Maidstone Borough Council, R (on the application of) v Secretary oOf State for Communities & Local Government & Anor

MR JUSTICE BEATSON: This is a statutory application to quash pursuant to section 288 of the Town and Country Planning Act 1990. The applicant, Maidstone Borough Council, challenges the decision of the Secretary of State for Communities and Local Government's Inspector, dated 20 September 2006, to allow the second respondent’s, Mr James Baker's, appeal against the refusal of planning permission for a change of use of land at Quarter Paddock, Bletchenden Road, Headcorn, Kent to residential stationing of three mobile homes and two touring caravans for an extended Gypsy family, and to grant planning permission for the same, subject to conditions.

Before me today Mr Watson appears on behalf of the claimant and Mr Cottle on behalf of the second respondent. The first respondent, the Secretary of State, submitted to judgment and a consent order was drafted and approved by her and the claimant on 23 April 2007. The first respondent accepted that the decision erred in law and that the decision did not comply with the requirements in section 38(6) of the Planning and Compulsory Purchase Act 2004, in the ways with which I shall deal later in this judgment.

Mr Cottle, on behalf of the second respondent, observed that the first respondent's submission was to the whole claim, but that parts of it, in particular, those parts in paragraphs 22, 25 and 27 of the claimant's application under section 288, were not pursued by Mr Watson. He suggested that perhaps the first respondent had not given adequate attention to this in conceding on everything. It will be seen when I come to the decision that, in fact, the provisions of paragraph 3 of the schedule to the consent order only concede to those matters which were advanced by Mr Watson today, and which were resisted by Mr Cottle.

Before dealing with the decision and the challenge, I observe that this matter has had a very unfortunate history. The second defendant commenced the development as long ago as October 2003 and made his application for planning permission in that month. There was an appeal following the claimant's refusal of planning permission in 2004. A public inquiry in September 2004 allowed the second respondent's appeal and the claimant appealed against that decision. On that occasion both the Secretary of State for Communities and Local Government and the second respondent submitted to judgment, and the matter was remitted for determination at a second inquiry.

The second inquiry took place in 2005. The inquiry closed in December 2005, but a decision letter was not given until September 2006. The reason for this unusual delay appears to be unfortunate personal circumstances and family illness affecting the Inspector. Crucially, the Kent and Medway Structure Plan 2006 was adopted after the close of the inquiry in December 2005, and before the decision in September 2006. The Structure Plan was adopted as development plan policy in July 2006.

Planning control and lawful planning control is important. Particularly where there is strong opposition locally to a particular plan it is an important component in maintaining confidence in the planning system that the process follows the statutory and regulatory rules, and the rules laid down in decisions of the courts.

It is unfortunate that following the second inquiry the First Secretary of State has felt it necessary to concede that there has been an error of law in the second inquiry. Unless Mr Cottle's submissions prevail, the site residents, who are on Income Support and who have serious health problems, will have to go through the process for a third time. This is not a cost-free or a stress-free exercise. I am very conscious of this. It is incumbent on public authorities, when facing situations such as this, to address the consequences of such failures on the individuals who are required to go through statutory processes for a second or a third time.

I turn to the relevant decision. The Inspector stated in paragraph 9 that there were two issues. The first is the effect of the development on the character and appearance of the countryside that was subject to protection as a Special Landscape Area. The second is whether the special needs of the appellant before her, and the other occupiers of the site as Gypsies and their personal circumstances, would outweigh any harm to the interests protected by the Special Landscape Area status. In paragraph 12 there is the first inkling of a mistake resulting from the long delay in giving the decision. Paragraphs 12 states:

That was not the applicable policy by the time of the decision. The 2006 Structure Plan had come into effect. Paragraph 12 also states that:

That explanatory text related to the old policy. This part of the old policy was not replicated in the new policy in the Structure Plan. The relevant part of the explanatory text states:

The next material paragraph, and the important provision in the decision, is paragraph 14, which I set out in full:

The Inspector, thus, stated that the policy was not yet adopted, but it had been adopted and as such it should have been given significant weight.

The claimant submits that the failure of the Inspector to determine the appeal in accordance with the 2006 Structure Plan, and specifically Policy HP9, had the effect that the decision of the Inspector was:

“not within the powers of the Town and Country Planning Act 1990 and thus pursuant to section 288(5)(b) unlawful.”

