England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBCOF 95/1170/D

(MR GERALD MORIARTY QC )

Royal Courts of Justice

Strand

London WC2

Friday, 11 October 1996

B e f o r e:

LORD JUSTICE LEGGATT

LORD JUSTICE HOBHOUSE

LORD JUSTICE THOPRE

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GILBERT STIRK & ORS

PLAINTIFFS/RESPONDENTS

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BRIDGNORTH DISTRICT COUNCIL

RESPONDENTS/APPELLANTS

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR J STEEL QC with MR T JONES (Instructed by Messrs Sharpe Pritchard, London WC1V 6HQ, London Agents for the Legal Department, Bridgnorth District Council, Shropshire WV16 5AA) appeared on behalf of the Appellant

MR J C TAYLOR QC with MR P GOATLEY (Instructed by Messrs Haden Stretton Miller, Walsall, WS1 1EL) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Friday, 11 October 1996

J U D G M E N T

LORD JUSTICE THORPE: Behind this appeal lies a dispute as to the future expansion of the village of Albrighton in Shropshire. The appellants are the Bridgnorth District Council, the local planning authority for Albrighton. The respondents are a consortium of landowners who stand to gain from the future expansion of the village. In the 1970s the land in question was included within an interim green belt protecting the village. In 1990 the county council published a draft structure plan which was the subject of an examination in public in November 1991. This led to a report which was submitted to the Secretary of State. He published modifications and finally approved the county structure plan in December 1992. This structure plan contained a new policy (2/48A) which required the appellant council to have regard to the needs of the West Midland Metropolitan Area for housing within reasonable commutable distance by public transport. It was said that in preparing its local plan the council would have to give careful consideration to the drawing of boundaries for any long-term development.

The council's preparation of its local plan overlapped the development of the county's structure plan. The impact of the modification to the county structure plan was considered by the council planning committee in March 1992. The minute prepared by the officers contained this paragraph:

"The Secretary of State's wish for development to be located with regard to the availability of public transport is in line with the Government's current thinking on 'green' issues and so it may prove difficult to sustain an objection to proposed Policy 2.48A on the ground that the Council would not wish to see any significant expansion of Albrighton. An alternative course of action for the Committee would be to wait and see whether the Green Belt inset boundary around Albrighton is raised as an issue at the local plan deposit stage and if so either argue strongly that further expansion of the village would seriously harm its character and amenities or propose adjustments to the inset boundary for consideration at the local plan inquiry."

This alternative course seems to have found favour for, when the local plan was first deposited in June 1992, paragraphs 13.6 and 13.10 in particular proposed that the protection of the interim green belt boundary should be maintained. In August 1992 the first respondent, alone of the consortium members, lodged objection.

On 23 September 1993 the Department of the Environment objected to the green belt proposals. The letter of objection contains this paragraph:

"It is important that you look carefully at all Green Belt boundaries, including those around the large settlements of Bridgnorth and Albrighton, to see whether adequate provision is made for longer-term growth. In the case of Albrighton, I draw your attention to paragraph 5.2.6 of the Secretary of State's Draft Modifications, in which he refers to the importance of making housing provision in settlements such as Shifnal and Albrighton which are well served by public transport links to the metropolitan area."

In December 1992 the appellant issued a statement on the objections. Paragraph 1.17 described the village in these terms:

"Despite the rate and amount by which the settlement has expanded, the centre of Albrighton still retains the character and friendly atmosphere of a village. These attributes are, however, extremely fragile, and there is justifiable concern that further peripheral development would put so much pressure on the centre that its character would be harmed. The road network and car parking capacity of the village centre in its present form could not accommodate the needs of a substantially larger population and yet to accommodate this pressure by improving road capacity and creating additional car parking could only be achieved by destroying much of the character of the Albrighton Conservation Area."

Paragraph 1.19 concluded that it was strongly felt that no provisions should be made for longer term expansion in setting the green belt inset boundary. It is to be noted that this statement makes no reference to the new structure plan policy 2/48A.

