England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
(HIS HONOUR JUDGE GILBART QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th July 2012

Lord Justice Pill:

1. This is an appeal against a judgment of HHJ Gilbart QC sitting as a deputy High Court judge on 2 March 2012. The judge quashed a decision of the Secretary of State for Communities and Local Government ("the Secretary of State") whereby the Secretary of State dismissed appeals by Fox Strategic Land and Property Limited ("the respondent") against the refusal of Cheshire East Council to grant planning permission for up to 280 dwellings, landscaping, open space, highway and associated works on land at Sandbach in Cheshire.
2. In refusing permission the Secretary of State agreed with the recommendations of an Inspector appointed by him who conducted a public local inquiry in April 2011. The appeal site consists of 15.6 hectares of agricultural land, most of which is described as BMV (best and most versatile) land.
3. The Secretary of State appeals against the decision of the judge quashing the refusal of planning permission and it is submitted on behalf of the Secretary of State that the judge erred in holding that the Secretary of State was not entitled, when making his decision, to accord "no weight" to his earlier decision in relation to a nearby site, the Richborough appeal. It is also submitted that the judge erred in finding that the Secretary of State had misunderstood his own policy on the use of agricultural land and had failed to apply it properly. The judge stated that had this ground stood on its own he would not have quashed the decision on the strength of it.
4. By a respondent's notice the respondent submits that the decision should also have been quashed on other grounds, relying on issues in relation to prematurity and impact on the local housing market.
5. The judge's decision was based on the inconsistency of the Fox decision with the Richborough decision in a material respect and one which was central to the decision. It is necessary to refer to the timetable. The Richborough appeal related to an application by a different developer for permission to build 269 dwellings on a different green field site in the Sandbach area. A local planning inquiry into a refusal of permission on that site was held in February 2011 and the Inspector reported to the Secretary of State on 25 March 2011. The appeal was dismissed by a decision letter dated 4 July 2011, that is after the local public inquiry in the Fox appeal but before the decision.
6. By application dated 15 August 2011 the Richborough applicant sought to quash the refusal of permission in that case in the High Court. The decision was quashed with the Secretary of State's consent on 18 October 2011 and the Secretary of State is to redetermine that appeal. That redetermination has been put on hold to await the outcome of the present appeal, the Fox appeal. Expedition for the present hearing has been given and it is plainly important to the parties and in the public interest that the decision is given promptly. We give it on the same day as the hearing.
7. In the decision letter in the Fox appeal the Secretary of State stated at paragraph 22, under the heading "Other Relevant Appeals":

"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."

8. Mr Warren QC for the Secretary of State submits that the only possible reading of that paragraph is that the reason for no weight being attributed to the Richborough appeal was that it was subject to legal challenge in the High Court. In my judgment the Secretary of State, for that reason, ignored the appeal. He refers to it, demonstrating he knows of its existence but, for the reason he gave, he has decided to ignore it. That is my reading in this context on the expression "attributed no weight".
9. Mr Warren's approach is based on the relevant ground of appeal, which states:

"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."

10. Fox consistently requested the Secretary of State to decide the Fox and Richborough appeals together. There is no doubt that they have been troubled throughout by the prospect of inconsistent decisions. When refusing that application, the Secretary of State drew attention in the Richborough decision letter, at paragraph 5, to a request that the two appeals be determined together:

"The Secretary of State considers that each case should be determined on its own merits."

11. The judge quashed the Fox decision on these grounds:

"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."

12. When considering inconsistency the judge cited the decision of this court in North Wiltshire DC v Secretary of State for the Environment [1992] 65 P&CR 137, at 145. I cite the judgment of Mann LJ with whom Purchase LJ and Sir Michael Kerr agreed:

"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."

13. That approach was followed more recently in Dunster Properties Ltd v First Secretary of State and Anr [2007] EWCA Civ236. Mr Warren also referred to the case of JJ Gallagher Ltd v SSHD [2002] EWHC 1812 (Admin), a decision of Mr George Bartlett QC sitting as a High Court judge.
14. Mr Bartlett stated at paragraph 58:

"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."

15. On behalf of the Secretary of State Mr Warren submits that it was open to the Secretary of State to afford the Richborough decision no weight. It has throughout been accepted to be a material consideration when making the Fox decision. However, it was not a precedent in a legal sense, and whether to attach weight to it and, if so, the weight to be attached, was a decision for the decision-maker. Mr Warren relies on the speech of Lord Hoffman in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, at page 780:

"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."

