Wallis v Vale of Glamorgan Council

Friday 8 September 2006

LORD JUSTICE MUMMERY:

1. This is a renewed application for permission to appeal. The decision which the applicant, Dr Max Wallis, wishes to appeal is that of His Honour Judge Wyn Williams QC, sitting in the Administrative Court, in which he gave judgment on 31 March 2006 dismissing the proceedings brought by Dr Max Wallis on grounds contained in his claim form of 27 May 2005. He sought in the proceedings to obtain an order from the court to quash five parts of the Unitary Development Plan ("UDP") of the defendant, Vale of Glamorgan Council ("the Council").

2. The application for permission to appeal was first made to the judge. He refused to grant permission to appeal, and extended the time for making an application for permission to the Court of Appeal.

3. The application to this court was considered on paper by Dyson LJ on 21 July 2006. For the reasons which he gave he refused to grant permission to appeal on any of the five grounds which were set out in the notice. What we have to decide on this renewed application, in which Dr Wallis has been represented by Mr William Upton of counsel, is whether any of these five grounds discloses a real ground of successfully appealing from the judgment of 31 March. In support of the application Mr Upton submitted a skeleton argument, which was considered by Dyson LJ when he dealt with the case on paper. Since Dyson LJ's decision, Mr Upton submitted a helpful statement in support of the renewed application in accordance with CPR 52 PD 4.14A. At this morning's oral hearing he has helpfully focused on the essence of the five grounds and why it is submitted that we should grant permission.

4. In order to understand the basis on which Dyson LJ refused permission and the basis on which the renewed application is made, I need to say a little about the Council's UDP. The Council placed a draft of the UDP on deposit as long ago as April 1998. There were 1300 representations made about it. In January 1999 proposed changes to the UDP were placed on deposit and that attracted 175 representations. Between June 1999 and January 2000 there followed a public local inquiry into the UDP. The Inspector made his report on that inquiry in November 2000. In February 2003 the Council approved proposed modifications to the draft UDP and made a statement of decision. The proposed modifications were placed on deposit. Representations were made and there were further modifications. In February 2005 the Council resolved to adopt the UDP and in March gave notice of that intention.

5. Representations were then made to the Welsh Assembly Government. On 6 April 2005 the Welsh Assembly Government authorised the Council to proceed to adoption of the UDP and later in the same month notice of adoption of the UDP was published. During the course of all these steps which I have summarised there were changes made to the planning laws. During the period that I have described the 1990 Town and Country Planning Act applied. But after the process was complete, from 19 October 2005 the new 2004 Act came into force.

6. Against that background I proceed to the grounds on which Dr Wallis sought to have discrete parts of the UDP quashed. There are five grounds relating to four matters. The first ground relates to the Green Belt; the second to roads; the third to quarries; and the fourth and fifth to the waste chapter. In what I would applaud as an excellent judgment the judge dealt clearly and in detail with each of these grounds and gave reasons for rejecting them. Dyson LJ on the papers agreed with the judge. He said that the way that he dealt with the first ground was unimpeachable; the way he dealt with the second disclosed no error of law; the way he dealt with the third ground, which consisted of a number of detailed points, did not disclose any error of law; he reached the same conclusion on ground 4, saying that the judge was entitled to reach the conclusion that he did; and on ground 5 that he could find no fault with the judge's reasoning in the relevant part of his judgment.

The Green Belt

7. I will refer briefly to each ground and the points which have been made by Mr Upton in respect of it. The Green Belt is dealt with in the judge's judgment between paragraphs 13 and 38. The ground on which the judge's rejection of the submissions of Dr Wallis were made forms the first ground of appeal. It is said that the judge erred in law in refusing to quash the requested part of the UDP regarding the Green Belt, when he applied the legal test that the Council's rejection of the objections and the Inspector's recommendation it should be a Green Belt was purely a matter of judgment. The Council in this instance are acting as the promoter of the plan and a higher level of reasoning is to be expected.

