Horsham District Council v First Secretary of State & Anor

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 an inspector appointed by the first defendant allowing an appeal by the second defendant against the claimant's failure to give notice, within the prescribed period, of its decision on an application for planning permission by the second defendant for the demolition of three dwellings and the erection of 18 two-bedroom and three-bedroom terraced and semi-detached dwellings and the provision of parking for 36 cars on land at Little Splinters, Downsview and Downsland, London Road, Coldwaltham, West Sussex ("the site").

The appeal was dealt with by way of an informal hearing, which took place on 11th November 2003. The inspector's decision letter is dated 8th December 2003. He granted planning permission subject to a number of conditions. They included a condition that not more than 27 off-carriageway car parking spaces should be provided. In paragraph 3 of the decision letter, the inspector identified six main issues. The second and fifth issues were whether or not the appeal proposal would "with due regard to transportation considerations, result in unsustainable development" and "prove acceptable in the light of land available for residential development in the District." The inspector resolved all six issues in the second defendant's favour.

In its statement of case the claimant had identified four main issues, the fourth of which was "sustainability considerations". Under the heading "Sustainability" the claimant said:

Paragraph 31 of PPG3, which sets out the sequential approach to the release of land for housing, is then referred to, and the claimant's statement continues:

The documentation before the inspector included the response to consultation from the highway authority, the West Sussex County Council. That also gave details of the bus services and said this:

Having dealt with various detailed matters such as layout and access, the County Council's response continued:

The County Council also referred to paragraph 31 of PPG3 and observed that:

The second defendant did not agree with these assessments of the site's suitability in sustainability terms. In its statement for the hearing, having noted that PPG3 seeks to encourage more sustainable patterns of development, the second defendant said:

The second defendant's statement referred to the claimant's annual housing development monitoring report and said this:

Pausing there, it is convenient at this stage to set out the terms of paragraphs 69 and 70 of PPG3, paragraph 1 of which states that one of the government's objectives is to promote more sustainable patterns of development. Under the heading "Creating Sustainable Environments", paragraphs 69 and 70 are as follows:

Returning to the second defendant's statement for the hearing, it said this in paragraph 6.2:

The inspector dealt with the second issue, sustainability, in paragraphs 14 and 15 of the decision letter:

This conclusion fed through into the inspector's consideration of the fifth issue: the managed release of sites in accordance with the sequential approach in PPG3. Because of the availability of sites identified in the settlement sustainability analysis, a cautious approach was advocated so far as the release of windfall sites was concerned. The inspector observed:

On behalf of the claimant Mr Cosgrove submitted, firstly, that the inspector had failed to correctly apply the advice in paragraph 70 of PPG3 when considering the issue of sustainability that:

Secondly, setting paragraph 70 aside, the inspector's reasoning was inadequate because although he had concluded "the proposed development would most likely certainly achieve these objectives", he had failed to identify the local services and facilities that he had in mind, none is mentioned in the decision letter save the school. In relation to the school, the inspector had failed to explain why, given its high reputation, full roll and extensive catchment, it required any support. In summary, he submitted that no intelligible reasons were given for the inspector's conclusion that the objectives of supporting local services and facilities would most likely and/or certainly be achieved.

Thirdly, the inspector's conclusion in response to the concerns of the highway authority was simply perverse. The highway authority had objected on the basis that the site was an unsustainable location because it was remote from services and did not have the benefit of adequate public transport. Hence the occupants would use their cars. That was why the second defendant was proposing a high number of car parking spaces on the site. That concern was not addressed by simply reducing the number of car parking spaces from two to 1.5 per dwelling. The site would continue to be in an unsustainable location, but with an inadequate supply of off-carriageway car parking for those who would have "very little modal choice other than ... private car."

The first defendant was not represented before me. In a draft consent order it was explained that the first defendant was prepared to submit to judgment:

On behalf of the second defendant, Mr Alesbury submitted that the inspector had to deal with the parties' cases as they had been presented to him at the hearing and paragraph 70 in PPG3 was simply not in issue at the hearing. It had not been relied upon by the claimant and although its terms had been accurately summarised in the second defendant's statement, the point being argued on behalf of the second defendant in paragraph 6.2 of its statement was a more general one. While Coldwaltham was not as sustainable a location as some, it was nevertheless not so remote as to justify a refusal of planning permission. For a settlement of this size it had a good range services: a primary school, a public house, a church and a village hall, and access to public bus services was quite good. The inspector did not embark upon an analysis of paragraph 70 of PPG3 because he was not asked to do so by the parties. In paragraph 15 of the decision letter the inspector was simply responding to, and in essence agreeing with, the points that had been made in paragraph 6.2 of the second defendant's statement. In addition to the written material, there had been a discussion at the hearing of the position in relation to the village school. Mr Gray, a chartered town planner who appeared for the second defendant at the hearing, had made the point that although the school roll was full, only a very small proportion of the intake came from Coldwaltham itself, other pupils were brought in from surrounding towns and villages. He had commented that this was not a very "sustainable" state of affairs. Mr Alesbury also questioned whether the appeal proposal would be "significant additional housing" in the context of paragraph 70 and whether there was any obligation to "demonstrate" in any particular way that local services would become unviable if planning permission was not granted for the proposal development. His principal point, however, was that paragraph 70 of PPG3 played no part in the hearing before the inspector and a case was being "manufactured" for the purposes of a section 288 challenge that had simply not been argued at an earlier stage.

