England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBCOF 96/0105/D

(Mr Moriarty QC) )

Royal Courts of Justice

Strand

London WC2

Thursday 27th February 1997

B e f o r e:

LORD JUSTICE STAUGHTON

LORD JUSTICE PILL

LORD JUSTICE MUMMERY

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MILLER AND OTHERS

Respondents

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WYCOMBE DISTRICT COUNCIL

Appellent

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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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MRS SARAH MOORE (Instructed by David Dongray, District Solicitor HP11 1BB) appeared on behalf of the Appellant

MR PETER VILLAGE (Instructed by Messrs Blandy & Blandy RC11 1DA) 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

Thursday, 27th February, 1997

JUDGMENT

LORD JUSTICE PILL: In this case the decision of a local planning authority, under regulation 16(1) of the Town and Country Planning (Development Plan) Regulations 1991 ("the 1991 regulations") (number 2794) made under section 53 of the Town Country Planning Act 1990 ("the 1990 Act"), is challenged in the courts. The Act and Regulations provide the procedure to be followed by a local planning authority which proposes to adopt a local plan. Regulation 16(1) provides inter alia:

"Where a local planning authority cause a local inquiry or other hearing to be held for a purpose mentioned in regulation 14(1), or an examination in public to be held for a purpose mentioned in regulation 15, the authority shall, after considering the report of the person holding the inquiry, other hearing, or examination in public, as the case may be, prepare a statement of--

(a) the decisions they have reached in the light of the report and any recommendations contained in the report; and

(b) the reasons for those decisions."

The applicant land owners ("the owners") sought to quash that part of the adopted local plan which applied to their land off Harvest Hill, Bourne End, High Wycombe ("the site"). It is about six acres in extent. In the draft and deposit plans the land was made subject to policy L3 which provided, in as far as is material, that planning permission will not normally be given for proposals involving the loss, fragmentation or reduction in size of green spaces within the built up areas identified on the proposals map. The owners objection was not to the policy, but to its application to the site. This appeal is brought by the Wycombe District Council against the decision of Mr Gerald Moriarty QC sitting as a Deputy High Court Judge that the policy L3 notation on the land be removed.

The owner's application to the court was made under section 287 the 1990 Act. Subsection (2) provides inter alia that the High Court--

"(b) if satisfied that the plan is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirements of that Part or of any regulations made under it, may wholly or in part quash the plan."

Part II of the Act deals with development plans. The wording is to the same effect as that in earlier statutes, and the relationship between the two limbs of the paragraph has often been considered by the courts. In Smith V East Elloe Rural District Council [1956] AC 736 different opinions were expressed, Lord Reid expressing the opinion at 763 that the first limb included only violation of express statutory requirements. Lord Radcliffe stated at 768 that the words covered:

" ... any case in which the complainant sought to say that the order in question did not carry the statutory authority which it purported to ... [without, he added] any need to pick and choose among the different reasons which may support the plea"

In Webb v Ministry of Housing and Local Government [1965] 1 WLR 755, Lord Denning MR at 770 expressed preference for the opinion of Lord Redcliffe. Sir William Wade (Administrative Law 7th Edition p 752) expressed the view that "not within the powers of the act" is simply a draftsman's translation of "ultra vires", comprising all its varieties such as bad faith, breach of natural justice, irrelevant consideration, error of law and breach of statutory requirements.

The effect of the words was considered by the House of Lords in the context of a challenge to the adequacy of reasons in Save Britain's Heritage v Number 1 Poultry and Others [1991] 1 WLR 153 Lord Bridge, at page 165, noted that the statement of Megaw J In re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478 had the express approval of the House of Lords in Westminster City

Council v Great Portland Estates [1985] AC 661 at 673:

"'Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but deal with the substantial points that have been raised'."

Lord Bridge stated at 167C that:

"The alleged deficiency [that is of reasons] will only afford a ground for quashing the decision if the court is satisfied that the interests of the applicant have been substantially prejudiced by it."

At 168C Lord Bridge stated that it is for the applicant to satisfy the court:

"... that the shortcoming in the stated reasons is of such a nature that it may well conceal a flaw in the reasoning of a kind which would have laid the decision open to challenge under the other limb of section 245."

