Pembrokeshire Coast National Park Authority, R (on the application of) v National Assembly for Wales & Anor

MR JUSTICE PITCHFORD: This is an appeal by Pembrokeshire Coast National Park Authority under section 288 Town and Country Planning Act 1990 against an inspector's decision allowing the appeal of Mrs L Delabatouche, who had been unsuccessful in her application to the authority for planning permission. In a linked claim in which permission to proceed has been granted, the National Park Authority challenges the inspector's decision to award the costs of the appeal to Mrs Delabatouche.

The property concerned is Sherebourne, situated in Sutton Street, Tenby. It is the south-eastern half of a non-identical semi-detached pair of late 19th-century town houses on the north-east side of Sutton Street near its junction with the esplanade on the sea front of Tenby. It is a substantial mid-terrace three-storey house. Before 1972 it was occupied as a single dwelling and was later arranged on four floors as three self-contained flats, the owner occupying the basement and ground floor. At the end of 1975 it was converted to a guest house with eight bedrooms.

Mrs Delabatouche and her husband purchased the property in 1989 and ran it as a guest house. At the time of her appeal she had recently been widowed. She could no longer sustain the business and planned to live in the ground-floor maisonette and to sell the upper floors with consent for two flats, thus realising part of the equity in the property and enabling her to continue as a resident in her former matrimonial home.

Her planning application was dated 2 February 2002, received by the authority on 7 February 2002. It was and is common ground that the statutory development plan for the area in which the subject property is situated consists of the approved Dyfed Structure Plan (1st Alteration) 1990 and the adopted Pembrokeshire Coast National Park Local Plan April 1999.

The National Park Local Plan Policy GE7 provides as follows:

It is common ground that the application met the relevant criteria. The inspector noted, without criticism, that the local plan was in general accordance with paragraph 10.2.4 of Planning Policy Wales issued in May 2002, which stated that development in town centres should encourage a diversity of uses.

By section 54A of the Town and Country Planning Act 1990:

It is common ground that an emerging policy is a material consideration to be weighed against the statutory development plan for the purposes of section 54A. It is therefore necessary to trace the emergence of the policy.

In December 1999 the county council and the National Park Authority published for comment an option paper with a view to consultation before the preparation and public deposit of a JUDP. One key issue was the perceived pressure on the housing market causing difficulties for local people seeking homes within the national park. In May 2000 the National Park Association Authority Policy Committee resolved to develop a policy by which land suitable for development with within the park would be reserved for occupation by individuals who met criteria as local residents and/or essential need. The object of the policy was that unfettered development should take place only outside the national park area.

The National Park Authority sought the advice of counsel. While the policy had desirable aims, it was thought that, having regard to Articles 8 and 14 and Article 1 of its First Protocol, European Convention on Human Rights, firm evidence would be required to justify the policy. In a report to an extraordinary meeting of the National Park Authority on 23 January 2002 the Development Plans Officer advised members that "this was in the process of being addressed". Members were informed that concerns had been expressed by interested parties, but were assured by the National Park Authority solicitor that not only was their approach justifiable and legitimate, but interested parties would have a further opportunity to comment when the JUDP was placed on deposit. Members voted to accept the proposed draft development plan, including amendment H to the DPO's report of 12 December 2001 and proposed policy 47. At the same meeting members of the authority were informed that the draft JUDP would be placed on public deposit, that in the event of objections there would be a public inquiry and that there may be changes to the plan. Formal adoption was likely to be at least two years away. By the date of the appeal it was thought that late 2004 was realistic (see paragraph 12 of the inspector's decision).

The minutes of the meeting record the following:

Mrs Delabatouche's planning application was considered at a meeting of the authority on 17 April 2002. On that day, and before the application was considered, members were presented with a "Joint Report of Head of Conservation and the Solicitor to the Authority". In it, the Authority was given guidance upon the question how planning applications received following 5.00 pm, 23 January 2002 should be considered pending the adoption of the JUDP.

Following an introduction and preamble to the issue of prematurity, the report proceeds:

I need to interrupt this quotation from the report to identify the terms of draft policy 47. It reads:

The report continues:

In a meeting which lasted just over an hour, members adopted the recommendations. The same day the authority met to consider individual applications, of which Mrs Delabatouche's application was one. The development control officer, Mrs Milner, provided a report. The authority was informed that no objections had been received. In particular, Tenby Town Council and Tenby Civic Society informed the Development Control Department that there was no objection. Mrs Milner continued:

I shall need to return to the appendix to that report later.

