Visao Ltd v The Secretary of State for Housing, Communities And Local Government

This is an application made by the Claimant for an order pursuant to section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash a decision made by letter dated 30^th August 2018 of an inspector appointed by the Secretary of State for Housing, Communities and Local Government. By that decision, the inspector dismissed the Claimant’s appeal against the decision by the Interested Party to refuse to grant planning permission to develop land at 274 and 274A Chartridge Lane, Chesham, Buckinghamshire HP5 2SG by extending two existing dwellings and constructing four additional dwellings with associated car ports, parking, landscaping and alterations to the existing vehicular access.

By an order dated 12^th December 2018 HH Judge Jarman QC sitting as High Court Judge ordered that the case be listed as a ‘rolled up hearing’.

The Claimant relies upon two grounds of claim:

By an application received on 24^th August 2017 the Claimant applied to the Interested Party for planning permission to develop land at 274 and 274A Chartridge Lane, Chesham, Buckinghamshire HP5 2SG (“the Site”) by extending two existing dwellings and constructing four additional dwellings with associated car ports, parking, landscaping and alterations to the existing vehicular access (“the Planning Application”).

By a decision notice dated 9^th November 2017 the Interested Party refused to grant planning permission. The following 5 reasons for refusal were set out in the decision notice:

In December 2017 the Claimant appealed against the First Interested Party’s decision to refuse to grant planning permission. The appeal was determined under the written representations procedure.

In support of its appeal the Claimant submitted an Appeal Statement with 46 Appendices. In that statement the Claimant:

The Interested Party submitted a Statement of Case. In that Statement of Case the Interested Party commented on the Claimant’s grounds of appeal. At paragraph 3.2 of their Statement of Case the Interested Party stated that the case officer had measured the access drive and that the maximum width possible was around 4.15m. The Interested Party stated that the width of the drive was “…not considered to be sufficient to allow for the safe travel of two passing vehicles, pedestrians and cyclists. In particular concern is raised as to the use of the access by larger vehicles as the driveway would not be wide enough to accommodate two passing vehicles.”

In July 2018 the Claimant submitted a response to the Interested Party’s Statement of Case (“The Claimant’s Final Comments”). In that document:

On 30^th July 2018 the Planning Inspectorate wrote to the Interested Party in an email asking them to submit a list of plans on which they made their decision on the Planning Application, and asked them to explain the differences between the Planning Application and the January 2018 Planning Application. The Interested Party responded to the Planning Inspectorate in an email dated 6^th August 2018. In that email the Interested Party stated that the Planning Application had been determined on the basis of Drawing 10E.

The inspector’s decision was set out in a decision letter dated 30^th August 2018.

The inspector considered procedural matters at paragraphs 3 to 11 of the decision letter. Paragraphs 5 to 9 state:

“5.

From the evidence before me, there appears to have been some confusion over which plans had been taken into account when the Council determined the application. Having sought clarification from the Council, the plans which the Council took into account included a revised access arrangement which included alterations to the existing service road. The Appellant has also submitted these drawings with the appeal submission.”

6.

However, the red-line of the planning application does not include the land where the alterations to the highway would be.

An amended red-line plan has been submitted with the appeal submission to include this extra land.”

7.

There has also been additional plans submitted relating to the provision of a bin storage area within the site adjacent to the turning head and revised swept path analyses relating to refuse vehicles and fire tenders.

8.

In deciding whether to accept these plans, I am mindful of the principles of the Wheatcroft case (Bernard Wheatcroft Ltd. v Secretary of State for the Environment and Another 1982).

9.

In this case, the documents and plans which the Council determined the application on included the revised access arrangements and representations received on the appeal also make reference to this detail. Taking this into account, I consider that there would be no prejudice to any party by accepting these plans at the appeal stage. I have therefore determined the appeal on the basis of the revised plans and the Council’s description of the development.”

14At paragraph 12 of the decision letter, the inspector identified the main issues:

“12.

The main issues are:”

The inspector considered main issue (i) at paragraphs 13 to 21 of the decision letter:

“13.

The access to the main part of the appeal site is located between 272 and 276 Chartridge Lane. The access driveway is in the region of 67 metres in length and connects to a service road to Chartridge Lane which serves Nos 264 to 276. The driveway varies in width but is around 4.1 metres at its narrowest point, including the grass verges.

