England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
MR JUSTICE JACK EWHC 2907 (ADMIN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 July 2005

Lord Justice Maurice Kay :
 


1. The Pembrokeshire Coast National Park is an area of natural beauty. It is a treasure of the Principality. As such, it gives aesthetic pleasure to its inhabitants and its many visitors. As with many such areas, it is also characterised by rural poverty, unemployment and deprivation. The dispute giving rise to this appeal is a manifestation of the tensions which often arise in such circumstances.
2. The Pembrokeshire Coast National Park Authority ("the Authority") was established by the Local Government (Wales) Act 1994, the Environment Act 1995 and the National Park Authorities (Wales) Order 1995. It is the planning authority in relation to development within the National Park. On 28 January 2004 its Development Control Committee resolved to grant outline planning permission for a development to be known as Bluestone Holiday Village ("Bluestone"). Outline permission was formally granted on 29 June 2004.
3. The Council for National Parks Ltd ("CNP") is a charity and a company limited by guarantee. Its origins in the 1930s were related to the campaign for national parks which succeeded when the National Parks and Access to the Countryside Act 1949 was enacted. The body took on its present corporate form in 1977. Its purpose is to seek to protect and enhance the national parks of England and Wales. It is totally opposed to the Bluestone development.
4. The other interested parties before the court are Mr J William McNamara, Bluestone Holdings Ltd and Alfred McAlpine Construction Ltd, together with Pembrokeshire County Council. The first three of the interested parties are in effect the developers. Pembrokeshire County Council is not the local planning authority within the area of the National Park. However, the Bluestone site is close to the edge of the National Park and the County Council is the local planning authority for the adjacent area. Close to the Bluestone site but outside the National Park lies the Oakwood Leisure Park, a theme park which attracts about 400,000 visitors a year. The County Council granted planning permission for that development and is also in favour of two further developments known as Snowdome and Waterworld which are earmarked for nearby sites, also lying outside the National Park.
5. Bluestone has been planned as a holiday village on a 200 hectare site lying just to the west of the A4075 road, approximately 7 miles to the east of Haverfordwest and about 3 miles west of Narberth.
6. When the Bluestone development was being considered by the Authority's Development Control Committee, its Development Control Officer produced a comprehensive report recommending that the application should be refused on a number of grounds, the first of which was that it was considered to be contrary to the statutory purposes set out in the 1949 Act and contrary to relevant planning policies. In resolving to reject that advice and to grant outline planning permission, the Development Control Committee set out its reasons, the first of which was expressed in these terms:

"The application had demonstrated an overriding public need and exceptional circumstances in terms of:

the benefit it would bring to the economy of the National Park and Pembrokeshire as a whole, an area with a per capita GDP far below the national average, and suffering much rural poverty, unemployment and deprivation.

this benefit being in terms both of the direct employment at Bluestone and the wider opportunities to the local economy from the outward-looking intentions of the developers in respect of working with recreational activity providers, local food industries, public transport operators etc.

the benefit more widely for Wales and the United Kingdom, by providing a form and quality of visitor experience within a growth sector of the tourism industry, which is presently not well provided for in Wales or the United Kingdom as a whole."

7. In due course CNP made an application for judicial review of the planning decision of the Authority. It sought to challenge the decision on two grounds. First, it was alleged that the Authority had failed to comply with section 54A of the Town and Country Planning Act 1990. Secondly, there was an allegation of apparent bias on the part of two members of the Authority. Permission for the application was granted by Richards J on 28 May 2004. The substantive hearing took place before Jack J on 23, 24 and 25 November 2004 and he handed down his judgment on 17 December 2004. In it, he rejected both grounds of challenge. In this court, the appeal on behalf of CNP has been advanced solely by reference to the first ground. Permission to appeal was granted by Keene LJ on 5 April 2005. He acknowledged the force of the reasoning of Jack J but considered the proposed ground of appeal to be arguable and to raise an issue of considerable importance about the relationship between section 54A and development plan policies.

The Statutory Framework

8. Section 5(1) of the National Parks and Access to the Countryside Act 1949, as substituted by section 61 of the Environment Act 1995, provides:

"The provisions of this Part of the Act shall have effect for the purpose –

(a) of conserving and enhancing the natural beauty, wildlife and cultural heritage of areas designated as National Parks; and

(b) of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public."

9. Section 11A of the 1949 Act was inserted by section 62 of the Environment Act 1995. It provides:

"(1) A National Park Authority, in pursuing in relation to the National Park the purposes specified in subsection (1) of section 5 of this Act, shall seek to foster the economic and social wellbeing of local communities within the National Park, but without incurring significant expenditure in doing so, and shall for that purpose co-operate with the local authorities and public bodies whose functions include the promotion of economic or social development within the area of the National Park.

(2) In exercising or performing any functions in relation to, or so as to effect land in any National Park, a relevant authority shall have regard to the purposes specified in subsection (1) of section 5 of this Act and if it appears that there is a conflict between those purposes, shall attach greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the National Park."

