rejecting
appeals by Simplex against deemed refusals on the part of the council to grant
outline planning consent for development of the site. Alternative schemes
presented by Simplex involved either controlled residential development and
amenity areas, on the one hand, or high-technical light industrial development
and amenity areas on the other. Save to say that such uses were inconsistent
with development in an area designated as a green belt, it is not necessary in
this judgment to consider the details of the development for which planning
consent was sought.
It is
convenient to outline some of the factual background and history which is
common to both appeals. The site lies in the metropolitan green belt between
the major urban settlement of the City and District of St Albans lying to the
north and London Colney lying to the south east. It is bordered on three sides
by the outer orbital road lying to the south, the main railway line from London
to St Albans to the west and the London road, together with some light
industrial and residential development, to the east and north.
The planning
history relevant to the appeals can be shortly stated. The Hertfordshire county
structure plan was approved in 1979 and was subject to alterations in 1980.
This provided for the maintaining of a green belt in the south of the county as
part of a metropolitan green belt:
Within the
green belt permission will not be given, except in very special circumstances,
for development for purposes other than agriculture, appropriate facilities for
outdoor leisure activities, or other uses appropriate to a rural area; or the
use for hospitals or similar institutional purposes of existing large
residential buildings situated in extensive grounds. Provided (a) the buildings
are not suitable for continued residential use, and the (b) proposed use is not
such as to lead to a demand for large extensions or for additional buildings in
the grounds.
In September
1981 the council produced their first draft plan. Policy 1 (Metropolitan Green
Belt) provided that the whole of the district would be treated as being within
the metropolitan green belt except for eight specified settlements which
included St Albans and London Colney, going on to provide:
Within the
green belt permission will not be given except in very special circumstances,
for development purposes other than agriculture, small scale facilities for
participatory sport and recreation, or other uses appropriate to a rural area.
The plan,
therefore, included the appeal site as being within the metropolitan green
belt. In December 1981 Simplex presented two objections (nos 478 and 479) to
the proposed local plan, the general effect of which was that the appeal site
should not be included in the green belt but should be made available for
residential or light industrial purposes. Together with many other objections
to the local plan, these objections were considered at a public local inquiry
in the summer of 1982. In the case of Simplex’s objections both the objectors
and the council’s submissions were made by written representations to the
inspector. In April 1983 the inspector published his report, the relevant
paragraphs of which were:
5.19.15. In
my opinion the partial development of the area of the site lying between the
White Croft Estate and the ribbon of development fronting Napsbury Lane could
not be described as closing the gap between St Albans and London Colney. The
area between London Road to the east, the main line railway to the west and cut
off by the A405 North Orbital to the south which includes the objections site,
is the southern most extension of the urban area of St Albans. It is a matter
of fact that the real division between the two communities is the physical
barrier of the North Orbital Road.
5.19.16.
Despite what I say above I do not consider that development should continue
southward down to the North Orbital, there are clearly strong environmental
objections to this. There is nevertheless, in planning terms, a strong case for
re-examining comprehensively the future of this contained area. Access is
undoubtedly a problem but in my opinion physical difficulties provide a reason
for such a study rather than an argument against it. The possibility of limited
residential development, on the lines already discussed by the council,
together with the provision of other community facilities in the area,
including open space, should be examined. In my opinion the contribution this
land makes to the green belt is more apparent than real. Its long term agricultural
value in a physically severed situation on the edge of the urban area must be
doubtful. With positive planning I consider that the land has potential to
provide planning gains to the community.
Recommendation
5.19.17. I
recommend that the land the subject of Objections 478 and 479 be excluded from
the green belt and made the subject of a special comprehensive study as to its
future pattern of land use and access
On May 19 1983
the director of works and technical services on the staff of the council (DWTS)
prepared a report for consideration by the planning and development committee
(‘the committee’) to whom responsibility for planning functions under the Act
was delegated. The report contained the following relevant paragraphs:
3.3 It must be stressed that the Inspector’s
report is not binding upon the Council, although it will be appreciated that
his recommendations ought to be accepted unless there are strong grounds for
doing otherwise. The next stage in the statutory process involves the preparation
of proposed modifications to the district plan. In the Proposed Modifications
document, it will be necessary to set out the Council’s response to the
Inspector’s recommendations. Circumstances are constantly changing and
monitoring may show that some of the Inspector’s recommendations are no longer
valid by the time the Council draws up the proposed modifications. Due to
changing circumstances it may also be appropriate for the proposed
modifications to recommend amendment to some policies and proposals which were
not considered at the public inquiry . . .
5.0 Major Recommendations made by the
Inspector
5.1 The Inspector’s major recommendations can be
conveniently looked at under the following headings:
(i) Metropolitan Green Belt boundaries; . . .
5.2 Metropolitan Green Belt boundaries
In the
Inspector’s opinion there should not be any general rolling back of the
proposed Green Belt boundaries to provide a long-term reserve beyond the period
of the plan (which runs to 1991). Nevertheless, some adjustments to the
boundaries are recommended on account of the merits of particular sites and to
ensure that land use needs to 1991 can be met. The recommended adjustments fall
into five categories: . . .
(iii) Sites recommended for release from the Green
Belt in order to ensure that sufficient land is available to meet land use
needs to 1991 . . .
(f) Napsbury Lane, St Albans
The site to be
subject to a special comprehensive study to determine its future patterns of
land use and access. The Inspector considers that the possibility of developing
part of this site, together with the provision of community facilities
including open space, should be examined . . .
5.19 Objections 478 and 479 — Simplex G. E.
(Holdings) Limited
LAND AT
NAPSBURY LANE, ST ALBANS — GREEN BELT DESIGNATION OBJECTIONS
(i) The site should be excluded from the Green
Belt, which should follow the adjoining roads and railway;
(ii) The land should be made available for long term
development and public open space.
Inspector’s
recommendation
That the 13.5
hectare site be excluded from the Green Belt and made the subject of a special
comprehensive study as to its future pattern of land use and access.
Note
The Inspector
considers that the possibility of developing part of this site together with
the provision of other community facilities needed in the area, including open
space, should be examined.
