Isaq v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Gore,JUDGE GORE |
| Judgment Date | 20 October 2011 |
| Neutral Citation | [2011] EWHC 3052 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 October 2011 |
| Docket Number | Case No: CO/5521/2011 |
[2011] EWHC 3052 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M3 3FX
His Honour Judge Allan Gore QC Sitting as a Judge of the High Court
Case No: CO/5521/2011
Mr G Cannock (instructed by Richardson Law) appeared on behalf of the Claimant.
Mr J Hunter (instructed by Treasury Solicitors) appeared on behalf of the Defendant.
The Second Defendant was neither present nor represented.
This is the substantive hearing for an application for judicial review pursuant to permission granted by HHJ Sycamore on 29 July 2011 to appeal under section 289 of the Town and Country Planning Act 1990 (as amended). The appeal seeks to quash an inspector's decision dated 17 May 2011 to dismiss the appeal of the claimant against an enforcement notice and to uphold the enforcement notice with variations. There is little or no dispute as to either the factual background to this matter or to the legal principles relevant to this hearing.
Davenport Green Hall is a grade II listed building lying in the Green Belt which is need of urgent repair as there is currently temporary propping to the gable elevation which needs to be replaced by permanent works of repair and restoration. The claimant lives in the Hall with his family; the site also contains the Cheshire Barn which is a wedding and events venue for up to 100 people. The site is therefore in lawful dual use for residential use and events use. The claimant has erected a marquee in the grounds of the Hall substantial enough to have the capacity to accommodate 500 guests.
As the site lies in the Green Belt there is no dispute that this marquee and its associated structures were and remain inappropriate development within the meaning of the Planning Policy Guidance Note 2, paragraphs 3.1 and 3.2. There is also no dispute that inappropriate development is, by definition, harmful to the Green Belt, that is, it is deemed harmful unless very special circumstances are shown which clearly outweigh the harm by way of inappropriateness and any other harm (PPG2, paragraph 3.1).
On 21 July 2010 the second defendants, as local planning authority, served an enforcement notice which alleged breach of planning control, identified those matters said to constitute breach, gave reasons for that decision to serve an enforcement notice, set out consequential requirements (in this case removal of the marquee and its associated structures) and set a time for compliance as two weeks from the date on which the enforcement notice took effect. That is to be found at pages 144 and 145 of the bundle before me. The claimant appealed against the enforcement notice pursuant to section 174(2) of the Act, as a result of which a public inquiry was held between 12 April 2011 and 15 April 2011. An inspector was appointed by the first defendant to determine the appeal. At the inquiry one ground was not substantively pursued and accordingly the appeal was determined on other grounds. In the decision letter dated 17 May 2011 (which appears at pages 268 to 288 of the bundle) the inspector dismissed the appeal and upheld the enforcement notice with corrections and variations. The formal decision is contained in paragraphs 64 and 65 of the decision letter. By a claim form filed on 14 June 2011 the claimant sought permission to review that decision by way of appeal under section 289 of the Act.
The following legal principles appear to me not to be in dispute. First, an appeal under section 289 of the Act can only be brought on a point of law. Potential grounds of appeal are therefore akin to those that might arise on an application for judicial review, for example illegality, unfairness and irrationality. This means that the decision can be impugned if the inspector took into account immaterial considerations, failed to take into account material considerations or made a decision so far outside the generous parameters of the discretion which he had that no reasonable inspector could have come to that decision (per Lord Denning MR in Ashbridge Investment Ltd v Minister of Housing [1965] 1 WLR 1320 at page 1326, letters F to H).
Secondly for this purpose, the principles governing the inspector's approach to materiality, weight and planning judgment are well established, as explained by Lord Hoffmann in Tesco Stores Limited v Secretary of State [1995] 1 WLR 759, who said at page 780:
“This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”
Statements to similar effect were made by Sullivan J (as he then was) in R (on the application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2011], EWHC Admin 74, at paragraphs 6 to 8.
Thirdly, while it is agreed that inspectors must give reasons for their decisions, the principles governing challenges to the reasons given by inspectors was summarised in the House of Lords decision in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, paragraph 36, where Lord Brown said this,
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how the issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced.”
He had earlier, at paragraph 29, cited with approval what Lord Bridge had said in Save Britain's Heritage v No 1 Poultry Ltd [1991] 1 WLR 153, at page 167 where Lord Bridge said this:
“Whatever may be the position in other legislative contexts, under the planning legislation, when it comes to deciding in any particular case whether the reasons given are deficient, the question is not answered in vacuo. The alleged deficiency will only afford a ground for quashing the decision if the court is satisfied that the interests of the applicant have been substantially prejudiced by it. This reinforces the view I have already expressed that the adequacy of reasons is not to be judged by reference to some abstract standard. There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given.”
He also cited with approval the observation of Hoffmann LJ (as he then was) that an inspector's decision must not be read as if it were a statute or as if the inspector had been setting an examination paper ( South Somerset District Council v David Wilson Homes (Southern) Ltd [1993] 66 P and CR, page 83). It must be read sensibly, in good faith and in full. Sir Thomas Bingham MR (as he then was) put it thus in Clarke Homes Ltd v Secretary of State for the Environment [1993] 66 P and CR, at page 263. The passage is to be found at pages 271 to 272, where he said this:
“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.”
Fourthly, it is accepted that an inadequately reasoned decision will only be quashed in the event that substantial prejudice has been caused. As Lord Brown also observed in South Bucks at paragraph 36:
“A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
Thus the burden of proof in this regard is on he who seeks to impugn the decision. This echoes his approval at paragraph 31 of the following passage in the speech of Lord Bridge in Save Britain's Heritage...
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