Vicarage Gate Ltd v First Secretary of State

JurisdictionEngland & Wales
JudgeJUDGE GILBART QC
Judgment Date26 April 2007
Neutral Citation[2007] EWHC 768 (Admin)
Date26 April 2007
Docket NumberCase No: CO/10355/2005
CourtQueen's Bench Division (Administrative Court)

[2007] EWHC 768 (Admin)

IN THE HIGH COURT OF JUSTICE

Royal Courts of Justice

Strand,

London,

WC2A 2LL

Judgment handed down at

Preston Combined Court Centre

Openshaw Place

Ringway

Preston

PR1 2LL

Before:

His Honour Judge Gilbart QC (sitting as a deputy High Court Judge)

Case No: CO/10355/2005

Between
Vicarage Gate Limited
Claimant
and
First Secretary Of State
First Defendant
and
Royal Borough Of Kensington And Chelsea
Second Defendant

David Holgate QC (instructed by Denton Wilde Sapte, solicitors of London EC4 ) for the Claimant

Richard Drabble QC (instructed by the Head of Legal Services, Royal Borough of Kensington and Chelsea, Town Hall, London W8) for the Second Defendant

The First Defendant did not appear and was not represented

Hearing dates: 14 th, 15 th March 2007

JUDGE GILBART QC

JUDGE GILBART QC:

Introduction

1

This is a challenge by Vicarage Gate Limited (“VGL”), by virtue of section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”), to a decision letter of an Inspector appointed by the First Defendant First Secretary of State (“FSS”), issued on 4 th November 2005, whereby he dismissed the appeals of VGL under section 78 TCPA 1990 against the failure of the Second Defendant Royal Borough of Kensington and Chelsea (“RBKC”) to determine

(1) its application for planning permission to demolish an existing building at Vicarage Gate House, Vicarage Lane within the Kensington Palace Conservation Area and construct 12 Class C3 residential apartments with 27 basement car park spaces, and

(2) its application for the requisite Conservation Area consent under the Planning (Listed Buildings and Conservation Areas) Act 1990.

2

In fact RBKC opposed the grant of both consents, and had resolved that it would have done so had the appeals not been made. The decision is challenged on 14 grounds. All relate to the first (planning) appeal. It is common ground that the second (Conservation Area) decision stands or falls with the first decision. The FSS has, as will be shown below, given consent to the decision being quashed on two grounds, as appears below. However the RBKC resists each of the grounds. All have been argued fully before me.

3

I shall deal with matters as follows in this judgment

(a) The site and the proposals

(b) The main issues before the Inspector

(c) The statutory background to planning decisions

(d) The Development Plan and other policies

(e) The arguments of the parties at the inquiry ( in summary form)

(f) The decision letter of the Inspector

(g) The grounds of challenge to the decision and the contentions of the parties

(h) Discussion and conclusions.

A The site and the proposals

4

The site is that of a former nursing home constructed in the 1950s, and previously owned and operated by an organisation called the Elizabeth Finn Trust, a charity which provided residential accommodation and nursing care for 55 persons. The building had been unused and vacant since that establishment closed in 2001.

5

VGL proposed the erection of 12 large apartments (described by the Inspector as “family-sized”) with car parking. It also offered a unilateral undertaking under section 106 TCPA 1990 whereby, if planning permission were granted, it would either pay £4 million to the Council for the purposes of providing affordable Elderly Persons Accommodation, or would be required to provide 20 affordable housing units on a site elsewhere in the Royal Borough. As will become apparent, such arrangements are by no means unusual in the Royal Borough.

B The main issues before the Inspector

6

The Second Defendant RBKC resolved that had the failure to determine the planning application not been appealed to the First Defendant FSS it would have been refused by the Second Defendant RBKC on the following grounds:—

(i) “The proposal involves the loss of elderly person's accommodation, which is defined in the Unitary Development Plan as a social and community use, and therefore does not comply with the Council's Housing and Social and Community use policies, in particular Policy SC2, H2 and H24.

(ii) The site has a capacity to provide 15 or more residential units, but does not make satisfactory provision for affordable housing and is therefore contrary to the Council's housing policies as set out in the Unitary Development Plan, in particular Policy H22.

(iii) The proposal does not provide a range and mix of units that includes smaller units and therefore does not comply with the Council's housing policies, in particular Policies H18 and H19.”

