Raymond Gill v The Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Rhodri Price Lewis |
| Judgment Date | 25 September 2015 |
| Neutral Citation | [2015] EWHC 2660 (Admin) |
| Docket Number | Case No: CO/1537/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 September 2015 |
[2015] EWHC 2660 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Rhodri Price Lewis QC
(sitting as a deputy High Court Judge)
Case No: CO/1537/2015
Jonathan Darby (instructed by Holmes & Hills LLP) for the Claimant
Stephen Whale (instructed by the Government Legal Department) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing date: 9 September 2015
The Deputy Judge ( Rhodri Price Lewis QC):
Introduction
This is a claim under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990"). The Claimant, Raymond Gill, seeks the quashing of the decision of the Inspector, Mr. J.D. Westbrook BSc (Hons), MSc, MRTPI appointed by the Secretary of State for Communities and Local Government, the First Defendant, contained in a decision letter dated the 24 February 2015. That decision letter dismissed the appeal made by Mr Gill against the refusal of the Second Defendant to grant planning permission for the development proposed, described in the decision letter as "the change of use from stables to offices" on land at the rear of 100–114 Common Road, Kensworth, Bedfordshire. That site is within the area of the Second Defendant and is within the Green Belt.
The appeal under section 78 of the TCPA 1990 was conducted by way of exchanges of written representations in accordance with the Town and Country Planning (Appeals) (Written Representation Procedure) (England) Regulations 2009, SI 2009/452.
Grounds of challenge:
In summary the Claimant puts forward four grounds of challenge:-
i) The Inspector failed to have regard to the statutory duty under section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to determine the application for planning permission in accordance with the development plan unless material considerations indicate otherwise;
ii) The Inspector failed properly to interpret and apply the National Planning Policy Framework (the "NPPF") with respect to the re-use of buildings in the Green Belt;
iii) The Inspector reached irrational and unreasonable conclusions unsupported by the facts/ and or evidence and/or professional assessment.
iv) The Inspector failed to have regard to a previous appeal decision relating to the site or failed to give adequate reasons for departing from it.
Relevant Legal Principles:
Section 288 of the 1990 Act provides as follows:
"(1) If any person –
(a) …
(b) is aggrieved by any action on the part of the Secretary of State to which this section applied and wishes to question the validity of that action on the grounds—
(i) that the section is not within the powers of this 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.
(2), (3), (4) …
On an application under this section the High Court –
(a) …
(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 of action."
The determination of an appeal against a refusal of planning permission is an "action" within the meaning of section 288.
The general principles concerning the grounds upon which a Court may be asked to quash a decision of an Inspector or the Secretary of State are well established. I gratefully adopt the summary given by Lindblom J, as he then was, in Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) in the following terms:
"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 W.L.R. 1953, at p.1964B–G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780F–H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for [2001] EWHC Admin 74, at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] P.T.S.R. 983, [2012] UKSC 13, at paragraphs 17 to 22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E–H).
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).
(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145)."
The Decision Letter:
The Inspector identified the main issues as he saw them in the following terms:
"6. The main issues in this case are:
• Whether the proposed change of use represents inappropriate development in the Green Belt and, if so, whether the harm to the Green Belt by way of inappropriateness, and any other harm, is clearly outweighed by any other considerations,
• The effect of the proposal on the character and appearance of the countryside around Kensworth, and
• The effect of the proposal on the living conditions of the occupiers of neighbouring properties by way of noise and other disturbance."
In dealing with Green Belt issues the Inspector wrote:
"10. The National Planning Policy Framework (NPPF) identifies 5 purposes of the Green Belt. One of these is to assist in safeguarding the countryside from encroachment. It goes on in paragraph 89 to note that certain developments should not be considered inappropriate. One of these exceptions relates to the provision of appropriate facilities for outdoor sport and recreation, as long as it preserved the openness of the Green belt and does not conflict with the purposes of including land within it. The existing building was built on the basis of a planning permission for its retention as stables, which may be construed as not inappropriate in the Green Belt.
11. However, the building as constructed does not have...
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