North Wiltshire District Council v The Secretary of State for The Environment and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MANN,SIR MICHAEL KERR,LORD JUSTICE PURCHAS |
| Judgment Date | 15 April 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0415-6 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0389 |
| Date | 15 April 1992 |
[1992] EWCA Civ J0415-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr. Lionel Read Q.C.
(Sitting as a Deputy High Court Judge)
Royal Courts of Justice
Crown Office List
Lord Justice Purchas
Lord Justice Mann
and
Sir Michael Kerr
92/0389
and
MR. STEPHEN RICHARDS (instructed by The Treasury Solicitor) appeared on behalf of the Appellant (First Respondent).
MR. T.D. STRAKER (instructed by Messrs Sharpe Pritchard, London Agents for G.C. Betteridge of Chippenham) appeared on behalf of the Respondents (Applicants).
This is an appeal by the Secretary of State for the environment against a decision of Mr. Lionel Read Q.C.. when sitting as a deputy judge of the High Court on 26th February 1991. By his decision the learned deputy judge allowed an application by the North Wiltshire District Council under section 245 of the Town and Country Planning Act 1971 and guashed a decision of an inspector appointed by the Secretary of State dated 5th June 1990. By his decision the inspector had allowed an appeal by Mr. and Mrs. Keith Clover against a decision of the district council dated 30th October 1989 whereby they had refused planning permission for the erection of a dwelling-house with garage on 0.11 ha. of land within the walled garden of Notton Lodge, Notton, Wiltshire. Although parties to the proceedings, Mr. and Mrs. Clover have played no part in them in either the court below or this court.
The district council's notice of motion dated 13th June 1990 raised a number of grounds of challenge but it was on only one ground that they succeeded before the learned deputy judge. It was a ground to the effect that the inspector had failed to give any reason for reaching a decision which was inconsistent with an earlier appeal decision. The Secretary of State appeals on the grounds that there was in the circumstances of the case no need for the inspector to have given any reason why he had reached a conclusion different from that reached earlier, and that if there was, then any deficiency in reasons had not caused substantial prejudice to the district council.
Notton is within an area which is covered by the approved West Wiltshire Structure Plan 1981, the adopted Chippenham Local Plan 1987 and the emerging North Wiltshire Local Plan. Policies in the structure plan and in the emerging local plan were relevant to Mr. and Mrs. Clover's application for permission. Policy H14 of the structure plan provided that in villages which lack certain specified facilities (as does Notton) "only very limited development within the physical limits of the village will normally be permitted". Policy H8 of the emerging local plan provides that in villages not shown on the proposals map (as Notton is not) "only very limited residential development within the physical limits of the village will normally be permitted". Both of the policies state that development within the physical limits of a village is acceptable only where it would be in scale and harmony with the character of the settlement and without adverse effect on the local environment. Policy H6 of the adopted local plan is more restrictive than the policies of both the structure plan and the emerging local plan, but for reasons which are now unchallenged, the inspector who determined Mr. and Mrs. Clover's appeal, attached greater importance to policy H14 and H8.
In 1980 or 1981 a Mrs. J.M. Holliday submitted an application to the district council for planning permission for the erection of a dwelling-house with garage on a site within the walled garden of Notton Lodge which was larger than, but included, the site of Mr. and Mrs. Clover's proposal. The application was refused. Mrs. Holliday appealed to the Secretary of State who appointed an inspector, Mr. W.S.C. Redpath RIBA, to determine the appeal. He held an inquiry into the appeal and dismissed it on 4th February 1982. This is the earlier appeal decision to which I have referred and it has the departmental reference T/APP/5408/A/81/09959/62.
Mr. Redpath identified the main issue before him as being whether the proposed development could be regarded as "infilling within the physical limits of an existing settlement and, if not, whether or not there is adequate justification for permitting the development as an exception to the normal requirements of the…structure plan" (decision letter paragraph 2). After an analysis of the fabric and character of Notton, he concluded "that the appeal site lies outside the physical limits of Notton and that…the proposed development cannot be regarded as infilling". Mr. Redpath then considered whether there was any adequate justification for exceptional treatment and found no adequate argument favouring a proposal "which would consolidate existing sporadic development and erode the open rural character of the locality contrary to the policies of the…Structure Plan" (the same, paragraph 6). He accordingly dismissed the appeal.
