England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
MR JUSTICE MITTING
CO 42772006

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/03/2008

Lord Justice May

Introduction:

1. What happens when two competent public authorities each reach, act upon and persist in maintaining inconsistent decisions on the same matter? There can be no all-embracing abstract answer to that question, since it might arise in a variety of circumstances. But, as Sir Paul Kennedy wrote, when he gave the Mayor of London permission to appeal against Mitting J's order in this case in the Administrative Court of 11^th July 2007, the maintenance of two apparently inconsistent decisions cannot be acceptable.
2. Mitting J's judgment is at [2007] EWHC 1795 (Admin). It may be referred to for a more detailed account of the facts and issues than I shall need to give in this judgment.

Facts

3. The proper management of waste is a contemporary imperative.
4. Until October 2005, the London Borough of Enfield had and operated two Reuse and Recycling Centres, at Carterhatch Lane and Barrowell Green. Barrowell Green was the larger site, having a licensed capacity well able to accommodate alone, with a substantial margin, the volume of waste in fact delivered to the two sites.
5. In February 2005, Enfield sold their Carterhatch Lane site to Fairview Estates, who applied for and were granted planning permission to build houses there. Meanwhile, on 16^th March 2005, the Mayor, who did not then know about the sale of the Carterhatch Lane site to Fairview Estates, issued the first of two draft directions designed to delay the closing of this site until Enfield had found a compensating new site and made it operational. Enfield regarded this as quite unnecessary, because Barrowell Green alone was entirely sufficient and because they were making other arrangements which would reduce the delivery of waste to sites such as these. But the Mayor persisted and, on 7^th March 2006, issued a direction under section 356 of the Greater London Authority Act 1999 directing Enfield to make "appropriate compensatory provision" for the closure of the Carterhatch Lane site by providing a new site within the London Borough of Enfield.
6. Meanwhile there was a planning inquiry to determine Fairview Estates' application for planning permission for the Carterhatch Lane site. A planning inspector held a public inquiry, whose main subject of contention was the Mayor's objection that the site should retain its planning limitation as use for waste management. The Mayor's thinking no doubt was that, if Fairview Estates, now the owners of the site, were prevented from using it for housing, the site would have to revert to its permitted use for waste management.
7. The contest before the planning inspector raised under the London Plan and for planning purposes the very same question which the Mayor had addressed when he issued his direction under his Municipal Waste Management Strategy for waste management purposes. This is not surprising, because the Mayor has a duty under section 41 of the 1999 Act to have strategies which are consistent with each other; because the London Plan and the Municipal Waste Management Strategy are two such strategies; because the Policy 4A of the relevant London Plan enjoins London boroughs to ensure that land is available to implement the Mayor's Waste Management Strategy; and because each of these strategies declares a consistent policy to safeguard or protect all existing waste management sites "unless appropriate compensatory provision is made".
8. The Mayor had and took full opportunity to deploy before the planning inspector his case that planning permission should be refused. This was the same case as had supported his direction of 7^th March 2006. The inspector decided to recommend that planning permission for housing should be granted, and, in so recommending, rejected the Mayor's case and gave full reasons for doing so.
9. The heart of the inspector's decision, dated 21st April 2006, was that the Barrowell Green site had sufficient capacity to absorb the waste which would have gone to Carterhatch Lane; and that Enfield's improved waste management services, including "bring sites", kerbside collections and home composting, would reduce the need for visits by the public to a site to dispose of waste for recycling. This constituted "appropriate compensatory provision". The inspector rejected the Mayor's interpretation of this expression as requiring the provision of another site, whatever the current need, to be part of a waste management land bank.
10. On 5^th July 2006, the Secretary of State granted planning permission for residential development adopting and confirming the conclusions of the inspector's report. She noted that the main parties disagreed about what "appropriate compensatory provision" might entail. She agreed with the inspector that, although the provision of a replacement site might be appropriate in certain cases, the evidence of capacity at Barrowell Green and Enfield's progress in waste management were all material considerations in assessing appropriate compensation, and these demonstrated that appropriate compensatory provisions had been made. Closing the Carterhatch Lane site was a clear loss for local residents, which was most unfortunate. But a decision had to be made as to the future of the site. The proposed development accorded with relevant housing policies and would deliver affordable housing in an area of housing need. The Secretary of State's overall conclusion was that the planning application accorded with the development plan and national policies on housing and waste management. I would add that closing the Carterhatch Lane site without providing another site also accorded in this case with the Mayor's Municipal Waste Management Strategy upon the inspector's interpretation and application of the critical requirement in it of "appropriate compensatory provision".
11. The Mayor did not seek to challenge the Secretary of State's decision by appeal. Mr Stephenson, who appeared for the Mayor before us and Mitting J, accepted that the Mayor had the opportunity to do so under section 288 of the Town and Country Planning Act 1990.