In the first revision of Planning Guidance (Wales) dated April 1999 guidance upon the issue of prematurity is given in terms similar to those contained in the joint report to the National Park Authority of 17 April 2002. However, in May 2002 the National Assembly for Wales published Planning Policy Guidance (Wales) following extensive consultation. Chapter 3 of the guidance now advised at paragraph 5:

In her appendix 3 to her recommendation to the planning meeting of 17 April 2002 Mrs Milner identified within Sustainable Community No 4, 158 units available for future residential development upon which planning permission had not yet been granted or permission had expired. Demand was said to average 38 units per year. Given a policy of limited further development within the national park, the housing land supply would be depleted within about seven to eight years.

Mr Pereira, who appeared on behalf of the claimant, submitted first that the inspector failed to distinguish between a mere breach of the emerging policy on the one hand and the strategy by which the authority sought to preserve its integrity on the other. Once it was accepted that the strategy existed, it was not, he submitted for the inspector to make a value judgment about it but to balance the compliance of the proposed development with the established statutory development plan against the authority's purpose in preserving the integrity of emerging policy 47 until the machinery of adoption was complete and then to make a planning judgment upon the competing considerations. Mr Pereira submitted that the inspector erred in law by failing to take account of the fact of existence of the strategy. What he purported to do in his reasons was to require the authority to justify policy 47 on its merits.

He argued that chapter 3 paragraph 5.1 Planning Policy (Wales), which I have just quoted, was concerned not with issues of prematurity but with breach. Only paragraphs 5.2-5.5 were concerned with prematurity. In my view he is wrong. The title to paragraph 5 is "What happens when a development plan has not yet been adopted?" In the predecessor to Planning Policy (Wales), that is the April 1999 First Revision under the title "Prematurity" chapter 4, paragraph 15.1, almost identical words appear as those in chapter 3 paragraph 5.1 of the 2002 revision. Had it been the intention of the National Assembly to advise that considerations of weight should be attached only to questions of breach, then it would have been a simple matter to say so. On the contrary, I read chapter 3, paragraphs 5.1-5.5 as guidance to be applied whenever reliance is placed upon an emerging policy. An emerging policy may be relied upon not only by the planning authority but also by an applicant. It seems to me that the weight to be applied to competing policies is very much an issue in a consideration of the balancing exercise required by section 54A. Mr Marshall has directed my attention to the speech of Lord Clyde in a Scottish appeal to the House of Lords in City of Edinburgh Council v Secretary of State for Scotland and Revival Properties Ltd [1997] 1 WLR 1447 at page 1459, cited and applied by the Court of Appeal of England and Wales in R v Leominster DC ex parte Pothecary [1998] JPL 335. Lord Clyde, speaking of section 18A Town and Country Planning (Scotland) Act 1972, the Scottish equivalent of our section 54A, said this:

On the preceding page of the report, page 1458, commencing at letter E, Lord Clyde said:

Mr Pereira directed my attention to paragraph 5.2 of chapter 3, in which it is recognised that where a plan has been deposited but not yet adopted, it may be justifiable to refuse planning permission on the grounds of prematurity. The circumstances in which it may be right to refuse are (1) where the proposals are individually so substantial or (2) whose cumulative effect would be so significant that to grant a planning permission would predetermine questions of scale, location or phasing of new development which ought properly to be considered in the adoption process. The plan had by the date of appeal been deposited. Mr Pereira submitted that the cumulative effect of similar applications would be sufficiently significant that to grant permission would prejudge the very issues which the adoption process was designed to address. In support of his argument as to cumulative effect, Mr Pereira drew my attention to Rumsey v Secretary of State for Environment, Transport and the Regions and Waverly Borough Council (2001) 81 P & CR 32. A resident within an area of outstanding natural beauty wished to contract a substantial extension to his existing property. The inspector, having visiting the area and viewed the subject environment, concluded there was an unacceptable risk that if the development was permitted, it would encourage others of a similar type. Counsel for the claimant, who happens to have been Mr Pereira, argued that there was no evidence upon which the inspector could have founded his conclusion. Mr Duncan Ouseley QC, then sitting as a Deputy Judge of the High Court, found that there was evidence comprising the inspector's own visual assessment and the facts in the circumstances spoke for themselves. To similar effect were the observations of Mr David Widdicombe QC in Poundstretcher Ltd v Secretary of State for the Environment [1988] 3 PLR 69 relying on the judgment of Lord Widgery CJ in Collis Radio Ltd v Secretary of State for the Environment (1975) 29 P & CR 390.

