1. Borough of Telford and Wrekin and Another v Secretary of State for Communities and Local Government 1. Ravenhill Ltd and Another (Interested Parties)

Approved Judgment

Hearing dates: 1 st and 2 nd May 2013

Introduction

In July 2011, the second interested party ("the developer") applied to the first claimant ("the Council") for planning permission to proceed with a proposed development which was to involve the demolition of existing structures and the erection of a new food store and associated amenities on land at Audley Avenue, Newport, Shropshire. The Council failed to determine the application within the specified time and this failure prompted the developer to appeal to the defendant ("the Secretary of State") on 20 December 201For the sake of convenience, when referring to the Secretary of State and the developer collectively I will use the term "the defendants".

In March 2012, the Council resolved that if it had acted within time then it would have refused planning permission for the development. Thereafter it opposed the developer's appeal on putative grounds. In this, it was joined by the second claimant, St Modwen Developments Limited ("St Modwen") which is a company involved in the promotion of a competing site on Station Road of which the Council is the owner. On 25 April 2012 the Plans Board resolved to approve the Station Road site development. However, on 15 June 2012, this application was called in by the Secretary of State who has yet to determine the application.

In the meantime, the developer's appeal in respect of the Audley Avenue site proceeded to a planning inquiry. After an inquiry lasting several days, the Inspector, Christina Downes, allowed the appeal in a decision dated 2 August 2012 and granted planning permission for the development of the Audley Avenue site.

The Council and St Modwen now seek to challenge this decision..

The legal framework

The Council and St Modwen challenge the decision of the Inspector under section 288 of the Town and Country Planning Act 1990. In summary, this section allows parties aggrieved by an Inspector's decision to apply to the High Court and question its validity on the grounds that either it does not fall within the powers of the Act or that any of the relevant requirements have not been complied with in relation to it. If the court is satisfied that the decision in question is not within the powers of the Act or that the interests of an applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it then it may quash that decision.

An application under section 288 does not provide an opportunity for the aggrieved parties to pursue a review of the merits of the decision. It is to be determined on public law grounds.

As Sullivan J. pointed out in trenchant terms in Newsmith Stainless Ltd v Secretary of State [2001] EWHC Admin 74:

"5 It is important to note at the outset that a challenge under section 288 to the validity of an Inspector's decision on an appeal under section 78 may be made only upon the grounds that the Inspector's decision: (1) is not within the powers of the Act; or (2) that any of the relevant requirements have not been complied with in relation to the decision.

6 An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.

7 In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

8 Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task. It might be thought that the basic principles set out above are so well known that they do not need restating. But the Claimant's challenge in the present case, although couched in terms of Wednesbury unreasonableness, is, in truth, a frontal assault upon the Inspector's conclusions on the planning merits of this Green Belt case."

The statutory development plan

In circumstances where, as here, the Inspector is taking into account a statutory development plan it is ultimately not for her but for the court, on an application under section 288, to determine the correct interpretation of the plan. As Lord Reed held in Tesco Stores Ltd v Dundee City Council [2012] 2 P. & C.R. 9 at para 18:

"The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others …, policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context."

And at para 19:

"…planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean."

On the other hand, planning decisions inevitably involve the application of the provisions of the plan to the particular facts of any given case. This process involves the exercise of a judgment that is a matter for the Inspector within the bounds of Wednesbury reasonableness. As Lord Reed went on to find at para 19:

"…many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse."

Furthermore, the plan is not to be interpreted as if it were a statute. Lord Reed said at para 9:

"That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another."

Giving reasons

Where a challenge is made to the sustainability or the adequacy of the reasons given by the Inspector a broad common sense approach is required which does not involve the deployment of elaborate pedantry. As Sir Thomas Bingham M.R. (as he then was) held in Clarke Homes Limited v Secretary of State (1993) 66 P. & C.R. 263 p. 271:

"There are dangers in over-simplifying issues of this kind as also of over-complicating them. I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."

The proper approach to a reasons challenge in the planning context was summarised by Lord Brown in South Bucks District Council v Porter (No. 2) [2004] 1 W.L.R. 1953...