The Judicial Review proceedings

12. The Mayor's direction to Enfield was given on 7^th March 2006. The inspector's report was dated 2lst April 2006, following a public hearing between 14^th and 16^th March 2006. On 23^rd May 2006 Enfield started these judicial review proceedings, in which they challenged the Mayor's direction of 7^th March 2006 on the grounds that it was unlawful, irrational and in excess of his powers. The grounds for their challenge included those which succeeded before the inspector and which the Secretary of State subsequently upheld.
13. On 24^th July 2006, following the Secretary of State's decision of the planning application, Enfield wrote to the Mayor saying that, in the light of the conclusions of the inspector and the Secretary of State, the decision to serve the direction could not stand. The Mayor was invited to withdraw the direction to save further costs of the judicial review application. Following a chasing letter from Enfield of 6^th October 2006, the Mayor declined to do so by letter dated 16^th October 2006.
14. This brief letter made two points only. First, it was said that the Secretary of State had reached a decision on the balance of the planning merits without taking account of the Municipal Waste Management Strategy. The Secretary of State had concentrated on the waste management strategy in the development plan which did not include the Municipal Waste Management Strategy. This in substance was incorrect because, although of course the Secretary of State made the planning decision with reference to planning policies and merits, the development plan did at Policy 4A expressly direct boroughs to ensure that land is available to implement the Municipal Waste Management Strategy. The spatial policy for waste management in the development plan was expressly in support of the Mayor's Municipal Waste Management Strategy in terms which relevantly were the same as the corresponding terms of that strategy. The inspector and the Secretary of State had both made decisions which concentrated on "appropriate compensatory provision", which was the very basis of the Mayor's direction. Further, the inspector and the Secretary of State were obliged by section 70(2) of the Town and Country Planning Act 1990 to have regard to the provisions of the development plan. By section 38(2) of the Planning and Compulsory Purchase Act 2004, the relevant development plan for Greater London was the spatial development strategy with which the Mayor's Municipal Waste Management Strategy was required to be consistent. By section 38(6) of the 2004 Act, the planning determination had to be made in accordance with the development plan unless material considerations indicated otherwise. There were no relevant such material considerations. So the inspector and the Secretary of State would have to decide the critical issue in favour of the Mayor, if in their judgment the Mayor's view of the application of his Waste Management Strategy were correct.
15. The second reason given in the letter of 16^th October 2006 was that the Mayor's direction did not become perverse simply because the Secretary of State reached the planning decision that she did. This, so far as it goes, may be correct. But, for reasons which I shall explain, it would in my view be necessary for the Mayor to advance additional persuasive reasons, which were not advanced before the inspector, to be able legitimately to maintain the direction in the face of the planning decision of the inspector and the Secretary of State.
16. On 31^st July 2007, Enfield applied to amend their grounds for judicial review to include a challenge based on the Mayor's refusal in his letter of 16^th October 2006 to reconsider his decision to give the direction in the light of the Secretary of State's decision on the planning application. It was said to be both irrational and an abuse of power for the Mayor to persist in the direction. Mitting J gave permission to make this amendment at the hearing of the judicial review application. The Mayor did not seek to appeal this decision, nor did he ask for an adjournment to be able to deal with it by adducing further evidence or for other reasons.
17. There were thus before Mitting J two challenges, the first to the giving of the direction of 7^th March 2006, and the second to the refusal to withdraw it in the letter of 16^th October 2006. Mitting J upheld the legitimate rationality of the original direction. But he acceded to Enfield's second ground of challenge and ordered the Mayor's direction of 7^th March 2006 to be withdrawn. He concluded, in paragraph 27 of his judgment, that the basis for the Mayor's direction had now been undermined by the decision and reasoning of an inspector and Secretary of State on the planning application. To sustain the direction would now be irrational.