A public inquiry into the local plan was conducted by an inspector between 2 February and 2 March 1993. In October 1993 he reported. He recorded the first respondent's objection at paragraph 10.12 and the council's response at 10.39. In paragraph 10.54 he concluded:

"[Albrighton's] prime location on the transport network cannot be denied. The village centre should be protected from substantial traffic increases and pressure for change in the conservation area but I am not convinced that these reasons should be used to virtually fossilise the present urban limits."

In paragraph 10.59 he added:

"There should therefore be some leeway for future consideration of housing development between the metropolitan area and the outer edge of the Green Belt by easing out the boundary at Albrighton ..."

His recommendations included:

"Give further consideration to the rolling back of the Green Belt boundary around Albrighton..."

The inspector felt unable to go beyond a recommendation for further consideration since the issue had for him arisen late and had been insufficiently investigated. He described the council's assessment as "sketchy". He said:

"I find myself faced with problems on a wide scale, genuine concern by land owners and local residents and little in the way of 'hard' information upon which to base my recommendations."

This report was no doubt seen by the first respondent as a substantial advance. The council's director of planning prepared a report dated 10 February 1994 on the inspector's report and recommendation. In particular he proposed a modification No. 62 dealing with green belt boundaries. He referred to the inspector's reasoning and to the new policy introduced to the county structure plan by the Secretary of State. He then said:

"In the light of these comments by the Secretary of State and the Inspector's comments, the case for making some provision for the possible long-term expansion of Albrighton is a strong one."

His specific recommendation was that the green belt boundary round Albrighton be modified in accordance with a detailed annexed map which proposed relaxations to the north and east. The respondent's land is within the east extension.

The director's report was debated at a special meeting of the council's planning committee on 16 February 1994. The members present were taken through the report and offered the conclusion that it would be wrong not to provide some scope for future development in Albrighton. The local members from Albrighton then vehemently objected and succeeded in carrying a motion that green belt boundaries round Albrighton should not be amended.

On 20 May the council published its decisions and reasons upon the inspector's recommendations. Of course its decision upon the inspector's recommendation that further consideration be given to rolling back the green belt boundary round Albrighton, was negative. The stated reasons were in identical terms to those which had been stated upon the objection first lodged by the first respondent. They are no more than a reiteration of the previous statement. No reference is made to the new policy introduced in the county structure plan by the Secretary of State, nor to the inspector's conclusion and recommendation, nor to the view of the director of planning. The reality that the local councillors had successfully ambushed the column heading for modification is discreetly veiled.

To the council's statement of decisions and reasons, objections were then lodged by all members of the consortium and they requested a further public inquiry. The request was refused and the local plan was adopted without further modification. Again the council's statement on the objections repeats the familiar refrain on Albrighton. Accordingly, on 2 November 1994, the consortium issued notice of motion under section 287 of the Town and Country Planning Act 1990 challenging the adoption of the local plan. The consortium asserted that the council had failed to comply with regulations 16 to 18 of the Town and County Planning (Development Plan) Regulations 1991 in that they had rejected objections without proper consideration and had failed to give adequate reasons for their decision. The application was heard by Mr Gerald Moriarty QC (sitting as a Deputy Judge of the Queen's Bench Division) on 10 July 1995. He found for the consortium. The council now appeals his judgment.

There is no dispute as to the relevant statutory framework. Section 36 of the Town and Country Planning Act 1990 obliges a district council to prepare a local plan for its area. The local plan must conform to the county structure plan. The council is required to have regard to information and directions from the Secretary of State. The Town and County Planning (Development Plan) Regulations 1991 oblige a district council to consider any representations and prohibit the adoption of a local plan before consideration of objections made in accordance with the regulations. Where objections have been duly made, the council must cause a local inquiry to be held to consider the objections. After such an inquiry, a council must prepare a statement of the decisions reached in the light of the inspector's report. Where a council rejects recommendations in the inspector's report, it must list the recommendations that it rejects, invite objections and either prepare a statement of its decision in respect of any objection or hold a further public inquiry.