10. Section 54A of the Town and Country Planning Act 1990, as inserted by the Planning and Compensation Act 1991, provides that a National Park Authority shall be the sole local planning authority for the area of the Park.
11. Turning to the crucial provisions of the Town and Country Planning Act 1990, section 70(1) empowers a local planning authority to grant planning permission with or without conditions or to refuse to do so. Section 70(2) then provides:

"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."

12. Thereafter section 54A was inserted by section 26 of the Planning and Compensation Act 1991. Section 54A provides:

"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."

13. By this important provision a stronger emphasis was placed upon development plans, resulting in the present system being described as a 'plan-led system'.

The Development Plan

14. The development plan which lies at the heart of this case is the Pembrokeshire Coast National Park Local Plan which was adopted in April 1999. Paragraph GE4, headed Major Development Proposals, reads as follows:

"The NPA will only permit major development schemes in the NP in exceptional circumstances. Proposals will not be permitted unless the following criteria are met in full:

(1) The proposal is in the public interest, and would contribute to an overriding national need;

(2) The cost and scope for the development outside the NP has been examined and no suitable alternative site is available;

(3) The cost and scope for meeting the need in some other way has been examined and no suitable alternative is available;

(4) The proposal's contribution to national need can clearly be demonstrated to outweigh any harm or risk to the local or wider environment;

(5) Direct and indirect adverse impacts during construction, operation and decommissioning can be minimised to an acceptable level.

Proposals should also have full regard to the reasons for and purposes of NP designation."

The Case for CNP

15. It is common ground that the Bluestone development would be "major development" within the meaning of GE4. It is also common ground that it would not "contribute to an overriding national need" within the meaning of GE4(1). Permission was granted for reasons which substantially reflected the perceived benefit to the local economy. On behalf of CNP, Mr David Wolfe submits that, as the economic benefits would be local rather than national, and as for that reason the proposal cannot satisfy GE4, the Authority ought not to have granted permission on the basis of the local economic benefits coming back into the picture as a material consideration and displacing the presumption which is established by the development plan. To do so, he submits, subverts the plan-led system under section 54A.

The Judgment of Jack J

16. In his judgment Jack J dealt with this issue in the following passage (at paragraph 53):

"In my view an approach on the following lines is permissible in a case such as the present. The authority must consider the terms of the relevant policies and apply them to the circumstances of the case. That might lead to the view that the application of the policies requires permission to be refused. Here, that might be on the ground among others that no national need has been shown as required by GE4. On the facts here that would mean that the economic case was considered insufficient under the terms of the policy because it was not a national need. But the local economic case would remain "a material consideration". So here the authority was then entitled to, and bound to, consider whether the economic advantages of the development, in particular by way of employment for those within the Park and outside, nonetheless justified the grant of permission in the circumstances. To hold otherwise results in an authority being bound to follow the policy unless there is a material consideration which is irrelevant to the application of the policy itself, or, putting it another way, which stands outside the policy, and which suggests it should not be followed in the circumstances. That is not what section 54A says and I do not consider that it is to be construed as having that effect. The economic benefit that Bluestone might bring by way of employment in Pembrokeshire was a "material consideration" which the Park Authority were entitled to take into account in deciding whether, in all the circumstances, the development plan should be followed, or whether it should not. In my judgment that is the effect of section 54A."

Discussion

17. At the commencement of his submissions to this court Mr Wolfe conceded that other material considerations may justify departure from a development plan. Indeed, that is obvious from the wording of section 54A. The position is as stated by Lord Hope of Craighead in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 (at page 1450 B-E):

"It is not in doubt that the purpose of the amendment introduced by [section 54A] was to enhance the status, in this exercise of judgment, of the development plan. It requires to be emphasised, however, that the matter is nevertheless still one of judgment, and that this judgment is to be exercised by the decision taker. The development plan does not, even with the benefit of section [54A], have absolute authority. The planning authority is not obliged, to adopt Lord Guest's words in Simpson v Edinburgh Corporation 1960 SC 313, 318, 'slavishly to adhere to' it. It is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up to date guidance as to the tests which must be satisfied, will continue, as before, to be a matter for the planning authority."

18. Lord Clyde said (at page 1459E) that the decision maker will have to consider whether the development proposed in the application before him does or does not accord with the development plan. He added (at page 1459F-G):

"He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. … He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it."

He added that the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.

19. No doubt these passages informed the concession which Mr Wolfe was constrained to make. Nevertheless, he continued to contend that the approach of the Authority was wrong. He sought to rely on Buckland and Boswell v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 524, which concerned the challenge to the decision of an inspector upholding an enforcement notice requiring the removal of a caravan occupied by a gypsy family. The site was within the Green Belt. Sullivan J said (at paragraphs 74-75):

"74. Section 54A is of general application. Green Belt policy, with its specific reference to very special circumstances, is unusual … Since development plans, however comprehensive and far-sighted, are not able to identify every need or foresee every eventuality, there will be a number of cases where material considerations, such as the need for a proposed development, will indicate that planning permission should be granted contrary to the policies in the development plan.

