Royal Courts of Justice
Strand
London WC2
B E F O R E:
SIR RICHARD TUCKER
THE QUEEN ON THE APPLICATION OF SUSAN GRANT-NICHOLAS
(CLAIMANT)
-v-
BROMSGROVE DISTRICT COUNCIL
(DEFENDANT)
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MR R GILES (instructed by Lodders) appeared on behalf of the CLAIMANT
MR M CARTER (instructed by Bromsgrove District Council) appeared on behalf of the DEFENDANT
J U D G M E N T Monday, 14th June 2004
SIR RICHARD TUCKER: I have before me an application made under section 287 of the Town and Country Planning Act 1990, on behalf of Mrs Grant-Nicholas, to quash that part of the Bromsgrove District Local Plan that applies to the claimant's land at Fiery Hill Road and Kendal Road, Barnt Green, Bromsgrove in Worcestershire.
The issue relates to the question whether that land should be identified and designated as an Area of Development Restraint (ADR) and excluded from the Green Belt. The land is about 5 hectares in area on the northern boundary of Barnt Green near the railway station. It is, at present, undeveloped and used as grazing land.
On 30th January of this year the defendant, Bromsgrove District Council, gave notice of their decision to adopt the Bromsgrove Local Plan. Insofar as that plan applies to the claimant's land, the decision was contrary to the recommendation contained in the report of an independent inspector, made in March 2002, that the plan should be modified in certain respects. The claimant had been an objector and the Inspector had considered the designation of her land under a number of issues, as issue 28, which were before him.
The Inspector clearly gave careful consideration to the matter and gave detailed reasons for his conclusions. They are contained in paragraphs 1.6.146 - 1.6.156 of his report. He described the land and sets out the claimant's proposal for it and her objections to the designation ascribed to it under the plan. He dealt fully with the issues which had arisen, that is to say, the Green Belt issue, the question of encroachment and matters of sustainability. In this latter context he described the site in glowing terms. As to the Green Belt issue he said this, so far as is material, at paragraph 1.6.150:
"It seems to me, though, that the situation is somewhat different on the western side of Kendal End Road [where there was a site known as site B]. Here there is no housing like at Kendal Drive and no straggle of development and the land is much more open. In my view, infilling the space between the junction with Fiery Hill Road and the Barnt Green Inn would do little to reduce the separation of Barnt Green and Kendal End, while serving to round off the settlement. A fairly substantial gap of open countryside north of Cherry Hill Road would remain as a buffer."
As to encroachment, the Inspector found that that would not be a serious problem in this case.
On sustainability he described the site as a "highly sustainable option." He examined the merits of this site compared with another alternative site preferred by the defendant identified as BG5. He said this at paragraph 1.6.155:
"A particular advantage of the objection site is in relation to the likely density of development and its ability to accommodate a broad range of housing needs to promote mixed communities - including accommodation for single persons, the elderly/infirm, and social housing. It is situated immediately adjacent to an area of medium density development centred on the railway station..."
He summarised the matter in these terms at paragraph 1.6.156:
"Drawing together these various strands, I conclude that development of the objection site would have little effect on the purposes and integrity of the Green Belt and, in particular, would not contribute to the merging of Barnt Green and Kendal End. Given its high degree of sustainability and encouragement to the use of public transport, particularly rail, and its advantages over the BG5 site, I conclude that it would be appropriate to designate this land as an ADR, with the Green Belt boundary re-drawn to follow the line of Cherry Hill Road."
The Inspector accordingly recommended that the land be designated as an ADR, that the Green Belt boundary be redrawn, and that the proposed map be modified accordingly.
The matter was considered by the defendants' Executive Cabinet at a meeting held on 20th November 2002. The officers' report was that the Inspector's reasons should be rejected. They said this:
"There is some concern over the Inspector's views on the suitability of Kendal End Road as an ADR. Clearly the site is a sustainable one, a point the Council accepted at the time of the Inquiry. Questions remain over the effect development here would have on the Green Belt in particular, and to a lesser extent the impact of development on the adjacent Conservation Area, the question of density and the long-term threat to adjacent land parcels.