On August 16
1983 there was a further report by the DWTS in which he made proposals for
consideration by the committee for modifications to the district plan. Relevant
passages from this report are:
4.2 Changes of Circumstances since District
Plan was approved and Public Inquiry held . . .
i) St Albans Residential Land Availability
When the Plan
was approved and at the time of the public inquiry, it was uncertain whether
there was enough land within the proposed Green Belt boundaries in relation to
the proposed 1981-91 dwelling increase control level of 3,700. It can now be
stated with confidence that sufficient land does exist.
This change in
circumstances is due to:
a) Higher than expected densities on many of the
identified sites;
b) The fact that more unidentified sites (ie
found sites) have come forward for development than had been assumed . . . .
Issues
1. Is there
sufficient scope within the current District Plan Green Belt boundaries to
accommodate a dwelling increase of 3,700 between 1981 and 1991? . . .
8. Do any of
the recommended Green Belt releases make a significant contribution towards
Green Belt objectives? . . .
11. Should
the Green Belt boundaries be based on:
i) accommodating currently anticipated land use
needs to 1991, or
ii) the long-term acceptable limits to the
expansion of the built-up areas?
At a meeting
of the committee on August 23 1983 the report from the DWTS was considered. The
committee resolved:
That the
Committee’s initial views concerning housing sites and Green Belt boundaries
are as set out below, but that final decisions be deferred until further
technical work is completed.
(i) to (iii)
. . .
(iv) That the Green Belt boundaries be strictly
observed and that any applications for special need uses be dealt with as and
when raised on an individual basis.
On November 4
1983 Simplex’s planning advisers submitted proposals for development of the
site along the lines of objections 478 and 479. At a meeting of the committee
on November 14 1983 these proposals were considered and minuted as follows:
3 LAND AT NAPSBURY LANE, ST ALBANS
The Committee
noted that a ‘special Planning Study’ had been prepared by the advisers to
Simplex/GE Limited for the Napsbury Lane site for consideration by the District
Council, a copy of which had been sent to all Members.
Members were
reminded that an objection had been made to the District Plan requesting that
the site should be excluded from the Green Belt. The Inspector had recommended
that a special study should be undertaken regarding the access and future land
uses in this area.
Members
reaffirmed the decision of the Committee on 23 August 1983 that the ‘Green
Belt’ boundary should not be altered.
RESOLVED
That the
developers be thanked for their work but that the proposals be rejected as they
were incompatible with the Green Belt policy in that area.
On November
24, DWTS submitted the last of his reports following upon the report of the
inspector in which he made final recommendations for modifications to the
district plan. These included:
4.3(iii)(f) Napsbury Lane, St Albans
The site to be
subject of a special comprehensive study to determine its future pattern of
land use and access. The Inspector considers that the possibility of developing
part of this site, together with the provision of community facilities
including open space, should be examined.
DWTS
Recommendations
1. . . .
2. That no
change be made to Green Belt boundaries at . . . and Napsbury Lane.
3. That a
policy be included in the Plan stating that a study of the Napsbury Lane area
will be carried out in order to consider possible future land uses consistent
with the area’s Green Belt and Amenity Corridor designation.
At the meeting
on November 29 1983 the committee accepted the recommendations of DWTS in these
terms:
(2) Studies of areas to determine appropriate
land uses in areas adjacent to Metropolitan Green Belt boundaries
The Director
of Works and Technical Services reported . . .
(i) and (ii)
. . .
(iii) Napsbury Lane area, St Albans.
RESOLVED
(i) and (ii)
. . .
(iii) That a Policy be included in the St Albans
District Plan stating that a study of the Napsbury Lane area, St Albans would
be carried out in order to consider possible future land uses consistent with
the area’s Green Belt and amenity corridor designation.
On December 19
1983 a comprehensive document produced by DWTS was considered by the committee.
The document recommended:
That the
attached schedule of proposed modifications to the District Plan be agreed and
placed on deposit.
On the
schedule Simplex’s objections were dealt with as follows:
OBJECTIONS 478
and 479 — SIMPLEX — G E (HOLDINGS) LIMITED
LAND AT
NAPSBURY LANE, ST ALBANS — GREEN BELT DESIGNATION OBJECTIONS
i) The site should be excluded from the Green
Belt, which should follow the adjoining roads and railway;
ii) The land should be made available for long
term development and public open space.
INSPECTOR’s
RECOMMENDATION PARA 5.19.17
That the 13.5
hectare site be excluded from the Green Belt and made the subject of a special
comprehensive study as to its future pattern of land use and access.
COUNCIL’s
DECISION No 12.3
No
modification to the Plan in response to the objections but that after paragraph
3.5, the following paragraph and policy will be inserted (Figure 3.3.3):
Paragraph 3.6c Land at Napsbury Lane, St Albans In order to re-examine
the future of this area and consider possible land uses consistent with the
area’s Green Belt, amenity corridor designation and Policy Intention 23A a
study will be carried out by the District Council.
POLICY 75C
NAPSBURY LANE STUDY AREA, ST ALBANS
THE DISTRICT
COUNCIL WILL CARRY OUT A STUDY OF THE LAND WITHIN THE POLICY 75C NOTATIONS
DEFINED ON PROPOSALS MAP SHEET 4. THE STUDY WILL DETERMINE THE APPROPRIATE LAND
USES FOR THE AREA CONSISTENT WITHITS METROPOLITAN GREEN BELT AND AMENITY
CORRIDOR DESIGNATION AND WILL BE CARRIED OUT IN CONSULTATION WITH THE LAND
OWNERS AND OTHER INTERESTED PARTIES.
REASONED
JUSTIFICATION
To take
account of the Inspector’s recommendation that a study be carried out of this
area.
This part of
the schedule was adopted by the committee unaltered. I have set out the details
of the committee’s deliberations at what would otherwise be inordinate length
to demonstrate the considered decision to which the
objections 478 and 479. In doing this, no special study of the Napsbury Lane
area was prepared.