I accept and adopt the words of the deputy judge in Poundstretcher:

As Mr Pereira rightly concedes, the question of adequacy of evidence of the cumulative impact of successive applications upon the emerging policy was a matter for assessment by the decision-maker. However, in this case he submitted the impact was self-evident. Any unfettered development would use up residential units which would thus be lost to the strategy of preservation in favour of local or essential need. Whether viewed individually or incrementally, this proposal went to the heart of the plan within the meaning of chapter 3, paragraph 5.2 Planning Policy (Wales).

Mr Marshall, who appeared on behalf of the National Assembly drew my attention to the conflict between Planning Policy (Wales) and the emerging plan policy 47. At chapter 9, paragraph 1.1, the following guidance is given:

In October 2002 the Minister for the Environment, National Assembly for Wales issued a press release welcoming the publication of research which recommended ways in which the planning system might deal with the pressure placed on communities by the demand for second and holiday homes. Included in the press release were the following passages:

I turn then to the question: what were the material considerations which the inspector was entitled to identify when considering the issue of prematurity and in reaching his decision? In my view they were as follows: (1) the controversial nature of the proposals, the large number of objections received and the lengthy period of time which was likely to elapse before adoption; (2) the fact that apparent conflict with national policy might well result in a policy differently drafted; (3) the size of the proposal and its impact alone or cumulatively upon issues which ought properly to be part of the adoption process; (4) whether the proposal went to the heart of the emerging plan; (5) the impact which the proposal would have upon its site settlement area and character; (6) the quality of the factual material utilised to demonstrate that grant of permission would prejudice the outcome of the UDP process.

Mr Pereira's submission was tantamount to a suggestion that since the authority had resolved to deposit a plan which halted development save where the local interest was preserved, the authority had effectively drawn up the drawbridge until adoption. He reasons that any unfettered development would prejudice the outcome of the adoption process. All other considerations, in effect, became otiose or fell away. I cannot accept that submission. In my view, the inspector was entitled to consider the proportionality of refusing this application against the criteria of prematurity and precedent. He was not required, once he recognised prematurity and precedent, to ignore all other considerations. Indeed, in my view he would not have been entitled to do so. This view was recognised by the authority itself when, on the very day it considered this application, it resolved to adopt a policy that each application should be treated on its own merits. Prematurity and precedence comprised only three of seven separate issues which it was recognised might be relevant to an assessment whether the proposal went to the heart of draft policy 47.

I have looked in vain to find any analysis of those issues in the development control officer's report to the authority or in her written submissions to the inspector and Mr Pereira did not seek to persuade me that there had been any. I find it remarkable that the conservation officer and the solicitor to the authority should advise that all those considerations may be relevant, advice adopted by the authority, but when it came to this particular proposal, no analysis of them was attempted. It seems to me that what consumed the thoughts of the authority when it came to an individual decision was the protection of the emerging policy, come what may. In approaching the application as they did, it seems to me the authority itself was in danger (contra D17 submission on appeal) of prejudging the outcome of the JUDP process. The inspector's principal reasons and conclusions were set out in his decision letter, paragraphs 11-16, but at paragraphs 17 and 18 he considered two further matters. First, the inspector correctly identified the Planning Policy Wales guidance chapter 3, paragraph 5.2. He noted the prolonged delay likely before adoption of the emerging policy and the real possibility that it might not be adopted as drafted. He took account in paragraph 18 of the fact that the emerging policy was in conflict with Planning Policy Wales and with former Welsh Office circular 35/94. It is worth considering paragraph 96 of the circular:

The inspector noted that if what was in issue was affordable housing, then at chapter 9, paragraph 2.15 Planning Policy (Wales) the National Assembly advised that the need should be demonstrated by undertaking a local housing needs assessment survey or by the use of other reliable and robust data sources. No such evidence was presented by the authority, only the assertion from average completion rates between 1991 and 2001 that 38 units per year were required. At paragraph 13 the inspector accepted the submission made on behalf of the appellant that if the authority sought to preserve the strategy of the emerging plan, they should at least be in a position to demonstrate by evidence the need which the emerging plan sought to meet. The inspector concluded at paragraph 14 that in the circumstances the emerging policy should be afforded little weight.