The procedural ground of appeal

18. The Mayor's second ground of appeal to this court is that the judge's decision was or should have been limited to the challenge to the Mayor's original direction and that Mitting J had no jurisdiction to consider whether the Mayor was wrong to refuse to withdraw what started off as a legitimate direction. Mr Stephenson persisted, notwithstanding the plain terms of the permitted amendment, in a submission that the refusal to withdraw was not before the court. It plainly was. He himself had accepted in discussion with the judge that the refusal to withdraw could be challenged in the proceedings (page 28B of the transcript for 11^th July 2007). Mr Stephenson persisted in a submission that the judge had not decided this second ground of challenge, when he plainly had so decided – see paragraph 27 of the judgment and the terms of the resulting order. Mr Stephenson persisted in a submission that the judge cannot properly have decided the second issue without specific reference to the letter of 16^th October 2006 and its contents. Yet its contents were, as Mr Stephenson himself accepted, exiguous and the judge in substance dealt with the only substantial point which the letter raised, that is that the inspector had not considered waste management strategy. I would summarily reject the second ground of appeal, and I am rather surprised that it was raised and persisted in. If this stemmed from regret that further material was not before the court, no attempt has been made to get it before the court.

The judge's decision

19. The judge decided that the Mayor's direction of 7^th March 2006 was rationally sustainable at the time it was given. The primary decision maker was the Mayor, whose officers had considered in detail the kernel of Enfield's proposals. They advised the Mayor, for reasons which the judge had briefly summarised in paragraph 8 of his judgment, that Enfield's proposals did not meet the requirements of the strategy. It was necessary in their view to give the direction about the provision of an additional site. The decision to do this was at the time one which the Mayor was entitled to take, there being room for disagreement about what steps should be taken to replace the facilities provided by the closed site. The judgment was not unreasonable at the time it was made, and was one for the Mayor to take, not the court.
20. However, the inspector's decision and the Secretary of State's acceptance of it put things in a different light. The judge concluded, with reference to R v Warwickshire County Council ex parte Powergen plc [1997] 3 PLR 62; [1998] 75 P&CR 89, that the only properly tenable view after the publication of the planning decision was that which the planning decision espoused. The basis of the Mayor's direction had been undermined. To sustain it would now be irrational.

Grounds of appeal

21. The Mayor's grounds of appeal against this decision are that Powergen is distinguishable and its ratio had no present application; that the Mayor has his own statutory waste management powers upon which the decision to give the direction depended and these are discrete from the Secretary of State's planning powers; and that the Mayor is not bound by the Secretary of State's view. As to Powergen, the scheme of the relevant legislation was materially different. In Powergen, the two disagreeing authorities were addressing an identical issue and it was held to be contrary to public policy for a public authority involved in the issue to veto or frustrate an outcome disliked. In this case, the Secretary of State was concerned with planning issues, but the Mayor with waste management issues. The Secretary of State was concerned with safeguarding on planning grounds a particular site which had been closed and sold to a developer. The Mayor was concerned with providing another waste management site irrespective of the outcome of the planning inquiry. The Mayor's waste management strategy is much more broadly based upon a need to maintain or increase available waste management sites to encourage recycling and reuse. The Secretary of State was not bound by the Mayor's antecedent decision. So why should the Mayor be bound by the Secretary of State's later decision?

