England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(His Honour Judge Rich
(sitting as a deputy High Court judge))

		Royal Courts of Justice Strand London WC2 Thursday 1st March, 2001

1. LORD JUSTICE ALDOUS: I will ask Lord Justice Laws to give the first judgment.
2. LORD JUSTICE LAWS: Before us there are two appeals arising out of a judgment given by His Honour Judge Rich QC sitting as a deputy judge of the Queen's Bench on 19th September 2000. The judge acceded to the claimants' application for an order of certiorari to quash the grant of a planning permission by the respondent council, but declined to order the council to pay their costs.
3. Simon Brown LJ granted permission to appeal in respect of the judge's substantive decision on 28th November 2000, and on 23rd January 2001 granted permission to appeal to the claimants in respect of the decision on costs.
4. As of this moment we have only heard argument upon the first appeal and I now give my judgment upon it.
5. The application site for the purposes of the relevant planning permission is known as The Green, Kingsbury at Tamworth in Staffordshire. It is open land said to be about the size of a football pitch, or possibly a modest football pitch, and it belongs to the council. It was not subject to any designation in the development plan. As the judge noted, the development plan included it in an area where development was in principle acceptable and there was no policy against it.
6. The claimants are two children who regularly play on the site. They live within 10 metres of the site. They brought these proceedings via their mothers as litigation friend in each case. It is said that local children have played on the site for many years and about thirty do so as at the present time.
7. On 6th September 1999 the council's Housing Services Committee selected this site as apt for the construction of eight two-bedroom bungalows intended as affordable housing for elderly persons to be built by the Waterloo Housing Association. On 5th October 1999 that association applied for planning permission to erect the bungalows and to demolish four existing bungalows which adjoined The Green. The association had previously had in mind to carry out this bungalow development on a different site also owned by the council. That was a car park area at Coventry Road, Kingsbury. The council had looked at this site and others before its committee selected the application site as apt for the development.
8. As I understand it, because of objections raised by local residents in relation to the Coventry Road site the housing association did not carry forward the proposal to build there to the point of seeking planning permission.
9. On 13th October 1999 the council wrote to local residents (including the claimants' mothers) indicating that the application had been received, attaching a plan and inviting representations in time for the Planning and Development Committee's meeting, then scheduled for 9th November 1999 when the planning officer would report the application, and preferably before 29th August 1999.
10. The council wrote again to residents on 2nd November 1999 indicating that the application would in fact be reported to the committee on 7th December 1999 and stating:

"You may attend but will not be able to speak."

11. Accordingly one of the claimants' mothers, Miss Jones, made written representations in a letter dated 7th December 1999 which she faxed to the council on that day. At the end of her letter she said this:

"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."

12. This letter was before the committee on 7th December 1999. They had a report from the chief planning officer which recommended the grant of permission provided there were no objections from the highway authority that could not be covered by condition. There was no mention in the report of any possibility that the development could be carried out at the Coventry Road site or any other site.
13. Miss Jones attended the meeting on 7th December 1999 and made a note of the proceedings. As I understand it the accuracy of her note is not challenged, although of course it is not put forward as a complete record. It contains this short passage:

"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."

14. The reference there must be to the subject matter of the alternative site which is plainly Coventry Road.
15. The claimants rely on this material as apparently indicating that the committee's view was that they were not entitled to consider the Coventry Road site in the course of their deliberations upon the application. Mr Jones, for the council, appearing before us today accepts that it is right to proceed on the basis that the committee took the view that they were disabled from or not entitled to consider the Coventry Road site.
16. At length the committee resolved in accordance with the planning officer's report and on 22nd December 1999 the full council granted planning permission subject to conditions. That was the subject of the judicial review before His Honour Judge Rich. Permission to seek judicial review had been granted by Elias J on 22nd May 2000 after an oral hearing.
17. The claimants' case is put in two ways, as it was in the court below. First, it is said that the availability of the other site at Coventry Road was a material consideration which the council were obliged to take into account. In the alternative it is said that the council should at least have considered whether to take it into account; that is, it was a mistake of law on their part to go on the basis that they were not entitled at all to have regard to it.
18. I shall start where the judge started, with the relevant provisions of the governing statute. The judge introduced them thus:

"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.'"