8. The position on this is that the Inspector had recommended that the UDP should include a Green Belt designation. The Council rejected the Inspector's recommendation. The judge said that the Council did not act unlawfully in doing so. Dyson LJ, as I have already indicated, agreed, The broad reasoning was that it was for the Council to interpret the relevant policy document, which was the Planning Policy Wales 2002, and it was not for the court to interfere with the way in which the Council had interpreted the policy document unless it was demonstrated that their interpretation was perverse, irrational or unreasonable. It was argued for Dr Wallis that the policy document supported the recommendations of the Inspector and that no adequate reasons had been given by the Council for departing from what the Inspector had recommended.

9. In his statement in support of today's arguments, Mr Upton said:

".... it is too easy to dismiss any challenge to the Council's rejection of the Inspector's recommendation as a matter of planning judgment and opinion and therefore not for the courts. This case shows not just a disagreement of opinion (eg over a visual judgment), but a failure by the Council to address the substance of the Inspector's reasoning for his recommendation; the Council just repeated the same argument as they had advanced before him, and made a spurious distinction that the Planning Policy had changed (when all that had happened is that the draft version became the adopted version, without changing the policy substance on green belts). This is a proper matter for the court to consider, and there has been a lacuna in the reasoning [of the Council] ...."

Mr Upton then made a criticism of the way that Dyson LJ had dealt with the point by reference to what the judge had said in his judgment.

10. On this point, in my judgment, the position is this. It was common ground that the Council was not bound to accept the Inspector's recommendation. It was also common ground that if they were going to depart from his recommendation they ought to give reasons for doing so. In my view -- and I disagree with Mr Upton on this -- this was a matter of judgment, and the reasons which they gave for the judgment at which they arrived was an adequate set of reasons. It does not seem to me that on this point Mr Upton has identified any error of law in the decision of Judge Wyn Williams which stands any real prospect of success. I would therefore refuse permission to appeal on that ground.

Roads

11. This part of the objection made by Dr Wallis is dealt with by the judge in paragraphs 39-60 of his judgment. The objection that was made to the UDP by Dr Wallis was in respect of a proposal for two strategic roads in a policy called Policy Trans 1, one of the roads being an airport access road and the other being a link between the Barry Waterfront and Cardiff. Dr Wallis wanted this part of the UDP deleted. He pointed out that the Inspector had recommended modifications to the policy on transport in the UDP. Dr Wallis alleged that the council had failed to take material circumstances into account and he said that there had been a failure on the part of the Council in that regard. The judge did not agree that there had been a material change of circumstances which the Council had failed to take into account. He said that it had not been established that that was the case and he rejected that ground.

12. In the grounds of appeal the way that the judge had dealt with that point was criticised in ground 2 where it was said that the judge erred in law in refusing to quash the policy in Trans 1 of the UDP in relation to the inclusion of two strategic roads. When there was no justification for the Council to depart from the national policy, that only those schemes which are likely to come forward in the planned period should be included.

13. In support of that ground, in disagreeing with what Dyson LJ said when he concluded that there was no error in the judge's approach, Mr Upton submitted:

".... the judge did not assess the evidence as showing that the 2 strategic roads were likely to be implemented in the plan period. The judge said that it was sufficient that the Council had considered the change in policy pronouncements after 2000, and that the Welsh Assembly had not intervened, rather than considering the substance of those pronouncements. [Dr Wallis] had made the valid points that the airport route (if any) had changed from that set out in the UDP, and that funding for either of these roads would not come forward in the plan period.... The point remains this -- it is stated national policy that no policy should be included in a plan which is not going to be implemented in the plan period. That information was available after the inspector reported, and was before the Council (and the judge was correct to hold that they needed to keep up-to-date.... Objection had been taken that the roads were still included. Yet the policy remained.

The ground remains, as set out in the skeleton, and it has a clear prospect of success. The UDPs are statutory documents, which are meant to be subject to an open and transparent process that invites public participation. This is not just the same internal policy debate."

In his oral submissions Mr Upton said that the Inspector had highlighted the point about funding in his recommendations, but that there had been a "dramatic" change since then. There was not going to be funding within the plan period for these roads. The Council had not addressed that point. As they had not engaged with the point, that had provided grounds for challenging the decision as to what to include in the UDP.

14. On this point I also agree with Dyson LJ that there was no error of law in the judge's approach. He assessed the evidence as showing that the proposal for two strategic roads in Trans 1 was likely to be implemented during the life of the plan. He was entitled to reach the conclusion that the Council had not failed to have regard to all material considerations in adopting the UDP. I do not consider that this ground of appeal has any real prospect of succeeding and would therefore refuse permission on it.

