ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
(HIS HONOUR JUDGE GILBART QC)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
|THE QUEEN ON THE APPLICATION OF FOX|
|STRATEGIC LAND AND PROPERTY LIMITED||Appellant|
|- and -|
|SECRETARY OF STATE FOR THE COMMUNITIES|
|AND LOCAL GOVERNMENT AND ANOTHER||Respondents|
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Mr Paul Tucker QC and Mr Anthony Gill (instructed by Aaron and Partners Llp Solicitors) appeared on behalf of the Respondents.
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Lord Justice Pill:
"The Secretary of State notes that the inspector has also had regard to other relevant appeals and accepts that these could be a material consideration. The appeal by Richborough Estates was dismissed on 4 July but is subject to legal challenge in the High Court. The Secretary of State has attributed no weight to this matter in the decision before him."
"Where the relevant previous decision may or may not be in existence in the near future, due to a High Court determination, it was not a breach of the principle of consistency for the Secretary of State to give no weight to it."
"The Secretary of State considers that each case should be determined on its own merits."
"42. At the time the Fox decision was issued, it is of course true that the Richborough challenge had been issued. However I do not accept the argument of Mr Warren that therefore the SSCLG could avoid dealing with the obvious conflicts by electing to treat it as having no weight. The SSCLG had not at that point submitted to judgement, so the decision still stood as a matter of law. In any event the grounds of challenge raised by Richborough did not go to any of the areas where the two decision letters were so far apart. The fact that since then the SSCLG has resisted receiving any representations on those areas confirms me in that approach."
"In this case the asserted material consideration is a previous appeal decision. It is not disputed in argument that the previous appeal decision is capable of being a material consideration. The proposition is, in my judgment, indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.
To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way, am I necessarily agreeing or disagreeing with some critical aspect of the decision in a previous case? The areas for possible agreement or disagreement cannot be defined but they would include an interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."
"Mr Mould submits that the only question is whether it could be ascertained from the decision letter why it was that the Secretary of State was refusing planning permission despite having granted it in the Church Commissioners appeal. If it could be so ascertained, it did not matter that the earlier decision was not referred to. In my judgment the need for an express explanation of an apparent inconsistency between the decision under consideration and an earlier decision will depend on the circumstances. If the explanation of the inconsistency is obvious, a formal statement of it will be unnecessary. Where the inconsistency is stark and fundamental, as it seems to me it is in the present case, it will in my judgment usually be insufficient to leave it to the reader to infer the explanation for the inconsistent decisions. The reason for this is that unless the decision-maker deals expressly with the earlier decision and gives reasons that are directed at explaining the apparent inconsistency, there is likely to be a doubt as to whether he has truly taken the earlier decision into account. In the present case, moreover, the inspector has thought it appropriate to place reliance on the earlier decision and had referred to it no less than 33 times in the course of his report. The claimant was entitled in these circumstances to an express explanation on the Secretary of State's part, and it has been substantially prejudiced by the lack of such an explanation."
"If there is one principle of planning law more firmly settled than any other it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."
"Planning authorities should have regard to –
…Ensuring the proposed development is in line with planning for housing objectives, reflecting the need and demand for housing in, and the spatial vision for, the area and does not undermine wider policy objectives e.g. addressing housing market renewal issues."
"I consider that the main consideration of this appeal is the implications of the proposed residential development on the spatial vision for Cheshire East and Sandbach."
"Therefore, so far as the fifth and final consideration of PPS3's paragraph 69 is concerned, it is not possible to say with any certainty that the appeal proposal would reflect the spatial vision for the area. Moreover, at the current time, it is impossible to say whether or not the development of the site would undermine the wider policy objectives for housing. With this in mind, I consider that the encouragement in PPS3's paragraph 71, to favour housing proposals in areas where there is no 5-year supply of deliverable sites, should be tempered accordingly."
"The Secretary of State notes that the Inspector considers that in view of the forthcoming abolition of the RSS [regional strategy], together with the fact that the Core Strategy is at a very early stage and other planning documents can only be afforded only very limited weight, the spatial vision for Cheshire East currently lacks clarity and longevity. (IR 91) However, the Secretary of State considers that it is important to note that the RSS is still part of the development plan and carries due weight and that the RSS suggests that Crewe is the priority for large scale housing growth and that the emerging Core Strategy appears to take its lead from the RSS."
"that while the spatial objectives of the development plan and other economic plans seek to prioritise Crewe, there is scope for new development in a town such as Sandbach."
"In such circumstances the appeal proposal is required to enable both Cheshire East and Sandbach to meet their housing requirements and the spatial objectives of the existing development plan."
"The Secretary of State notes that the RSS for Crewe is identified as the priority for future growth and that the Congleton Borough Local Plan identifies Sandbach as an area that should accommodate 25% of future housing growth. He accepts the Inspector's conclusions that while the spatial objectives of the development plan and other economic plans seek to prioritise Crewe, there is scope for new development in a town such as Sandbach (1R160-1R162) and accepts that the appeal scheme, in terms of size, is consistent with the spatial objectives of the LP. However given his conclusion above relating to the risk of not meeting the growth requirement, he does not consider that the release of a greenfield site for a scheme of this size in this location is appropriate."
"The presence of best and most versatile agricultural land (defined as land in grades 1, 2 and 3a of the Agricultural Land Classification), should be taken into account alongside other sustainability considerations…when determining planning applications. Where significant development of agricultural land is unavoidable, local planning authorities should seek to use areas of poorer quality land (grades 3b, 4 and 5) in preference to that of a higher quality."
There is no doubt that almost all the appeal site was BMV land.
"…does not fall within the range of reasonable interpretations of the policy. If he had applied the test in PPS7 properly he would have asked whether the shortfall he had found required the taking of agricultural land. If it did so, then he had to consider whether there was other available land which was not best and most versatile. He has not done that.
63. In my judgement he has misunderstood his own policy, and has failed to apply it."
The judge went on to hold that, had it stood on its own, he would not have quashed the decision on this ground.
"However, these matters have to be considered against the proposal's conflict with saved development plan policies with regard to settlement boundaries and the restriction on development in the countryside, and the need to avoid the permanent loss of BMV land unless absolutely unavoidable."
"Paragraph 28 of PPS7 establishes that, when considering development proposals, the presence of Best and Most Versatile (BMV) agricultural land should be taken into account alongside other sustainability considerations."
That that is an impeccable statement.
"For the reasons given at IR 99, the Secretary of State accepts that 96% of the appeal site is BMV land and agrees with the Inspector that the high agricultural land quality of the appeal site should not be disregarded and is a material consideration which weighs against the appeal proposal."
Lord Justice Rimer:
Lady Justice Black:
Order: Appeal dismissed