Banbury Golf Centre v First Secretary of State

Thursday, 10th July 2003

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of the Secretary of State, contained in a decision letter dated 26th February 2003, to refuse planning permission for a hotel, golf club house, driving range and community centre at the Banbury Golf Centre, Aynho Road, Adderbury in Oxfordshire.

2. The application for planning permission was made by the claimant on 15th October 2001.

3. When it came before the Cherwell District Council's North Area Planning Committee on 28th February 2002, the Committee resolved to grant planning permission. By letter dated 5th March 2002 Oxfordshire County Council asked the Secretary of State to call in the application for his own determination. The County Council's letter said, in part:

"I understand that Cherwell District Council is not minded to notify the Secretary of State of its decision on the basis that it does not regard the proposal as a departure from the Development Plan.

The County Council's view is that the proposal is a significant departure from the Development Plan and since the District Council is minded to permit it, it ought to be called in by the Secretary of State for his determination.

The proposal involves development of a site of 6.96 hectares in open countryside ..."

4. The Secretary of State decided to call in the application because of "the nature, scale and location of the proposed development in the countryside". The call in letter, dated 25th March 2002, set out the matters about which the Secretary of State particularly wished to be informed:

"(a) the relationship of the proposed development to the Oxfordshire Structure Plan 2011, the adopted Local Plan for the area and the emerging Local Plan;

(b) the relationship of the proposed development to Government policy advice in Planning Policy Guidance Note PPG6 'Town Centres and Retail Developments' ...

(c) whether the proposal is in accordance with PPG 13 'Transport' ...

(d) the relationship of the proposed development to Government policy advice in Planning Policy Guidance Note PPG7 'The Countryside';

(e) ...

(f) ...

(g) whether there are any other material planning considerations relevant to the Secretary of State's consideration;

(h) ..."

5. There was no challenge to the Secretary of State's decision to call in the application.

6. On 29th October 2002 an Inspector appointed by the Secretary of State opened an inquiry into the application. Mr Wolton QC, who appeared on behalf of the claimant before the Inspector, made an "Initial Legal Submission". Paragraphs 1 and 2 of that submission said:

"1. This application has been 'called in' by the Secretary of State by letter dated 25th March 2002 addressed to the Cherwell District Council. As such, the Secretary of State is now seized of the application and it is for him to make his determination.

2. The background to the call-in is, however, a material consideration in this determination and it is my fundamental submission that, in fact, properly addressed upon all the correct information, the application should not have been called in at all."

The remainder of the submission explained that there was a disagreement between the County Council and the District Council as to whether or not the proposed development was a departure from the Development Plan; and sought to explain why the County Council's approach to policy T5 in the Cherwell Local Plan was in error. The concluding paragraph of the submission said, in effect, that greater weight should be placed upon the District Council's approach own policy T5 in its own Local Plan.

7. Mr Wolton accepts that the Inspector fairly and accurately recorded his Initial Legal Submission in paragraphs 27 to 33 of his Report to the Secretary of State. Under "Preliminaries" the Inspector said in paragraphs 27 and 28:

"27. The invitation to call-in the application amounts to an abuse of power. It is clear that Mr Mitchell and Mr Mold, both of whom are both District and County Councillors, were defeated in their democratic opposition to the scheme. The County Council must have been made aware of the situation by these Councillors. The call-in appears to be contrary to paragraph D7 of PPG1, Circular 7/99 Annex 2 and to the Town and Country Planning (Development Planning and Consultation) (Departures) Directions 1999. The Secretary of State will only call-in those applications which are of more than local importance ...

28. Paragraph 9 of the Annex to the Circular stresses the weight to be given to representations by the County Council. In this case the County Council representations were wrong, misleading and fallacious, because they made no reference to paragraphs 7.17 and 7.18 of Policy T5."

Thus, it was being contended on behalf of the claimant that the County Council's request to the Secretary of State to call in the application was an abuse of power and that the Secretary of State should not have called the application in for his own determination. Paragraphs 29 to 33 of the Inspector's Report amplify, in summary form, the claimant's reasons for making those contentions.

