Arun District Council v Secretary of State for Communities and Local Government Green Lodge Homes LLP (Interested Party)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Seys-llewellyn |
| Judgment Date | 25 January 2013 |
| Neutral Citation | [2013] EWHC 190 (Admin) |
| Docket Number | CO/336/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 January 2013 |
[2013] EWHC 190 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Seys-llewellyn QC
(Sitting as a Deputy High Court Judge)
CO/336/2012
Miss A Williams (instructed by Arun District Council) appeared on behalf of the Claimant
Mr D Blundell and Mr R Moules (instructed by Treasury Solicitor) appeared on behalf of the Defendant
Mrs H Townsend (instructed by DMH Stallard) appeared on behalf of the Interested Party
THE DEPUTY JUDGE: The claimant in this section 288 appeal is Arun District Council. The developer applied to Arun District Council for planning permission for a development of 39 dwellings at Jenkins Yard, Ferring. That is a vacant site and has no lawful use except for a 10 metre strip with lawful use as a builder's yard. On 27 October 2010, there was a statutory hearing of the developer's appeal against the claimant's refusal of planning for that site. By decision of 22 November 2010, the appeal was unsuccessful. The cases presented by the claimant and the developer at that appeal and the subsequent decision issued by the Inspector who heard the appeal were based on their common understanding that the South Eastern Plan (which I will refer to as "the SEP") had been revoked by the Secretary of State and was no longer part of the development plan.
The decision of the Secretary of State to revoke was quashed on judicial review. Therefore, the SEP had in fact been part of the statutory development plan at the time of the hearing. On challenge, therefore, by the developer to the Inspector's decision in this court, the Secretary of State conceded that because the Inspector had failed to take into the account that the SEP formed part of the development plan at the date of the decision, the decision should not be allowed to stand and by a consent order the Inspector's decision was quashed in its entirety. The matter was accordingly remitted for reconsideration in full by a new Inspector appointed by the Secretary of State.
The second Inspector allowed the appeal and granted planning permission. The claimant local authority brings this appeal against the Secretary of State under section 288 of the Town and Country Planning Act 1990. The developer appears as an interested party. Counsel were Miss Williams for the claimant, Mr Blundell for the Secretary of State, and Mrs Townsend for the interested party.
The two questions which arise in this appeal are as follows.
The first question is, if the decision of the Inspector on appeal expresses findings or conclusions but the decision is quashed on judicial review, is it an error of law for the second Inspector who deals with the remitted appeal to make no reference to the findings and conclusions of the first Inspector? More fully, if the decision of the first Inspector on appeal expresses findings or conclusions on one of the two issues which are of central importance to the decision by the second Inspector, but the first decision has been quashed on judicial review, is it an error of law to make no reference to that finding or conclusion of the first Inspector and/or not to give reasons for arriving at different findings or conclusions?
The second question arising in this appeal is as follows. In a decision by the Inspector on appeal in the present case, has there been a failure to give adequate reasons for the conclusion that she attached only "limited weight" to the fact that the Localism Act 2011 received Royal Assent on 15 November 2011 and makes statutory provision for the Secretary of State to revoke by order the whole or any part of a regional strategy? More fully, in a decision where the Inspector relied in part on the fact that the SEP requires completion of an annual average of a stated number of dwellings in the Arun district, which the claimant accepted it could not demonstrate, and where however the claimant made clear that if the SEP is revoked it intended to put in place a considerably lower target than that currently required by SEP, was it an error of law for the Inspector to attach only "limited weight" to the fact that the Localism Act 2011 received Royal Assent on 15 November 2011 and makes statutory provision for the Secretary of State to revoke by order the whole or any part of a regional strategy?
In the present appeal, the claimant says that two issues were central to the respective cases before the second Inspector and decision by her:
8. Whether development of the site should not be permitted on the ground that it would conflict with the maintenance of the strategic gap between Ferring and the next settlement under the development plan.
9. The issue of housing supply. On the one hand, under the existing regional strategy, (SEP), the decision maker " should consider favourably" planning applications for housing where the local planning authority could not demonstrate an up-to-date given number of deliverable sites in the area, and the claimant accepted it could not demonstrate that number. (The SEP required completion of an annual average of 565 dwellings in the Arun district between 2006 and 2026, to which the 39 proposed would, if planning permission were given, contribute). On the other hand, as the second Inspector recorded in her decision letter, it was the stated intention of the Government to lay orders in Parliament revoking the existing regional strategies and "the Council has made it clear that if the SEP should be revoked, it intends to put in place a considerably lower target than that currently required by the SEP." (decision letter paragraph 23).
As to the first issue, the strategic gap issue, the second Inspector stated this in her decision letter:
"11. The appeal site is already surrounded on three sides by existing development, and in my judgment, consequently makes very little current contribution by the role by the Strategic Gap. [Some further detail is given].
12. I consider that in this context, the proposed residential development of the appeal site would not undermine that fundamental objective of maintaining a clear distinction between settlements [and then she gives some further detail].
13. The Council expressed concern that if I were to allow this appeal, it might be argued as setting a precedent for development of other sites within the Strategic Gap. But such an argument could only have any merit in respect of sites identical to the appeal site, in terms of being already surrounded by existing or permitted proposed development. In those circumstances, it is difficult to see how development would erode the function of the Strategic Gap. In any event, each proposal for new development must be assessed on its own merits, and should the Council conclude that the details of any future proposal (even on a similar site) would compromise the objectives and integrity of the Strategic Gap, it would remain open to it to refuse planning permission for that reason."
As to the second issue, namely housing supply, having identified the stated future intent of the Council to put in place a lower target if the SEP were revoked, the second Inspector stated this in her decision letter, at paragraph 24, which I will read at this point in full:
"24. I attach only very limited weight to these statements of future intent [of the local authority if the SEP were revoked]. I attach slightly more, but still limited, weight to the fact that the Localism Act 2011 received Royal Assent on 15 November 2011, and makes statutory provision for the Secretary of State to revoke, by order, the whole or any part of a Regional Strategy. It is the Government's intention to lay orders in Parliament revoking the existing Regional Strategies (including the SEP) as soon as possible, but this is subject to the outcome of the environmental assessments currently taking place, on which consultation will close on 20 January 2012. Decisions on the revocations will not be made until the Secretary of State and Parliament have had the opportunity to consider the outcome of the environmental assessment process."
That decision letter is one of 1 December 2011.
As to the general approach on an appeal under section 288, there is no dissent between counsel. For the record, therefore, I record that it was set out by Miss Williams in her skeleton argument in these succinct terms:
"The Court may quash a decision by the Secretary of State under section 288(a)(i) of the 199 Act where he has acted on no evidence; or if he has come to a conclusion to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa.
Where the Secretary of State has failed to consider relevant considerations or taken into account irrelevant considerations a judge is entitled to hold a decision invalid where the consideration was 'fundamental to the decision,' or that it is clear that there is a real possibly that the consideration of the matter would have made a difference to the decision [that being a principle contended to be in play in this case], Bolton Metropolitan Council [perhaps citation is unnecessary].
Where the Secretary of State has failed to give intelligible and adequate reasons for a decision, a challenge can succeed if the party aggrieved can satisfy the court that he has been substantially prejudiced by the failure...
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