England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBCOF 96/1265/D

(Mr Justice Keene) Royal Courts of Justice

Thursday, 31st July 1997

B e f o r e :

LORD JUSTICE NOURSE

LORD JUSTICE PILL

LORD JUSTICE WALLER

---------------

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

R E G I N A

-v-

(1) AYLESBURY VALE DISTRICT COUNCIL

(2) HAROLD PRICE Respondents

ex parte

(1) JOHN CHAPLIN

(2) GLORIA BRIDGET CHAPLIN

(3) MATTHEW GLYNN BURKINSHAW COLLINGS

(4) AMANDA JANE PANDORA COLLINGS

(5) ALBERT EDWARD GLADWIN

(6) WENDY ANGELA GLADWIN

(7) JOHN NICHOLAS HAMILTON

(8) RITA MARGARET HAMILTON

Applicants/Appellants

---------------

Handed Down Judgment prepared by

Smith Bernal Reporting Limited

180 Fleet Street London EC4A 2HD

Tel: 0171 831 3183 Fax: 0171 831 8838

(Official Shorthand Writers to the Court)

---------------

MR R SINGH and MISS K STEYN ( Mr J Moffett 31.7.97) (instructed by Messrs Kingsford Stacey, London WC2) appeared on behalf of the Appellant Applicants.

MISS N LIEVEN ( Mr Deeps Jaggi 31.7.97) (instructed by the Solicitor to Aylesbury Vale District Council) appeared on behalf of the First Respondent. ----------------

J U D G M E N T

(As Approved by the Court)

Crown Copyright

Thursday, 31st July 1997

LORD JUSTICE PILL:

This is an appeal against the decision of Keene J on 5 July 1996 by which he refused the application of Mr John Chaplin and others to quash a planning permission granted by Aylesbury Vale District Council (“the Council”) for the erection of two dwelling houses at Barracks Farm, Nash, Buckinghamshire. The underlying planning issue is whether the site is or is not within the existing built up area of the village of Nash.

The judge described the site and its location in this way:

“Barracks Farm lies on the south side of [Thornborough Road] and on the west side of the village of Nash. Also on the south side of the road and running from the eastern boundary of Barracks Farm in an easterly direction is continuous residential development. Immediately adjoining that eastern boundary is Homefield, a residential property where [two of the] applicants live. On the other side of the road from Barracks Farm are two detached dwellings but then a sizeable undeveloped area to the east, ie in the direction of the village.”

Following an application for planning permission dated 26 September 1994, the Planning Officer reported to the Development Control Sub-Committee of the Council (who had, it appears, delegated powers):

“The rear (southern) boundary of the site is well defined and it is considered, therefore, that the site does lie within the built framework of the village and its development would comprise infilling of the existing frontage. The proposal would not involve an extension of the built development of the village into open countryside and therefore it would comply with the relevant policy of the Rural Areas Local Plan ie RH 6.”

Policy RH 6 provides:

“Within the existing built-up area of settlements ¼ residential development may be permitted in the form of:-

a) infilling of small gaps in an otherwise built-up frontage; or

b) development or redevelopment of other small-scale areas of land.

Schemes for such development will be considered in the light of all other proposals in the Plan, including in particular RCD 2.”

At a meeting on 5 January 1995 the sub-committee decided to refuse permission giving as its reasons:

“The proposal would constitute the development of a site which lies outside the built-up area of the village. The site with the open land opposite and the farmhouse and barn conversions to the west contribute to the rural character of this part of Thornborough Road. The development proposed would be out of keeping with this character and would be contrary to the policies contained in the approved County Structure Plan and the Rural Areas Local Plan (Adoption Draft).”

It is common ground that for present purposes Rural Areas Local Plan Policy RH 6 is the only Development Plan policy which requires consideration.

On 22 March 1995, the applicant for planning permission, Mr Harold Price, appealed to the Secretary of State under s 78 of the Town and Country Planning Act 1990 (“the 1990 Act”) against the refusal and arrangements were made for a Public Local Inquiry to be held on 15 November 1995. On 29 June 1995, the Planning Department submitted a further report to the Sub-Committee stating:

“This report draws attention to an appeal which is to be considered at a Public Inquiry later this year. The Sub-Committee refused permission against officers advice and the question of how the Council’s case should be presented, needs to be considered ¼ It is important to consider how evidence should be given at this Inquiry. Members might find it helpful to nominate a Panel to visit the site and to report back to the next meeting of the Sub-Committee.”

The Sub-Committee accepted that recommendation and on July 1995 the Chairman and six members carried out a site inspection. They were accompanied by Council Officers. At their next meeting on 20 July 1995 the Sub-Committee resolved:

“That as a result of the views expressed by Members who had visited the site and the Officers’ advice the applicant be invited to submit an application seeking planning permission on a without prejudice basis.”