Policy HP9 provides:

Policy HP10 had stated:

“Where a need for permanent or transit gypsy accommodation is established, provision should be in accordance with the Structure Plan’s policies for protection of the environment, countryside and the Green Belt.

Sites should be provided within the principal urban areas or rural settlements. In the absence of such sites, locations with good accessibility to the principal urban areas or rural service centres and with easy and safe access to primary and other main roads will be preferred.

Proposals should be located to avoid adverse impact on residual amenity, highway capacity and highway safety.”

I return to the provisions of the decision. Mr Cottle directed me to a number of other paragraphs which I set out:

I have referred to the statutory requirement. These are conveniently set out in Mr Watson's skeleton argument. Section 70(2) of the Town and Country Planning Act 1990 provides:

By section 79(4) of the Act section 70 applies in relation to appeals to the Secretary of State against the refusal of planning permission under section 78. By section 38(6) of the Planning and Compulsory Purchase Act 2000, which re-enacts section 54A of the earlier Act, it is provided:

Section 70(2) provides that the authorities shall have regard to the provisions of the development plan and therefore section 38(6) of the 2004 Act applies.

On behalf of Maidstone, Mr Watson submits that the failure to determine the appeal in accordance with the 2006 Structure Plan and Policy HP9 meant that the decision was not within the powers of the Act and therefore unlawful. Secondly, he submits that if the decision was unlawful this was not a case in which the court should exercise its discretion to quash the decision. Although at one stage it appeared that, on behalf of the second respondent, Mr Cottle was submitting that the Inspector in fact applied Policy HP9, that was not the way he presented the case at the hearing. The thrust of his submissions were that while paragraph 14 undoubtedly contained an error, the Inspector's concern with practicality, and the factors taken into account by the Inspector in relation to the different policy documents applicable, mean that there is no point in sending this matter back.

The Inspector, submitted Mr Cottle, correctly identified the main issue (see paragraphs 20 to 26 of her decision. She found that the development would be wholly alien, back at paragraph 22 and in paragraph 24, and would be a prominent and strident intrusion. However, Mr Cottle submitted that the differences in the policy documents did not affect the substantial issue before the Inspector: an issue which the Inspector considered. He also submitted that, given the evidence accepted, there was an absence of sites within the main principal urban areas, or rural settlements (see paragraph 48). The fact that the main settlements in the district have nearby areas of local landscape importance, and the position of the second respondent and his extended family, meant that, quite apart from the absence of sites within the principal urban areas, or rural settlements, the second respondent would not be able to realistically acquire such sites.

Mr Cottle submitted that, had the Inspector considered the current policy as if in force, these factors would all still have been in play so that the fall-back position in the approach set out in HP9 would have applied.

Mr Cottle's submissions essentially, and my summary may not do justice to the nuances, were that the first sentence of HP9 reflects an ideal position that is unlikely to be achieved and was certainly not going to be achieved by this family, and that the Inspector in the paragraphs that I have set out, considered this. Therefore, the second sentence applied. Essentially the approach of the Inspector, who considered practicality, and then considered the tension between the planning policies and the needs of particular communities, in particular Gypsies, reflected the policy of the second sentence.

Mr Cottle relied on a number of authorities for the proposition that where it is clear that although an error has been made by an Inspector, the point is purely technical and there is no possible detriment, ie that the result would be the same, the court should exercise the discretion that it undoubtedly has not to set aside the decision. He relied on London Borough of Richmond v The Secretary of State for the Environment [1984] JPL 24, Bolton MBC v The Secretary of State for the Environment [1991] 6 P& CR 343, Simplex (GE Holdings) v The Secretary of State for the Environment [1988] 3 PLR 25, Peak Park Joint Planning Board v The Secretary of State [1979] 39 P&CR 361, and Chichester District Council v The First Secretary of State [2004] EWCA Civ 1248. He also relied on a number of other authorities for particular aspects of the way the discretion should be exercised.

Mr Watson submitted that, in the light of the decision in Wycombe District Council v The First Secretary of State and Bellway Homes (North London) Limited [2005] EWHC 120, any failure by the Secretary of State to determine an appeal in accordance with the requirements of section 38(6) is an error which renders the decision fundamentally flawed. He relied on the statement by Newman J in paragraph 5 that adherence to the predecessor provision, section 54A, is:

He also relied on the commentary in the Planning Encyclopedia P54A04 that the provision that is now section 38(6) reflected Parliament's purpose to ensure that the Development Plan is given added weight in the decision-making. He submitted that here where the Inspector gave the policy limited weight, that was a clear error.