Discussion and decision

22. In Powergen, the Secretary of State, by his inspector, allowed an appeal and granted planning permission for a supermarket on condition that Powergen did not use the site until highway works were completed. The condition required Powergen to enter into an agreement with Warwickshire County Council as highway authority under section 278 of the Highways Act 1980. The county council refused to enter into the section 278 agreement on the ground that the highway works were not in the public interest, this being the same objection that had been advanced before and rejected by the planning inspector, and against which the county council had not appealed. This court upheld a decision at first instance that, following a successful appeal by the developer, the highway authority had no option but to co-operate in implementing the planning permission by entering into the section 278 agreement. It was perverse to do otherwise. It was not reasonable for the highway authority, whose road safety objections had been fully heard and rejected on the planning appeal, to maintain their original view quite inconsistently with the inspector's independent factual judgment. The highway authority would have to raise a fresh objection, sufficiently different from their earlier one, to have a realistic prospect of saying that their view might have prevailed and should now prevail. Simon Brown LJ, giving the only substantive judgment noted the apparent strength of the highway authority's argument that section 278 of the 1980 Act required the authority itself to be satisfied that the proposed road works would benefit the public, and that there was no statutory provision enabling the Secretary of State to direct the authority to be satisfied or otherwise require it to enter into an agreement with the developer. But he agreed that Forbes J, the first instance judge, came to the right answer. This had included that the highway authority's remaining discretion was somewhat limited; and that the proper exercise of that discretion would not embrace a further and separate reconsideration of the benefit to the public of the highway works solely by reference to the same reasons as those which had already been considered and determined in the planning process.
23. Since Mitting J's decision in the present case, this court has decided Bradley v Secretary of State for Work and Pensions [2008] EWCA Civ 36. The Parliamentary Ombudsman had found, in favour of workers who had lost all or part of their final salary pensions when their occupational pension schemes were wound up, that there had been maladministration. The Secretary of State rejected all but one of the ombudsman's findings. This court held, with reference to the Parliamentary Commissioner Act 1967, that the Secretary of State, acting rationally, was entitled to reject a finding of maladministration and prefer his own view. However, it was necessary that his own view was itself not irrational. It was not enough for the Secretary of State simply to assert that he had a choice. He must have a reason for rejecting a finding which the ombudsman had made after an investigation under the powers conferred by the 1967 Act. In the light of Powergen and R v Secretary of State for the Home Department ex parte Danaei (1998) IM MAR 84, the Secretary of State was not entitled to reject the ombudsman's finding merely because he preferred another view which could not be characterised as irrational.
24. In Bradley, Sir John Chadwick gave the leading judgment with which Blackburne J and Wall LJ both agreed. Sir John Chadwick referred to Powergen and Danaei, and quoted Simon Brown LJ's categoric conclusion in Powergen that it was not there reasonable for the highway authority to maintain its own original view. Sir John Chadwick then said in paragraph 65 of his judgment:

"Lord Justice Simon Brown emphasised (ibid, 624d-625b) that he had reached that conclusion not by reference to any general question regarding the proper legal relationship between planning authorities and highway authorities upon road safety issues but in the light of three basic considerations: (i) that the site access and associated highway works, together with the road safety problems which they raised, had been (a) central to the particular planning application, and (b) considered in full detail rather than left to be dealt with as reserved matters; (ii) that the planning permission had been granted following appeal to the Secretary of State and not merely by the local planning authority itself; and (iii) that there were no new facts or changed circumstances following the inspector's determination of the appeal – "the highway authority's continued refusal was based upon the identical considerations that their witness had relied upon in seeking to sustain the planning objection before the Inspector". He concluded (ibid, 626a):

"… the Inspector's conclusion that that issue, because of its independence and because of the process by which it is arrived at, necessarily becomes the only properly tenable view on the issue of road safety and thus is determinative of the public benefit.""

25. Sir John Chadwick said in paragraph 66 that the basis upon which this court dismissed the appeal in the Powergen case was that – given the circumstances in which, and the statutory framework within which, the inspector's conclusion on the issue of road safety had been reached – it was irrational for the county council to continue to adhere to its own view on that issue. The inspector's view had become "the only properly tenable view" on the issue of road safety.
26. Having considered Danaei, Sir John Chadwick then said at paragraphs 70 and 71:

"For my part, I think that the following principles can be derived from the judgments in Powergen and Danaei: (i) the decision maker whose decision is under challenge (in the former case, the local highway authority; in the latter, the Secretary of State) is entitled to exercise his own discretion as to whether he should regard himself as bound by a finding of fact made by an adjudicative tribunal (in the former case, the planning inspector; in the latter, the special adjudicator) in a related context; (ii) a decision to reject a finding of fact made by an adjudicative tribunal in a related context can be challenged on Wednesbury grounds; (iii) in particular, the challenge can be advanced on the basis that the decision to reject the finding of fact was irrational; (iv) in determining whether the decision to reject the finding of fact was irrational the court will have regard to the circumstances in which, and the statutory scheme within which, the finding of fact was made by the adjudicative tribunal; (v) in particular, the court will have regard to the nature of the fact found (e.g. that the immigrant was an adulterer), the basis on which the finding was made (e.g. an oral testimony tested by cross-examination, or purely on the documents), the form of the proceedings before the tribunal (e.g. adversarial and in public, or investigative with no opportunity for cross-examination), and the role of the tribunal within the statutory scheme.

