Waterstone Estates Ltd v Welsh Ministers Neath Port Talbot County Borough Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 16 November 2017 |
| Neutral Citation | [2017] EWHC 2922 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 November 2017 |
| Docket Number | Case No: CO/2369/2017 |
[2017] EWHC 2922 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN WALES
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Fraser
Case No: CO/2369/2017
and
Mr Gwion Lewis (instructed by Berry Smith LLP) appeared for the Claimant
Mr Tim Buley (instructed by Government Legal Department) appeared for the Defendant
Hearing date: 13 October 2017
Judgment Approved
Introduction
This is a planning statutory review, namely an application to the High Court made under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") by the Claimant in respect of two decisions of an Inspector appointed by the Welsh Ministers, both of those decisions also being on appeal from decisions by the Interested Party. The Claimant seeks to quash those decisions. In the two decisions made by the Inspector, she dismissed the Claimant's two appeals, referred to as Appeal A and Appeal B, brought under section 78 of the 1990 Act from decisions of Neath Port Talbot County Borough Council, the Interested Party ("the Council"). Those two appeals were in relation to the Council's following decisions:
(A) the refusal of full planning permission for a roadside service area, comprising a petrol filling station and kiosk, 'drive-thru' coffee shop, car parking, access, landscape and associated works (this was referred to in the Inspector's decision as "Appeal A"); and
(B) the refusal of outline planning permission for a pub/restaurant, access, car parking and associated works on the same site ("Appeal B").
The appeals were heard together on 8 February 2017, and dismissed in a single "Appeal Decision" which is dated 7 April 2017. Nothing turns on the fact that both appeals were heard together, and indeed this was agreed by the parties in the appeal before the Inspector; she made clear in her Appeal Decision that they would be determined separately and there is no ground of challenge in this court disputing the correctness of that approach. Both appeals relate to land at Glynneath Business Park, adjacent to the A465, Glynneath ("the Site"). The Site is 45m beyond the settlement limits of Glynneath.
By way of further background to those section 78 appeals, and as the Appeal Decision itself makes clear, at the time of her Appeal Decision there was an extant planning permission for a development described as "a McDonald's Restaurant, Little Chef Restaurant, Esso Petrol Service Station and associated road works" on the site to which Appeal A related. This was referred to as "the 1999 permission". This was a full permission and the McDonald's Restaurant had been built and was operating. There was a dispute between the parties as to whether that latter element of construction pursuant to the permission meant that the remainder of the works under the 1999 permission could still be performed, or whether the permission had lapsed due to non-compliance with conditions precedent, but that is not relevant for the purposes of this judgment. However, this background does help explain that the Site, as at the date of the proceedings before the Inspector, already had certain facilities for motorists in that location.
Three main issues were identified by the Inspector in paragraph 7 of her Appeal Decision. These were in summary as follows:
1. whether the proposed developments complied with local and national policy designed to restrict new development outside defined settlement limits;
2. whether the proposed developments complied with local and national policy related to new retail development and the effect of the proposals on the vitality and viability of the Glynneath district centre; and
3. if the proposed development failed to accord with local and national policy as set out in the preceding two issues – which she referred to as "the first two main issues" – whether there were any material considerations that would outweigh any harm identified in relation to the other main issues.
The Appeal Decision was unfavourable to the Claimant and this challenge relies upon four separate grounds. They are said to be errors of law by the Inspector, and the Claimant seeks to have the Appeal Decision quashed as a consequence of them. It is common ground between the parties that the Site is outside the settlement limits. The grounds of challenge are as follows:
1. The Inspector came to the irrational conclusion that another site in the area, which is referred to as "the Park Avenue site", was sequentially preferable in retail terms even though the Claimant argues that it would not (and could not) be serving the same roadside service function as the facilities at the Site for which permission was being sought. Alternatively, the Claimant contends that the Inspector failed to consider the specialist function of the proposals before concluding that the Park Avenue site was sequentially preferable.
2. The Inspector was procedurally unfair in coming to her own conclusion that the Park Avenue site was sequentially preferable when the Council had accepted that it was not, and she gave no indication before issuing her decision that she was inclined to come to this view herself.
3. The Inspector misdirected herself by concluding that the scheme "conflicted" with the retail policies in the Local Development Plan ("the LDP") when those policies were silent about retail proposals beyond the settlement limits. Further and/or alternatively, the Inspector failed to consider that national planning policy states explicitly that out-of-centre retail proposals, beyond settlement limits, can be acceptable.
4. The Inspector's conclusion that the scheme did not amount to "infrastructure" for the purpose of criterion 9 of policy SC1 of the LDP was based on a misdirection as she only considered part of the definition of "infrastructure" in the LDP Glossary and overlooked the reference to "roads" in that definition. This ground was refined, expanded or amended (depending upon one's view of it) in the Claimant's skeleton argument for the hearing. This was because an argument was mounted in that skeleton that the scheme was "associated with infrastructure", rather than being "infrastructure", and this also fell within the wording of criterion 9. I gave permission during the hearing for what was essentially a new ground, ancillary to the existing ground 4 (which dealt solely with "infrastructure"). I will refer to this as ground 4A and further explanation is given in that section of this judgment below. It is additional to ground 4. The reason that I gave permission for this during the hearing was it seemed to me that it would be unsatisfactory to ignore an argument based upon the wording of the same criterion, criterion 9, and consider the Claimant's approach on a narrow part of that criterion ignoring the wider argument. However, the argument does face the difficulty that it was not argued before the Inspector, and I deal with that below also.
These proceedings were issued in time on 18 May 2017. Permission for them was refused on the papers by Lewis J, who held that the challenge was not properly arguable and gave detailed reasons in respect thereof in his order of 15 June 2017. The Claimant renewed its application for permission and after an oral hearing, permission was granted on all four grounds (but not on ground 4A, which did not at that stage exist) by HHJ Jarman QC sitting as a Judge of the High Court in an order dated 28 July 2017. Although the Welsh Ministers do not seek to go behind that grant of permission at the oral renewal, they do rely upon the analysis of Lewis J as justifying dismissal of the application under section 288 of the 1990 Act. I will deal with the general approach of the Court to decisions of Inspectors and how they should be considered first, and then turn to deal with the separate grounds. Due to the close relationship between grounds 4 and 4A, which both deal with the wording of the relevant criteria within SC1, I shall deal with those two grounds together.
Generally
Planning inspectors are specialists in planning and not all of them are lawyers, although this Inspector does have a legal qualification and is a non-practising solicitor. However, even though she is legally qualified I consider that her Decision should be approached in the same way as other, non-legally qualified Inspectors; they are decisions on matters of planning, which includes consideration of policy as well as legal principle. They are not legal opinions or judgments of a court, and they should not be analysed or studied as though they were. This is well-established. In South Somerset DC v Secretary of State for the Environment [1993] 1 PLR 80 Hoffman LJ (as he then was) said:
" The inspector is not writing an examination paper… One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood a relevant policy…"
Sir Thomas Bingham MR (as he then was) in Clarke Homes Ltd v SSE (1993) 66 P & CR 263 made the following statement, which is expressed in different terms but is to the same end:
" … the central issue … is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication".
A planning Decision should not be minutely studied as though it were a statute or a legal precedent. This would be the wrong approach.
The Welsh Ministers rely upon the well-known summary of the principles applicable to a challenge under ...
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