IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge Rich
(sitting as a deputy High Court judge))
Thursday 1st March, 2001
B e f o r e :
LORD JUSTICE LAWS
MR JUSTICE BLACKBURNE
|THE QUEEN ON THE APPLICATION OF|
|SCOTT JONES (By his litigation friend (VICKY JONES)|
|THOMAS HOWE (by his litigation friend LYNN HOWE)|
|- v -|
|NORTH WARWICKSHIRE BOROUGH COUNCIL|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)
MR T CORNER (Instructed by Public Interest Lawyers, Birmingham B28 9HH) appeared on behalf of the Respondents
Crown Copyright ©
"You may attend but will not be able to speak."
"Whilst I would agree there is a need for this type of dwelling, I feel that the plan originally proposed, building on Coventry Road, was far more suitable, not just for those reasons already outlined, but the Coventry Road site is near to the doctors, the chemists, the shops, the bus stop, etc. I also understand that the local resident objection was far less than has been demonstrated for The Green.
In all, I feel there is a strong argument to deny this planning permission and for the Council to once again look at the Coventry Road site."
"One Councillor then said, although he knew he should not bring [it] up, that there had been another site considered, but because of a number of objections from that site, the Committee had gone for another site, which is why this site (The Green) had been chosen. The Chairman agreed that it should not have been introduced into this meeting."
"9. By section 70 of the Town and Country Planning Act of 1990 the local planning authority in dealing with an application for planning permission:
`....shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.'
10. Thus if there is a material consideration which the planning authority fails to have regard to it has failed to comply with that duty in determining the planning application. That section is itself to be construed by the application of section 54(A) of the Act which provides:
`that where in making any determination under the planning acts regard is to be had to the development plan, a determination should be made in accordance with the plan unless material considerations indicate otherwise.'"
(1) If the operative statute provides a lexicon of relevant considerations to which attention is to be paid, then obviously the decision-maker must follow the lexicon.
(2) If however the statute provides no such lexicon, or at least no exhaustive lexicon, then the decision-maker must decide for himself what he will take into account. In doing so he must obviously be guided by the policy and objects of the governing statute, but his decision as to what he will consider and what he will not consider is itself only to be reviewed on the conventional Wednesbury principle: see the judgment of the New Zealand Court of Appeal in CREEDNZ Inc v Governor-General  1 NZLR 172, approved by Lord Scarman for the purposes of the law of England in In re Findlay  AC 319 HL.
"These authorities in my judgment establish the following principles:
(1) Land (irrespective of whether it is owned by the applicant for planning permission) may be developed in any way which is acceptable for planning purposes. The fact that other land exists (whether or not in the applicant's ownership) upon which the development would be yet more acceptable for planning purposes would not justify the refusal of planning permission upon the application site.
(2) Where, however, there are clear planning objections to development upon a particular site then it may well be relevant and indeed necessary to consider whether there is a more appropriate alternative site elsewhere. This is particularly so when the development is bound to have significant adverse effects and where the major argument advanced in support of the application is that the need for the development outweighs the planning disadvantages inherent in it.
(3) Instances of this type of case are developments, whether of national or regional importance, such as airports ... coalmining, petro-chemical plants, nuclear power stations and gypsy encampments..."
"Oliver LJ's judgment in Greater London Council v Secretary of State for the Environment and London Docklands Development Corporation and Cablecross Projects Ltd suggests a helpful although expressly not exhaustive approach to the problem of determining whether consideration of the alternative sites is material:
...comparability is appropriate generally to cases having the following characteristics: First of all, the presence of a clear public convenience, or advantage, in the proposal under consideration; secondly, the existence of inevitable adverse effects or disadvantages to the public or to some section of the public in the proposal; thirdly, the existence of an alternative site for the same project which would not have those effects, or would not have them to the same extent; and fourthly, a situation in which there can only be one permission granted for such development, or at least only a very limited number of permissions."
"(4) In contrast to the situations envisaged above are cases where development permission is being sought for dwelling houses, offices (see the GLC case itself) and superstores (at least in the circumstances of R v Carlisle City Council and the Secretary of State for the Environment, ex parte Cumbrian Co-operative Society Ltd).
(5) There may be cases where, even although they contain the characteristics referred to above, nevertheless it could properly be regarded as unnecessary to go into questions of comparability. This would be so particularly if the environmental impact was relatively slight and the planning objections were not especially strong..."
and examples concerning sewage treatment works are given.
"In my judgment whether on a planning application the Minister (or the local authority) has to take into consideration whether an alternative site is available must depend upon the nature of the application. I agree that, for instance, in the case of an application in respect of the building of a dwelling-house upon a certain plot of land it would be absurd to expect the authority or the Minister to consider whether there are alternative plots upon which that house can be built: that could not be a material consideration. On the other hand, in the case of an application such as the present one it seems to me that if, for instance, an objector could show that within a few miles of the land in question there was another site equal in all respects to the site in question and where it would be unnecessary to disturb anyone and where no one would be within hearing distance, that fact would clearly be a material consideration."
"It must be borne in mind in considering this question that the starting point was that an owner of land was entitled to use land for any purpose which was acceptable for planning purposes. The fact that he had other land which might be very acceptable for planning purposes for the same use did not mean that that other land had to be used in preference to the land which he wished to use for a particular purpose. The same applied where land was owned by other persons. The fact that a particular landowner wanted to develop his land in a particular way should not be frustrated because there was other land owned by someone else which would be more suitable in planning terms for that particular use. If of course a particular site was of questionable appropriateness, then it might be relevant to consider whether there was a more appropriate site which could be used for that development."