Newsmith Stainless Ltd v Secretary of State for the Environment Transport and the Regions

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE SULLIVAN
Judgment Date01 Feb 2001
Neutral Citation[2001] EWHC 74 (Admin)
Docket NumberNO: CO/3919/00

[2001] EWHC 74 (Admin)

IN THE HIGH COURT OF JUSTICE

THE ADMINISTRATIVE COURT

QUEEN'S BENCH DIVISION

Before:

Mr Justice Sullivan

NO: CO/3919/00

The Queen on the Application of Newsmith Stainless Ltd
and
Secretary of State for Environment, Transport and the Regions

MR A CRAIG (instructed by Brooke North, Crown House, Great George Street, Leeds LS1 3BR) appeared on behalf of the Claimant

MR J LITTON (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant

Thursday, 1st February 2001

MR JUSTICE SULLIVAN

INTRODUCTION

2

This an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of an Inspector contained in a decision letter, dated the September 2000 (the "Decision Letter"), dismissing the Claimant's appeal against the non-determination by the Second Defendant ("the Council") of its application for planning permission to change the use of four former agricultural buildings from agricultural to B2 and B8 use.

3

The appeal site lies to the west of the M62 motorway, which in this vicinity runs approximately north-south from junction 25 in the south to junction 26 in the north. To the west of the site is the A643. Highmoor Lane, from which access to the appeal site is gained, runs to the north of the site in approximately a westerly to easterly direction from the A643 up to the motorway where it is stopped up. Immediately to the east of the site, and between it and the M62, is Hartshead Moor Motorway Services Area.

4

The appeal site is largely surrounded by a golf course, the clubhouse being located alongside Highmoor Lane to the north of the four agricultural buildings. To the south, across the golf course and other open land, is the settlement of Clifton, which lies on the edge of the urban area around Brighouse. On the ordnance survey a number of rights of way are shown crossing the open land to the south and the southwest of the site and between it and Clifton. The site lies within the Green Belt.

5

It is important to note at the outset that a challenge under section 288 to the validity of an Inspector's decision on an appeal under section 78 may be made only upon the grounds that the Inspector's decision: (1) is not within the powers of the Act; or (2) that any of the relevant requirements have not been complied with in relation to the decision.

6

An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.

7

In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

8

Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task. It might be thought that the basic principles set out above are so well known that they do not need restating. But the Claimant's challenge in the present case, although couched in terms of Wednesbury unreasonableness, is, in truth, a frontal assault upon the Inspector's conclusions on the planning merits of this Green Belt case.

9

The assault commences with the witness statement of Mr Newton, the Claimant's managing director. The witness statement seeks to re-argue the planning merits, producing a great deal of additional material and argument that was not placed before the Inspector. For example, there are a large number of photographs of the site and surroundings marked-up to identify various features; there are additional plans and a series of photomontages contained in a report dated 17th October 2000. Such argument and evidence is wholly inappropriate in an application under section 288: see the notes contained in paragraph 288.21 of the Encyclopedia and Glover v Secretary of State for the Environment (1980) JPL 110.

10

There will seldom be a need for anything beyond purely formal evidence to produce the decision letter and the material before the Inspector relevant to the grounds of challenge in section 288 applications. In exceptional cases, as described in paragraph 288.21 of the Encyclopedia, it may be necessary to produce additional evidence, for example to show that "some matter of real importance has been wholly omitted from the Inspector's report." But such cases will be rare, and even in those cases applicants should firmly resist the temptation for their evidence to stray into a discussion of the planning merits. The court is sometimes prepared to stretch a point and look at, for example, an ordnance survey plan if the parties agree that it helpfully and, in an entirely non-controversial manner, illustrates an aspect of the grounds of challenge. But additional, contentious, illustrative material, of the kind produced by the Claimant in the present case, should not be produced in support of applications under section 288. To admit such material in evidence would merely open the door to challenges upon the planning merits.

11

On behalf of the Claimant, Mr Craig invited me to look at the maps, photographs, and photomontages because otherwise I would be unable to appreciate what the Inspector would or should have seen on her site inspection. This only goes to illustrate the difficulties inherent in the applicant's challenge. Maps and photographs may be helpful but they are no substitute for a site inspection. As those who attend planning inquiries know only too well, photomontages are often very far from being uncontroversial when produced in evidence and photographs not infrequently contradict the proposition that the camera cannot lie, particularly when questions of landscape impact are in dispute.

12

The use of the ordnance survey plan to get one's bearings in relation to the location of the application site and surrounding features does not present the same problems, and to that limited extent (but only to that extent) I am prepared to look at the ordnance survey plan.

13

Mr Craig drew my attention to the decision of Mr George Barlett QC, sitting as a deputy judge of the High Court, in South Oxfordshire District Council v Secretary of State for the Environment, Transport and the Regions [2000] V2 All ER 667. The Encyclopedia in paragraph 288.16 summaries the effect of his decision in this way:

"…there was no general rule that a party to a planning appeal was to be prevented from raising, in a challenge to that decision, an argument that had not been advanced in representations made on the appeal. If the inspector had omitted a material consideration, the decision could be unlawful, notwithstanding that the matter had not been raised in representations."

14

It is important that the South Oxfordshire decision is not regarded as a licence to introduce new material, that is to say material that was not before the Inspector, in section 288 applications. That this was not the deputy judge's intention is plain from the manner in which he dealt with the two additional grounds of challenge that were in contention in that case. The background was that the planning authority, whose refusal of planning permission had been overturned on appeal by an Inspector, sought permission to introduce two arguments before the learned deputy judge: firstly, relating to intermittent use; and secondly, relating to the adequacy of a condition.

15

The defendants objected upon the basis that the former argument would require new evidence and the latter could have been dealt with by way of suggested modifications if it had been raised before the Inspector. The judge accepted the validity of those objections and refused to permit the amendments containing the new grounds to be argued.

16

Whilst I accept that there is no general rule preventing a party from raising new material in a section 288 application, it will only be in very rare cases that it would be appropriate for the court to exercise its discretion to allow such material to be argued. It would not usually be appropriate if the new argument would require some further findings of fact and/or planning judgment (matters which are for the Inspector not the Court).

BACKGROUND

17

Before turning to the decision letter and the Claimant's criticisms of it, I should mention three matters of background. First, there had been an earlier proposal to use these agricultural buildings for industrial purposes which went to appeal in 1992. In his 1992 decision letter the Inspector said, inter alia:

"To the north, west and south of...

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