That is a reference to the Town Country Planning Act 1971 and is the equivalent of the first limb in section 287(2)(b) of the 1990 Act.

Lord Bridge continued:

"If it was necessary to the decision to resolve an issue of law and the reasons do not disclose how the issue was resolved, that will suffice. If the decision depended on a disputed issue of fact and the reasons do not show how that issue was decided, that may suffice. But in the absence of any such defined issue of law or fact left unresolved and when the decision was essentially an exercise of discretion, I think that it is for the applicant to satisfy the court that the lacuna in the stated reasons is such as to raise a substantial doubt as to whether the decision was based on relevant grounds and was otherwise free from any flaw in the decision-making process which would afford a ground for quashing the decision."

I do not read that statement as resolving the differences of opinion revealed in East Elloe, which was not cited to the House, in a way adverse to Lord Radcliffe. It appears to me to assume that Lord Radcliffe's approach is correct, but to warn that if a decision is to be quashed for deficiency of reasoning, there must nevertheless be substantial prejudice to the applicant and a flaw in the decision making process must normally be demonstrated.

Before turning to the facts of the case I mention two relevant points on which there is common ground. Once adopted the local plan becomes the development plan as defined in the 1990 Act, which may also include any adopted structure plan for the area. It is common ground that the notation applied to his land on a local plan is of considerable importance to a landowner especially since section 54A of the 1990 Act has provided:

"Where in making any determination under the planning acts regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise".

It is also common ground that the public local inquiry and inspectors's subsequent report are important features of the procedure leading to the making of a local plan. They provide the only scrutiny of the proposed plan which is independent of the local planning authority promoting the plan. However, the inspector only recommends, the local planning authority decides.

The relevant facts can be stated briefly. The draft and deposit plan applied proposed green space policy L3 to the site. At the local public inquiry held in June 1993 the application of the policy to the land was challenged. Was it a green space for the purpose of the policy? Evidence was given as to the extent to which the site was visible from outside its boundaries. Mr Mansfield, the council's planning witness, stated at 4.3 of his proof of evidence at page 109:

"The objection site is enclosed to a large extent by residential development and the public bridleway, Grassy Lane to the north. It is accepted that public access to the site is restricted and that immediate views of the site can only be glimpsed from the surrounding roads and footpaths. However, as noted by a number of Inspectors, this site, situated on the south-west falling slope of the valley is prominent and visible from distant positions and assumes a greater degree of importance. I enclose a plan at Appendix A which indicates a position of long distance views which are particularly prominent to the north. Access to a network of public footpaths via Willows Road provide extensive views of the objection site which represents an area of open land surrounded by dense woodland. Policy L3, ensures that planning permission will not be given for proposals involving the loss, fragmentation or reduction in the size of Green Spaces."

At 5.5:

"The importance of long distance views is paramount and should not be considered lightly."

6.1:

"The site is very prominent particularly when viewed from more distant positions, to the north west, emphasising the value of this site as an area of undeveloped Green Space."

The owners' planning witness Mr Jackson stated at page 97 S.6:

"Mr Mansfield's Proof draws attention to views of the objection site which can be obtained from a footpath on the north side of the Wye Valley, north of Willows Road. I have walked this footpath and whereas I acknowledge that the objection site is visible, I consider it has very limited significance in relation to the wider views obtainable from this footpath, which runs along a largely unvegetated ridge from where spectacular views can be obtained of the whole of the Wye and Thames Valleys in the local area. Appendix NSJ Sup 1 shows a photo-montage taken from the top of this footpath, which emphasises the breadth of view available and the relative insignificance of the objection site itself. In my view, it is not essential to retain the objection site in its current undeveloped state in order to protect the views obtainable from this position."

S.9:

"Plan NSJ Sup 2 shows the contours of the valleys in the local area, and on this plan I have marked areas from where it is possible to obtain open views of the objection site, together with only three locations within Bourne End where it is possible to obtain glimpses of the objection site from public areas. In particular, the site is not visible from any important thoroughfares."

S.10:

"The overwhelming conclusion is that views of the objection site in the local area are extremely limited bearing in mind its position on the side of the escarpment, mainly due to the orientation of roads and the high degree of greenery around the town and on the lower slopes."

