P G Edwards v The Secretary of State for the Environment Roadside Developments Ltd Breckland District Council
| Jurisdiction | England & Wales |
| Judge | DEPUTY JUDGE |
| Judgment Date | 10 May 1993 |
| Judgment citation (vLex) | [1993] EWHC J0510-3 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 May 1993 |
| Docket Number | CO 3030-92 |
[1993] EWHC J0510-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Mr Nigel Macleod QC (Sitting as a Deputy Judge)
CO 3030-92
MR C KATKOWSKI (instructed by Howard, Pollok & Webb. of 34 Prince of Wales Road, Norwich, Norfolk NR1 1LQ) appeared on behalf of the Applicant.
MR J HOBSON (instructed by the Treasury Solicitor) appeared on behalf of the first Respondent.
ROADSIDE DEVELOPMENTS LIMITED not represented.
BRECKLAND DISTRICT COUNCIL not represented.
Monday, 10th May 1993
THE DEPUTY JUDGE: Following an improvement of the A47 in Norfolk the Department of Transport, the relevant highway authority, recognised the need for motorists' service areas to be provided, but limited to a maximum of one service area only on each side of the improved road.
Seven applications for planning permission to provide the service areas were consequently made to the local planning authority. One of these applications was from
Mr Edwards (the applicant), and two (a pair, one for each side of the road) from Roadside Developments Limited ("Roadside") the second respondents. Mr Edwards' proposal was sited at an interchange and so could cater for traffic in both directions.
Mr Edwards' application was the first to be made. On 2 March 1992 the third respondent's planning committee resolved to grant planning permission on Mr Edwards' application and another application (Smithson). Unfortunately for Mr Edwards the planning committee changed its mind before any decision notice was issued and the application was refused on 6 July 1992.
Roadside's applications were made later than Mr Edwards'; they were refused on 17 March 1992. Roadside did not appeal these decisions, but, apparently aware of the difficulties that Mr Edwards' application was running into, made further applications for their proposals.
On 6 July 1992 the planning committee refused all seven applications including, as I have said, that of Mr Edwards.
It was a common reason for refusal in all applications that the proposals would result in an undesirable intrusion into the countryside. It was plain the planning committee took the view that intrusion into the countryside overrode the need for the facilities. This view was consistant with the policy held at local, strategic, and government level that the countryside should be protected for its own sake.
Five out of the seven refusals were appealed.
Roadside Developments Limited appealed on 27 July 1992 and Mr Edwards on 4 September 1992. I am told by Mr Katkowski for Mr Edwards that the gap between 6 July and 4 September was at least in part due to difficulties in obtaining a decision notice. Roadside agreed to appeal by written representations, but the other parties, including Mr Edwards, wished their appeal to proceed by way of public inquiry.
At this stage the situation was that there were five proposals under appeal. They were rival applications in the sense that the issues in each case were in principle the same, considerations of need and harm to amenity, and, looked at realistically, at most only two of the appeals could succeed, as it could be expected that only one service area serving each side of the road would be permitted.
On 24 September 1992 the applicants solicitors first learnt that Roadside had appealed, and wrote a letter to the Planning Inspectorate in the following terms:
"We write to confirm our telephone conversation this morning and shall be obliged if you would kindly take this letter as formal request for all appeals appertaining to applications for motorists service stations or like or similar developments at sites in the neighbourhood of A47 Tuddenham Road Improvements or in the vicinity thereof, to be called in and dealt with at a single Enquiry. In respect of our client, Mr Edwards, there is of course a date to be fixed in respect of his appeal and it has come to our attention that one applicant has appealed by way of written representation against its two planning refusals and that there may well be others, whose planning applications were refused by Breckland District Council, who either have or may be appealing by way of written representation or enquiry. We are sure the Inspectorate will agree that it is only right and proper and in the interests of justice for all appeals in respect of these sites to be dealt with at the same time and we await your confirmation."