14.

The proposed development includes alterations to the service road, and would include a new access onto the main carriageway of Chartridge Road. The first part of the new road would be at least 4.8 metres in width and would extend at least 10 metres rear of the main carriageway. The access driveway would have a width of around 4.8 metres before narrowing down to around 4.1 metres. It would then have two narrow sections where the vehicle element of the driveway would be around 2.75 metres⁴. This reduced width would be for at least half the length of the driveway. Along this section, there would also be a 0.95 metre wide area which would be a different surface material and allow for a pedestrian refuge along the driveway. The driveway, including such refuges, would also be wide enough for emergency vehicles to traverse. I also acknowledge that there would be good forward visibility.

4 From drawing ITL12517-SK-010 revision E

15.

The 2018 Framework, at paragraph 108, sets out that in assessing specific applications for development it should be ensured that a safe and suitable access to the site can be achieved for all users.

16.

From ‘Manual for Streets’ (MfS), the minimum width for two cars to be able to pass would be 4.1 metres, with the minimum width for a lorry and a car being 4.8 metres, and for two lorries to pass the width should be 5.5 metres. It is clear that for a large proportion of the driveway it would not be possible for two vehicles to pass. For vehicles larger than a standard sized car, vehicles would be forced to wait (or reverse back to) either the public highway (on the service road) or the bend where the access driveway meets the main part of the appeal site.

17.

Whilst there would be a low probability of conflict between vehicles, any vehicle which would need to wait on the service road would invariably cause a highway danger. To that extent, in the absence of a sufficient width of the driveway for a large part of its length, the intensification of the use of the access by increasing the number of dwellings from two to six would not be in the best interests of highway safety.

18.

Turning to pedestrian access, the Appellant has indicated that a shared surface arrangement would be appropriate and has pointed to MfS where it is indicated that this can work where the volume of motor traffic is below 100 vehicles per hour. However, MfS also indicates that shared surface streets are likely to work in short lengths which (to my mind) is not the case in respect of the appeal proposal.

19.

The Appellant has suggested that the development would form a cul-de-sac. Whilst the main part of the site could be considered to be a cul-de-sac in the manner which MfS is intending, to my mind, the nature of the narrow driveway is not what it is seeking to achieve. Furthermore, it is recognised that shared surfaces can cause problems for some disabled people.

20.

Whilst I acknowledge that the existing access has been used as a shared surface access for many years, the development would result in an unacceptable intensification of the use of a sub-standard access.

21.

Taking all of these matters into account I consider that, on the basis of the evidence before me, the proposal would not provide a safe and suitable access and would be contrary to Policy CS26 of the Local Development Framework.”

The Inspector’s findings on the other main issues were as follows:

After this claim had been made the inspector provided a witness statement dated 8^th January 2019. In that witness statement the inspector states (inter alia):

Section 288(1) of the Town and Country Planning Act 1990 (“TCPA 1990”) provides:

“288.— Proceedings for questioning the validity of other orders, decisions and directions.”

(1)

If any person—

(b)

is aggrieved by any action on the part of the Secretary of State or the Welsh Ministers to which this section applies and wishes to question the validity of that action on the grounds— (i) that the action is not within the powers of this Act, or

(ii)

that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.”

The powers of the court when hearing a section 288 application are identified at section 288(5):

“(5)

On any application under this section the High Court—”

(a)

……….

(b)

if satisfied that any such order or action is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action.”

Section 288(4A) provides:

The principles to be applied when considering an application made under section 288 of the Town and Country Planning Act 1990 are well established and were summarised by Lindblom J (as he then was) in Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) at paragraph 19:

“19 The relevant law is not controversial. It comprises seven familiar principles:

(1)

Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to “rehearse every argument relating to each matter in every paragraph” (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).”

(2)

The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the “principal important controversial issues”. An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 W.L.R. 1953, at p.1964B-G).

(3)

The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, “provided that it does not lapse into Wednesbury irrationality” to give material considerations “whatever weight [it] thinks fit or no weight at all” (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for (sic) [2001] EWHC Admin 74, at paragraph 6).