Mr Pereira argued that the inspector fell into error in accepting this submission. The proper place for judging the merits of the policy was the adoption process and not the planning appeal. Had the effect of the inspector's decision been to usurp the function of the adoption process then I would agree with that submission. In my view, however, that is not the effect of the inspector's reasoning. The inspector was judging the weight to be attached to the emerging policy as a material consideration. He was not discounting the aim of the policy. He expressly found at paragraph 12 that he should not comment upon its merits. He was asking himself, in the context of this appeal, what weight he should attach to the existence of the emerging policy. Had the authority been in a position, by evidence, to demonstrate the urgency of the need to halt unfettered development, would an argument from the appellant that the evidence was immaterial legitimately have found favour with the inspector? I think not. In my judgment, the inspector was entitled to take the approach that he did. Where a policy is emerging, it seems to me that the decision-maker when performing his function under section 54A is entitled to examine the evidence of support of the assertion that the emerging policy should take precedence.

The inspector proceeded to examine factors relevant to the claim that this proposal went to the heart of the plan and should be refused on the grounds of prematurity. He concluded at paragraphs 14 and 15 that this was in reality a reconversion and was not a new development in the sense that the national park was being deprived of land. It was an internal reconversion in the town of Tenby which would have no impact on what the inspector called the "street scene". It impacted on only a very small area. It had not been demonstrated that it would predetermine decisions about scale, location or phasing of other development in the south east coast community "which ought properly to be taken in the (emerging) UDP context".

Mr Pereira submitted that the inspector irrationally or wrongly took the scale or type of development into account. He could not rationally have concluded that it would not predetermine matters the subject of the emerging UDP. Once it was accepted that the strategy of the emerging plan was to stop any unfettered development, then the only rational conclusion must be that the proposal was bound to undermine the emerging policy. There is an attractive simplicity to Mr Pereira's reasoning, but in my view it is too simple. Prematurity is not a trump card which always wins if you have chosen the suit. If Mr Pereira is right, the more controversial the emerging policy (for example, there will be no further development of any kind), the easier it is to establish the primacy of the prematurity argument. I do not consider the aim of Planning Policy Wales 3.5.2 to be the elevation of prematurity to a dominant consideration. It may be that it will be dominant, but that will depend both upon scale, impact and effect, as well as the bare question: does the proposal appear to undermine the strategy behind the emerging plan?

The inspector was in my judgment entitled to conclude that given the nature of this particular proposal the factors influential in 3.5.2 had not been established. The inspector noted at paragraph 15 that the development would add two new units to the available land supply. Mr Pereira noted the appellant's acceptance at appeal that they would probably be sold to local residents. However, in the absence of evidence, the inspector felt unable to reach any conclusion how their existence would impact on "local need", the interest the emerging plan sought to protect.

Mr Pereira argued that this was inadmissible reasoning. The very fact that the development was unfettered would undermine the strategy which was that no property should be developed without first being subjected to local needs, whatever they were. All that was sought was deferment until the need was reliably assessed. Mr Pereira submitted the inspector must have asked himself the wrong question, namely whether the strategy was required rather than whether the strategy was undermined. I do not consider the inspector fell into error. It is true that the creation of two flats, unfettered by the emerging plan, undermined the draconian objective of the plan, and the inspector said as much in his first sentence in paragraph 15. But in my view the inspector was not denying the existence of the strategy. He was returning to the weight to be attached to it in the particular circumstances of the case and in the absence of evidence of need. That in my view was a legitimate approach.

I turn secondly to the issue of cumulative precedent effect. The argument for the authority is that it is self-evident any permission to build unfettered residential units will encourage others. The effect would be to undermine the strategy. Mr Pereira submits that the inspector simply did not deal with the effect which this successful appeal would have upon other applications. He submitted that all planning applications which breached the emerging policy are likely otherwise to be acceptable in planning terms. Should this application have been granted, all such applicants would be able to argue (as the inspector found) (1) that the proposed policy may not be adopted as drafted; (2) that there was no up-to-date needs survey to support the assertion which the proposed policy was designed to meet; (3) that the application would not predetermine decisions about scale, location or phasing of development; (4) that GE7 carries greater weight than policy 47. It must follow, he submitted, that in every other application prematurity would not be a material consideration. The inspector's decision is thus a precedent.