So far as the latter part of paragraph 15 of the decision letter was concerned, the inspector was simply dealing with a discrete issue -- the appropriate car parking standard -- that had been raised by the County Council in its consultation response. There was no separate objection by the County Council. It did not appear at the hearing. Its case was part of the claimant's case on sustainability, and the inspector had resolved the issue of sustainability in the second defendant's favour in the first of paragraph 15, on the basis that the objective of supporting local services in Coldwaltham outweighed any objections on the grounds of remoteness, lack of services and inadequate public transport.

I accept Mr Alesbury's submission that the court should beware of the tendency in challenges under section 288 to focus on what was a relatively minor aspect of an appeal before an inspector, to magnify its importance out of all proportion, and then to complain that the reasoning in the decision letter is inadequate so far as that particular issue is concerned.

That said, I am satisfied that the inspector's reasoning in relation to the sustainability issue in paragraph 15 of this decision letter is inadequate for the following reasons. There can be no dispute that sustainability was a main and not a peripheral issue. It was identified as a main issue by the inspector. Moreover, the inspector's conclusion on sustainability influenced his consideration of another main issue: whether the proposed development on this site complied with the managed release of sites in the district in accordance with PPG3.

I further accept that the County Council's case was part and parcel of the claimant's case. The claimant, supported by the County Council, had argued that Coldwaltham was not a sustainable location because it was remote, had limited facilities and services and was inadequately served by public transport. Although these points were disputed by the second defendant, which contended that the village was not so remote, had a "good range" of services and "quite good" access to bus services for its size, it would appear from paragraph 14 of the decision letter that the inspector broadly accepted the case being advanced by the claimant that the village was relatively remote and that bus services were few and not convenient for commuting. Apart from referring to the lack of employment facilities in the village, the inspector did not refer to the availability of any services. There is certainly nothing to suggest that he considered that there was "a good range of services" in the village.

In short, paragraph 14 appear to be describing a village which would not be regarded as a sustainable location for development. The sole reason for deciding against the claimant on the issue of sustainability is to be found in the inspector's conclusion in paragraph 15:

In these circumstances, and setting paragraph 70 of PPG3 aside for a moment, it was incumbent on the inspector to explain why he considered that these objectives would "most likely certainly" be achieved. Which local services and facilities did he have in mind? I would accept that there may be certain cases where there was no dispute as to the extent of local services and facilities. This was not the case in this appeal. There was an issue whether the local services and facilities were fairly described as "limited" services or as a "good range" of services. That issue was not resolved by the inspector. Indeed, no local services or facilities apart from the local school are identified in paragraphs 14 and 15 of the decision letter. The school is specifically mentioned. It had been argued that it did not need support given its high reputation, its wide catchment and the fact that the roll was full; the second defendant had argued that the lack of pupils from the village itself nevertheless rendered the school unsustainable. That issue was not expressly resolved by the inspector. He may have accepted Mr Gray's argument on this particular point. There is no means of knowing. He certainly did not refer to it as being the basis for his conclusion that granting planning permission would achieve the objective of supporting the local school. In my judgment the Secretary of State was right to concede that the inspector failed to explain why he reached his critically important conclusion in relation to sustainability in the third sentence of paragraph 15 of the decision letter.

Although it is true that paragraph 70 of PPG3 was not raised by the claimant, I accept Mr Cosgrove's submission that it should have been considered by the inspector if he proposed to accept the second defendant's submission that:

Once the inspector had decided that it was appropriate to embark on a consideration of whether support was required for local services and facilities, the policy advice in paragraph 70 -- to which there were references in the documentary material before him -- became relevant. It should be noted that those references were not confined to the second defendant's and the claimant's evidence. The quotation from PPG13 in the highway authority's consultation response comes from paragraph 41. That in turn cross-refers to paragraph 15 of PPG13. Paragraph 15 is contained in Part 2 of PPG13, which summarises other relevant planning policies including those in PPG3 on housing. It "draws out some of the implications (of those other policies) for transport". Paragraph 15 of PPG13 is in the following terms:

This leads on to the third reason why I have concluded that the manner in which the inspector dealt with the sustainability issue was flawed. The County Council was not simply saying that the number of car parking spaces per dwelling was too high. It was saying that the number of car parking spaces was high because the development was being proposed in an unsustainable location. The location was unsustainable because it was inadequately served by public transport, and because it was inadequately served by public transport the occupants would have to use their cars, hence "the applicant is proposing a high number of car parking spaces."