On January 11
1984 Simplex submitted two outline planning applications relating to the site.
These accorded in general terms with the recommendations of their own experts
for the development use of the site and were again on the lines in objections
478 and 479. The proposed modifications to the district plan in the form cited
above were published on January 20 1984. This publication was pursuant to
regulation 31 of the 1982 regulations. By a letter dated February 15 1984
Simplex recorded their objections to the proposed modifications:
Your Council
have recently published the proposed modifications to the District Plan
(January 1984). These modifications fail to accommodate all the views of the
independent Inspector with regard to the above site and we have not been able
to achieve any acceptance by your Council of the merits of the proposals
advocated by the land owner, Messrs Simplex-GE Limited. Accordingly we would
like to reiterate our objection to the proposed modifications in exactly the
same terms as the earlier correspondence shows.
On March 20
1984 DWTS produced a further report advising the committee upon the objections
received to the notified modifications to the plan. The recommendation relevant
to this appeal was that those objections which merely repeated earlier
objections already considered required no further consideration. Accordingly,
on March 28 1984 the committee accepted this advice and on April 30 gave notice
of disposition to adopt the district plan to the minister. The latter
intervened, indicating that he might issue a direction under section 14(3) of
the Act. In the event, after a delay of some months, on October 29 the minister
gave a further indication that he was not going to call the plan in for
consideration. In the meanwhile a number of events took place with which it is
not necessary in this judgment to deal in detail except to mention the
publication of circulars by the minister relating generally to green belt and
housing land policies. The routine adopted by the committee was to receive a
report from DWTS advising them on the impact and significance of the circulars
etc, and then after considering these reports to make the appropriate
resolutions. For the purposes of this appeal, it is sufficient to record that
it is clear from the documents that the question of green belt and housing as
conflicting policy considerations received careful attention from the committee
on a number of occasions independently of the particular consideration of the
district plan, its modifications and the respective objections thereto.
To complete
this historical background to both of the appeals, I should record that the
council never formally considered the two planning applications made by
Simplex. Instead they were deemed to be refused under the provisions of the Act
and Simplex appealed to the minister. Their appeals were dealt with by a public
local inquiry leading to a report from the inspector and a final decision by
the minister contained in the letter which is the subject matter of the second
appeal. As part of this process the council announced the reasons which they
would have given for refusing the application.
The
district plan appeal
By notice of
motion dated October 29 1985 Simplex moved under section 244 of the Act as a
person aggrieved by the local plan and by an alteration of the plan questioning
the validity of the plan and the alteration on the grounds that the council had
not complied with the requirements of Part II of the Act and the regulations
made thereunder. The relevant provisions are [section 11(3) and section 13(1)
of the Act at that time]:
11.–(3). A local plan shall consist of a map and a written statement and
shall —
(a) formulate . . . proposals for the
development and other use of land in that part of their area . . .
13.–(1). For the purpose of considering objections made to a local plan
the local planning authority may, and shall in the case of objections so made
in accordance with regulations under this Part of this Act, cause a local
inquiry or other hearing to be held by a person appointed by the Secretary of
State or, in such cases as may be prescribed by regulations under this Part of
this Act, by the authority themselves, and —
(a) . . .
(b) the Tribunals and Inquiries Act 1971 shall
apply to a local inquiry or other hearing held under this section as it applies
to a statutory inquiry held by the Secretary of State, but as if in section
12(1) of that Act (statement of reasons for decisions) the reference to any
decision taken by the Secretary of State were a reference to a decision taken
by a local authority.
Section 12(1)
of the Tribunals and Inquiries Act 1971 provides:
12.–(1) Subject to the provisions
of this section, where —
(a) any such tribunal as is specified in
Schedule 1 to this Act gives any decision; or
(b) . . .
it shall be
the duty of the tribunal or Minister to furnish a statement, either written or
oral, of the reasons for the decision if requested, on or before the giving or
notification of the decision, to state the reasons.
The Town and
Country Planning (Structure and Local Plans) Regulations 1982 (SI 1982 no 555)
(‘the Regulations’) provide in so far as is relevant to this appeal as follows:
29.–(1) Where, for the purpose
of considering objections made to a local plan, a local inquiry or other
hearing is held, the local planning authority who prepared the plan shall, as
part of the consideration of those objections, consider the report of the
person appointed to hold the inquiry or other hearing and decide whether or not
to take any action as respects the plan in the light of the report and each
recommendation, if any, contained therein; and the authority shall prepare a
statement of their decisions, giving their reasons therefor. . . .
31.–(1) Where the local planning
authority who prepared a local plan propose to modify it, they shall except as
respects any proposed modification which they are satisfied will not materially
affect the content of the plan:
(a) prepare a list of the proposed
modifications, giving their reasons for proposing them;
(b) give notice by local advertisement in the
appropriate form (Form 11), and serve a notice in the same terms on any person
whose objections to the plan have been made and are not withdrawn and on such
other persons as they think fit;
(c) consider any objections duly made to the
proposed modifications;
(d) decide whether to afford to persons whose
objections so made are not withdrawn, or to any of them, an opportunity of
appearing before, and being heard by, a person appointed by the Secretary of
State for the purpose; . . .
Regulation
33(1) provides for notice to be given to interested parties by the council of
the decision to adopt the plan as finally deposited, including modifications.
The case
presented before the judge was based on a failure on the part of the council to
give any, or any adequate, reasons for the decision taken on December 19 1983
to keep the site within the green belt contrary to the inspector’s
recommendation and to modify the plan to include a special study
not DWTS had fully advised the committee on the issues arising out of the
inspector’s recommendation that the site should be taken out of the green belt
designation, the resolution recorded by the committee under the rubric
‘Reasoned Justification’ did not fall within the requirements of ‘reasons’ as
described in the speech of Lord Scarman in Westminster City Council v Great
Portland Estates plc [1985] AC 661 at p 673. Otton J found in favour of the
appellants on this point, namely that there was a failure to comply with the
requirements of regulation 29(1) and this decision has not been challenged on
this appeal.