It is clear that there were significant issues of fact between the owners and the council. In his report the inspector summarised the contentions of the parties and added under the heading "Inspector's Remarks":

"4.112 The Council said that the objection site was clearly visible [I should add that oral evidence was given as well as the written statements] from longer sites from the west, but accepted there were only glimpses of the site from closer viewpoints. They could show no other identifiable characteristic to support their green space designation. I agree that there is practically no view of this land from close to, and I find it difficult to find places to see it from a distance. I was only just able to distinguish the site clearly from the Council's suggested locations at Cock Marsh and the public footpath to the north west of Slate Meadow. Bearing in mind that the character of the area would be safeguarded under Policy RC4, I do not consider there is any justification for the objection site to be designated as green space under policy L3."

The inspector recommended that the green space designation be removed from the site. (Proposed Policy RC4 was specific to the Hawks Hill/Harvest Hill residential zone, a comparatively small area. It provided inter alia:

"Proposals should provide for individually designed houses set in their own substantial grounds in an informal layout commensurate with the semi-rural character of the area. Landscaping details should reflect the semi-rural nature of the surroundings and should include indigenous species." )

In my judgment two features emerged from the inspector's remarks: first he found that the issue between the owners and the council turned upon how visible the site was. His remarks were confined to that subject. Second, while he could have put it in plainer words, he had concluded that the extent to which the site could be seen was insignificant and of no importance. His words, "only glimpses" and "only just able to distinguish" illustrate that conclusion. It was for that reason that the inspector made his recommendation.

The council rejected the inspector's recommendation and declined to amend the deposit plan. In purported discharge of the duty under Regulation 16 the council stated under

the heading "The Council's Remarks" at 5.5.3:

"The objection site is a large area of open field situated at the heart of the Hawks Hill/Harvest Hill area which is characterised by low density residential development and undeveloped green spaces. The retention of this site as a green space is fundamental to the fabric of the area since it provides an important visual and physical break between development which is visible in longer distance views and from within the Hawks Hill/Harvest Hill area itself."

5.5.4:

"The loss of objection site to development would result in a coalescence of built form which would undermine the semi-rural open character of the area."

5.5.5:

"In the dismissal of the appeal against the Council's decision to refuse the erection of one house and garage on the site (W/5852/80) the Inspector commented that the retention of backland paddocks enhanced the rural aspect of the District. He considered that 'the proposal would damage the character and appearance of the countryside to an unacceptable extent'." (The reference is to a 1980 decision)

5.5.6:

"This is a view supported by the Council which considers that the objection site performs a green space function essential to the character of Hawks Hill/Harvest Hill area".

The council were required to make their decision in the light of the inspector's report and recommendation and to give reasons for their decision. It was incumbent upon the council, in my view, to demonstrate that minds had been applied to the inspector's report, the recommendation and the findings which led to it. Specific consideration of his findings was required. In their remarks the council recite a series of assertions as to why it is necessary, in their view, to apply policy L3 to the site. One of the remarks, that in relation to views within the area itself, actually conflicts with the concession which the inspector records the council as having made at the inquiry. The council ignore entirely the inspector's findings and make no attempt to deal with them.

In my judgment they have failed to deal with the substantial points raised by the independent inspector. They do not either express reasons for disagreeing with his findings or give a reasoned explanation for ignoring them in favour of other considerations which they consider important.

In the context of the statutory procedure for the adoption of a local plan, the failure is a substantial flaw in the decision making process. The owners are substantially prejudiced in that they were entitled to expect that the inspector's findings would be considered and reasons given for departing from them before a decision was taken to subject their land to policy L3.

In my judgment the relevant part of the local plan falls to be quashed under the first limb of 287(2)(b), as construed by Lord Bridge in Save Britain's Heritage v Number 1 Poultry and Others. If contrary to the view that the first limb in that paragraph does cover deficiencies in reasoning, the order to quash in this context was correct under the second limb on the basis that the owners have been substantially prejudiced, as aforesaid, by the failure to comply with Regulation 16. I would dismiss this appeal.

LORD JUSTICE MUMMERY: I agree.

