Newark & Sherwood District Council and Another v The Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Stephen Morris |
| Judgment Date | 19 July 2013 |
| Neutral Citation | [2013] EWHC 2162 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2981/2012 |
| Date | 19 July 2013 |
[2013] EWHC 2162 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Stephen Morris QC
Sitting as a Deputy High Court Judge
Case No: CO/2981/2012
Richard Harwood QC (instructed by Chief Legal Officer, Newark & Sherwood District Council) for the Claimants
Stephen Whale (instructed by The Treasury Solicitor) for the First Defendant
Graham Machin (instructed by Langleys, Solicitors) for the Second Defendant
Hearing dates: 13 and 19 April 2013
Mr Stephen Morris QC:
Introduction
This is an application under section 288 of the Town and Country Planning Act 1990 ("TCPA") by Newark and Sherwood District Council ("the District Council") and Epperstone Parish Council ("the Parish Council") (together "the Claimants") seeking to quash the decision dated 9 February 2012 ("the Decision") of Laura Graham BSc MA MRTPI, an inspector ("the Inspector") appointed by the Secretary of State for Communities and Local Government ("the First Defendant"). By the Decision, the Inspector granted planning permission for the installation of a single wind turbine at Hill Farm, Chapel Lane, Epperstone, Nottinghamshire ("Hill Farm"). The application was issued on 20 March 2012.
The application for planning permission was made by Mr Nicholas Peake, the Second Defendant. The relevant business at Hill Farm is carried on by J S Peake & Sons, a partnership between Mr Nicholas Peake, and his father and mother, Richard and Kathleen Peake.
The District Council initially refused planning permission. The Second Defendant appealed to the Secretary of State and, by the Decision, was granted permission. The Parish Council opposed the grant of permission both at the application stage and on appeal.
The Claimants originally raised five grounds of challenge. By the time of the hearing two of these had been dropped. Their case now is that the Decision is invalid on each of three grounds (retaining the original numbering). Ground (i) relates to the volume of electricity to be generated by the wind turbine. Ground (ii) relates to the noise produced by the turbine. Ground (v) alleges that the permission granted was for a type of turbine (three-bladed) different from that which was applied for and assessed (two-bladed).
The Legal Framework
Before turning to the factual background, I set out the relevant legal framework, comprising legislative context, relevant legal principles and matters of planning policy.
Planning permission and appeals
Section 78 TCPA grants a right of appeal from a decision of a planning authority to the Secretary of State. On such an appeal, the Secretary of State can deal with the application for planning permission as if made to him in the first instance, and the provisions relating to conditions and s70 both apply to the Secretary of State as they apply in relation to the original application for planning permission: s.79(4) TCPA.
By virtue of ss. 288(1)(b) and (4), and 284(1) and (3) TCPA, any person who is aggrieved by any decision on a s.78 appeal to an inspector may apply to the High Court to challenge the validity of that decision on the grounds that the decision is not within the powers of the TCPA or that any relevant requirements have not been complied with: s.288(1)(b)(i) and (ii).
Regulation 16 of the Town and Country Planning (Appeals) (Written Representation Procedure) (England) Regulations SI 2009 No 452 provides that the inspector is entitled to proceed to a decision on the appeal "taking into account only such written representations as have been sent within the relevant time limits".
A section 288 application is akin to a challenge by way of judicial review. In summary, a decision on a s.78 appeal may be quashed if the decision maker has acted perversely, taken into account irrelevant material, failed to take account of relevant material or failed to provide proper and adequate reasons: Encyclopedia of Planning Law (" EPL") §P288.16 summarising Seddon Properties v Secretary of State [1978] JPL 835.