Mr Barnes, who
appeared for Simplex, further submitted that in discharging their duty to
consider the inspector’s report, although it would have been open to the
committee merely to have rejected the inspector’s recommendation to remove the
site from the green belt they did more than this and in fact modified the plan
by including in it a provision for a study of possible green belt users to be
incorporated as part of the plan. Mr Vandermeer QC, who represented Simplex
before Otton J, argued that this placed a further obligation upon the council
to publish the modification, to receive objections to it and then to consider
the latter and give reasons for their rejecting or continuing with the
modifications in accordance with regulation 31(1)(c) and (d). It
was further argued that the council never properly made a decision to keep the
site within the green belt, but Otton J rejected this submission, finding that
the minute of August 23 1983 was such a decision and that in any event,
although it was headed ‘Initial’, any doubt was removed by the further minute
of November 14 1983.
Otton J also
rejected the submission that there had been a non-compliance by the council
with regulation 31(1)(c) and (d). This related to an alleged
failure on the part of the committee to consider the objections to the
modification; but, as appears from the letter already cited in this judgment,
the objections merely reiterated points that had been made by Simplex when
objecting to the district plan in the first place and that the council took the
policy decision that in relation to such repeated objections there was no
necessity for further detailed considerations. I respectfully agree with Otton
J that on the facts as disclosed in this case there is no substance in the
submission that there was a non-compliance with regulation 31(1)(c) in
this respect. It was further contended on behalf of Simplex that in coming to
their decision in respect of objections 478 and 479 the committee failed to
take into account or, alternatively, misunderstood the inspector’s conclusions
and recommendations. This was rejected, in my judgment quite properly, by the
learned judge in the circumstances disclosed on the documents.
Mr Barnes and
Mr Vandermeer both relied upon the judgment of Forbes J in Seddon Properties
Ltd v Secretary of State for the Environment (1978) 42 P&CR 26,
in which he enunciated the principles affecting judicial review which are
applicable to the duties imposed upon the council by the regulations. Principle
no 5 provides:
If the
Secretary of State differs from his Inspector on a finding of fact or takes
into account any new evidence or issue of fact not canvassed at the inquiry, he
must, if this involves disagreeing with the Inspector’s recommendation, notify
the parties giving them at least an opportunity of making further
representations.
It was
submitted on behalf of Simplex that the committee had not fully appreciated the
recommendation made by the inspector and had not, therefore, properly come to
their conclusion to keep the site within the green belt and yet order a further
study. This submission, again, was rejected by
Finally, it
was submitted on behalf of Simplex, both before Otton J and on appeal, that the
decision to which the committee finally came in relation to the site, namely
the Policy 75C Napsbury Lane Study Area, was ultra vires because it
delegated part of the council’s duty under section 11(3)(a) of the Act to a
non-statutory body, namely those who carried out the study. This course was
held to be ultra vires in the Westminster City Council case to
which I have already referred. Notwithstanding the able arguments presented by
Mr Barnes on this aspect of the case, I have come to the conclusion that this
case is distinguishable from the Westminster City Council case. The
decision taken by the council was within their powers, namely to retain the
site within the green belt designation and that by indicating that they
intended to commission a study of those uses to which the site could be put
consistent with its retention within the metropolitan green belt they did not
delegate in any way their statutory duties and powers under Part II of the Act.
The study was to investigate users consistent with the designation already the
subject of a decision and in no way derogated from it. In the Westminster
City Council case the position was the reverse, namely that office user
outside the central zone would not be permitted except in exceptional
circumstances. That was a deviation from the overall restriction rather than an
implementation of the established policy.
Dealing with
the grounds of appeal based upon the failure of the council properly to
consider the recommendations of the inspector and/or the objections presented
to the plan and the modifications thereto, I have come to the firm conclusion
that the documents already recited in this judgment demonstrate conclusively
that the council faithfully carried out their duties under the provisions of
the Act and that there is no ground upon which this court could disturb the
findings reached by Otton J on this aspect of the case. So far as the first
appeal is concerned, that leaves only the question of the exercise of discretion
not to grant relief in the presence of the admitted failure to prepare and
publish a statement in accordance with regulation 29(1). The learned judge gave
the following reasons, inter alia, for exercising his discretion:
1. The
decision to reject the recommendation was one which the council was entitled to
make. It did not arrive at that decision in bad faith or perversely.
2. There is a
long history of Green Belt policy for this land; it was so identified in the
Structure Plan in 1979 and in the draft Local Plan in 1981.
3. . . .
4. The study
was considered and acted upon by the local authority and the development
proposed was adopted by the council in June 1985.
5. The
applicants’ own study invited by the Deputy D.W.T.S. was rejected by the
council. . . .
Mr Barnes
readily accepted that in order to succeed on this aspect of the appeal he had
to establish either that the judge had taken into consideration some matter
which he ought not to have considered, had left out a critical factor which he
should have considered, or else was plainly wrong; otherwise the discretion lay
with him, and this court ought not to intervene, reflecting the attitude of
Lord Scarman in the Westminster City Council case [1985] AC 661 at p
674H. Although I am not wholly convinced that in ground 3, namely ‘the council
did adopt the second part of the recommendation and carried out a study’, the
learned judge had a substantial ground on which to exercise discretion, I am
satisfied that the other grounds which I have cited clearly did entitle him to
exercise his discretion in the manner in which he did. In my judgment, the
other grounds listed by the judge were more relevant to the
minister relating to the recommendation of the inspector at the inquiry and the
inspector who reported in relation to the planning application, namely
rejecting their views, were history. With respect to the learned judge, these
factors were not of great impact on the exercise of discretion in relation to
the actions of the council now under review. I would myself, having considered
carefully all the documents in the case, have taken into account that at all
stages there was clearly a close liaison between Simplex’s professional advisers
and the council. The former had access to, or were sent copies of, the relevant
minutes and reports as indicated on the endorsement on the letter from Vincent
Gorbing [chartered architects and town planners] dated August 30 1983 and
subsequent correspondence. It is clear that Simplex through their advisers were
kept fully informed. Although Mr Barnes manfully submitted that it was
impossible to say whether Simplex and their advisers would not have acted any
differently if they had been presented with the formal statement required by
regulation 29(1), I find it impossible to imagine any course which could have
been taken by Simplex other than that which they in fact adopted in the event.
For these reasons I cannot find any ground upon which this court could
interfere with the exercise of the learned judge’s discretion. For this and for
the other reasons already dealt with in this judgment, I would dismiss the
first appeal.
