COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE COLLINS)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LORD JUSTICE PATTEN
| THE QUEEN on the application of SECRETARY OF STATE FOR COMMUNITIES
AND LOCAL GOVERNMENT
|- and -
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr D Kolinsky (instructed by Mills and Reeves LLP) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Sullivan:
"In the opinion of the Local Planning Authority the redevelopment of the bus station for housing and retail use as proposed does not incorporate adequate replacement provision for public transport. In the absence of such alternative provision, the proposed development would result in the unacceptable loss of existing public transport infrastructure and would conflict with the aims and objectives of the above Development Plan policies and with the relevant governing guidance in PPG 13 "Transport."
The main issue which led to the refusal of planning permission is that the proposal involves the loss of the town's bus station and makes no acceptable alternative provision for public transport. This issue will be addressed in a comprehensive statement by the Norfolk County Council as highway authority.
It will be clear from the agreed issues that the council's main concern is that the relevant of this site will necessarily involve the loss of the existing bus station. This is currently closed and the highway authority statement to draw attention to the highway safety problems which this produces particularly for pedestrians and other vulnerable road users. Government advice, Structure plan policies and open plan policy all seek to encourage the provision of and a modal shift to public transport. It is the essence of the case against the proposal that in the absence of any acceptable alternative provision for bus station the proposal will reduce the appeal and ease of use of public transport, and hence the likely level of use and furthermore will increase highway dangers elsewhere in the town. The proposal would therefore be in direct conflict with structure and local plan policies."
"Part 2 of the statement will show a strategy can be implemented that provides for passenger access to bus services either with a replacement facility at Cadogan Road car park, or using on-street bus stops. It will show this can be effective in providing safe and attractive conditions for passengers and hence contribute to the promotion of sustainable transport, overcoming the reasons advanced for refusal."
"6.2 A strategy that provides for passenger access to bus services either with a replacement facility at Cadogan Road car park, or a strategy that relies on on-street bus stops, can be effective in providing safe and attractive conditions for the passengers and hence contributing to the promotion to sustainable transport…
6.3 An "all on street" strategy can be made to be just as satisfactory in meeting national, regional and local transport and planning policy, and can support the role of the bus in promoting sustainable transport…"
"Ortona owns the appeal site. They are a private company following a management buy out from the National Bus Company in the mid 1980's. In 1992 a lease was agreed with First Bus for their exclusive use of the site (excluding the building) until June 2007. In early 2006, First Bus confirmed that they no longer required the site for commercial or operational reasons and voluntarily relinquished their lease at the end of March 2006 (one year before the lease was due to expire)."
The inspector's decision letter.
"…the effect of the proposed development on public transport, highway safety and the free flow of traffic in Cromer town centre."
Having described the site and the appeal proposal, the inspector said this in paragraph 5 of the decision letter:
"A similar planning application to the appeal scheme was refused in 2005 on the grounds that the proposal did not incorporate adequate replacement provision for public transport. At that time the site was being used by buses. However, in March 2006 First Bus voluntarily surrendered their lease for commercial reasons and in April 2006 ceased to operate from the site. Other operators, particularly Norfolk Green and Sanders, had made significant use of the site but, not being a party to the lease, had no entitlement to run buses from there. They also ended their operations from the site and so no buses have been using facilities since that time. There are now barriers in place preventing vehicle access to the site."
"13 In my view, the existing on-street operation falls considerable short of an adequate replacement for the facilities that were available on the site. Improvements on-street would not make us this deficiency, and neither these nor the possible alternative site have established funding. The appellants contend that the appeal site is no longer a bus station and that it was the operators' choice to cease using it. They consider that if the appeal was dismissed the use would not resume and the site would remain vacant. However, no direct evidence was provided by any of the operators of the circumstances that led to closure or on whether there would be conditions in which those could resume. Support from operators would be necessary if an alternative site were to be taken forward. There are examples of towns without bus stations but conditions for public transport operations would vary according to local circumstances. In my experience small bus stations or interchanges of the kind provided on the appeal site are not uncommon in towns such as Cromer and are used by operators. I consider that such a facility here is of particular benefit to tourists and visitors as it provides a recognisable focus for bus services for those who are unfamiliar with routes through the town."
"Planning Policy Guidance Note 13: Transport (PPG 13) seeks to maximise the potential usage of public transport. The established bus station use of the site would be lost if the appeal were allowed. I consider that this would be a significant retrograde step unless it was clear not only that the facilities could be provided elsewhere but also that there was funding to achieve this."
