JJ GALLAGHER Ltd v Secretary of State for Local Government, Transport and The Regions GATESHEAD Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN,‘MR JUSTICE SULLIVAN’ |
| Judgment Date | 23 August 2002 |
| Neutral Citation | [2002] EWHC 1812 (Admin),[2002] EWHC 1195 (Admin) |
| Date | 23 August 2002 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5163/2002,Case No: CO/5163/2001 |
[2002] EWHC 1195 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
The Strand
London WC2
Mr Justice Sullivan
CO/5163/2002
MR IAN DOVE (instructed by THE WOOD GLAISTER PARTNERSHIP, HOMER HOUSE, 8 HOMER ROAD, SOLIHULL, WEST MIDLANDS, B91 3QQ) appeared on behalf of the Claimant.
MISS N LIEVEN (instructed by THE TREASURY SOLICITOR) appeared on behalf of the First Defendant.
THE SECOND DEFENDANT DID NOT ATTEND AND WAS NOT REPRESENTED
This is an appeal against a decision of Master McKenzie dated 7th February in which he ordered discovery and inspection against the first defendant, the Secretary of State for Local Government, Transport and the Regions in the following terms:
“1 The First Defendant do (within 7 days) give standard disclosure to the Claimant of all the documents contained in the First Defendant's files of papers relating to the Claimant's planning appeal the subject of these proceedings and to the decision of the First Defendant dated 22 November 2001 to refuse the Claimant planning permission and do by the said date serve on the Claimant a List of the said Documents;
2 The First Defendant do (within 7 days) give specific disclosure to the Claimant and do make and serve on the Claimant a List of Documents in the following categories:—
(a) all notes or other documents which record or refer to telephone conversations which took place between the First Defendant's Government Office for the North East and the First Defendant's Inspector relating to the Claimant's planning appeal on or between 16 February 2001 and 22 November 2001, whether such documents appear on the files of the First Defendant's Government Office for the North East, of the First Defendant's Inspector or otherwise; and
(b) all notes, drafts, internal memoranda or other documents which record or refer to the First Defendant's reasons for departing from the conclusions and recommendations of the First Defendant's Inspector upon the Claimant's planning appeal or the evidence on which such reasoning was based;”
Then there is provision for allowing inspection.
The background to the matter is as follows: the claimant is challenging a decision by the Secretary of State contained in a decision letter dated 22nd November 2001 dismissing an appeal in respect of a proposed development for a non-food retail park at Hannington Works, Derwenthaugh, Metro Centre, Gateshead. The Inspector had recommended that planning permission should be granted; the Secretary of State disagreed.
The decision letter dated 22nd November 2001 enclosed not merely a copy of the Inspector's report but also two addenda to her report. The decision letter explained:
“3.Having examined the Inspector's report, the Secretary of State was of the view that the Inspector had accepted without question the agreement on the issues of need and impact of the development reached by your client and GMBC before the public inquiry began. There was no evidence that she had independently considered these matters, and her own conclusions on them are not recorded in the report.
4. Accordingly, the Government Office requested an addendum to the Inspector's report from the Planning Inspectorate by telephone. The addendum was received in the Government Office on 19 March 2001. However, it was considered unsatisfactory, as it only contained a brief resume of the events leading up to the agreement on need and impact, and the Inspector still did not offer a view on whether the agreement should be accepted.
5. Following discussions with the Planning Inspectorate, and further detailed examination of the Inspector's report and the evidence before the inquiry, the Secretary of State requested a second addendum to the report by means of his letter of 21 June 2001.”
There is then reference to what was set out in the letter, and the decision letter says:
“The letter of 21 June was circulated to [the claimant] and to GMBC for comment under cover of the Secretary of State's letter of 17 July 2001, in the interests of impartiality and openness of decision taking.”