It has been the appellant's case throughout that they have complied with the requirements of statute and regulations, since the refusal of a public inquiry in July 1994 was upon the ground that the issues raised by the objections had been adequately debated at the inquiry in February 1993, and on 25 July 1994 it had published its response to the objections lodged by the consortium. The respondents have contended throughout that the council's rejection of the director's proposed modification was irrational, as was their rejection of the consortium's request for a further public inquiry to investigate the issues raised by the inspector in his report.

In this court Mr Steel's attack on the judgment has been succinct. First he says that the maintenance of the fragile structure of the Albrighton community was plainly dependent on restricting further development. This was a matter of principle which the council were entitled to uphold without considering the nature and extent of possible relaxation of the green belt boundary. The council's stated reasons were well in excess of any necessary minimum and were appropriately consistent in that they were always addressing the same point of principle. He relies on the fact that the county council issued certificates of conformity, both in relation to the draft local plan and in relation to the modified local plan. He emphasises the Secretary of State's powers to direct modifications or to call in under section 43(4) of the Act. Since the Secretary of State had not exercised those powers, it was to be inferred that the adopted local plan did not breach either regional or national policies.

Mr Taylor stresses that this is an unusual case. Ordinarily the public inquiry will be conclusive. But here the inspector did not have the necessary evidence to conclude the Albrighton issue. Having rejected the council's so-called principle, he could only recommend that the resulting issue be investigated. This constituted unfinished business that the council could not avoid merely by reiterating their conviction which had failed to convince the inspector. As to the debate and decision of 16 February, Mr Taylor submits that the council could not be said to have properly performed their function without at least acknowledging the developments between spring 1992 and spring 1994, referring to the arguments for modification marshalled by the director of planning and weighing the balance between these factors and their original conviction.

The Secretary of State's powers to modify and call in are, he says, exceptional powers and not such as to be directed against a parochial issue. Paragraph 73 of the Development Plan and Regional Guidance makes that clear. Paragraph 69 of the same guidance shows that, whilst a further public inquiry is exceptional and the instances given do not extend to this case, it is plainly appropriate where there is unfinished business from the previous inquiry.

In reply Mr Steel demonstrates that the Secretary of State did give a direction on this very local plan in relation to affordable housing within green belt areas. He therefore submits that the inference he draws from the absence of a direction on this modification is strengthened by the existence of a direction on another.

Mr Steel made the best of a difficult job, but Mr Taylor's argument is in my judgment compelling. It is particular so set in the perspective of the chronology over the relevant 2½ years. In March 1992 the council were warned of the difficulties of maintaining the Albrighton interim green belt in the light of the Secretary of State's modification of the structure plan. They drafted the local plan disregarding that consideration. When the point was exposed by the first respondent's objection they stated their reasoning. The inspector rejected the principle upon which they relied and recommended investigation of the underlying considerations. The officers then emphasised the strength of the case for relaxation and proposed specific modifications. The council rejected that proposal. The record of the debate on 16 February demonstrates plainly that the essential need to balance on the one hand the Secretary of State's modification of the structure plan and the inspector's rejection of the asserted principle against local convictions on the other hand was disregarded. The publication of reasons on 20 May contains nothing more than a repetition of the rejected principle. The same can be said of the response to the renewed objection.

I accept Mr Taylor's submission that, where a council is both proposer and judge, the obligation to deal thoroughly, conscientiously, and fairly with any objection is enhanced. Here the overall impression that emerges is that the council closed its mind and stubbornly reiterated throughout a policy which it had been warned from the outset was doubtfully tenable.

The Judge correctly identified the main issues as follows:

"(1) Whether the Council's consideration of the inspector's report in relation to the first applicant's objection to the Green Belt and housing provisions of the deposit Plan and the reasons given for that decision were adequate.

(2) Whether the Council acted fairly in deciding not to hold a further inquiry into the objections made by the applicants to the adoption of the Plan."

He answered both questions in the negative. I consider that he was right to do so. I would dismiss this appeal and uphold the orders below.

LORD JUSTICE HOBHOUSE: I agree.

LORD JUSTICE LEGGATT: I agree.

ORDER: Appeal dismissed with costs; leave to appeal to the House of Lords refused.