"However, my overriding conclusion is that there would be significant detriment to public transport. The proposal would therefore conflict with the aims of Norfolk Structure Plan Policies T.1, T.2, T.5 and T.6 and North Norfolk Local Plan Policy 135, which seek to promote public transport."
"transport strategy is to:
adopt an integrated approach to transport planning which encourages a modal shift to public transport, cycling and walking…"
Policy T.2 advises developers that they will be:
"required to address the transport consequences arising from their proposals."
Policy T.5 is of most relevance for present purposes. It provides that:
"A modal shift from private car to public transport will be encouraged by…
(xi) identifying and protecting sites for bus stations and park and ride sites."
"Public transport can play a greater role in meeting tourist traffic demand. During summer months the number of visitors means that additional services are viable. Initiatives therefore need to be undertaken which ensure services linking tourist destinations exist and visitors are aware of, and attracted to, the public transport service."
Pausing again, the inspector's conclusion of the final sentence of paragraph 13 of the decision letter that the bus station was of particular value to tourists because it provided a recognisable focus for bus services for those unfamiliar with Cromer is a reflection of the explanatory text to policy T.5.
"the absence of harm in this respect would not outweigh my conclusion on the main issue."
The main issue was of course the transport policy objection that he had identified in paragraph 15 of the decision letter.
The Judgment of Collins J
"But it seems to me in all the circumstances that it cannot possibly be said that this was not the situation where there was, in terms of the approach which we now have to take, a possibility of a reasonable, informed observer taking a view that there was a possibility of bias."
The Grounds of Appeal
Discussion and Conclusions
"The appellants contend that the appeal site is no longer a bus station and that it was the operators' choice to cease using it. They consider that if the appeal was dismissed the use would not resume and the site would remain vacant."
He described this as:
"the basic point made on behalf of the first respondent that no harm resulted from the proposed development because the bus station was not in use and its use would not be reinstated" (emphasis added).
Mr Kolinsky then submitted that the inspector had failed to address this "fundamental point". The inspector had simply recorded in the next sentence in paragraph 13 of the decision letter:
"However, no direct evidence was provided by any of the operators on the circumstances that led to closure or on whether there would be conditions in which those could resume."
Thus, it was submitted, the inspector did not make any finding as to the possibility of the previous use as a bus station resuming.
"The Claimant's position during the appeal, as recorded in paragraph 13 of the Inspector's decision was that the bus station use of the site had ceased and that if planning permission was refused, it would not resume."
"Planning is a small world and it is inevitable that you come across people you have known before."
The Inspectorate telephoned Mr Scales and told him that Mr Moore would continue to deal with the appeal. Details of the exchanges between Mr Scales Mr Moore and the Inspectorate are set out in paragraphs 35 to 39 of the judgment of Collins J. It is unnecessary to repeat them in this judgment because matters have moved on since this issue was considered by Collins J.
"It is true that the situation here is that the inspector had not been employed by the authority for some four years or so. On the other hand, the highways issues, the policies relied on, were county council policies and they were policies which were in being at the time the inspector was working for the council. In those circumstances it is at least possible, perhaps probable, that he had concerned himself with such policies. He certainly does not say that he had not. In dealing with the concern raised by Mr Scales, someone ought to have considered the possibility of apparent bias. That does not seem to have happened."
"23. The Inspector worked for Norfolk County Council from 1975 to 2003. His main responsibility was planning policy, and he was involved with the county structure plan throughout this period. From 1994 he was also responsible for transport planning, including the local transport plan. From around 2000 he was also responsible for development control matters relating to highways.
24. When the Inspector joined the Planning Inspectorate in March 2003 it was decided that he should not participate in planning appeals in Norfolk, because of his employment with the county council. This was reviewed in early 2005, some two years later, and it was then decided to change the position so that the inspector was able to take cases in Norfolk, save for the district in which he lives and another district council in Norfolk where he has a personal connection to a planning officer. This was because of a combination of the passage of time and the Inspector's previous role at the county council not including mainstream development control matters. Such reviews of preclusions are regularly carried out by inspectors and their line managers, in order to ensure that inspectors can be deployed properly and effectively."
Lord Justice Patten:
Lord Justice Mummery:
Orders: Appeal dismissed (2968); application to adduce fresh evidence allowed (2968A); permission to appeal to House of Lords refused