LORD JUSTICE STAUGHTON: Parliament has entrusted to the local planning authority the task of preparing the local plan: section 36(1) of the Town and Country Planning Act 1990 as amended. If there are objections to a proposed plan, the local planning authority must cause a local inquiry or other hearing to be held: section 42(1). Thereafter, as provided by regulation 16(1) of the Town and Country Planning (Development Plan) Regulations 1991:

"... the authority shall, after considering the report of the person holding the inquiry, other hearing, or examination in public, as the case may be, prepare a statement of --

(a) the decisions they have reached in the light of the report and any recommendations contained in the report; and

(b) the reasons for those decisions."

Then section 43(1) of the Act provides that the local authority may by resolution adopt proposals for a local plan, or for its alteration or replacement.

It is thus the law that the right and duty to prepare a local plan is, subject to other statutory provisions which are not material for present purposes, laid on the local authority. An inspector at a local inquiry may report and make recommendations; but it is the local authority which decides.

That broad statement is qualified in practice by the requirement of reasons in Regulation 16(1). I do not suppose that it was inserted wholly or even mainly in order that members of the public might know why their objections had failed, or even why they had succeeded. It was also inserted, in my opinion, in order to provide for a situation where the local authority had no reason to disagree with the inspector, or no reason which would survive a reproach that it was outside the powers of the authority. I reach that conclusion because section 287(1) of the Act provides in effect that there can be an application to the High Court if proper reasons are not given; and on such an application the court may quash the plan, wholly or in part, if the interests of the applicant have been substantially prejudiced by the failure to give proper reasons.

As often happens in administrative law, we are not so much concerned with substance on this appeal as with procedure and form. We do not have to decide whether the 5.9 acres on Hawks Hill and Harvest Hill at Bourne End shall not be designated a green space on the local plan. We have to consider whether the Wycombe District Council gave proper reasons for deciding, in the light of the inspector's report, that they should be so designated.

There is no dispute about the law applicable. Reasons must be proper, adequate, intelligible and must deal with the substantial points that have been raised: per Lord Bridge in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 at page 167, quoting from Megaw J re Poyser and Mills' Arbitration [1964] 2 QB 467. No more elaborate definition can be provided:

"the degree of particularity required will depend entirely on the nature of the issue falling for decision."

We have been shown the proof of evidence for the objectors at the local inquiry, and the proof of the official who gave evidence for the council. We have also considered the conclusions of the inspector and those of the council. It is evident -- and it seems to me that the parties were agreed -- that a major consideration was whether and to what extent the green space on Hawks Hill/Harvest Hill was visible to the general public. The more that it was seen, the greater aesthetic benefit which it conferred; if it was seen by few or not at all, like the tree in the quad in the poem by Monsignor Knox, it would be of little consequence whether it was a green space or covered in concrete.

There was some difference of between from the evidence of the objectors and that of the council, as to the extent to which the land could be seen by the public from far and from near. But in the nature of things this was only a difference in degree; how much can be seen of field B from point A is readily ascertainable as a matter of fact, given a person of average height and eyesight, and weather with adequate visibility.

It is possible that the council may nevertheless have differed from the inspector to some slight extent on that issue of fact. What seems to be more likely is that the council thought it right to attribute more significance to the extent to which the site was visible from far and near, limited as it was, than the inspector did.

One or both of those points must have been the reason for which the council differed from the inspector. In my judgment there is no need in this case for any greater degree of elucidation, since the council could lawfully hold a view differing from the inspector on either point. The reasons given by the council constituted sufficient compliance with Regulation 16(1).

If I am wrong in that conclusion, I have to consider in terms of section 287(2)(b) whether the interests of the applicant have been substantially prejudiced by the failure to give proper reasons. It is clear from the speech of Lord Bridge (p.167) -- as also from the subsection -- that this is a separate requirement which has to be fulfilled before the court will quash a plan or part of a plan. It is not enough that the objector's objection has failed: it must be shown that they have been prejudiced by the failure to give proper reasons . An example of when that might happen, given by Lord Bridge, is when there is substantial doubt whether the council's decision was taken within the powers of the Act, but this cannot be ascertained owing to inadequate reasons.

I see no grounds for such a doubt in this case. It may or may not be wise planning for the land in question to remain a green space, instead of becoming a site for residential development of low density. But I can see no ground for saying that it would be outside the powers of the council to reach the conclusion it did. I would allow this appeal.

ORDER: Appeal dismissed with costs. Leave to appeal refused.

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