8. Having referred to these preliminary matters, the Inspector summarised the cases of the claimant, the District Council and the County Council on the issues raised by the Secretary of State in his call in letter.

9. The Inspector's conclusions in relation to those issues are set out in paragraphs 174 to 204 of his report.

10. Under the heading "Development Plan" he dealt at the outset with policy T5 in the Local Plan. After a meticulous consideration of the terms of the policy, including paragraphs 7.17 and 7.18 of the reasoned justification in addition to the Text, the Inspector concluded that the proposal was not in accordance with policy T5 (paragraphs 174-186 and 206 of the Inspector's Report). He further concluded that the proposals were clearly contrary to Structure Plan policies on town centre development and sustainability (187); contrary to PPG6 objectives (188 and 189); not in accordance with advice in PPG13 (190); and contrary to the aims of PPG7 (195).

11. In paragraph 4G of his call in letter the Secretary of State had asked that he be advised whether there were any other material planning considerations relevant to his consideration of the application. The Inspector considered this question between paragraphs 199 to 203 of his Report. Although he referred to certain other matters, such as the emerging Local Plan, the Inspector did not refer to the claimant's Initial Legal Submission. In paragraph 203 he concluded:

"There are no other material considerations of weight. In my view, the proposed community centre would be poorly related to the village of Adderbury, bus services are very limited and most journeys would be by car. A community centre would be much better placed near the heart of the settlement."

12. In his decision letter, the Secretary of State said that the main issues were those which he had identified in his call in letter. He then proceeded to agree with all of the Inspector's conclusions on those issues. Under the heading "Other Issues" paragraph 17 of the decision letter says:

"The Secretary of State agrees with the Inspector's conclusions in paragraphs 199-202 of his report. Furthermore, he agrees with the Inspector that the proposed community centre would be poorly related to the village of Adderbury, since bus services are very limited and most journeys would be by car. He agrees that a community centre would be much better placed near the heart of the settlement (IR203)."

13. The Secretary of State did not dissent from the Inspector's conclusion that there were "no other material considerations of weight".

14. The Secretary of State's overall conclusion in paragraph 18 of the decision letter was as follows:

"The Secretary of State concludes that the proposal would be contrary to policies in the Development Plan concerning the location of hotel developments. He considers that only part of the proposed hotel can be truly integrated with the golf facilities, and that the remainder should be located, if possible, within the town centre. The Secretary of State considers, therefore, that a sequential test should have been adopted in this case. Without this, he is not satisfied that it has been demonstrated that all potential town centre locations have been thoroughly assessed in justifying this out of town location. He considers, therefore, that the proposal would be contrary to PPG6. Furthermore, the Secretary of State considers that the proposal does not provide evidence of exceptional circumstances that would justify setting aside Policy T5 of the Cherwell Local Plan which aims to limit the provision of new hotels beyond the limits of existing settlements. Given the site's out of town location and relative inaccessibility to public transport, he considers that the proposal would be unsustainable and would be contrary to development plan policies on town centre development and sustainability and would conflict with PPG13. Furthermore, the Secretary of State considers that the proposal would have a detrimental urbanising effect on the character and appearance of the surrounding countryside and, as such, would be contrary to PPG7. The Secretary of State concludes that there are no material considerations of sufficient weight as to indicate that the decisions should be made other than in accordance with the development plan."

15. Thus, it will be seen that although the Initial Legal Submission made on behalf of the claimant was faithfully recorded in the Inspector's Report, there was no express response to it by either the Inspector or the Secretary of State.

16. On behalf of the claimant, Mr Wolton challenges the decision letter on a single ground: the failure of the Inspector and Secretary of State to respond to the claimant's Initial Legal Submission. It had been submitted before the Inspector that the matters therein referred to were material considerations which ought to be taken into account. Neither the Inspector nor the Secretary of State dealt with that submission. If they had concluded that the preliminary matters were not material considerations, then they should have said so and given their reasons for reaching such a conclusion.

17. In support of this submission, Mr Wolton referred to the well-known passage in the judgment of Forbes J in Seddon Properties Ltd v Secretary of State for the Environment [1981] 42 P&CR 26:

"he [the Secretary of State] is entitled to attach what weight he pleases to the various arguments and contentions of the parties; the courts will not entertain a submission that he gave undue weight to one argument or failed to give any weight at all to another. Again, in doing so he must, at any rate if substantial issues are involved, give clear reasons for his decision."