I do not accept Mr Alesbury's submission that the inspector dealt compendiously with all the issues raised under the head of sustainability in the first part of paragraph 15 of his decision letter. At the most the inspector addressed the issue of local services, although what services he had in mind apart from the school is not clear. He failed to address the implications of the lack of public transport at a relatively remote location. There is nothing to suggest that the inspector accepted the second defendant's contention that "access to public bus services is quite good." Indeed, there is nothing to indicate that the inspector dissented in any way from the County Council's analysis of the transportation position. Rather, the contrary: in addition to the description of Coldwaltham in paragraph 14, which does not significantly differ from the way in which the County Council had put the matter, the inspector said in paragraph 15 that he shared the concerns of the highway authority. Those concerns, if valid, could not on any rational basis be met by simply reducing the number of car parking spaces from two per dwelling to 1.5 per dwelling. One would then be left with a residential development in an unsustainable location, with inadequate off-street parking for the cars the occupiers would have to use, since they would have "very little modal choice other than by private car".

I would accept that decision letters have to be read as a whole and in a common sense manner. An unduly nitpicking approach to an inspector's reasoning is not appropriate. Standing back, I am left in no doubt that the inspector's reasoning in paragraph 15 is inadequate. He simply failed to grapple with the council and the County Council's sustainability arguments and as a consequence his conclusion on the issue of sustainability was flawed. That flawed conclusion was not confined to the second issue, since it fed through into the fifth issue.

For these reasons, this decision must be quashed.

MR COSGROVE: My Lord, I am grateful. I have an application for costs to make.

MR JUSTICE SULLIVAN: Yes.

MR COSGROVE: My Lord, you should I hope have a schedule of costs that has been filed with the court.

THE JUDGE: I think I have the schedule. Is it from you?

MR COSGROVE: I think it is from both of us. Certainly you should have one from me, dated the 23rd.

MR JUSTICE SULLIVAN: No, I do not think I do actually.

MR COSGROVE: Can I have a copy passed up to you in that case? (Handed) Certainly I can tell you my learned friend has had an opportunity to look at it.

MR JUSTICE SULLIVAN: Thank you very much.

MR COSGROVE: My Lord, before you look at that, can I just indicate how I propose to make the application. It is in two parts. I am going to invite you to summarily assess costs and I am going to invite you to order that the first defendant pay our costs incurred up to 16th March 2004, which is the date when we received their consent order from the First Secretary of State, and that amounts to the sum of £3,094.13.

MR JUSTICE SULLIVAN: Let me just take the figure down again. £3,000?

MR COSGROVE: £3,094.13.

MR JUSTICE SULLIVAN: That is up to?

MR COSGROVE: Up to 16th March 2004, which is the date when we received their consent order.

MR JUSTICE SULLIVAN: Yes.

MR COSGROVE: My Lord, then I am going to invite you to order that the second defendant pay our costs incurred from that date involved in this application which amount to £3,944.25.

My Lord, I can go through the schedule and explain. The addition of those two sums do not exactly amount to the grand total you have on the schedule. The reason for that is because there has been two hours' extra time today, rather than the four hours anticipated in the schedule, and also we had not put on it the issue fee, as I understand it, of £180. So those two omissions are the reason why it does not exactly --

THE JUDGE: The issue fee, that is presumably down to the Secretary of State, is it. That is in his lot I imagine.

MR COSGROVE: Indeed, that comes under the Secretary of State.

MR JUSTICE SULLIVAN: The extra two hours you say should be down to Mr Alesbury, or rather his clients anyway.

MR COSGROVE: That is my application.

MR JUSTICE SULLIVAN: Thank you very much.

What do you want to say about that Mr Alesbury?

MR ALESBURY: My Lord, I do not think I say anything about it in so far as it relates to me.

MR JUSTICE SULLIVAN: Neither the principal nor the detail?

MR ALESBURY: Neither the principal nor the detail. Indeed, I discussed it with my learned friend who explained it all to me during the adjournment. So in the circumstances I accept, as it were, in advance an order made in that way.

MR JUSTICE SULLIVAN: Yes, thank you very much. I think in those circumstances I am not going to ask you to go through all the arithmetic, Mr Cosgrove, you will be very glad to hear.

Then the application is allowed. The inspector's decision is quashed. The costs are to be summarily assessed. The first defendant is to pay the claimant's costs in the sum of £3,094.13 and the second defendant is to pay the claimant's costs in the sum of £3,944.25. I make it plain that each of the defendants is simply liable for that portion of the costs. There is no question of joint and several liability. It is simply several.

Yes, anything else?

MR ALESBURY: My Lord, yes. My clients will no doubt need to make up their mind whether more appearing in front of inspectors or more litigation is to their taste. Just in case on discussion their take the view that the latter is to be preferred, I do ask your Lordship for permission to appeal.

MR JUSTICE SULLIVAN: Thank you very much.

Mr Cosgrove, I do not need to trouble you about that, thank you.

Given the lateness of the hour, I hope you will not think it discourteous if I say that for the reasons set out in the judgment, I put my best foot forward and I do not think you have a good prospect of success. If you feel you have, then you will have to go to the Court of Appeal.

MR ALESBURY: That is what I was expecting, but I have asked.

MR JUSTICE SULLIVAN: You have asked, indeed. Thank you.