The
appeals against refusal of outline planning applications
The inspector
appointed by the minister to conduct the public inquiry into the outline
planning applications sat between June 4 and 19 1985 and reported to the
minister by letter dated July 29. Relevant parts of the report are:
3.2. The site
is within the Napsbury Lane Study Area shown on Policy 75C of the approved City
and District of St Albans District Plan and the determination of this proposal
at the present time would prejudice the aims of the study to determine the
appropriate land uses for the area consistent with its Metropolitan Green Belt
and Amenity Corridor designation. . . .
Napsbury
Lane Study Area Consultation Document
28. In accordance
with Policy 75C, the Council has carried out a study of the Napsbury Lane Area
(Document LPA6). This initial consultation document proposed options, namely
very little change, low intensity development and medium intensity development,
consistent with the location of the site in the Metropolitan Green Belt and an
Amenity Corridor. The relevant committee considered the report on three
occasions (Document LPA5, Appendices 29 and 30). On the second occasion, in
April 1985, the report was largely accepted by the planning committee, and the
committee resolutions in respect of the land owned by the Rialto Builders Ltd
are set out in paragraphs A1.i-iii and 3i-14 (Document LPA5, Appendix 31). A
further report (Appendix 32) was presented to the Planning Committee on 3 June
1985, which approved a policy for the study area, based on the report in April
1985. That report favoured agricultural use with recreation, with options for
predominantly recreational facilities, if the land is not used for agriculture.
. . .
183. I find
the following facts:
1. . . .
2. The appeal
site is in the green belt in the Review County Development Plan, and in the
general area described as green belt in Policy 2 of the approved County
Structure Plan.
3. The appeal
site is in the green belt and in an amenity corridor in the St Albans District
Plan. The Inspector who considered objections to the District Plan recommended
that a major part of the appeal site be excluded from the green belt. The
District Council decided not to modify the District Plan, in response to the
Inspector’s recommendation but proposed a modification in
green belt and proposed agricultural use with recreation, or recreational
facilities.
4-8. . . .
9. The
Council accepts that if the Secretary of State concludes that the appeal site
does not fulfil a green belt function, then there are no objections in
principle against either proposal. . . .
184. The
appeal site is now substantially contained by development on all sides which,
together with the North Orbital Road and London Road and the railway cutting,
serve to cut off this land from the more extensive areas of green belt to the
east, west and south. In addition, the development of the appeal site would not
add to the tenuous coalescence between St Albans and London Colney which has
occurred to the east, because it is some distance to the west of the London
Colney roundabout, where there is development close to either side of the North
Orbital Road.
185.
Consequently, I consider that the appeal site does not make an effective
contribution to the green belt, but represents a comparatively large area of
open land within the built-up area of St Albans and close to its southern edge.
This view is broadly in line with the conclusions reached by the Inspector who
considered recently the objection to the inclusion of most of the appeal site
in the green belt in the St Albans District Plan. Although the council proposes
to include this land in the green belt, in accordance with Policy 75C but
contrary to the recommendation of the District Plan Inspector, I do not
consider that the appeal site is one which now merits the strong presumption
against development, which is the keystone of the green belt policies in the
Structure and District Plans. Moreover, I do not consider that either appeal
proposal would have any effect on influencing the outcome of the possibility of
residential development at Napsbury Hospital, since the appeal site is well
contained by existing development, and has no visual relationship with the land
where development may take place, if proposals in the recent Consultative
Document are approved.
In para 186
the inspector concluded:
. . . there
are no sound reasons for safeguarding this land for agricultural use.
And in para
187:
I conclude
that a significant proportion of the demand for houses in St Albans District is
from local residents, and as such the proposed residential development would
make a contribution towards the demand for housing, consistent with the advice
in Circular 15/84. . . .
191. In
contrast to the Council’s principal argument that the appeal site should remain
in the green belt, I consider that this land is well suited for high technology
industry; it is situated on the edge of a small and attractive town, with
excellent links to the national road and motorway network. The site is capable
of providing a prestigious, parkland setting, and this qualitative factor is
particularly important for a firm seeking a high quality working environment.
192. The
provision of a limited amount of open space in both schemes will be beneficial
to local residents, who currently use some of the appeal site for recreation.
In addition, although both schemes are outline applications, the illustrative
drawings show that either proposal could be developed without having an
unacceptable harmful effect on the locality. The low density scheme for high
technology industry would be likely to present the more attractive environment,
and this factor, together with the more important long term benefits which high
technology industry will bring to the economic well being of the area, lead me
to conclude that the employment proposal is preferable to the residential
proposal, consistent with the appellants’ wishes, but this does not represent a
reason for not granting planning permission for the latter scheme.
In paras 194
and 195 the inspector recommended that both appeals should be allowed and
planning permission granted subject to conditions, which he had indicated in
paragraph 194 and which are not relevant for consideration here.
By letter
dated May 27 1986 the minister announced his decision. The critical paragraph
is para 6:
6. The
Secretary of State notes that the whole of the appeal site lies within the
Metropolitan Green Belt where there is a presumption against development except
for the essential requirements of agriculture and forestry. He has had
regard to the fact that the Inspector who considered the objections to the
District Plan recommended that most of the site be excluded from the Green Belt
and be made the subject of a special study. However, since the Council, having
made a study of the area, have decided to retain the land as Green Belt, and as
the District Plan has been formally adopted, the site remains subject to the
policy regarding Green Belts set out in Circular 14/84. This states, inter
alia, that ‘the essential characteristic of Green Belts is their permanence
and their protection must be maintained as far as can be seen ahead . . . Once
the general extent of a Green Belt has been approved as part of the structure
plan for an area it should be altered only in exceptional circumstances. . . .
Similarly, details of Green Belt boundaries defined in adopted local plans or
earlier approved development plans should be altered only exceptionally’.