"The expansion of Barnt Green northwards at this point towards Cofton Hackett was an issue that persuaded the previous Inspector to reject a site on the other side of Kendal End Road. He concluded development would have serious consequences undermining the role of the Green Belt in this area. This remains a major concern albeit one not accepted by the Modification Inspector. Other issues as outlined above could be addressed through a development brief closer to the time when this site was considered for development."
Counsel for the claimant, Mr Giles, submits with some justification that there is here no account of any debate or discussion, and my own view is that the careful report of the Inspector was not given the attention and consideration that it deserved. The terms in which his recommendation was rejected were, in my view, cursory.
The matter came before a special meeting of the defendant council on 18th December 2002 where it was resolved that the recommendations made by the Executive Cabinet be approved and adopted. A statement of reasons was given in April 2003. This forms the basis for not accepting the Inspector's recommendation. It is in these terms:
"The Council disagrees with the Inspector over the suitability of the site as an ADR. Serious concerns exist over the effect development here would have on the Green Belt in particular, and to a lesser extent the impact of development on the adjacent Conservation Area, the question of density and the long-term threat to adjacent land parcels.
"The expansion of Barnt Green northwards at this point towards Cofton Hackett was an issue that persuaded the previous Inspector to reject a site on the other side of Kendal End Road. He concluded development would have serious consequences undermining the role of the Green Belt in this area. This remains a major concern albeit one not accepted by the Modification Inspector."
Mr Giles criticises those reasons. He submits, again with justification, that they do no more than recite a repetition of the council's previous view and of the officers' report which is repeated closely if not verbatim.
The council's statement does not condescend to, or grapple with, the detailed recommendation of the Inspector, nor does it appear to contain any views of the members of the council independent from their officers. They are not to be criticised simply because it is an acceptance of the officer's view, but where at neither stage were the reasons of the Inspector considered in proper detail, the statement of reasons, in my view, falls short of the standard which the public expect and the law requires.
Mr Carter, on behalf of the defendant, says the matter does not end there because there was a further objection by the claimant and a further response by the defendant which occurred on 22nd October 2003. On that occasion the officers' comments were as follows:
"The expansion of Barnt Green northwards from Kendal End Road towards Cofton Hackett was an issue that persuaded the previous Inspector to reject a site on the other side of Kendal End Road. He concluded development would have serious consequences undermining the role of the Green Belt in this area. This remains a major concern of the Council albeit one not accepted by the Modification Inspector."
There is a certain deja vu or reminiscence about those words which seem to reflect, again, the previous words of the officers and of the council.
The comment continues:
"The Council has concerns that developing this site at a higher density would have a detrimental impact upon the character of surrounding area, particularly adjacent residential properties... many of which have been built at a low density. In addition concern exists that employment development (mixed use) would have a detrimental impact upon the semi-rural appearance of the area.
...
"However concerns do exist that despite possible policy protection, adjacent land parcels (Barnt Green 2nd XI Cricket Pitch, Cherry Hill Coppice and land around Barnt Green Inn) may in the future be subject to sustained development pressure, due to their removal from the Green Belt and the most effective way of ensuring their protection would be through their retention within the Green Belt."
A little later:
"The recommendations of the Inspector following the Local Plan Inquiry are not binding upon the Council. In this instance for the reasons stated above, the Council has taken the view that it does not agree with the Inspector's conclusions concerning this site and therefore rejects the Inspector's recommendation."
Even if these constituted proper reasons are they capable of rectifying a deficiency in the previously given reasons? Mr Giles submits not, and that in any event the reasons to be considered are those given at the time of the decision. In this I think he is correct.
Mr Giles bases himself on The Town and Country Planning (Development Plan) (England) Regulations 1999, paragraph 27(1) in these terms:
"Where a local planning authority cause a local inquiry or other hearing to be held for a purpose mentioned in [the regulations], the authority shall, after considering the report of the person holding the inquiry or other hearing, prepare a statement of recommendations."