75. But it is difficult to see how such a situation could arise in practice in a Green Belt case since the policy itself, in effect, invites an appellant to put forward all those "material considerations" which might amount to "very special circumstances". If it is not accepted that those material considerations do amount to very special circumstances, it is difficult to see how they could 'indicate' that planning permission should be granted contrary to Green Belt policy. How section 54A is to be applied must depend, at least in part, on the precise terms of the policy in question. Inappropriate development may indeed be permitted in the Green Belt, but only if there are very special circumstances. That test is not, in the context of a Green Belt case, watered down by section 54A. Rather, it is reinforced."

20. The first thing to observe about that is that Green Belt policy occupies a unique place in the hierarchy of considerations because it is the only one in relation to which the criterion of "very special circumstances" applies. As Sullivan J said, the precise terms of the policy in question condition the way in which section 54A is applied.
21. In the present case, Mr Patrick Clarkson QC for the Authority, Mr David Elvin QC for the developers, and Mr Nicholas Cooke QC for Pembrokeshire County Council emphasise that the policy of GE4 is less stringent than Green Belt Policy and permits major development schemes within the National Park "in exceptional circumstances". Most importantly, they are also able to point to other "material considerations". In this regard, a crucial document is Planning Policy Wales (2002), which post-dated GE4. It provides as follows:

"5.5.5 Statutory designation does not necessarily prohibit development, but proposals for development must be carefully assessed for their effect on those natural heritage interests which the designation is intended to protect.

5.5.6 In National Parks or AONBs, special considerations apply to major development proposals which are more national than local in character. Major developments should not take place in National Parks or AONBs except in exceptional circumstances. This may arise where, after rigorous examination, there is demonstrated to be an overriding public need and refusal would be severely detrimental to the local economy and there is no potential for locating the development elsewhere or meeting the need in some other way. Any construction or restoration must be carried out to high environmental standards. Consideration of applications for major developments should therefore include an assessment of:

the need for development, in terms of national considerations, and the impact of permitting it or refusing it upon the local economy.

the cost of, and scope for, providing the development outside the designated area or meeting the need for it in some other way;

any detrimental effect upon the environment and the landscape, and the extent to which that could be moderated."

22. In addition, as I have set out, section 11A of the 1949 Act obliges the Authority to "seek to foster the economic and social wellbeing of local communities within the National Park".
23. It is not and cannot be disputed that these were material considerations. At one point, Mr Wolfe seemed to submit that, whilst they are capable of being material considerations, they can only trump the provisions of the development plan if there has been, for example, an unforeseeable change of circumstances since the development plan. However, in my judgment that is first to paraphrase and then to take out of context the words of Lord Hope. The fact is that national policy has changed as Planning Policy Wales (2002) shows.
24. In my judgment, the Authority was faithful to section 54A. It properly considered the development plan but concluded that material considerations "indicated otherwise". Jack J considered that the approach had been consistent with the speeches in the City of Edinburgh case. I respectfully agree.
25. Perhaps in anticipation of this analysis, Mr Wolfe attempted to fly a kite bearing the label 'perversity'. I am wholly unimpressed by this. Perversity was not considered by Jack J. It is true that it had received a fleeting mention in the 135^th paragraph of the 136 paragraph skeleton argument prepared by Mr Wolfe in advance of the hearing before Jack J. However, it seems that counsel for the Authority and for the interested parties had sought and received an assurance that perversity was not relied upon. For the avoidance of doubt, I should add that, in my judgment, a perversity argument could not have got off the ground. Notwithstanding the recommendations the Authority's officers, the application had the strong support of Pembrokeshire County Council and the National Assembly for Wales had expressed a lack of interest in intervention by calling in the application. The Minister had concluded that the proposed development did not involve planning issues which would warrant taking responsibility for determining the application away from the Authority. Our attention was drawn, particularly by Mr Cooke, to a number of site-specific factors including the proximity of the site to the edge of the National Park and to the Oakwood development which lies beyond its boundary. Our attention was also drawn to the landscaping features of the proposed development. I cannot avoid the conclusion that, not only was perversity absent from the agenda, it was an unsustainable basis of challenge.
26. For all these reasons I would dismiss the appeal.

Cross Appeal: Costs

27. Before Jack J, the Authority sought an order for costs against CNP. However, Jack J acceded to a submission on behalf of CNP that it is a body with limited resources which had pursued a public interest challenge in circumstances in which it had no private interest in the outcome. Before this court the Authority contends that Jack J was wrong to refuse to make an order for costs. Initially, I thought there might be a significant difference between costs in relation to the section 54A ground of challenge and costs in relation to the allegation of bias. It seemed to me that it might be easier to justify a refusal of a costs order in relation to the former as opposed to the latter. However, having perused the skeleton argument which was used on behalf of the Authority in support of its application for costs, it is plain that it took an all or nothing approach. This accords with the recollection of counsel. In the circumstances, whilst CNP may be said to have benefited from a generous exercise of judicial discretion on costs, for my part I do not feel able to disturb it. Accordingly, I would dismiss the cross appeal.

Lord Justice Jacob:

28. I agree.

Lord Justice Latham:

I also agree.