Mr. and Mrs. Clover made their application on 1st September 1989. It was refused on 30th October 1989. The reasons for refusal were those which had been recommended by the district council's planning officer in his report upon the application. They related to policies H14 and H8, to the site being outside the physical limits of Notton, to detriment to character and amenity, to injurious effects on the garden wall (which is a listed building) and to a highway objection by the Wiltshire County Council. There was no reference to the 1982 decision either in the refusal notice or in the planning officer's report but he did refer to a representation by the Lacock Parish Council which indicated "they are unaware of any change in the structure plan which would make this a viable application". The emphasis is mine. It is at least possible that the parish council had in mind the absence of change since the decision of 1982. This was certainly in the mind of Mrs. P A. Hawkins, a local resident, who wrote to the district council on 31st October 1989 expressing her objection to the proposal and stating her belief that the "area should remain as open countryside". She concluded "a similar application was refused in 1981/1982 (Refer T/APP/ 54508/A/81/09959/62). The reasons for refusal have not changed since that date".
On 21st November 1989 Mr. and Mrs. Clover's agents lodged an appeal to the Secretary of State on grounds which in effect traversed the reasons for refusal. The appeal was one of a class of appeals which has been transferred for determination to inspectors appointed by the Secretary of State (see Town and Country Planning (Determination of Appeals by appointed persons) (Prescribed Classes) Regulations 1981). Mr. and Mrs. Clover and the district council each had a right to a hearing by an inspector (Act of 1971 Schedule 9, paragraph 2(2)(b), now Town and Country Planning Act 1990, schedule 6, paragraph 2(4)). But each of them waived that right in favour of the very widely used written representations procedure.
The written representations procedure is regulated by the Town and Country Planning (Appeals) (Written Representations Procedure) Regulations 1987. Under that procedure (i) the notice of appeal and any documents are treated as the appellant's representations; (ii) the planning authority are required to submit an appeals questionnaire together with any documents referred to in it, and (iii) the planning authority may elect to treat the completed questionnaire and its documents as their representation but, where they do not do so, they may submit representations on which the appellant is entitled to make further representations (see regulations 6 and 7). The district council submitted a completed questionnaire together with the documents referred to in it which included the letters from the parish council and Mrs. Hawkins as being "relevant correspondence concerning the application". The council did not rest on the questionnaire but, on 22nd January 1990 submitted what were described as "Concluding Submissions and Comment". On 26th March Mr. Steven Smallman, who is a chartered surveyor and town planner, submitted further representations for the appellants. These contained Mr. and Mrs. Clover's substantive case. The district council commented on those further representations in a letter dated 3rd April 1990.
The representations by both parties were very largely concerned with whether the proposed development accorded with policies H14 and H8. An important issue to be decided in that regard was whether the appeal site was (as the appellants' surveyor and planner asserted) or was not (as the district council asserted), within the "physical limits" of Notton. I would have expected the district council to rely in support of their view upon the decision of Mr. Redpath. Surprisingly they did not do so although in their "Concluding Submissions and Comment" under the heading "Planning History", there is the entry "DWELLING-HOUSE WITH GARAGE AND VEHICULAR ACCESS DISMISSED AT APPEAL 4 FEBRUARY 1982 (COPY LETTER ENCLOSED)". The decision letter was enclosed but nowhere is there any mention of its contents. Mr. Smallman in his submissions (paragraph 5.1) did refer to the 1982 decision but only to remark that it was taken in the light of the Chippenham Local Plan. The district council made no comment on this remark in their letter of 3rd April.
The inspector appointed to determine the appeal was Mr. Denis McCoy ARIBA, FRTPI. His decision letter of 5th June 1990 was addressed to Mr. and Mrs. Clover's...
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