7

Those grounds crystallised into the following issues

(a) Did the UDP policy SC2 give protection to the site as a former nursing home from development for another purpose, and would the grant of permission conflict with the policies in the Supplementary Planning Guidance issued by RBKC ?

(b) If the site were suitable for redevelopment for housing purposes, should affordable housing provision be made on the site?

(c) Did the proposed development contain an acceptable mix of dwelling types and sizes?

C The statutory background to planning decisions

8

It is sensible at this stage of the judgment to note the statutory basis for decision making by an Inspector appointed to conduct a planning appeal. S/he must

(a) have regard to the statutory development plan (see section 70(1) TCPA 1990)

(b) have regard to material considerations (section 70(1) TCPA 1990)

(c) determine the proposal in accordance with the development plan unless material considerations indicate otherwise (section 38(6) Planning and Compulsory Purchase Act 2004 (“ PCPA 2004”)

(d) give his/her decision with reasons in writing (The Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 Rule 19). That duty required the Inspector to give proper, intelligible and adequate reasons which dealt with each of the substantial points raised by the parties ( Save Britain's Heritage v. No. 1 Poultry [1991] 1 WLR 153; South Buckinghamshire C.C. v. Porter (No. 2) [2004] 1 WLR 1953)

9

There are other principles at play here. None were the subject of dispute between counsel. They are:

(a) while an Inspector is not required to invite submission from the parties if he adopts a line of reasoning open to him on the issues which have been raised at the inquiry, he should not rely on an issue which has not been so ventilated. This is the “fair crack of the whip” principle found in Fairmount Investments Limited v Secretary of State for the Environment [1976] 1 WLR 1255 at 1265 per Lord Russell;

(b) it is for the decision maker to interpret policy. The Court will not interfere with his interpretation if it is one which it can properly bear; see R v Derbyshire County Council, ex parte Woods [1997] JPL 958, CA, per Brooke LJ at page 967 968, The Queen (on the application of Springhall) v London Borough of Richmond Upon Thames [2006] EWCA Civ 189 and the immensely useful summary of the authorities by Davis J in Cranage Parish Council v First Secretary of State [2004] EWHC Admin 2949 at paragraphs 45–50;

(c) if it is shown that the decision maker had regard to an immaterial consideration, or failed to have regard to a material one, the decision will be quashed unless the Court is satisfied that the decision would necessarily have been the same: see Simplex GE (Holdings) Ltd v. Secretary of State for the Environment [1988] 57 P & CR 306;

(d) decision letters by other Inspectors can be a material consideration. Guidance on how they are to be dealt with is given by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P & CR 137 at 145 (very recently followed by the Court of Appeal in Dunster Properties Ltd v The First Secretary of State & Anor [2007] EWCA Civ 236):

“One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.

To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in a previous case? The areas for possible agreement or disagreement cannot be defined but they would include an interpretation of policies aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate.”

D The Development Plan and other policies

10

The statutory development plan consisted of

(a) the London Plan, which is the...

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5 cases
1 firm's commentaries
  • Comparables That Glitter Are Not All Gold
    • United Kingdom
    • Mondaq UK
    • 26 June 2018
    ...case as lacking sufficient cogency to satisfy the policy (paragraph 54, applying Vicarage Gate Limited v First Secretary of State [2007] EWHC 768 (Admin)); (5) planning by numbers is tempting but dangerous - "the NPPG recognises that it may not be proper" to "compromise policy requirements"......
2 books & journal articles
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill Planning Law. A Practitioner's Handbook Contents
    • 30 August 2019
    ...Vestry of St Mary, Newington v Jacobs (1871–72) LR 7 QB 47, 36 JP 119, 20 WR 249 545 Vicarage Gate Ltd v First Secretary of State [2007] EWHC 768 (Admin), [2007] NPC 50 254, 255, 259 Vickers-Armstrong Ltd v Central Land Board (1957) 9 P & CR 33, CA 94 Wakefield Local Board v Lee (1875) 1 Ex......
  • Viability
    • United Kingdom
    • Wildy Simmonds & Hill Planning Law. A Practitioner's Handbook Contents
    • 30 August 2019
    ...distinguishable from that considered by HHJ Gilbart QC (as he then was) in Vicarage Gate Limited v First Secretary of State [2007] EWHC 768 (Admin) at paragraphs 44 to 54. He held that where, in the context of determining a planning application, a policy requires a party (eg. an applicant) ......

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