(4)

Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decisionmaker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] P.T.S.R. 983, at paragraphs 17 to 22).

(5)

When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).

(6)

Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).

(7)

Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145).”

The principles to be applied when considering a contention that a decision maker has failed to take into account a material consideration were set out by Glidewell LJ in Bolton MBC v Secretary of State for the Environment (1991) 61 P.& C.R. 343 at pages 352 to 353.

The law relating to challenges on the grounds that the reasons given were deficient was summarised by Lord Brown of Eaton-under-Heywood in South Bucks District Council v. Porter (No.2) [2004] 1 WLR 1953 at paragraph 36:

In Shadwell Estates Ltd v. Breckland District Council [2013] EWHC 12 (Admin) Beatson J considered the approach to be taken when a decision maker considers the views of statutory consultees, and stated at paragraph 72:

The approach to be taken in exercising the discretion not to quash despite some error in a decision letter is that set out in Simplex G.E. Holdings v. Secretary of State for the

In R v. Westminster City Council ex parte Ermakov [1996] 2 All ER 302 at pages 315316 Hutchison LJ considered the approach to be taken when considering a witness statement in which the decision maker seeks to explain, after the decision has been , the reasons for the decision:

Ms Foster on behalf of the Claimant sets out the three ‘steps’ to her argument:

Ms Foster submits that, throughout the Appeal Statement and in the Claimant’s Final Comments it was made plain that the Claimant requested that the appeal be determined on the basis of Drawing 12A. In support of that submission she made points under six headings:

Ms Foster submits that it is clear from the decision letter that the inspector only had regard to Drawing 10E as:

Ms Foster submits the court cannot be satisfied that the same decision would have been reached notwithstanding the error. Ms Foster relies on a number of submissions on this issue, in particular that, on the basis of Drawing 12A, the highway authority had no objection. She further submits that a different finding on the access issue would have affected the balancing exercise which the inspector carried out at paragraph 50 of the decision letter

Ms Tafur, who appears for the Defendant, submits that

Ms Tafur submits that the list of plans and documents relied upon by the Claimant (at Appendix 39 of the Appeal Statement) includes the September 2017 i-Transport Technical Note, which in turn refers to Drawing 10A which shows the access road with similar dimensions to those shown on Drawing 10E. Ms Tafur contrasts the September 2017 Technical Note with the Transport Note submitted in support of the January 2018 Planning Application. The January 2018 Transport Note refers to a 4.1m wide carriageway.

Ms Tafur submitted that there was little or no difference in available road space between Drawings 10E and 12A. Drawing 10E shows a carriageway of 2.75m and a pedestrian refuge of 0.95m giving a total of 3.7m. Drawing 12A only shows 4.1m width by including the grass verge. Ms Tafur seeks to make good that submission by referring to paragraph 7.7 of the Claimant’s Appeal Statement, and to paragraph 7.5 where reference is made to the access road surface being “…. at no point narrower than 3.7m…”. Ms Tafur also relies on paragraph 9.7 of the Claimant’s Appeal Statement where it is said that Drawings 10A and 12A reflect the same overall width of the access road.

Ms Tafur made the following submissions in relation to the decision letter:

Ms Tafur submits that, if it is held that the inspector erred by not taking into account Drawing 12A, the decision would inevitably have been the same, as the inspector’s conclusions on the access road apply equally to Drawings 10E and 12A, and that even if reason for refusal one had been overcome the other matters considered in the overall balancing exercising would have indicated that the Planning Application should be refused.

For the purposes of reaching a conclusion on Ground 1 I adopt Ms Foster’s three step approach.

In my judgment it is plain from the Appeal Statement that the Claimant requested that the appeal be determined on the basis of Drawing 12A; that is the drawing referred to in Appendix 39, being the list of drawings upon which the Appellant requested that the appeal be determined. The fact that the list at Appendix 39 also included the September 2017 Technical Note which in turn included Drawing 10A does not indicate that the Appellant sought to rely on Drawing 10A. In setting out the chronology in the body of the Appeal Statement the Claimant made clear that Drawing 12A superseded the earlier drawings including 10A and 10E.