On 1 August 1995, Mr Price submitted a further application which was in all material respects identical to the one for which permission had been refused on 5 January. The Sub-Committee met again on 31 August 1995 and the members had a further report from Officers referring to the site visit and to the fact that members had “considered at great length the relationship of the site to adjacent development and to the land on the opposite side of the road.” The report again recommended the grant of planning permission. Following that meeting, permission was granted, subject to conditions, on 5 September 1995. No reasons were given for the decision or for the fact that it reversed the January decision.

Both decisions were made by a majority. The Chairman of the Sub-Committee, Mrs Janet Roff has sworn an affidavit stating that she had changed her mind between the meetings having voted against permission in January and in favour in August. Mrs Roff states:

“4. It was my view, and I believe that of a number of other members who attended the site visit, that the Officer’s opinion that the site did lie within the village was correct. This was because it lay in a built up part of the settlement along a developed frontage.

6. I have no doubt that the change of mind by the Sub-Committee was because of the different view that was formed about the question of whether the site was or was not in the village, after the site visit. Members were of course aware that Mr Price was appealing the refusal of planning permission, but the important factor in mind was that, in the light of the site visit, the earlier decision was not correct. Given this conclusion it would obviously have been very difficult to defend the appeal.”

The problem of what evidence should be called, at an appeal hearing, by a council a majority of whose members have disagreed with the recommendations of their Planning Officer is not of course a new one.

The applicants’ submissions must be considered in the context of a statutory framework under which an applicant for planning permission has a statutory right of appeal against the refusal of a local planning authority to grant permission or to grant it subject to conditions (s 78 of the 1990 Act). There is no equivalent statutory right in a person aggrieved by the grant of a planning permission to appeal against the grant. Further, by virtue of Article 22(1) of the General Development Procedure Order 1995, a local planning authority are required to give their reasons for refusing an application or imposing conditions on the grant of the permission. There is no equivalent statutory duty to give reasons for a grant of permission.

Mr Rabinder Singh, for the appellants, first submits that the grounds for refusal of permission include two reasons, first, that the site was outside the built up area of the village and, second, that the development would harm the character of the area. He goes on to submit that, whether in substance there is one reason or two, there was a duty to give reasons for the grant of permission when, earlier the same year, an identical application had been refused. It was important that those concerned should know the reason for the change of mind. It was also important for public confidence, especially in the absence of a statutory appeal procedure. The obligation to give reasons focused the minds of the decision makers. By reference to R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 531, R v Mayor Commonality and Citizens of the City of London ex p Matson [1995] 8 Admin LR 49 and R v East Hertfordshire District Council ex p Beckman (unreported, transcript 26 June 1997), Mr Singh submits that there is a developing common law duty to give reasons for administrative decisions. Dealing with the objection that those who voted for the second application had made individual decisions, Mr Singh submits that it is logically and practically possible for a group of people to agree upon a form of words which expresses why a different view had been taken collectively upon the second application. Reliance is placed upon the statement of Swinton Thomas LJ in Matson (not a planning case), at p 71, that “I do not believe that it would be unduly difficult or arduous for the Aldermen to give a collective reason for their decision”.

The appellants also rely upon the principle that a planning inspector who proposes to take a view different from that of an earlier inspector in respect of the same appeal site has to take the earlier decision into account and to explain why a different view is being taken. In North Wiltshire District Council v Secretary of State for the Environment and Clover [1992] JPL 955, Mann LJ stated, at p 959,:

“An inspector had to always exercise his own judgment. He was therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.”

It is further submitted that the contents of Mrs Roff’s affidavit should be disregarded, first, because it dealt with only one of the earlier grounds for refusal, second, because it was not contemporaneous with the decision, third, because Mrs Roff could not speak for the Sub-Committee in a collegiate sense.

Mr Singh relies upon the need for consistency in administrative decisions. He submits that it is unlawful to make apparently inconsistent decisions without giving a good explanation. Mr Singh describes the second decision as irrational but, upon analysis, this was another way of submitting that reasons for the grant ought to have been given. He accepts that opposing views could reasonably be held upon the central planning issue. It is the attack upon the absence of reasons for the grant which is the essential basis of Mr Singh’s submissions.

It is also submitted that the refusal of permission on the first occasion created a legitimate expectation that no permission would be granted upon an identical application without the objectors having the opportunity to address an inspector at a public local inquiry. The appellants could not be deprived of that opportunity in the absence of reasons for the grant of permission. A legitimate expectation is said also to arise from a letter of 12 February 1991 sent by the Council to two of the appellants, Mr and Mrs Collings, whose property adjoins Barracks Farm. That submission has no merit in my judgment. The letter merely states the substance of Policy RH 6.