Mr Giles makes a two-fold submission. First, that there was no proper consideration given to the Inspector's report and recommendation, and, second, that there were no proper reasons given for not accepting it. Counsel have cited a number of authorities and made a number of helpful submissions.
I accept that "reasons" challenges such as this are particularly fact specific. In other words, each case must be examined in the circumstances which give rise to it. The court is not concerned with planning merits, but only to see whether the statutory requirements and other rules of law have been complied with. The test is not whether the defendant's reasons were not as full as those given on other sites, but whether full and sufficient reasons were given as to this site: this is not a comparative exercise.
Of the cases cited to me I derive the most assistance from the judgments of Pill LJ and Schiemann LJ given in the cases of Miller and Others v Wycombe District Council [1997] J.P.L. 955, and in Welsh Development Agency v CarmarthenshireCounty Council [2000] J.P.L. 692 respectively.
In the former case Pill LJ said this at the foot of page 955:
"The council were required to make their decision in the light of the Inspector's report and recommendation and to give reasons for their decision. It was incumbent upon the council, in my view, to demonstrate that minds had been applied to the Inspector's report, the recommendation and the findings which led to it. Specific consideration of his findings was required. In their remarks the council recite a series of assertions as to why it is necessary, in their view, to apply Policy L3 to the site. One of the remarks, that in relation to views within the area itself, actually conflicts with the concession which the Inspector records the council as having made at the inquiry. The council ignore entirely the Inspector's findings and make no attempt to deal with them.
"In my judgment they have failed to deal with the substantial points raised by the independent Inspector. They do not either express reasons for disagreeing with his findings or give a reasoned explanation for ignoring them in favour of other considerations which they consider important."
In the latter case the matter is helpfully summarised in the headnote in these terms recording the judgment of Schiemann LJ:
"A number of principles emerged from the many cases in this area on the proper duties and approach of the local planning authority. First, it must consider the recommendations of the Inspector in accordance with normal public law principles, that is, with an open mind and fairly grappling with the substantial points raised. Secondly, the reasons which are to be given can, in appropriate circumstances, be brief and terse. If no new point is raised by the Inspector, which requires consideration, the reasons of the authority can constitute a repetition of its case as seen in WestminsterCity Council v Great Portland EstatesPlc [1985] A.C. 661. Thirdly, where a point is raised by the Local Plan Inspector, the planning authority must deal with it. Mere repetition of their previous stance is not in such cases adequate. Fourthly, where the question is essentially one of planning judgment the reasons may need little elaboration... Fifthly, in examining the adequacy of reasons, a... statement is not to be looked at in vacuo but in the context of the documentation in which it arises."
In the present case Mr Giles has pointed to the report of the Inspector, in particular where he deals with questions arising under the Green Belt matter. Mr Giles does not agree that the questions there dealt with, or other questions dealt with by the Inspector, represented what was described as a value judgment. He adopts that stance, in view of submissions made by Mr Carter, in the judgment which I have just cited of Schiemann LJ.
Mr Carter's submission was in these terms: that the principles show that the adequacy of reasons depends upon the particular circumstances and range of issues in a particular case. That, of course, must be correct. It is not therefore right, he submits, to treat responses in a global way. That too must be accepted. The questions he raises are: are the matters raised by the Inspector value judgments, in which case they can be dealt with shortly? Or are they matters of fact where more consideration and reasons may be required?
As I have said, Mr Giles has identified passages in the Inspector's report, particularly in paragraph 1.6.150, where the Inspector does make a number of findings of fact. Therefore, submits Mr Giles, this is not a matter of planning judgment or a value judgment. I agree with that submission. In my view it merited and required an equally careful response which, in my opinion, it did not receive. Mr Giles has accordingly made out his primary submission.
