Jefferson v National Assembly for Wales and another
| Jurisdiction | England & Wales |
| Judgment Date | 30 October 2007 |
| Neutral Citation | [2007] EWHC 3351 (Admin) |
| Docket Number | Ref CO/2310/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 October 2007 |
[2007] EWHC 3351 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
His Honour Judge Hickinbottom Sitting as An Additional Judge of The High Court
Ref CO/2310/2007
The Claimant appeared in person.
CLIVE LEWIS QC (instructed by the Treasury Solicitor)
appeared for the First Defendant.
The Second Defendant did not appear.
APPROVED JUDGMENT
CARDIFF CIVIL JUSTICE CENTRE, 2 PARK STREET, CARDIFF CF10 1ET
I direct pursuant to CPR Part 39 PD 6.1 that no official shorthand note shall be taken of this judgment and that copies of this version, subject to editorial corrections, may be treated as authentic.
Introduction
This is an application under Section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector dismissing an appeal by the Claimant Mr Matthew Jefferson against a refusal of planning permission by the Second Defendant Council (“the Council”). It raises a discrete and important issue namely, where there has been a material change between the date of a decision of a local planning authority (“ LPA”) on a planning application and a decision on an appeal from the LPA (e.g. the adoption of a new development plan), should the inspector on the appeal take into account the changed circumstances or is he bound to take into account only the circumstances as they stood when the LPA made its decision?
Factual Background
Mr Jefferson applied to the Council for planning permission for the erection of a two-storey side extension to a house in Bolton Road, Newport. On 23 March 2006, the Council refused the application. At that time, the current development plan for the relevant area was the Gwent Structure Plan of 1996, although a draft Newport Unitary Development Plan (“the UDP”) had been deposited. In coming to its decision, the Council took into account both the Structure Plan and the draft UDP, both of which were referred to in its decision letter.
Mr Jefferson appealed to the First Defendant the National Assembly for Wales (“the National Assembly”), which transferred the authority to decide the appeal to an appointed inspector, Mr Ian Osborne (“the Inspector”). Before the Inspector's inquiry—and hence, of course, before his decision on the appeal—the Council adopted the UDP. Following an inquiry, the Inspector dismissed the appeal in a decision letter dated 7 February 2007 (“the Decision Letter”), having considered the appeal on the basis of the newly adopted UDP.
Mr Jefferson contends that the Inspector erred in law on three interrelated grounds, namely:
(i) As a matter of construction of the relevant statutory provisions, the Inspector was bound to consider the appeal upon the material considerations as they stood at the Council's decision, and he erred in taking into account the changed considerations as they stood at the time of his own decision on the appeal. In other words, he erred in taking into account the adopted UDP, and not taking into account the Gwent Structure Plan and unadopted UDP as they stood at the time of the Council's decision. This was the primary ground upon which the application to quash was based.
(ii) The Inspector's decision on this issue contravened the rules of natural justice and Article 6 of the European Convention on Human Rights.
(iii) The Inspector's reasons on this issue were inadequate.
At the hearing before me, Mr Jefferson did not pursue further claims based upon (i) Article 1 of the First Protocol to the European Convention on Human Rights or (ii) any error by the Council (as opposed to the Inspector on behalf of the National Assembly) and I need not say anything further about those.
The Relevant Statutory Provisions
Planning permission from the relevant LPA is required for any “development”, which includes building operations such as those proposed by Mr Jefferson (Sections 55 and 57 of the Town and Country Planning Act 1990: in this judgment, all statutory references are to this Act, unless otherwise indicated).
With regard to any application for planning permission, Section 70(2) provides:
“In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material consideration.”
Therefore, in considering and deciding a planning application the LPA must have regard to all “material considerations”, including the provisions of “the development plan”.