If there had been any doubt about whether the Claimant requested that the appeal be determined on the basis of Drawing 12A, it is resolved by paragraph 1.21 of the Claimant’s Final Comments, where the Claimant requests that any condition attached to a grant of planning permission which lists the approved plans should include Drawing 12A and not Drawing 10.

In addition, in the Claimant’s Final Comments, at paragraph 1.7, it was said that the January 2018 application “… proposes the same access road as this Appeal” and

In my judgment the documents submitted by the Appellant to the inspector made plain that it requested that the appeal be determined on the basis of Drawing 12A.

The inspector sought and obtained clarification from the Interested Party as to the drawings on which they based their decision on the Planning Application. They based their decision on Drawing 10E. When in paragraph 5 of the decision letter the inspector says that the Appellant had submitted with the appeal submission the drawings on which the Interested Party determined the application he is not correct, Drawing 10E was not submitted with the appeal submission.

At paragraph 9 of the decision letter the inspector states that the drawings on which the Interested Party determined the application included the revised access arrangements, and that as a result there would be no prejudice to any party by accepting ‘these’ plans. On an objective reading of the decision letter, the inspector, in paragraph 9 is indicating that the plans on which he has determined the appeal are plans upon which the Interested Party determined the Planning Application. Those plans include Drawing 10E and do not include Drawing 12A.

At paragraph 14 of the decision letter the inspector describes the proposed access road, including its dimensions. He states that

“The access driveway would have a width of around 4.8 metres before narrowing down to around 4.1 metres. It would then have two narrow sections where the vehicle element of the driveway would be around 2.75 metres⁴. This reduced width would be for at least half the length of the driveway. Along this section, there would also be a 0.95 metre wide area which would be a different surface material and allow for a pedestrian refuge along the driveway.”

Footnote 4 refers to Drawing 10E, it does not refer to Drawing 12A. The description of the access road in paragraph 14 of the decision letter is consistent with Drawing 10E. Drawing 10E shows that the south-eastern end of the access road would be 4.8m wide narrowing to 4.1m, with the carriageway then reducing to 2.75m. It is clear that the description at paragraph 14 of the decision letter is not referring to Drawing 12A as that

In paragraph 16 of the decision letter the inspector assesses the proposals against the guidance given in Manual for Streets. If Ms Tafur is right in submitting that, when in the second sentence the inspector states it is clear for a large proportion of the driveway it would not be possible for two vehicles to pass, the inspector is referring to cars only

In my judgment it is clear that from an objective reading of the decision letter that the inspector based his decision in relation to access, on the proposals shown on Drawing 10E.

In his witness statement the inspector says that when determining the appeal he considered Drawings 10E and 12A, and that the concerns he expressed in paragraphs 16 and 17 of the decision letter applied to the arrangements shown on both those drawings.

The principles to be applied when a decision maker seeks to supplement, by a witness statement or affidavit, reasons given at the time of the decision are set out in Ermakov. In that case Hutchison LJ expressed the view that the court should be cautious about accepting such evidence, and gave examples of where such evidence might be admitted, namely where an error has been made in transcription or expression, or a word omitted, or where the language used is lacking in clarity.

The purpose of a decision letter determining an appeal under section 78 of the Town and Country Planning Act 1990 is to inform the parties why they have won or lost and enable them to assess whether they have grounds for challenging any adverse decision. To allow a decision maker to supplement a decision letter by providing a statement setting out the matters taken into account would, save in exceptional circumstances, undermine the purpose of the decision letter. Further the Court in determining applications under section 288 should be cautious before entering into disputed issues of fact the proper resolution of which would require oral evidence.

In my judgment the decision letter itself, read in a fair, reasonably flexible and objective way, leads the reader to conclude that the inspector did not have regard to Drawing 12A. Given that the decision letter is a public document on which the parties and others were entitled to rely, I base my analysis on my reading of the decision letter in preference to the statements made in the inspector’s witness statement.

The issue to be determined is whether the Court is satisfied that the same decision would have been reached if the inspector had determined the appeal on the basis of Drawing 12A.

The officers of the highway authority considered Drawing 12A, and informed the Interested Party that the arrangements shown in that drawing would have overcome their concerns.

The inspector found against the Claimant on main issues (i), (ii), (iii) and (iv). Ms Tafur argues that even if the inspector had found for the Claimant on main issue (i), he would have reached the same decision on the appeal given his findings on main issues (ii), (iii) and (iv).