In my judgment, no proper consideration was given to the Inspector's report and recommendation and no proper reasons were given for not accepting it. Accordingly I order that that part of the Bromsgrove District Local Plan which applies to the claimant's land at Fiery Hill Road and Kendal End Road, Barnt Green, Bromsgrove, in the county of Worcestershire, be quashed.
Do you have an application for costs?
MR GILES: My Lord, I do. We in fact sent a summary assessment to the defendant but it omitted, I discovered, when I looked at it today, important disbursements from the planning consultant. I have tried to remedy that situation without success because they are not able to provide the appropriate figure. So, therefore, my application, my Lord, is for an order in the terms indicated and an order for costs to be assessed if not agreed.
SIR RICHARD TUCKER: It is helpful in these cases if you do have an accurate assessment so that the court can make an order in those terms, subject, of course, to any counter submissions and avoid further complications and further costs.
MR GILES: My Lord, yes. My learned friend has indicated, helpfully, that he has no objection in principle and he has no objection to the totals expressed in the summary assessment figure, £10,192.88 inclusive of VAT. I do have that other element that is not in the costs order.
SIR RICHARD TUCKER: What do you say, Mr Carter? First of all can you resist, in principle, an order for costs?
MR CARTER: No, my Lord.
SIR RICHARD TUCKER: Thank you. What about the figure?
MR CARTER: My Lord, the defendant was sent the summary assessment which, as my learned friend says, comes to the total sum of £10,192.88, and as my learned friend indicated my instructions are that there is no issue taken with that amount of costs. It is an appropriate and reasonable figure.
My learned friend has discovered that there is no item included in that bill for -- I think it is the work of Stansgate Associates and Mrs Stewart in preparing her witness statement. My Lord, in my submission, it is important, in cases that last no longer than one day, that a summary assessment is properly assessed so that the court can deal with the matter without further costs being incurred. I would urge upon your Lordship one of two courses of action: either to restrict the costs awarded to the sum which has been disclosed and with which my clients are not unhappy, if I can put it --
SIR RICHARD TUCKER: 10,000?
MR CARTER: 10,192.88
SIR RICHARD TUCKER: Yes.
MR CARTER: If, my Lord, the claimant wishes to pursue any further items of costs that can only be done by way of detailed assessment, and, in my submission, it would be wholly unfair upon the defendant to put upon them the running of the risk of any further costs through detailed assessment matters. So, in my submission, if the claimant insists on pursuing that item it should be on the basis that there is no risk upon the defendant in incurring further costs through detailed assessment.
SIR RICHARD TUCKER: Which course are you going to pursue, Mr Giles? Do you want summary costs in the sum mentioned or are you going for a detailed assessment in which case I expect you will have to bear the costs?
MR GILES: Summary costs, my Lord.
SIR RICHARD TUCKER: Summary costs. £10,192.88, very good, very sensible if I may say so.
MR CARTER: My Lord, there is one further matter. I have instructions to seek permission to appeal. My Lord, I recognise that I have to bear the burden of making out either of the limbs in CPR Part 52, Rule 3, namely that there is a real prospect of success or some other compelling reason why the matter should be heard. My Lord, all I can submit is that in relation to -- I cannot put my case on the basis there is some compelling reason why the matter should be heard. This is an application of familiar principle and your Lordship has not set any new legal rule or principle of any kind. My Lord, all I can say in relation to the first limb is that it was a particular feature of the defendant's case that there were two stages involved in the process and indeed there are two statutory duties to give reasons, one that applies at the time when the Inspector's report is considered, the second when reasons are given in relation to any lack of modification consequent upon that treatment.
My Lord, I would submit that in the light of the interplay between those two sets of reasons, duties, there would be, perhaps, a real prospect of success in saying that the second set of reasons did cure any defects that were not present in the first. My Lord, that is all I can say.
SIR RICHARD TUCKER: I regard them as being repeated parrot fashion. You have no prospect of success and I decline to grant you leave, Mr Carter. I know you will not take offensive!
Thank you both very much for your help.