I referred at the beginning of this judgment to the underlying planning issue. Those who have to make planning decisions in relation to proposed residential developments in rural areas very frequently have to decide whether a site is within “the existing built-up area” or “the village envelope” or whatever expression is used in the relevant development plan. Whether the site falls within or without is essentially a matter of planning judgment. At or near the border line, those with planning expertise will often disagree about a particular site and, with or without the benefit of expert advice, members of local planning authorities will often disagree. The present site is one where it can readily be accepted that different people, acting in good faith, will form opposing views as did members of the Council on both relevant occasions. Some believed the site to be within the built-up area and others believed it to be without.

I am not prepared, in the present statutory context, to find the existence of a general duty to give reasons for the grant of planning permission. Such an obligation is conspicuously absent from the statute. This contrasts with the obligation upon a planning inspector to make a statement of reasons for a decision he is empowered to make following a planning appeal (1990 Act, 6th Schedule, para 8). I would not extend that obligation by analogy to cover the situation where no duty is imposed in the statute. Moreover, just as the obligation to give reasons for a refusal is compatible with the right of appeal in that a decision whether to appeal may be based upon the perceived weight of reasons for refusal, so the absence of a right of appeal against a grant is compatible with the absence of an obligation to give reasons for the grant. A local planning authority need not under the statute give reasons for granting permission even when the grant is made against the advice of its planning advisers, the converse of the situation upon the January 1995 refusal. On Mr Singh’s terms, that would appear to be a worse situation than the one he now complains of, but Parliament must have been aware, when enacting the present scheme without imposing the obligation, of the possibility of such grants. Schiemann J, in R v Poole Borough Council ex p Beebee [1991] 2 PLR 27, having considered the statutory scheme, stated obiter, at p 31G, that “all this may well point to a desire on Parliament’s part not to have the implementation of policy decisions held up by legal challenge on the basis of defective reasoning”. Be that as it may, to quote Schiemann J’s comment upon his own statement, I can find no general obligation upon local planning authorities to give reasons for the grant of planning permission.

There remains the question whether in this particular case the later decision was unlawful in the absence of an explanation for the decision being different from that reached in January. Dealing with Mr Singh’s first point, the construction of the reasons for refusing the first application, the “full reasons” for the refusal of permission are in my judgment essentially a single reason, namely, that the site is not within the existing built-up area. The statement begins and ends with what in substance are references to Policy RH 6. That is based on protecting the rural character of sites outside the built-up area. The reference to rural character is no more than a restatement of the opinion that the site is outside the built-up area. There was but a single planning issue at all material times, the issue stated above.

Like Keene J, I am prepared to accept the possibility that there could be a situation in which an obligation to give reasons for a grant of permission arises but I am far from satisfied that the present decision can be impugned for lack of reasons. Though the answer may not have been easy, the question posed for the consideration of members of the Sub-Committee was clear. There was a single issue. Their planning advisers were consistent in making a judgment in favour of the grant of permission. Upon the first application for permission, a majority of members rejected the advice of their planning advisers. Before they considered the second application, the members had the benefit of a site visit and further advice from their planning advisers. Better informed as they were, members were entitled to make a different judgment upon the issue, as one of them undoubtedly did and others probably did. That was a course they were entitled to take. There is no evidence of any lack of good faith on the part of members or of their taking irrelevant considerations into account. They were also entitled to take into account the difficulty they would inevitably face in the circumstances in opposing the appeal against the first refusal. Whoever gave evidence at the Inquiry would be cross-examined on the basis of the report of his own planning expert. As Keene J put it, the prospect of the forthcoming appeal, and how to deal with it, focused members’ minds upon the merits of the subsisting application.

There was a good and obvious reason for the second decision and no obligation to spell it out arose by reason of the previous refusal. The majority had obviously come to the conclusion that the site was within the built-up area of Nash.

My conclusion does not depend on the contents of the affidavit of Mrs Roff though it is not of course inconsistent with her evidence. I do not find it necessary to consider in this case the extent to which reasons expressed at a later date may be used to justify a decision. Nor is it necessary to consider the merits and demerits of collective reasoning upon grants of planning permission which constitute, subject to judicial review, final decisions. The difficulties may not be insurmountable but the changing constitution of planning committees could itself present a problem in situations such as the present.

The appellants’ other submissions appear to me to be different ways of expressing the “reasons” challenge. This was, I think, accepted by Mr Singh when he stressed that the merit of his argument did not depend upon the legal label placed upon it. I do however add that I can find no legitimate expectation to go to Inquiry based upon the refusal of the first application. An obligation in present circumstances to allow a refusal of permission to stand so that third parties can have the opportunity to address a public inquiry cannot in my judgment be read into the statutory scheme. It follows from my finding that the Council Sub-Committee were entitled to grant permission upon the second application that they were not obliged, in the interest of objectors, to permit the first application to go to appeal.

For the above reasons, I would dismiss this appeal.

LORD JUSTICE WALLER:

I agree.

LORD JUSTICE NOURSE:

I also agree.

Order: appeal dismissed with costs.