Properly understood, as it seems to me, the two cases provide no support for the proposition that, as a matter of law, it is not open to a body which has been the subject of a finding of maladministration by the Parliamentary Ombudsman to reject that finding; rather the cases are authority for the proposition that it is open to such a body, acting rationally, to reject a finding of maladministration. The cases provide helpful illustrations of circumstances where, in other contexts, it was not rational for the decision maker to reject findings of fact made by adjudicative tribunals on the basis of a contrary (albeit rational) view which the decision maker preferred. … It is not, I think, a general rule that facts found in the course of a statutory investigation can only be impugned on Wednesbury grounds: although, plainly, if the investigator can be shown to have acted irrationally, that will be a powerful reason for rejecting his findings. The true rule, as it seems to me, is that the party seeking to reject the findings must himself avoid irrationality: the focus of the court must be on his decision to reject, rather than on the decision of the fact finder."

27. It is notable that this passage refers to a finding of fact. In the present case, the inspector's finding that there was "appropriate compensatory provision" was in part a finding of fact. But it also embraced a rejection, on the facts and circumstances of this case, of the Mayor's contention that "appropriate compensatory provision" had for him a meaning which requires that land used for recycling should be retained or replaced as such, even though, without retention or replacement, the capacity of the other Enfield site was amply large enough for present or anticipated future needs. As I have said, the Mayor could have appealed the inspector's decision as adopted by the Secretary of State, but did not do so.
28. The Mayor, through Mr Stephenson, does not seek to challenge the validity of the planning decision in this court, and could not properly do so in the face of section 284 of the 1990 Act. This provides that the validity of a decision on an application for planning permission referred to the Secretary of State under section 77 (as this application was) shall not be questioned in any legal proceedings whatsoever except as provided by Part XII of the 1990 Act. That could have included an appeal under section 288, but there was no such appeal.
29. Applying Sir John Chadwick's analysis of Powergen and Danaei, it was open to the Mayor, acting rationally, to reject the inspector's finding adopted by the Secretary of State. The court's focus in this case must be on the decision not to withdraw the direction of 7^th March 2006. This decision was in substance to reject the finding of an adjudicative tribunal, the planning inspector. It is open to challenge on Wednesbury grounds and on the ground that it is irrational. The court has regard to the statutory scheme of the planning inquiry, which included that the decision was made by the Secretary of State upon the recommendations of the inspector, not by the local planning authority. The court notes that the inspector's decision was made after a public hearing at which oral evidence was given and tested; and notes in particular that the Mayor had the opportunity to advance, and did in fact advance in full, the very same reasons upon which the direction was given, and that these reasons were rejected. As I have said, the Mayor did not appeal this decision and cannot therefore question it in any legal proceedings whatsoever. It is not, I think, necessary for the court to dissect the planning decision into its factual part and its legal construction part. Although in theory the Mayor might have reached a different conclusion for waste management strategy purposes, the relevant terms of the Municipal Waste Management Strategy and the London Plan were materially the same and were required by statute to be mutually consistent. Further, as I have indicated, although the Mayor might have had additional reasons of substance, not advanced in the planning appeal, for reaching a different conclusion, the letter of 16^th October 2006 did not in fact advance any such tenable additional reasons. The answer to Mr Stephenson's rhetorical question: why should the Mayor be bound by the Secretary of State's later decision? is in short that the Secretary of State's decision, which the Mayor did not appeal, was reached after due process in a properly constituted statutory adjudication which addressed the very same question and concluded that the Mayor was wrong; and there is no additional reason unconsidered by the inspector to justify a different conclusion. Although, as the judge held, the Mayor's original decision to give the direction could be seen as tenable at the time it was made, to persist in it become untenable once its underlying justification had been subjected to independent adjudicative scrutiny in the statutory planning process. For these reasons, the Mayor's decision not to withdraw the direction must be regarded as irrational.
30. I would dismiss the appeal.

Lord Justice Latham

31. I agree.

Lord Justice Moore-Bick

32. I also agree.