Mr Wolton emphasised the obligation to give clear reasons for a decision if "substantial issues" were involved.

18. The claimant's submission is founded upon the proposition that the matters raised in the Initial Legal Submission were substantial issues in the sense that they were capable of being a material planning consideration to which some weight might have been given by the Inspector and/or the Secretary of State.

19. Mr Wolton explained that there were three propositions in his Initial Legal Submission: (a) it was an abuse of power for the County Council to have asked the Secretary of State to call in the application; (b) the application should not have been called in by the Secretary of State; (c) the allegation that the County Council had abused its power in asking the Secretary of State to call in the application was relevant to the Inspector and the Secretary of State's assessment of the quality of the County Council's evidence.

20. I accept Mr Morshead's submissions on behalf of the Secretary of State that propositions (a) and (b) were not material planning considerations; and that to the limited extent that proposition (c) might be said to be capable of being material, the Inspector and the Secretary of State were entitled to conclude that no weight should be attributed to it.

21. I deal with the three propositions in turn.

22. As to the first proposition - that there had been an abuse of power by the County Council - Mr Wolton accepted that the Secretary of State's power to call in applications for planning permission for his own determination under section 77 of the Act is a free-standing power: see R v Secretary of State ex parte Hadfield[2002] EWHC 1266 Admin.

23. An application for planning permission may come to the Secretary of State's attention by a variety of means. The most usual is that the application will be referred to the Secretary of State as a departure from the Development Plan by the Local Planning Authority, but an application may also be drawn to the Secretary of State's attention by other means, by another local authority or by an interested party such as a neighbouring land owner opposed to the development. The neighbouring land owner's concern may be that the proposed development would cause a depreciation in the value of his neighbouring property. Such a concern would not be a material planning consideration. But that would be of no consequence if the Secretary of State, having had the application drawn to his attention, decided that he should call it in for his own, proper, planning reasons. In the present case, the Secretary of State explained in his call in letter that he had decided to call in the application because of "the nature, scale and location of the proposed development in the countryside". It is not suggested on behalf of the claimant, nor could it be suggested, that this was an improper reason for calling in an application for planning permission.

24. Accordingly, and subject to point (c) below, the County Council's reason for requesting the Secretary of State to call in the application became wholly irrelevant and was not a material consideration.

25. Turning to proposition (b). The submission that the Secretary of State should not have called in the application was equally irrelevant since (i) it was founded upon the claimant's criticism of the County Council's request to the Secretary of State to call in the application and ignored the fact that the Secretary of State was exercising an independent discretion of his own; and (ii) in any event there had been no challenge to the lawfulness of the Secretary of State's decision to call in the decision for his own determination. As the Initial Legal Submission rightly acknowledged:

"... the Secretary of State is now seized of the application and it is for him to make his determination."

That determination would of course be based upon material planning considerations.

26. It follows that the first two propositions in the Initial Legal Submission were irrelevant, and no weight could have been attached to them in any event. The only remaining question is whether proposition (c) - that the County Council's conduct in requesting the Secretary of State to call in the application reflected on the weight that should be given to its evidence - was capable of being a material consideration to which some weight might have been given.

27. I accept that, in general terms, a submission that more or less weight should be attributed to a particular piece of evidence is capable of being a material consideration, but it does not follow that the Inspector or the Secretary of State is obliged to make a specific response to such a submission. In some cases it may be necessary to explain why more/less weight has been given to the evidence of Mr X rather than Mr Y. In other cases it may be apparent from the Inspector's conclusions that he has preferred one piece of evidence to another. The decision taken is not bound to make a specific response to each and every submission. The obligation is to give reasons which deal with the principal controversial issues.