The “development plan”, so far as any area in Wales is concerned, is defined in Section 27A(1) (inserted by Section 20(3)(a) of the Local Government (Wales) Act 1994):
“… [T]he development plan for any area in Wales shall be taken as consisting of:
(a) the provisions of the [UDP] for the time being in force in that area, together with a copy of the relevant [LPA]'s resolution of adoption or the [National Assembly's] notice of approval or, where part of the plan has been adopted and the remainder approved, copies of the resolution and the notice;
(b) any alteration to that plan, together with a copy of the relevant [LPA]'s resolution of adoption, or the [National Assembly's] notice of approval, or the alteration or, where part of the alteration has been adopted and the remainder approved, copies of the resolution and notice.”
In terms of transitional provisions, it was provided that, until the adoption of a UDP, the relevant development would be the existing plan for the particular area: but, once the UDP had become fully operative, “any existing plan which is for the time being in force and any interim plan shall cease to have effect in respect of its plan area…” (Paragraph 1 of Part 1A of Schedule 2; and Article 3 of the Planning and Compulsory Purchase Act 2004 (Commencement No 6, Transitional Provisions and Savings) Order 2005). Therefore, in short, until the UDP were adopted, “the development plan” would be the existing plan(in this case the Gwent Structure Plan of 1996): but, once the UDP were adopted, that all existing plans would cease to have effect, and “the development plan” for the area would become the adopted UDP.
Furthermore, by Section 336:
“'development plan' must be construed in accordance with Section 38 of the Planning and Compulsory Purchase Act 2004 [“the 2004 Act”].”
Section 38(6) of the 2004 Act provides:
“If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
Where an LPA in England refuses an application for planning permission, then the unsuccessful applicant may appeal to the Secretary of State (Section 78(1)). In relation to Wales, by virtue of Article 2 and Schedule 1 of the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999 No 672), the Minister's functions were transferred to the National Assembly. Unless otherwise indicated in this judgment, the relevant statutory provisions are the same for Wales and England, except that in Wales the decision-making function is devolved to the National Assembly. As the National Assembly (or indeed the Secretary of State) usually transfer the authority to decide an appeal to an inspector, in this judgment I shall generally refer to an inspector as being the relevant decision-maker on an appeal from an LPA decision.
Under Section 79 (under the heading, “Determination of appeals”):
“(1) On an appeal under Section 78 [the National Assembly] may:
(a) allow or dismiss the appeal, or
(b) reverse or vary any part of the decision of the [LPA] (whether the appeal relates to that part or not),
and may deal with the application as if it had been made to him in the first instance.
…
(4) …[T]he provisions of Sections 70, 72(1) and (5), 73 and 73A and part I of Schedule 5 shall apply, with any necessary modifications in relation to an appeal to the [National Assembly] under Section 78 as they apply in relation to an application for planning permission which falls to be determined by the [LPA] ….
(5) The decision of the [National Assembly] on such an appeal shall be final.
…”
Ground 1: The Temporal Issue relating to Material Considerations
Mr Jefferson submitted that, on the true construction of these provisions, on an appeal from an LPA, an inspector must take into account material considerations as they stood at the time of the LPA's decision, and cannot take into account any subsequent changes. Therefore, he submitted that the Inspector erred in taking into account the adopted UDP and not taking into account the Gwent Structure Plan and unadopted UDP as they stood at the time of the LPA decision. In urging this construction, Mr Jefferson particularly relied upon the concluding words of Section 79(1), to the effect that “…[the National Assembly] may deal with the application as if it had been made to [them] in the first instance”. Relying upon comments by Sir David Cairns on identical wording in a predecessor statute (i.e. comments on Section 36(3) of the Town and Country Planning Act 1971 in Clyde & Co v The Secretary of State for the Environment [1977] 3 All ER 1123, “ Clyde & Co”, at page 1126), he submitted that those words required the Inspector to deal with the matter “on the same basis” as the LPA had dealt with it, which he took to mean as taking into account only the material considerations as they stood at the time of the LPA's decision.
For the National Assembly, Mr Clive Lewis QC submitted that...
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