19. The judge then considered a number of authorities to which I must shortly return. He concluded (paragraphs 29 and 30) that it had been open to the council to consider the alternative site and they should have decided whether to do so. They were in error in proceeding on the footing that they were bound to disregard it. That was the basis upon which he ordered certiorari to go to quash the permission.
20. The general law as regards the duty of a public decision-maker to take relevant considerations into account is well-known.

(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 [1981] 1 NZLR 172, approved by Lord Scarman for the purposes of the law of England in In re Findlay [1985] AC 319 HL.

21. It follows in my judgment that His Honour Judge Rich's decision must be upheld unless no reasonable planning authority could have considered the alternative site relevant on the facts of this case.
22. As I foreshadowed a number of authorities have been cited, of which the latest in time is the decision of Simon Brown J (as he then was) in Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P&CR 293. The learned judge there had regard to earlier authority and said this:

"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..."

23. There is then reference in parenthesis to authority. The learned judge continues:

"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."

24. Then number (4) in Simon Brown J's judgment:

"(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.

25. I omit number (6) which concerns compulsory purchase cases.
26. With great deference this is a very useful summary, and it is unnecessary to delve very much further into the other cases. Simon Brown J incorporated what had been said by Oliver LJ in the GLC case.
27. I note by way of emphasis only the observation of Paull J in Rhodes v Minister of Housing and Local Government [1963] 1 WLR 208, 212, where he said:

"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."

28. I should add that the case there concerned an application to develop a municipal airport.
29. I will content myself lastly with referring only to the comment of Woolf J (as he then was) in Vale of Glamorgan BC v Secretary of State for Wales and Sir Brandon Rhys-Williams [1986] JPL 198, 199:

"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."

30. If I may say so, with respect, it seems to me that all these materials broadly point to a general proposition, which is that consideration of alternative sites would only be relevant to a planning application in exceptional circumstances. Generally speaking - and I lay down no fixed rule, any more than did Oliver LJ or Simon Brown J - such circumstances will particularly arise where the proposed development, though desirable in itself, involves on the site proposed such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes, in the mind of a reasonable local authority, a relevant planning consideration upon the application in question.
31. In my judgment that is not this case. But even if the potentially available site at Coventry Road was not a necessary planning consideration, might a reasonable local planning authority nevertheless have regarded it as a possible planning consideration and so should have taken it into account?
32. For my part I do not think so. There were not here clear planning objections (to use Simon Brown J's language). In context the learned judge in that case by those words was I think referring to substantial objections which were on the facts made out. Here there were of course objections, otherwise plainly we would not be here at all. There had been objections in relation to Coventry Road as well. If the council, as the judge held, were obliged to consider whether to have regard to the alternative site, that can only have been on the basis that that factor might have prevailed so as to persuade the council to refuse planning permission. But in my judgment it was simply not capable of amounting to a good reason for refusing planning permission on the site in question here. Objections put forward against a planning application such as this are of course judged on their merits. If they outweigh the planning benefits of the development applied for, the application will be refused. To introduce into that equation a consideration of a different character, namely whether there would be less disbenefits on another site, could only be justified for some special reason such, as I have said, as the existence of particularly serious detriments to the public in a case where nevertheless there is a pressing need for the development. As I have said that does not apply here. I note moreover that the learned judge himself held (paragraphs 19 and 20) that this case did not fall within Oliver LJ's second and fourth categories.
33. It follows in my judgment that no reasonable council could have treated the Coventry Road site as relevant. In those circumstances it matters not that the council thought they were obliged not to consider it. If they had considered it, they would have been bound to reject it.
34. I would for my part therefore allow the appeal.
35. MR JUSTICE BLACKBURNE: I agree.
36. LORD JUSTICE ALDOUS: I also agree.
ORDER: Appeal allowed and the application dismissed; cross-appeal dismissed; the court certifies it is just and equitable that the costs of the Appellant are paid by the Legal Services Commission; liability of the respondents is determined at nil; detailed assessment; application for permission to appeal to the House of Lords refused. (Order does not form part of approved judgment)