Accordingly the Secretary of State does not agree with the present Inspector
that the site does not now merit the strong presumption against development
which is the keystone of green belt policies. Neither does he accept the
Inspector’s view that the appeal site does not make an effective contribution
to the Green Belt. He recognises that the site is severed from other open land
by the major roads and that other development has resulted in a degree of
coalescence between St Albans and London Colney. Nevertheless he considers that
the site has a role to play in preventing the continued southward extension of
St Albans and its further coalescence with London Colney. The Secretary of
State notes the acceptance of the Council that if it is concluded that the site
does not fulfil a green belt function there is no objection in principle to
either of the proposals. Having concluded, however, that it does fulfil such a
function, the Secretary of State thinks that the principal issue in deciding
these appeals is whether there are any particular circumstances in these cases
which override the normal presumption against development in the Green Belt and
justify making an exception to policies of restraint contained in the Structure
and District Plans.
This paragraph
has to be read as a whole, but the second and third sentences (which I have
emphasised) have been the subject-matter of critical debate on this appeal. It
is common ground that the third sentence contains an error on the part of the
minister in that it indicates that the council, ‘having made a study of the
area’, had decided to retain the land as green belt. This is clearly a
misunderstanding of Policy 75C and the Napsbury Lane Area Study. This study
related to what uses should be made within the green belt designation and had
nothing to do with whether the site should be retained in the green belt or
released from it. The study into possible uses outside the green belt
designation which was recommended in para 5.19.17 of the inspector’s report
published in April 1983 was never carried out.
By notice of
motion dated July 3 1986 Simplex appealed as a party aggrieved under section
245 of the Act. The basis of the attack was that as a result of the error of
fact on the part of the minister, the minister had taken into consideration
matters which he was not entitled to consider in carrying out his duty under
section 36 of the Act and/or was in breach of the second proposition of Forbes
J in the Seddon Properties Ltd case:
In reaching
his conclusion the Secretary of State must not take into account irrelevant
material.
In his
judgment Otton J came to this conclusion:
I have come
to the conclusion that the statement contained in the third sentence is a
mistake. However, the applicants have failed to satisfy me that there is any
ground for concluding that the decision of the Secretary of State might have
been different if this mistake had not been made. In my judgment this was not
sufficient to flaw his decision.
The other
grounds relied upon in the notice of motion and which were rejected by the
judge have not been pursued by Mr Barnes on this appeal. He does not contend
that the decision of the minister in these respects could be attacked in the
sense that they were unreasonable on the Wednesbury principle.
On this aspect
of the case Mr Barnes conceded that in order to succeed he had to establish
that the exercise of the discretion by the learned judge was plainly wrong. He
supported this submission by referring to the criteria which the judge set for
himself but did not in fact apply, namely whether the error in question was one
which went to a substantial issue in which case the letter should be quashed,
or whether it went to a collateral or trivial point in which case the decision
should not be quashed. In support of this contention Mr Barnes referred us to a
number of authorities. The first case was East Hampshire District
Council v Secretary of State for the Environment, reported in Notes
of Cases in the Journal of Planning and Environment Law for 1978 at p
182. This was a judgment of Slynn J in an appeal based upon an erroneous
assumption by the inspector that an increased allocation of development land
appeared necessary in the planning area concerned because of an anticipated
population increase of 12,000 persons, but that he had failed to report that
this increase was anticipated because of the taking up of already existing
planning permissions and commitments. There were numerous other factors relating
to the provision for housing by reference to the relevant ministerial circular
and other features. It is necessary only to quote one extract from the
judgment:
It might well
be that all other factors relied on were such that the Secretary of State would
on a reconsideration uphold his decision. That should not in this case affect
the result in this court. He could not be sure how much importance the
Secretary of State attached to the anticipated increase of 12,000 or whether he
would have come to a different view if he had known that the 12,000 population
increase only arose because of planning permissions or commitments already
given or made.
In Elmbridge
Borough Council v Secretary of State for the Environment (1980) 39
P&CR 543 the inspector made an elementary error in scaling a distance off
the wrong plan thereby misreporting the interval of distance between the new
house and the screening from existing development. Bristow J held in these
circumstances that an obvious mistake of the kind made by the inspector like a
glaring miscalculation or inaccuracy or an obvious clerical error, which did no
harm and produced no doubt as to whether the decision had been reached
according to law, did not amount to an error of law so as to vitiate the
decision.
Referring to
the extract of the judgment just cited, Mr Barnes submitted that the judge had
set the test correctly, namely as to whether there was any ground for
concluding that the decision of the Secretary of State might have been
different if the mistake had not been made; but he submitted that in coming to
the conclusion which he reached the judge was plainly wrong. Mr Barnes relied
upon the judgment of the court delivered by Ackner LJ (as he then was) in R
v Secretary of State for the Environment, ex parte Brent London
Borough Council [1982] 1 QB 593 at p 646:
. . . it would
of course be unrealistic not to accept that it is certainly probable that, if
the representations had been listened to by the Secretary of State, he would
nevertheless have adhered to his policy. However we are not satisfied that such
a result must inevitably have followed . . . It would in our view be wrong for
this court to speculate as to how the Secretary of State would have exercised
his discretion if he had heard the representations. We respectfully adopt the
words of Megarry J in John v Rees [1970] Ch 345, when he said, at
p 402:
‘As everybody
who has anything to do with the law well knows, the path of the law is strewn
with examples of open and shut cases which, somehow, were not; of unanswerable
charges which, in the event, were completely answered; of inexplicable conduct
which was fully explained; of fixed and unalterable determinations that, by
discussion, suffered a change.’
As Professor
Wade points out in his Administrative Law, 4th ed, p 455, the report of Ridge
v Baldwin [1964] AC 40, 47, records that the hearing later given to the
Chief Constable’s solicitor at least induced three members of the Watch
Committee to change their minds. Thus, even if the ultimate outcome of our
decision were to be that the Secretary of State, having fairly considered the
applicants’ representations, nevertheless decides to abate their rate support
grants, we are not prepared to hold that it would have been a useless formality
for the Secretary of State to have listened to the representations. The
importance of the principles to which we have referred above far transcend the
significance of this case. If our decision is inconvenient, it cannot be
helped. Convenience and justice are often not on speaking terms: per Lord Atkin
in General Medical Council v Spackman [1943] AC 627, 638.
