William Davis Ltd and Another v Secretary of State for Communities and Local Governments and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMrs Justice Lang Dbe
Judgment Date11 October 2013
Neutral Citation[2013] EWHC 3058 (Admin)
Date11 October 2013
Docket NumberCase No: 10359/2012

[2013] EWHC 3058 (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: 10359/2012

Between:
(1) William Davis Limited
(2) Jelson Limited
Claimants
and
(1) Secretary of State for Communities and Local Governments
(2) North West Leicestershire District Council
Defendants

Jeremy Cahill QC & Satnam Choongh (instructed by Bird, Willford & Sale) for the Claimants

James Maurici QC (instructed by The Treasury Solicitor) for the First Defendant

The Second Defendant was not represented

Hearing dates: 2 nd & 3 rd October 2013

Approved Judgment

Mrs Justice Lang Dbe
1

In this application under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990"), the Claimants apply to quash the decision of the Secretary of State for Communities and Local Government ("the Secretary of State") dated 20 th August 2012.

2

The Claimants appealed, under section 78 TCPA 1990, against the failure of the local planning authority, North West Leicestershire District Council ("the planning authority"), to give notice within the prescribed period on an application for outline planning permission for residential (and associated) development on land north of the A511 Stephenson Way, Coalville, Leicestershire ("the Site"). The appeal was recovered for the Secretary of State's determination, pursuant to section 79 and paragraph 3 of Schedule 6 to the TCPA 1990.

3

An Inspector, Mr P.E. Dobsen, held a public local inquiry between 7th and 29 th February 2012. The planning authority opposed the grant of planning permission. After the conclusion of the inquiry, the National Planning Policy Framework ("NPPF") was issued, in March 2012. An opportunity was given to make further written representations, which were taken into account by the Inspector. The Inspector recommended that the appeal be dismissed and planning permission refused, in a report dated 13 th June 2012.

4

The Secretary of State agreed with the Inspector's conclusions and recommendations. Accordingly, he dismissed the appeal and refused planning permission in his decision letter ("DL") dated 20 th August 2012.

The scope of an application under section 288 TCPA 1990

5

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.

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

(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."

6

Section 288(1)(b)(ii) relates to procedural requirements, and is qualified by the requirement that the claimant 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.

7

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. 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."

8

In accordance with the requirements of public law, the Secretary of State must ask himself the right question and take reasonable steps to acquaint himself with the relevant information to answer it correctly: Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, per Lord Diplock at 1065B. He ought to take into account a matter which might cause him to reach a different conclusion — the use of the word "might" means that there must be a real possibility that he would reach a different conclusion if he did take that consideration into account: Bolton MBC v Secretary of State for the Environment (1990) 61 P & CR 343, per Glidewell LJ at 352–252.

9

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".

10

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 …"

11

A decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.

12

Two citations from the authorities listed above are of particular relevance to the disputed issues in this case.

a) South Somerset District Council, per Hoffmann LJ at 84:

"…as Forbes J. said in City of Westminster v Haymarket Publishing Ltd:

"It is no part of the court's duty to subject the decision maker to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph"

The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the...

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