Quarries

15. On this point the judge held that the Council was entitled to rely on yearly assessments in conjunction with the UDP. There was a policy described as "release of limestone reserves". Areas were allocated for winning and working of limestone and in the draft UDP one of the three areas, it was said, was not allocated within the policy. The Inspector supported the allocation. Dr Wallis wanted to have a deletion. The Council rejected his objection. The judge said that the Council had not acted unlawfully when accepting the recommendation of the Inspector, and that was so even if the recommendation of the Inspector had been based on an erroneous factual conclusion.

16. The third ground of appeal criticises the judge's conclusion on this point. It is said that the judge erred in law in refusing to quash the requested parts of the UDP in relation to the minerals and the Wenvoe Quarry site when he accepted that the UDP does not include what national policy required and continues to contain erroneous and out-dated figures for the minerals landbank. He was wrong to consider that an undisclosed annual assessment was the sort of landbank assessment which the national policy requires.

17. This was, as Mr Upton accepted, something that had the appearance of a debate about figures. The view of Dyson LJ on this point was that the details of criticism did not disclose an error of law. The judgment had referred to updated figures and the judge was entitled to hold that the defendant Council could rely on yearly assessments in conjunction with the UDP. Mr Upton referred us to paragraphs 87-89 of the judgment and said that the judge had not grappled with the points that he should have done. He said that there was a clear error of fact which amounted to an error of law and it was one on which the court would be entitled to intervene.

18. On this point in his statement Mr Upton accepted that there was a tendency on the part of courts to be wary of overturning a planning authority's decision when a series of detailed criticisms are made, rather than a general point of principle. But he submitted that it was justifiable in this case because the criticisms that Dr Wallis made were of material errors of fact by the public authority in exercising its powers. He said that the judge was correct to hold that the inclusion of statements of fact in a UDP which are wrong can amount to an error of law and in this case the evidence showed a series of errors by the Council and then a direct and unresolved conflict about the number of years in the landbank at the time that the UDP was considered for adoption. He submitted that, with respect to Dyson LJ, the catalogue of errors demonstrated that there was an error of law. He said that the judge relied on the argument that the yearly assessments provided the necessary information to satisfy the legal and policy requirements. However, this did not mean that the UDP was out of date at the time of its adoption. The UDP has the status of a development plan and not some external non-statutory internal document. Yearly monitoring assessments were just that, a way of monitoring to see if the UDP was correct, and they start from the premise that it is. He said the Council here was maintaining the position that the yearly monitoring showed that the UDP was correct. The 1998/99 figures were an inadequate reason to justify inclusion in the UDP adopted in 2006 of the new extension of the quarry at Wenvoe in response to the objections made.

19. On this point I again agree with Dyson LJ and with the judge. It seems to me that it has not been demonstrated that the Council have acted unlawfully in the respects which are identified. No doubt criticisms can be made, but what has to be identified is some error of law on the part of the Council, not some dispute about factual matters, unless it is shown that the facts are so erroneous that they have led to an error of law. In my judgment this ground of appeal has no real prospect of success and I would therefore refuse permission.

The Waste Chapter

20. The fourth and fifth grounds both relate to the Waste Chapter. The claim that Dr Wallis made in this respect was to have the whole of the Waste Chapter of the UDP quashed. The arguments on this part of the case were involved because they necessitated reference to the Waste Framework Directive 72/442/EEC, as implemented by the 1994 Regulations and as interpreted, so far as the Directive is concerned, by the European Court of Justice. It was also a matter in which the provisions of the 2004 Act could be relevant because that Act came into force on 15 October 2005.

21. The judge rejected the grounds of challenge which were advanced. It was argued before him that the waste chapter did not comply with the statutory regime; that it ignored national policy guidance; and that the Council failed to give adequate reasons for rejecting the objections made by Dr Wallis.