Mr Barnes
submitted that this was a strong authority setting a very strict test to be
satisfied before an aggrieved person should be deprived of the benefits of a
reconsideration pursuant to the powers of the court in section 245 of the Act
and that in the present case it was impossible to state that, had the minister
appreciated that before rejecting a recommendation of the inspector on the
first inquiry the council had not had the benefit of a specialised study
probably involving outside consultants, he would have been so ready as a
necessity to take the same course with the report and recommendation of the
inspector in the second inquiry.
Mr Pannick,
for the minister, referred us to R v Broadcasting Complaints
Commission, ex parte Owen [1985] QB 1153. In this case the court was
considering a decision made by the commission for which they gave five reasons.
Reasons 1, 2 and 5 were wholly justified in law and constituted an entirely
relevant stance for the commission to take. The fourth reason given by the
commission would not have been valid to support the contention of
inappropriateness on its own but it clearly followed naturally from the
thinking which underlined reasons 1, 2 and 5. In the opinion of May LJ, who
gave the first judgment, however, reason 3 was inappropriate and could not be
justified in law.
Counsel for
the complainant referred the court to the decision of Forbes J in R v Rochdale
Metropolitan Borough Council, ex parte Cromer Ring Mill Ltd [1982] 3
All ER 761 which in turn considered, inter alia, a judgment of Megaw J
in Hanks v Minister of Housing and Local Government [1963] 1 QB
999 at pp 1018-9. I think it is of assistance to look at part of the judgment
of Megaw J in this context at p 1020:
I confess
that I think confusion can arise from the multiplicity of words which have been
used in this case as suggested criteria for the testing of the validity of the
exercise of a statutory power. The words used have included ‘objects’,
‘purposes’, ‘motives’, ‘motivation’, ‘reasons’, ‘grounds’ and ‘considerations’.
In the end, it seems to me, the simplest and clearest way to state the matter
is by reference to ‘considerations’. A ‘consideration’, I apprehend, is something
which one takes into account as
of this case, that, if it be shown that an authority exercising a power has
taken into account as a relevant factor something which it could not properly
take into account in deciding whether or not to exercise the power, then the
exercise of the power, normally at least, is bad. Similarly, if the authority
fails to take into account as a relevant factor something which is relevant,
and which is or ought to be known to it, and which it ought to have taken into
account, the exercise of the power is normally bad. I say ‘normally’ because I
can conceive that there may be cases where the factor wrongly taken into
account, or omitted, is insignificant, or where the wrong taking into account,
or omission, actually operated in favour of the person who later claims to be
aggrieved by the decision.
This was the
paragraph in the judgment of Megaw J to which Forbes J made reference in his
judgment in the Cromer Ring Mill Ltd case. The passage of Forbes J,
which is adopted by May LJ in R v Broadcasting Complaints Commission
at p 1176, reads:
Although it
is fair to say that Hank’s case is not binding on me, it is a very
persuasive authority and I would undoubtedly follow it, and do. It seems to me
Megaw J is there saying, having been apprised of the argument about dominant
purpose, that the exercise of a power is bad if it is shown that an authority
exercising that power has taken an irrelevant factor into account, one of many
factors, as long as that irrelevant factor is not insignificant or
insubstantial. To that extent, it seems to me, that that case wholly supports
the formulation in Professor de Smith’s book: ‘If the influence of irrelevant
factors is established, it does not appear to be necessary to prove that they
were the sole or even the dominant influence; it seems to be enough to prove
that their influence was substantial.’*
*Judicial
Review of Administrative Action, 4th ed (1980), pp 339-40.
Mr Hoffmann QC
[counsel for the Broadcasting Complaints Commission] submitted that where the
reasons were separate and alternative the mere fact that one could be
criticised would not be sufficient to vitiate a decision to which the statutory
body would in any event have come had they left the invalid reason out of
account. May LJ at p 1177 said he could not wholly accept Mr Hoffmann’s
submissions; that he agreed with the material law as stated by Forbes J but
with one qualification which reflects part of Mr Hoffmann’s submissions and was
not relevant in the earlier case. May LJ said:
Where the
reasons given by a statutory body for taking or not taking a particular course
of action are not mixed and can clearly be disentangled, but where the court is
quite satisfied that even though one reason may be bad in law, nevertheless the
statutory body would have reached precisely the same decision on the other
valid reasons, then this court will not interfere by way of judicial review. In
such a case, looked at realistically and with justice, such a decision of such
a body ought not to be disturbed . . . .
Another
approach to the same problem in such circumstances, which really reflects the
same thinking is this: the grant of what may be the appropriate remedies in an
application for judicial review is a matter for the discretion of this court.
Where one is satisfied that although a reason relied on by a statutory body may
not properly be described as insubstantial, nevertheless even without it the
statutory body would have been bound to come to precisely the same conclusion
on valid grounds, then it would be wrong for this court to exercise its
discretion to strike down, in one way or another, that body’s conclusion.
The law to be
distilled out of these authorities seems clear as to be applied to the present
case and reflected in fact the contesting submissions of Mr Barnes and Mr
Pannick. Mr Pannick submitted that para 6 of the decision letter, in its
reference to the study of Policy 75C, was merely reciting the planning history
and that the reason for the decision of the minister was the bald fact that the
site was in the green belt and that he was not persuaded by any of the
recommendations and reasons of the two inspectors that a case had been made out
to depart from the presumption against development of the kind involved in the
outline applications.
Notwithstanding
the submissions persuasively made by Mr Pannick, I am unable to accept them.
The letter, as Mr Barnes rightly pointed out, is an admirably succinct document
and skilfully and carefully drafted. I find it impossible to consider that the
minister referred to matters which he considered were irrelevant to the
decision-making process. He emphasised in the second sentence that he had had
regard to the recommendations of the first inspector and mentioned the subject
of a special study. The juxtaposition of that ‘special study’ and the study
referred to in the third sentence which the minister records the council as
having themselves ‘studied’ is irrefutable and a logical step in the minister’s
reasoning. Having referred to these matters and to further features of the
planning context, the minister starts the sentence in which he records his
disagreement with the second inspector with the word ‘accordingly’, thereby
embracing the preceding considerations including the error relating to the
Napsbury Policy 75C study.