28. In the present case it was being argued that the County Council had wrongly asked the Secretary of State to call in the application because it had adopted an erroneous interpretation of policy T5 in the Local Plan. The Inspector's response to the claimant's complaint about the County Council's approach to policy T5 was entirely appropriate. He dealt with the proper interpretation of policy T5 and whether the application was or was not in accordance with the policy in very great detail and with the utmost care. The Inspector's analysis of policy T5 is not challenged by Mr Wolton. That analysis largely, but not wholly, accorded with that put forward by the County Council. It is plain that the Inspector considered the rival arguments as to the proper interpretation of policy T5 and reached his own conclusion, which is not challenged.

29. It has to be emphasised that this was a planning inquiry, it was not a jury trial. The County Council was not on trial for its conduct in asking the Secretary of State to call in the application. Credibility may well be important where there are disputed questions of fact, but the issue here was the interpretation of policy, on which the Inspector was obliged to form his own judgment. The obligation upon the Inspector was to focus upon the real issues: the planning merits. He was right not to allow himself to be distracted by an extraneous issue. The real question for him to determine was not, "Did the County Council behave badly?", but "What is the proper interpretation of policy T5 in the Local Plan?" It is readily understandable why the Inspector did not find it necessary to make any express response to proposition (c). It would not have helped him to answer the real question. His very careful answer to this question, which was accepted by the Secretary of State, is not criticised in these proceedings.

30. For the reasons set out above, the Inspector and the Secretary of State were entitled to regard propositions (a) to (c) in the Initial Legal Submission made on behalf of the claimant as considerations to which no weight should be attached: see paragraphs 203 of the Inspector's report and 17 of the decision letter.

31. Propositions (a) and (b) were on any basis wholly immaterial. Insofar as proposition (c) raised any planning issue - how should policy T5 in the Local Plan be interpreted - the Inspector gave a very full explanation for his conclusion that the proposed development conflicted with that policy, properly interpreted.

32. Thus, even if it is assumed that the Secretary of State should have given a specific response to the three propositions in the claimant's Initial Legal Submission, his failure to do so could not conceivably have caused any, let alone any substantial, prejudice to the claimant.

33. There is a further reason why this application is bound to fail. Although paragraph 18 of the Secretary of State's decision letter referred to the fact that the proposals were not in accordance with policy T5, the Secretary of State also relied upon the conflict with national policies as set out in PPG6, PPG7 and PPG13.

34. Thus, it is plain that even if the Secretary of State should have responded expressly to the points made in the Initial Legal Submission, there could have been only one outcome to this appeal. In the circumstances any failure to give reasons could not possibly have prejudiced the claimant.

35. Mr Wolton emphasised that a claimant ought to be able to understand from the reasons given by the Secretary of State why his appeal had been dismissed. For the reasons set out above, the claimant has had a very full explanation. The appeal failed comprehensively upon the Secretary of State's view of the planning merits. For these reasons, this application must be dismissed.

36.

37. MR JUSTICE SULLIVAN: Right. Thank you. Do you resist the principle of costs?

38. MR WOLTON: No, my Lord, nothing I can say about that.

39. MR JUSTICE SULLIVAN: Do you want to say anything about who the claimant purports to be?

40. MR WOLTON: It is clearly a matter of really no consequence as far as the claimant is concerned.

41. MR JUSTICE SULLIVAN: No.

42. MR WOLTON: The reason the title is put in in the form it has been is simply to follow the Secretary of State's decision letter.

43. MR JUSTICE SULLIVAN: Yes.

44. MR WOLTON: And the applicant's name as recited within it.

45. MR JUSTICE SULLIVAN: Yes. So it is Mr Reed is it, trading as?

46. MR WOLTON: I am quite content with that.

47. MR JUSTICE SULLIVAN: Would that be a proper way to draft the order?

48. MR MORSHEAD: That is how we have suggested it.

49. MR WOLTON: I am quite content that that should be the form of the order. There is just one other point, if I may. For the purposes of the transcript of your Lordship's judgment, might I suggest, with respect, that the word "appeal" should be replaced by "application" because it was a called in application, not an appeal.

50. MR JUSTICE SULLIVAN: Yes, I must remember to do that. Thank you, one forgets that. I will correct that when the transcript comes to me. Thank you very much.

51. The application is dismissed. The claimant is to pay the defendant's costs. Those costs have been agreed in the sum of £4,695. Thank you both very much.