Paragraphs 17 and 18 of the decision letter record that the Secretary of State agreed with the Inspector's conclusions in paragraph 6—9 of Addendum 2 that the evidence before the inquiry satisfactorily demonstrated the existence of retail need. Paragraph 18 records the Secretary of State's agreement with the Inspector's conclusions that the proposed development would not have a significantly harmful impact either individually or cumulatively on nearby towns, including Gateshead town centre, for the reasons given by the Inspector in her report and in the second addendum.
The decision was challenged on a number of grounds. The first ground was that the process adopted by the defendant for reaching the decision was unfair and, in the particular circumstances of the case, in breach of Article 6. In summary, complaint was made of the procedure adopted involving telephone conversations between the planning inspectorate and the Secretary of State, the substance of such conversations not having been disclosed to the claimant.
The second ground of challenge alleges that the Secretary of State failed to apply the relevant policies in PPG6. The third ground alleges that the approach to the sequential test in the decision letter was perverse because it amounted to a volte face from an earlier decision. The fourth ground alleges that the approach to the sequential test by the Secretary of State was perverse and unfair for other reasons, that is to say certain sites were taken into account and it is not clear whether the Secretary of State differed from the Inspector's conclusions in certain respects and if so why. Grounds 5 and 6 allege that in certain respects the Secretary of State proceeded upon a false understanding of the facts.
The claim form sought an order quashing the decision and:
“An order for disclosure of the Defendant's files in respect of the Claimant's appeal.”
I can see no possible justification for an order for disclosure of that breadth.
The matter has proceeded in a somewhat unsatisfactory way. When the application was made before Master McKenzie, as I understand it, no evidence had been filed on behalf of the Secretary of State. Since the matter was heard by Master McKenzie, Miss Burden has made a witness statement on behalf of the Secretary of State. She is a team leader in the Land Use Planning Team South in the relevant government office and is responsible for issuing decisions on behalf of the Secretary of State.
In paragraphs 2, 3 and 4 of her witness statement she explains that the Government Office for the North East, on receipt of the Inspector's report, took the view that the Inspector had accepted without question the principal parties’ agreement reached before the inquiry had begun on the issues of need for and impact of the development. There was no evidence that the Inspector had independently considered those matters herself. So paragraph 3 of the witness statement says:
“3. On the 8 March 2001, I contacted the Planning Inspectorate (“PINS”) by telephone and requested an addendum to the report, which would provide the Inspector's conclusions on the issues of need and impact.
4. The first addendum report did not address the issues of need and impact as it merely repeated what was set out in the Inspector's report. It was for that reason that GO-NE decided to request a further addendum, and wrote the letter of 21 June 2001 to PINS. I believe that the reasons for the request are fully set out in the letter itself.”
She explains in paragraph 5 that:
“In order to ensure that the exercise of independent judgment by Inspectors is not compromised, [the Department] does not approach Inspectors directly, except in extremely urgent situations. All requests for further assistance are addressed to PINS who then pass the request on to the Inspector. This procedure was adopted at all times in this case and this is apparent from the letter dated 21 June 2001. At no time during the determination of this appeal did I have direct contact with the Inspector.”
Dealing, first of all, with the breadth of the order for disclosure made by Master McKenzie, one starts from the position that there is no general right to disclosure in actions of this kind, but that disclosure may be ordered if the evidence reveals reasonable grounds for believing that there has been a breach of public duty. Looking at the matter overall, the court is prepared to order discovery to the extent that the justice of a particular case requires it.
One starts in planning cases from the premise that the decision letter ought to be self-explanatory and sufficient in itself, but there will be cases where disclosure is appropriate. I fail to understand why the wider disclosure of all notes, drafts, internal memoranda or other documents which refer to the Secretary of State's reasons for departing from his Inspector's conclusions could be said to be necessary. If one considers grounds 2—6 in the claimant's statement of claim, all of these grounds can quite properly be advanced without there being, as far as I can see, any need for further disclosure at all. There is simply no warrant for the breadth of disclosure ordered by the Master. Mr Dove submits that this is an exceptional case. It certainly is unusual for the Secretary of State to feel the need to request addenda to an Inspector's report, but it is by no means unknown and it seems to me that, provided fair procedures are...
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