I accept that any future applicant will be able to argue delay until adoption, that the emerging plan is controversial and that GE7 carries greater weight than policy 47. However, the only constant is controversy, and even that feature may change as the plan nears adoption. The arguments which each side may deploy will depend upon the circumstances of each appeal. Obvious differences between this and other applications may include the size of the development, the site of the development, the number of units to be created, the stage the adoption process has reached, and the nature of the evidence available to the authority to establish the urgency of the situation. I do not accept that the conclusions to be reached by an inspector on another occasion, when weighing the material considerations in a different appeal either should be or will be the same. I agree with Mr Pereira that the inspector's conclusions and reasons are light on the impact of precedent, self-evident or otherwise. I suspect that this is largely a product of the limited explicit written submission directed to the issue. Nevertheless it seems to me inherent in the authority's case to the inspector (any individual permission was likely to have a precedent effect, given the object of the strategy) that a cumulative effect would undermine that strategy (see the authority's written submissions on appeal, paragraphs F1 and F2). The inspector did, however, deal with this submission in paragraph 14. He said:

The inspector clearly had in mind the somewhat unusual nature of the application in the context of its planning history, together with his conclusions upon scale and impact. It seems to me that the inspector's conclusion does no more than establish on the facts of the case considerations which drove him to except this proposal from the refusal on the grounds of prematurity. For the reasons I have already identified, I do not consider that his decision had the effect of opening the floodgates and, in my view, the inspector was right so to conclude.

The authority has failed to establish that the inspector's decision was reached irrationally, unreasonably or unlawfully and the challenge under section 288 is accordingly dismissed.

I turn now to the issue of costs. I was reminded by Mr Pereira that where what was involved was a planning judgment based on the facts it is not open to an inspector to award costs. What is required is unreasonableness. The inspector's reasons are to be found at paragraphs 10-15 of his decision letter on costs. He correctly addressed his attention to the guidance offered by Welsh Office circular 23/93 and at paragraph 11 said this:

Mr Pereira submitted that the inspector erred in taking into account his view that emerging policy 47 flew in the face of national policy. The merits of policy 47 in the light of national policy was a matter to be decided through the local plan process. This consideration, he submitted, was wholly irrelevant to his costs decision since the issue at the appeal in relation to prematurity was not the merits of the policy but the effect on the emerging policy plan which allowing the appeal would have.

The inspector's reasons might, I accept, have been more happily phrased, but in my view they were to the point. The inspector was in my judgment right to consider the radical departure from national planning guidance which the emerging plan represented. The authority should have realised, given the early stage of the adoption process so far reached, that it was not enough simply to bring a halt to development, however minor it might be and however particular might be the circumstances. If that was to happen, there then there was a burden on the authority to demonstrate the overriding interest which it sought to preserve until the conclusion of the adoption process. Instead, the authority said in effect, "We do not need to. It is our judgment that the need is so great that all development should be stopped unless the applicant is prepared to fetter his right of disposal. Since we have so decided, all development should cease on the ground of prematurity until our judgment is tested by public inquiry." In reaching this position, the authority put on one side the very issues of proportionality which it resolved on 17 April 2002 it should consider in each individual case. In assessing the merits of the prematurity argument, the authority in my view acted unreasonably. It failed to take account of considerations which were plainly material, let alone weigh them before reaching a decision. This, in my judgment, is the effect of the inspector's decision. It is a conclusion to which he was entitled to come.

I accept Mr Pereira's further submission that, in identifying an absence of evidence to the effect that this proposal would place a corresponding demand on national park resources elsewhere, the inspector appears to have indulged in a speculative consideration on the effect of the development. He said at paragraph 15:

In common with Mr Pereira, I do not immediately follow the relevance of this passage. The reason being identified by the inspector was the authority's unreasonable failure before refusal to demonstrate its assertion, by evidence, of the strain permission would place upon the national park's resources to satisfy local need. In my judgment the inspector's quoted words were surplusage. It may be he was wondering to whom these residential units would be of any interest. Perhaps they would be of no interest to persons with local or essential need. I do not consider this speculation, if that is what it was, undermines the inspector's reasons for awarding costs. It was in my judgment open to him to find as he did, and I do not consider that this order should be disturbed. Accordingly the claim for judicial review of his costs order is dismissed.

MR JUSTICE PITCHFORD: Miss Ashford.

MISS ASHFORD: My Lord, in the circumstances of the judgment you have just given, I would ask that the claimant bear the defendant's costs in the amount that has been agreed between the parties on the schedules.

MR JUSTICE PITCHFORD: There is agreement between you?

MISS ASHFORD: There is agreement that if the defendants were to be successful, the claimant would pay -- bear with me a moment -- the total of £8,149.50.

MR JUSTICE PITCHFORD: That is right, is it, Miss Walsh?

MISS WALSH: That is correct, yes, my Lord. Those are the defendant's costs as I have them on the schedule that I have been provided with and agreed.

MR JUSTICE PITCHFORD: I shall make an order that the claimant pay the defendant's costs, which I assess summarily and by agreement in the sum of £8,149.50. Thank you both for your attendance.