The error, in
my judgment, is undeniably a significant factor in the decision-making process
carried out by the minister. Accordingly, even if it is not a dominant reason
for the decision, it cannot be excluded as ‘insubstantial’ or ‘insignificant’.
I now turn to the test suggested by May LJ, namely would the minister have come
to the same conclusion if the erroneous reason had been excluded
altogether? If not, then on the approach
adopted by May LJ the decision should be quashed. Bearing in mind the judgment
of Ackner LJ in the Brent case incorporating, as it did, the words of
Megarry J, I find it impossible to say that the learned judge was entitled to
come to the conclusion that the minister would necessarily have reached the
same conclusion if he had not acted on the erroneous factor. Put in another
way, I am not persuaded by Mr Pannick’s submissions that the minister in his
reasoning in para 6 of the decision letter was really saying three things,
namely (1) the land was in the green belt; (2) that on considering the matter
himself he had concluded that the land in fact made an effective contribution
to the green belt, ie was preventing coalescence between St Albans and London
Colney; and (3) that there were not any particular circumstances which
justified making an exception to the green belt policy. I have come to the
conclusion that it cannot be said that the minister did not also bear in mind,
when overruling the recommendation of the two inspectors, the fact that he
believed the council had considered a special study of land uses for the site
not consistent with the green belt designation but consistent with the land’s
removal from the metropolitan green belt. It is not necessary for Mr Barnes to
show that the minister would, or even probably would, have come to a different
conclusion. He has to exclude only the contrary contention, namely that the
minister necessarily would still have made the same decision.
In these
circumstances I have, with respect to the learned judge and to my regret, found
myself forced to part company with him in the exercise of his discretion in
relation to the admitted error on the part of the minister and that Mr Barnes
has established his contention that his clients should be afforded relief and
that relief should be in the form of an order quashing the minister’s decision.
I would, therefore, allow this second appeal.
STAUGHTON
LJ: Like Otton J I consider that the arguments are
finely balanced on both of these appeals. But in the end I have reached the
same conclusion as Purchas LJ, that the first appeal must be dismissed and the
second allowed.
The judge held
that there were errors in the procedure which led to each of the decisions
which are criticised in these appeals. Thus in the case of the first appeal the
council gave no reasons for its decision to reject the first inspector’s
recommendation and retain the land within the green belt; it only gave reasons
for its decision to conduct a study of the future use of the land assuming it
did remain within the green belt. That omission was a breach of the
regulations. There has been no respondent’s notice and no challenge on the part
of the council to that conclusion.
In the second
appeal the judge held that one of the reasons given by the Secretary of State
for disagreeing with the recommendation of the second inspector, that the land
should cease to be green belt, was factually incorrect. The council had not
decided to retain the land as green belt in consequence of any study made of
the area; the study was of possible uses on the assumption that the land
remained within the green belt. What is more, the study took place only after
the decision was made. Again there has been no respondent’s notice; the
Secretary of State does not challenge that conclusion.
The main
contest in these appeals has therefore been as to the consequences which should
flow from those errors, one on the part of the council and the other by the
Secretary of State. But there is, I think, some slight difference in the
process by which the judge held that the two decisions should stand. In the
case of the council, he considered that as a matter of discretion it was not
appropriate to grant any remedy under section 244 of the Town and Country
Planning Act 1971. Of the Secretary of State’s decision, he said that the
applicants had failed to satisfy him that it might have been different if the
mistake had not been made.
As to the
first appeal, section 244(2)(b) provides that the High Court may quash a
plan, either generally or in so far as it affects any property of the
applicant, if satisfied
that the
interests of the applicant have been substantially prejudiced by the failure to
comply with any requirement of the said Part II or of any regulations made
thereunder . . .
That
subsection both sets out a test which must be fulfilled before the power to
quash arises and also provides a discretion where the test is fulfilled.
The council
did in fact have reasons for not agreeing to the inspector’s recommendation
that the land should cease to be green belt. That in itself may not be a
sufficient reason for exercising the discretion against quashing the relevant
part of the plan; otherwise there would be no point in the provision that
reasons must be given. But I cannot see that on the facts of this case Simplex
were prejudiced, substantially or indeed at all, by the failure to give those
reasons. So I would agree that the judge was right to exercise his discretion
against quashing the relevant part of the plan — if indeed, in terms of the
subsection, a power to quash it ever arose.
I can see
nothing in the other grounds that were advanced for allowing the first appeal, save
for one point. Among the seven factors which the judge listed as relevant to
the exercise of his discretion was the fact that the Secretary of State had
later disagreed with the recommendation of both inspectors that the land should
cease to be green belt. But that is the very decision which is attacked,
successfully as I hold, in the second appeal. It cannot, therefore, be a valid
ground for the exercise of discretion in the first case. However, I would have
reached the same conclusion as the judge did, for the reasons which I have
already given.
As to the
second appeal, the authorities cited by Purchas LJ show that, where one of the
reasons given for a decision is bad, it can still stand if the court
is satisfied that the decision-making authority would have reached the same
conclusion without regard to that reason. Mr Pannick, for the Secretary of
State, submits that the erroneous reference to a study by the council was mere
narrative and no part of his reasons; or at any rate it was only an insignificant
part. But I cannot be satisfied in this case that the Secretary of State would
still have refused planning permission even if he had not mistakenly believed
that the council had carried out a study to determine whether the land should
be in the green belt. I cannot be satisfied that his decision might not have
been different. I say only that it might have been — no more than that. In that
respect only I differ from Otton J. So far as I can detect, he did not
expressly exercise any discretion in relation to the Secretary of State’s
decision, since in his view there was no material error which required a
discretion to be exercised. But as I have held that the admitted error was or
may have been material, I have to consider discretion. I would quash the decision
of the Secretary of State and accordingly allow the second appeal.
SIR
ROUALEYN CUMMING-BRUCE: I agreed with the judgments
of Purchas and Staughton LJJ and have nothing to add.
The first
appeal was dismissed with costs; the second appeal allowed with costs to be
paid by the Secretary of State. Both applications for leave to appeal to the
House of Lords were refused.