As against the decisions relied on by Mr Cottle, Mr Watson pointed to the fact that although the Inspector had given significant weight to the policy in the Wycombe District Council case, the court (see paragraph 25) nevertheless overturned the decision because the court concluded that the Inspector could not have had proper regard to the policy, unless he had characterised it as a Development Plan policy. In that case the Inspector had referred to the matter as reflecting general intention rather than policy.

Earlier in his judgment Newman J had stated that:

So, according the policy limited weight and doing so because it is not yet adopted are, in Mr Watson's submission, two serious errors. Mr Watson's written submissions also state that the Inspector compounded her error by raising an issue about the practicality of the policy in paragraph 14. He argues that the issue of practicality was not a matter which should have properly been taken into account given that the policy had by then been adopted. The authorities shown to me by Mr Cottle show that practicality is something which can be taken into account by an Inspector, particularly an Inspector dealing with potentially conflicting policies. It is also clear from the cases he cited to me that courts have regard to this and have not necessarily set aside decisions on that ground. In his oral submissions, however, Mr Watson did not place this point at the forefront of his submissions.

The narrow issue for me is whether it is clear to me that had the Inspector identified the irrelevant policy, and given it the requisite weight, she would have reached the same decision. Mr Cottle took me through the paragraphs, to which I have referred, to show that the factors that are relevant, and can be taken into account, were all matters before the Inspector. However, in truth, the Inspector did not approach the matter in the way contemplated by the new policy. It may be that by picking out a paragraph here and a paragraph there one can conclude that, had her mind been directed to the policy, she would have done so. It does not, however, follow from reference to, for example, the conflicts between local policy and national policy, and the strong and possibly compelling personal circumstances of the respondent's family, that she would have done so.

Although Mr Cottle denied that he was asking me to exercise an appellate role, in truth he was. To look at all the material, including the evidence before the inquiry, the cross-examination and the witness statements, in order to conclude that the result would be the same is to replace the statutory procedure, which requires a specialist and expert Inspector to do the relevant balancing, by this court doing it. It may be hollow to the second respondent for me to refer to specialised and expert Inspectors when the matter has been dealt with erroneously on two occasions. Nevertheless, it is very important for this court to maintain a true sense of its proper role.

It is with some considerable reluctance that I have reached the conclusion that the point raised by Mr Watson is not a purely technical point. Although the hardship to the respondents of having to go through this process again is manifest, the public interest in having a determination made lawfully is an important consideration, for which the claimant is entitled to press. Mr Cottle sought to distinguish the Peak Park case on the grounds that that was concerned with a planning application of a wholly different order, described by Sir Douglas Frank as “of national importance”. There the public authority seeking to set aside the decision was a national public authority. Here the public authority is a local authority, but the public interest can be important even where it is not a matter of national importance.

For these reasons, I allow this application and set aside the decision of the Inspector and remit the matter, yet again, for re-determination at another inquiry.

MR COTTLE: When you do recite the policies in your judgment could you also put in the draft HP10, which the Inspector was referring to in paragraph 13? My Lord, referred to “unless Mr Cottle’s submissions prevail” and then said “the claimants” but it would be the “site residents”.

MR JUSTICE BEATSON: You are absolutely right. I am sorry. I will correct that carefully. I am very grateful for those observations.

MR WATSON: My Lord, just a couple of matters in relation to costs. Your Lordship will have seen that the draft consent order made provision for no order as to costs. In fact that is not the full picture as a result of recent correspondence. There has been some discussion between those instructing me and the Treasury Solicitor as to the position vis-à-vis costs up until the Treasury Solicitor conceded matters in April 2007. The position is that we were given a letter this morning in court.

MR JUSTICE BEATSON: Hang on a minute. This is a consent order entered into almost a year ago. You want to open it up. It has never been sealed; it has never been done, and has been waiting for the case to come on. Because the Administrative Court has such a backlog it has not come on, so everybody has had time to think about a different solution.

MR WATSON: The position is that I can say that those instructing me have spoken to the Treasury Solicitor and are happy for your Lordship to see the correspondence.

MR JUSTICE BEATSON: Pass it up (same handed). What does the last paragraph mean?