The Court must be astute to ensure that a s.288 challenge is not a re-run of the arguments on planning merits. A challenge alleging a Wednesbury unreasonable conclusion on matters of planning judgment faces a particularly daunting task: Newsmith Stainless Ltd v Secretary of State for the Environment Transport and the Regions [2001] EWHC Admin 74 at §§5–8. Planning judgments are for the decision maker, and not the Court. The weight to be afforded to a material consideration is a matter of planning judgment for the planning authority: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at 780F-H per Lord Hoffmann. The Court should look broadly at the findings and reasoning of the decision maker and not focus on minutiae: Dartford BC v Secretary of State for Communities and Local Government [2012] EWHC 64 (Admin)§20, citing earlier authorities.
Whilst the decision maker must have regard to all material considerations, there is no need to refer in the decision to every material consideration, but only the main issues in dispute. The scope for drawing an inference that the decision maker has not fully understood the materiality of a particular consideration to the decision will necessarily be limited to the main issues, and then only when all other known facts and circumstances appear to point overwhelmingly to a different decision: see Bolton MDC v Secretary of State for the Environment (1996) 71 P & C R 309 at 314–315 per Lord Lloyd. As regards failure to take account of a relevant consideration, the seven principles in Bolton MBC v Secretary of State for the Environment (1991) 61 P & C R 343 at 352–353 are to be applied. These include the principle that the Court will only consider quashing if it is clear that there is a real possibility that consideration of the relevant matter would have made a difference to the decision: see also Simplex (GE) Holdings v Secretary of State for the Environment [1988] 3 PLR 25 at 41E-H and 42D-E(CA).
There is no bar to making an argument for the first time in a s.288 application. However the circumstances in which it can be done are limited and subject to the application of the approach in Humphris v Secretary of State for Communities and Local Government [2012] EWHC 1237 (Admin)§23, where Ouseley J identified four such circumstances: a point that has not been available to be taken; a point which becomes an error of law not known to the parties at the time; a point where it can be said to have arisen without the parties being given an opportunity to deal with it; and a pure point of law. Subject to these circumstances, if a point is not raised before the inspector, he cannot be said to have omitted to consider a material consideration.
Substantive principles of planning law
By s. 70 TCPA, a planning authority may grant permission unconditionally or subject to such conditions as they think fit. Further, in dealing with a planning application, a planning authority must have regard, inter alia, to the provisions of the development plan and any other material considerations
The interpretation of planning policy is a matter of law for the Court: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13. Where a planning authority is required to "have regard" to a policy, it need not follow that policy. But if it is going to depart from the policy, it must give clear reasons for doing so. Moreover the policy must be properly understood by the authority. See Gransden & Co Ltd v Secretary of State for the Environment (1987) 54 P & CR 86 at 94.
The approach to interpretation of a planning permission
The interpretation of a planning permission is a matter of law for the Court. As to the materials which the Court is entitled to consider in seeking to interpret a planning permission, the relevant principles are set out in R v. Ashford BC ex parte Shepway DC [1999] PLCR 12 at 19–20 as modified by Barnett v Secretary of State for Communities and Local Government (2010) 1 P&CR 8 (CA) per Keene LJ at §§16–21 approving Sullivan J [2009] 1 P & CR 24. The effect of these two cases can be summarised as follows.
First, whilst the starting point is that in construing a planning permission, regard may only be had to the permission itself, including the conditions and reasons for the conditions ( Ashford, supra, proposition (1)), in the case of full planning permission for the construction, erection, or alteration, the plans and drawings describing the works are part of the description of what has been permitted and, as such, fall to be considered in construing the permission granted, without the need for express words of incorporation in the terms of the permission. This applies even where there is no ambiguity or suggestion of a mistake in the permission. See Barnett per Keene LJ at §§20 and 21, citing Sullivan J at §24.
Secondly, and in any case, materials extraneous to the permission itself (including the application) can be referred where either (a) there are express words of incorporation in the permission (i.e. words in the operative part of the permission sufficient to inform a reasonable reader that the materials are part of the permission) or (b) there is ambiguity in the wording of the permission or a challenge on grounds of mistake: Ashford, supra, propositions (2) to (5).
General principles of construction
General principles of construction fall to be considered. In appropriate circumstances, it is permissible, as a matter of construction, to read documentary provisions as being subject to addition, omission or even substitution. As...
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