In making his decision the inspector applied the presumption in favour of sustainable development as set out at paragraph 11(d)(ii) of the National Planning Policy Framework, known as the ‘tilted balance’.

If the inspector had considered the access proposals shown on Drawing 12A he may have found in favour of the Claimant on main issue (i). If the inspector had found for the Claimant on main issue (i) the adverse impacts to weigh in the overall balance would have been different, and it is not possible to say with that change in position that the same decision would have been reached notwithstanding the error.

In my judgment the inspector fell into error by failing

For the reasons I have given, the Claimant succeeds on ground 1.

Ms Foster submits that if the inspector did take Drawing 12A into account, he gave no or inadequate reasons as to

Ms Foster submits that if, as the Defendant argues, the inspector’s reasoning in paragraphs 13 to 21 of the decision letter applies to Drawings 10E and 12A, it is inadequate in relation to Drawing 12A as the inspector does not explain why he states that it would not be possible for two vehicles to pass for a large proportion of the driveway.

Ms Foster submits that as the highway authority was consulted on the Planning

Ms Foster submits that the Claimant has been substantially prejudiced by the failure to give adequate reasons, as the Claimant intends to and is pursuing a further application/s to develop the Site and seeks clarity as to whether the access road proposals shown on Drawing 12A are considered to be acceptable.

Ms Tafur submits that it is plain from the decision letter why the inspector considered the access proposals shown on Drawing 12A to be unacceptable and why he disagreed with the highway authority on that issue. She further submits that the Claimant has suffered no substantial prejudice.

This ground is founded on the premise that it is held that the inspector did have regard to Drawing 12A. In upholding Ground 1 I have held that the inspector failed to have regard to Drawing 12A. In those circumstances I give only brief consideration to this ground.

Decision letters must be read in a straightforward manner recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. The reasoning must not give rise to substantial doubt as to whether the decision maker erred in law. A reasons challenge will only succeed if the person aggrieved has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision (South Bucks DC v. Porter (No.2) [2004] 1 WLR 1953 at paragraph 36).

In their letter dated 10^th November 2017, which was included as Appendix 20 to the Claimant’s Appeal Statement, the highway authority stated that ‘on balance’ the arrangements shown in Drawing 12A would have overcome their concerns.

The highway authority were consulted on the Planning Application in compliance with the requirements imposed by the Town and Country Planning (Development Management Procedure) (England) Order 2015. The view of the highway authority on the proposed access arrangements were highly material. In my judgement the view of the highway authority as expressed in this case falls into the category referred to by Beatson J at paragraph 72 in Shadwell Estates, and by Lang J in East Meon Forge and Cricket Ground Protection Association) v. East Hampshire DC and others [2014] EWHC 3543 (Admin) (at paragraph 108), and that departure from that view would require cogent and compelling reasons.

In the decision letter the inspector makes no express reference to the view expressed by the highway authority. Further, even if, contrary to my findings, a reader of paragraphs 16 to 21 of the decision letter would understand the inspector’s analysis to refer to Drawings 10E and 12A, there is no explanation as to why he disagrees with the highway authority’s views, and certainly no cogent and compelling reasons.

The inspector’s reasoning does not enable the Claimant to assess its prospects of obtaining some alternative planning permission. The Claimant is faced with having to make a decision based upon a clearly expressed view from the highway authority that the Drawing 12A proposal is, on balance, acceptable and does not give rise to an highway objection, and the view of an inspector that (on the assumption that Drawing 12A was considered by him) the same proposal is unacceptable on highway grounds, with no explanation as to why he disagreed with the view of the highway authority.

In my judgment, given the lack of an explanation for the inspector’s disagreement with the highway authority’s view, the Claimant has suffered genuine and substantial prejudice as a result of the lack of or deficient reasoning, as it does not know why an access proposal considered acceptable by the highway authority was considered unacceptable by the inspector, and therefore cannot take any action to address the reasons on which the inspector disagreed with the highway authority.

For those reasons ground 2 succeeds.

For the reasons I have given, I grant permission to proceed with the application for judicial review on both grounds, I allow the application and quash the Secretary of State’s decision.