It would appear from that letter that the applicants were seeking a fair way to deal with all these appeals and it is relevant to look at the correspondence.
On 24 September 1992, the solicitor for another applicant wrote in similar terms to the Planning Inspectorate, and I identify an extract from that letter which reads as follows:
"All the planning applications were refused for similar reasons relating to landscaping and environmental considerations, and in each case the Department of Transport has stated that it has no objections to the proposed development.
The Department of Transport have stated that there is only a need for one garage facility on each side of the stretch of road. We understand that the appeals of Roadside Development Limited are currently by written representations and an appeal date of 8th and 9th December 1992 has been fixed for the appeal of Mr Edwards."
I should interject at this stage that that date is not correct, the dates for Mr Edwards were 12th and 13th January 1993. The letter continues:
"In these circumstances we would urge the Secretary of State to call in the Application of Roadside Developments Limited so there can be a Public Inquiry and all the appeals are considered at the same time, which would enable the Inspector to decide the best site for which planning permission ought to be granted. If Planning Permission is to be granted in respect of two sites on an independent appeal, then the Department of Transport would direct a refusal in respect of any other sites on the stretch of road."
Those same solicitors wrote another letter on 6 October to the Planning Inspectorate, the first paragraph of which reads as follows:
"Further to our telephone conversation with you yesterday we have spoken to Mr Brittain at Breckland District Council, who had indicated that he would be prepared to support an application to call in the various appeals. We understand from him that he has not received a letter yet from you and we wonder whether, therefore, this has gone astray in view of the fact that you said yesterday you were waiting for a response. He says he has no objection to the appeals being called in as this would obviously be better from a planning point of view for a decision to be made as to which were the best two sites out of those which are being appealed."
On 7 October the Inspectorate wrote to the Local Planning Authority in these terms:
"I refer to the above appeals and enclose copies of correspondence requesting that all appeals relating to the motorist service stations at sites in the vicinity of A47, Tuddenham be heard at a joint Inquiry. This would include two appeals (209671 & 209672) which are currently proceeding by the written method.
I would be grateful if you would let me have your comments on this course of action as soon as possible."
The response to that request was dated 9 October when the Local Planning Authority wrote to the Inspectorate as follows:
"Further to your letter dated 7 October 1992, I am writing to confirm that Breckland District Council has no objection to the above planning appeals being heard at a joint Local Inquiry."
A letter of 16 October 1992 from the Inspectorate to the applicant's solicitors reads:
"Thank you for your letter of 24 September requesting that this appeal be heard with other appeals for roadside service areas in the locality, at a joint inquiry.
There are currently four similar planning proposals before the Department on appeal. Two of these are proceeding by the written representations method and two by local inquiry. The local planning authority have indicated that they have no objection to all the appeals being heard at a joint inquiry. Nevertheless, the Department does not consider there to be sufficient justification to delay the appeals being dealt with by written method, by insisting that they be heard together at an inquiry. It may, however, be appropriate for the two appeals proceeding to local inquiry to be heard together with your clients' appeal on 12 January 1992. One of the parties have already suggested a joint inquiry and the views of the others are being sought.
You also appear to raise the question of recovery of the appeals for decision by the Secretary of State. As you know, the criteria for the recovery of planning appeals are contained in paragraph 36 of Planning: Appeals, Call-in and Major Public Inquiries (CM43). At present there do not appear to be any grounds for recovery of any of the appeals."
Then on 22 October 1992 the applicant's solicitors wrote a letter to the Planning Inspectorate which reads as follows:
"We thank you for your letter of the 16th October and note that the Department accepts that there are currently four similar planning applications on appeal.
The decision on each is relevant to the decision of the others and the Local Planning Authority in its statement of case on our client's appeal is proposing to refer to the other appeals. It is obviously desirable that there should be joint consideration of all four appeals. It is recognised in the Inspectorate's letter of the 16 October by their statement in...
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