“This offer is made subject to the Secretary of State becoming liable for costs and is made without prejudice save as to the costs of detailed assessment.”

You mean if Mr Cottle had prevailed, then the Secretary of State would have sought to piggy-back on his success?

MR WATSON: I assume so. We have agreed costs in that quantum until April 2007. The only issue to resolve is whether in principle the claimant is entitled to those costs.

MR JUSTICE BEATSON: What is the status of the consent? The consent order is flapping in the air.

MR WATSON: I have to say today's correspondence took me by surprise because I thought the matter had been resolved.

MR JUSTICE BEATSON: You are not surprised by my reaction?

MR WATSON: I am not surprised by your reaction. I had a similar reaction about half past 10 this morning. It seems that matters have moved on since the consent order.

MR JUSTICE BEATSON: I think what has to be done is either there has to be a varied consent order, or I will make the order as part of the disposition of this case. That is what you are asking me to do?

MR WATSON: It is.

MR JUSTICE BEATSON: Are there any other applications?

MR WATSON: The only other matter is vis-à-vis costs as between the claimant and the second defendant. The second defendant obviously has costs protection, I think, from November 2006.

MR JUSTICE BEATSON: You say the second respondent is publicly funded?

MR WATSON: The second defendant has a public funding certificate since early November 2006. I am not seeking--

MR JUSTICE BEATSON: Are you making an application for the period between April--

MR WATSON: No, I could not. The certificate was granted immediately after.

MR JUSTICE BEATSON: I have the dates wrong.

MR WATSON: All I ask is for costs in the usual way not to be enforced without leave.

MR JUSTICE BEATSON: There is a new one. It is not that new any more.

THE RESPONDENT: It is determination of liability to be postponed. It is the assessment.

MR JUSTICE BEATSON: That you cannot really resist, can you?

MR COTTLE: I was going to say a few words.

MR JUSTICE BEATSON: Do please say a few words.

MR COTTLE: Before I do, what I am most concerned about at this juncture is whether your Lordship has considered referring it back to the previous Inspector to deal with it on the papers, because that is an option?

MR JUSTICE BEATSON: I will hear Mr Watson on that. You do not have to say very much to me about that. You said that the issues will be very narrow. There is no issue about bias or improper behaviour. I do not know, of course, perhaps some of you know, whether the Inspector is still available, but if she is still available, and she has a better memory than I have, then it would seem to be an advantage referring it to her.

MR WATSON: Your Lordship, in my submission we do not know if she is still available. We do not know whether or not and how she might have to go about the exercise of applying HP9 in this case, or whether or not she might require further--

MR JUSTICE BEATSON: What you are resisting is the referring it back to do on the papers. You are not resisting referring back to her?

MR WATSON: On the basis of the decision grounds for me to resist referring it back to her, all other things being equal, however, it seems to me there is a likelihood that in light of it there may need to be--

MR JUSTICE BEATSON: I understand that. What I have in mind, and I will hear Mr Cottle as I am really acceding to his submission with this variation, is to refer it to the same Inspector with encouragement to try to determine it on the papers, but with recognition that because of the interposition of the new policy after the hearing closed there may need to be evidence on that matter. There are other matters. Mr Cottle referred to screening. Was it you?

MR COTTLE: That is right. In written submissions I would imagine it would include a site visit, even written representation.

MR JUSTICE BEATSON: Do you have any other submissions?

MR COTTLE: No, the only further point is whether or not you want to limit the issue, but that is all. You have it.

MR JUSTICE BEATSON: I considered that. I decided not to in the judgment in view of your submissions about the interrelationship of all of these policies. So I have decided not to.

MR COTTLE: So be it.

MR JUSTICE BEATSON: You would be content with remitting it to the same Inspector?

MR COTTLE: To deal with by written representations if she is content to do so.

MR JUSTICE BEATSON: To deal with written representations, including a site visit, if she is content to do so, recognising, I observe: (1) she may not be available; and (2) she may decide she needs more evidence on the new policy.

THE DEFENDANT: That is right.

MR JUSTICE BEATSON: I hope that meets your objection. I want to thank you.

MR COTTLE: My evidence could be dealt with by written representations also.

MR JUSTICE BEATSON: It all could. It ought to be her discretion ultimately, rather than us sitting here in London today doing it. Can I thank you all?

