Oxford Diocesan Board of Finance v Secretary of State for Communities and Local Government and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMrs Justice Lang
Judgment Date11 Apr 2013
Neutral Citation[2013] EWHC 802 (Admin)
Docket NumberCase No: CO/6397/2011

[2013] EWHC 802 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mrs Justice Lang DBE

Case No: CO/6397/2011

Between:
Oxford Diocesan Board of Finance
Claimant
and
(1) Secretary of State for Communities and Local Government
(2) Wokingham Borough Council
Defendants

Gregory Jones QC and Denis Edwards (instructed by Winkworth Sherwood LLP) for the Claimant

David Forsdick (instructed by the Treasury Solicitor) for the First Defendant

Saira Kabir Sheikh (instructed by Shared Legal Solutions) for the Second Defendant

Hearing dates: 11 th and 12 th March 2013

Approved Judgment

Mrs Justice Lang DBE

Mrs Justice Lang DBE:

1

In this claim under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990"), the Claimant applies to quash the decision of the Secretary of State for Communities and Local Government ("the Secretary of State") dated 26th May 201In that decision, the Secretary of State agreed with the conclusions of his Inspector, Mr G. Cundale, contained in a report written on 30th March 2011, following an inquiry, and dismissed the appeal brought by the Claimant against the refusal of Wokingham Borough Council ("the Council") to grant permission for residential (and associated) development on land at Shinfield Glebe, Church Lane, Shinfield, Berkshire ("the Site").

Law

2

Section 288 of the 1990 Act provides, so far as is material, that:

"(1) If any person —

(b) is aggrieved by any action on the part of the Secretary of

State to which this section applies and wishes to question the validity of that action on the grounds –

(i) that the action is not within the powers of the Act,

or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.

(3) An application under this section must be made within six weeks from … the date on which the action is taken.

(4) This section applies … to any such action on the part of the Secretary of State as is mentioned in subsection (3) of … section [284 of the 1990 Act]."

(5) On any application under this section the High Court—

(a) may, subject to subsection (6), by interim order suspend the operation of the order or action, the validity of which is questioned by the application, until the final determination of the proceedings;

(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action."

3

The scope of challenge under section 288 is wide, and the general principles of judicial review are applicable. As Forbes J. said in Seddon Properties v Secretary of State for the Environment (1978) 42 P &CR 26:

"(1) The Secretary of State must not act perversely. That is, if the court considers that no reasonable person in the position of the Secretary of State, properly directing himself on the relevant material, could have reached the conclusion which he did reach, the decision may be overturned. See, e.g. Ashbridge Investments Ltd v. Minister of Housing and Local Government [1965] 1 W.L.R. 1320, per Lord Denning M.R. at 1326F and Harman L.J. at 1328H. This is really no more than another example of the principle enshrined in a sentence from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 K.B. 223 at 230:"

'It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere.'

(2) In reaching his conclusion the Secretary of State must not take into account irrelevant material or fail to take into account that which is relevant: see, e.g. again the Ashbridge Investments case, per Lord Denning M.R. loc. cit.

(3) The Secretary of State must abide by the statutory procedures, in particular by the Town and Country Planning (Inquiries Procedure) Rules 1974 [see now the 2000 Rules]. These Rules require him to give reasons for his decision after a planning inquiry r.18 and those reasons must be proper and adequate reasons which are clear and intelligible, and deal with the substantial points which have been raised: Re Poyser and Mills Arbitration [1964] 2 Q.B. 467.

(4) The Secretary of State, in exercising his powers, which include reaching a decision such as that in this case, must not depart from the principles of natural justice: per Lord Russell of Killowen in Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 W.L.R. 1255 at 1263D.

(5) If the Secretary of State differs from his inspector on a finding of fact or takes into account any new evidence or matter of fact not canvassed at the inquiry he must, if this involves disagreeing with the inspector's recommendations, notify the parties and give them at least an opportunity of making further representations: r.17 of the Inquiries Procedure Rules [2000]."

4

Section 288(1)(b)(ii) relates to procedural requirements, and is qualified by the requirement that the applicant should show that he has been substantially prejudiced by the failure to comply with the provisions (subs.(5)(b)). There is some degree of overlap between the limbs of the statutory formula. In such cases challenge may be brought equally under either limb, "for it is to be implied, unless the contrary appears, that Parliament does not authorise by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles" ( Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 W.L.R. 1255 at 1263, per Lord Russell). Also the procedural requirements of the Rules are not exhaustive in that further safeguards may be found in the rules of natural justice (see, e.g. Performance Cars Ltd v Secretary of State for the Environment (1977) 34 P. & C.R. 92).

5

The exercise of planning judgment and the weighing of the various issues are entirely matters for that decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28 and Tesco v Secretary of State for the Environment [1995] 1 W1.R 759, at 780. In the latter case Lord Hoffmann said "If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State".

6

In Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 (a case concerning a challenge to a planning inspector's decision) Sullivan J. said at [6] – [8]:

"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.

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.

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 …"

7

In Tesco Stores v. Secretary of State for the Environment & Ors [1995] 1 WLR 759, Lord Hoffmann said, at 780F-H, that the weight to be given to a material consideration was a question of planning judgment for the planning authority.

8

In Tesco Stores Limited v Dundee City Council [2012] UKSC 13, Lord Reed (with whose judgment Lord Brown, Lord Hope, Lord Kerr and Lord Dyson agreed) said, at [17]:

"It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 2319, 225–226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act. The effect of the predecessor of section 25, namely section 18Aof the Town and Country (Planning) Scotland Act 1972 (as inserted by section 58 of the Planning and Compensation Act 1991), was considered by the House of Lords in the case of City of...

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