22. In the grounds of appeal the judge was criticised in this respect in the fourth and fifth grounds. It is said that the judge erred in refusing to quash the requested parts of the UDP regarding the waste chapter when he accepted that the chapter did not meet the national policy requirement and that there is no statement in the UDP of an assessment of the waste needs for the area. There is an absence of targets and a public justification for the contents of the plan. It was also said that the judge erred in stating that he would not have exercised the discretion to quash the waste chapter part of the plan as it was a legal requirement to include waste policies in the UDP. He was wrong to conclude that the court must leave these unlawful policies in the plan and there was a general point of public importance in this. It was also said that the judge had erred in holding that the modifications to the UDP with regard to the waste chapter did not require strategic environmental assessment. The formal part of the modification had occurred after July 2004.

23. In his refusal of permission, Dyson LJ said that he could see no fault in the reasoning in paragraphs 104 and 105 in particular, and that in view of the evidence of Mr Thomas and the claimant's third statement the judge was entitled to hold that the UDP could be read together with the Regional Strategic Plan. He concluded that the relevant reasoning of the judge in paragraphs 116-121 showed no error of law. His observations about how he would exercise his discretion were not necessary for his decision.

24. In respect of this Mr Upton says that there had been a failure on the part of the Council to include justification for the figures regarding requirements for waste facilities. There had been a failure to give the objectors rights to which they were entitled by not engaging in the figures. In his statement he elaborated on this by saying that the judge was open to criticism in dealing with the objections because he relied on the possibility of reading the statutory development plan in conjunction with non-statutory, non-planning documents such as the Regional Waste Plan and the Municipal Waste Management Strategy. They were part of the Development Plan. The legal requirement was to include the necessary information and justification in the UDP and allow this to be subject to public scrutiny and possible objection. He submitted that there was a complete absence of this from the final replacement version of the waste chapter adopted by the Council in the UDP and that that was an error of law. He cited the case of Great Portland Estates , which was included in the original skeleton argument, for the proposition that if a plan policy relies on non-statutory guidelines, there will be a failure to meet the requirements of the 1990 Act and the local authority will have deprived persons such as Dr Wallis from raising objection and having these debated at a public inquiry. Instead it was a situation in which the Council had failed to provide this. More specifically, they had failed to address the Inspector's recommendation. He submitted that the possible exercise of discretion was an important point, although he accepted that it was obiter. The point was covered in detail in the appeal skeleton argument to demonstrate that it is an arguable point of general importance and the judge had got it wrong on the discretion point.

25. As regards the more specific criticisms of paragraphs 104 and 105 of the judgment, which dealt with the argument of the substantial revisions to the waste chapter were covered by the requirements of the Directive, given the late stage at which they were made, Mr Upton submitted that this was a straightforward point. The judge alluded to informal consultation by officers, not to some formal act by the Council itself as satisfying the test in the Regulations, although he accepted that if this was the only point on the appeal it would not be pursued further.

26. My conclusion on this point is that the judge was entitled to reject the grounds of challenge to which I have referred. I agree with Dyson LJ that the judge was entitled to hold that the UDP could be read together with the Regional Strategic Plan. I do not think that there is any real prospect of demonstrating an error of law for the purposes of an appeal, and I do not think that the criticisms which are made about the way the judge said he would exercise his discretion lend any weight to this ground of appeal. Like Dyson LJ, I, too, can find no fault with the reasoning of the judge in paragraphs 104 and 105 of his judgment on the more detailed aspects of the waste chapter point. For those reasons I do not think that this ground of appeal has a real prospect of success.

27. I would add, as a more general observation to the grounds which have been put forward for this appeal, that I am very much in agreement with what the judge said in paragraph 134 of his judgment. He said this:

"I should also record that much of the claimant's evidence was in reality an attempt to debate the planning merits of the points in issue. I simply record that I consider it essential that I resist the temptation to be drawn into such a debate."

I have very much the same view about the various five grounds which have been advanced in this case. It seems to me that, rather than demonstrating errors of law, which are necessary for the purposes of granting permission to appeal to this court, the substance of these grounds is to seek to extend into the court the debate on planning matters and the merits of planning matters that are properly to be debated before public inquiries in making objections to the proposals of planning authorities and in the Welsh General Assembly. It seems to me that none of these five grounds discloses a point of law which would justify us granting permission to appeal to this court. I would therefore refuse permission to appeal on all of the grounds.

LORD JUSTICE TUCKEY: I agree.

LORD JUSTICE MUMMERY: Thank you very much, Mr Upton, for your assistance. Is there anything else?

MR UPTON: My Lord, no.

_____________________