MR COTTLE: Can I make one further point? The issue of the draft HP10 is in exactly the same words as the adopted, apart from a few changes in the introductory text.

MR JUSTICE BEATSON: Just give me the page reference I am going to insert?

MR COTTLE: It is page 32.

MR JUSTICE BEATSON: Thank you very much. My Lord had it right. I was saying that she addressed the draft policy. I was not saying she addressed the adoptive policy, but the draft policy is in fact the same as the adopted policy, so in substance it is the same thing.

MR JUSTICE BEATSON: In substance you were saying that.

MR JUSTICE BEATSON: This is relevant to the issue of costs because it is not unsurprising, from my client's point of view, that when the criticism is that she did not apply the adopted policy, but we know in terms that she addressed the draft policy, that inevitably they would be concerned as to whether or not they should resist the appeal. In those circumstances it is one of those cases where given that there has been two inquiries already, and we have come this far, it was a commercial decision but--

MR JUSTICE BEATSON: If they had not been publicly funded they may have taken a very different line.

MR COTTLE: They may have taken the same line, because three days is a costly process.

MR JUSTICE BEATSON: It is a costly process, even when you are publicly funded.

MR COTTLE: What I mean is this is a smaller cost. In those circumstances this is a case, given that this situation is not the fault of anybody's, for a no costs situation. The error was not of our client's doing. There was a degree of shared responsibility in not whistle blowing by the local planning authority by saying, “We have come on so long. We know the policy is going to be adopted.” That does affect the issue of costs. If you are against me on all of that, then we should only be liable for whatever figure they are asking for. I have not seen a schedule. It should be assessed.

MR JUSTICE BEATSON: I have not seen any schedules. Therefore, I am afraid that I say to you, and it is not the part of this job I like doing, the rough and ready justice in assessing the costs, that when the parties have not prepared it I do not seek them out to ask them for it. Let me hear Mr Watson on your substantial point.

MR WATSON: I hear what my learned friend has to say in relation to costs, nevertheless.

MR JUSTICE BEATSON: What you are going to say is that is what normally happens.

MR WATSON: They have had significant opportunity to consider the matters, and the Secretary of State clearly on the matters--

MR JUSTICE BEATSON: Mr Cottle, I have sympathy with what you are saying. I do not have any jurisprudence route, other than the exercise of broad and unbridled discretion to achieve what you are asking. I am afraid I restrain myself from an exercise of broad and unbridled discretion.

MR COTTLE: So be it. In those circumstances it will be a determination and liability to pay those costs, postponed generally.

MR JUSTICE BEATSON: Postponed generally.

MR JUSTICE BEATSON: I do not suppose it does any good, but I hope my remarks both at the beginning of this judgment and in this context will be passed to those with decision-making responsibility in the local authority. Very often in cases in these courts it is a question about which budget publicly funded sums need to come from, is it not? Of course, in this case there is the ultimate recourse in the long-stop. Is there anything else, Mr Cottle?

MR COTTLE: Detailed assessment of our publicly funded costs.

MR JUSTICE BEATSON: Yes.

MR COTTLE: The other point is in relation to protecting my client's position. Should they decide to go further they would not be able to, unless there was a certain application that I made at this juncture, and they would have to consider it in the light of a measured way in the light of a full transcript. I do not know whether leading counsel would be involved or not. Were they to make any application the question is, “Why did you not apply?” The only point for me to advance at this stage is an application for permission to appeal in respect of the issue identified by my Lord, which is that it was not right for the court to trespass on an area which you did not know the answer to. The application for permission to appeal would be that that was falsely premised on a difference between the draft policy and the actual policy, because in substance you had addressed the draft policy so there was no point. I would ask for the usual order in that respect.

MR JUSTICE BEATSON: I am going to say “no” so that you can renew it elsewhere. When I have written something down I will read it to you, so you know what I have written down. (pause) Mr Cottle, I have put:

“No reasonable prospect of success. Decision remitted because of mistake of first defendant as to applicable policy in force and consequent decision as to the weight to be given to it.”

It is premised on the narrow point which is not of the difference between the draft of the matter, but the fact was that it was not treated as a policy in force.

MR COTLLE: So be it.

MR JUSTICE BEATSON: No doubt if there is a decision to go further you will have a chance to persuade somebody else differently.

MR COTTLE: I am obliged, my Lord.