16. Moreover, submits Mr Warren, the Secretary of State was bound to consider that the challenge in the Richborough decision might succeed, as in the event it did succeed by consent. While it had not been conceded at the time of the Fox decision the Secretary of State was entitled to take the prospect of it being quashed into account in deciding to attach no weight to it. The Richborough appeal decision was sub judice at the point of decision, he submits, though accepting that the technical term may not be entirely apt. It would not have been appropriate to apply that decision prior to a final determination of the challenge to its legality.
17. By way of background I add that it is common ground that there was in this area a serious and significant shortage in the supply of housing land, having regard to the five-year requirement. As is suggested by the respondents' wish to have the two appeals heard together, it was possible, in terms of need, for both permissions to have been granted. It was, submitted Mr Warren, a common sense approach by the Secretary of State that, the legal challenge being present, weight should not be given to it in making the Fox decision. It would place too heavy a burden on the Secretary of State to consider possible outcomes in the High Court challenge before making his decision in Fox.
18. Though not in his grounds of appeal or in his written submissions, Mr Warren has sought to expand that submission into a submission that the Secretary of State was entitled to adopt the approach he did because of the particular facts of this case. In my judgment Mr Warren is not entitled at this stage to expand his case in that way; no such approach was adopted in the decision letter which, as Mr Warren has submitted, is capable of only one construction. The case has throughout been put on the basis that, because of the legal challenge, the Richborough decision can be ignored.
19. I do not accept that proposition. Further analysis was required by the Secretary of State of the situation that had arisen before making his decision in the Fox appeal. Notwithstanding my view on the unacceptability of the ground of appeal being expanded in the way proposed, the court has been prepared to hear argument as to whether there is inconsistency in between the Fox and the Richborough decisions on the facts and the relevance of that to the case as a whole. That includes consideration of whether the ground of High Court challenge was in any way connected with the inconsistency as between the two decisions.
20. I note that the two decisions were taken within a short time of each other; they were both signed by the same official acting for the Secretary of State. Mr Warren submits that the stark difference present in Gallagher was not present in the situation under consideration. The situation was a complex one and, on the facts, the Secretary of State was entitled to ignore it. It appears to me that, even on that approach, an explanation along the lines of the submissions made by Mr Warren in this appeal should have been given.
21. For the respondents, Mr Tucker QC submits that merely referring to the High Court challenge is not an explanation of the reason why the Richborough decision was not taken into consideration; it was, he submits, a means of avoiding having to explain the inconsistency.
22. Where the respondents submit that inconsistency has occurred is in the approach of the two decisions to the expression "spatial vision". That is an expression which appears in paragraph 69 of PPS 3, which provides amongst other things:

"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."

23. The spatial vision issue has been considered in both appeal decisions. I have cited the judgment at paragraph 42. The judge referred at paragraph 16 to paragraph 82 of the Inspector's conclusions in the present case:

"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."

24. The judge cited paragraph 93 in the Inspector's conclusions:

"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."

25. That is a finding clearly and strongly against the present respondents on the spatial vision issue. It is reflected in the decision letter. At paragraph 15 the Secretary of State stated:

"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."

26. That approach is to be contrasted with the approach taken in Richborough. In the Inspector's report at paragraph 161, as part of a broader consideration:

"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."

27. In paragraph 162, having referred to the significant shortage and supply of deliverable housing land in Cheshire East:

"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."

28. That approach is reflected in the Richborough decision letter. Paragraph 17 stated:

"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."

29. Thus, while the permission was refused on other grounds, there was a clear acceptance that in terms of spatial vision and spatial objectives the Richborough scheme was acceptable. That is in stark contrast to the approach which the Secretary of State has taken in the Fox appeal.
30. Thus on analysis, even if one does permit the Secretary of State to expand the case in the way proposed, there is a serious inconsistency in my judgment, within North Wiltshire principles, in this case.
31. In my judgment the approach which the judge took at paragraph 42 is entirely justified. This was not a case where the Secretary of State could ignore the Richborough decision when making the Fox decision.
32. The legal challenge in the Richborough decision, as one would expect, had nothing to do with spatial vision. The Secretary of State was in the developers' favour on that issue, and the challenge, as is clear from the documents submitted to the court, was on the question of land supply, a quite different question. In my judgment it was not open to the Secretary of State to put aside the Richborough decision when making the Fox decision. He could not put it aside on the ground that there was a High Court challenge, the challenge being made on quite different grounds.
33. Mr Warren argues that, whatever the grounds, if the decision is quashed it is quashed, but that in my judgment is to take too simplistic a view of the situation. One has to look forward. As the judge indicated, the Secretary of State is going to redetermine Richborough; he has indicated on what matters he wishes to hear submissions. There do not include consideration of the spatial vision issue. Clearly the Secretary of State is not minded to depart from the earlier approach, and his starting point on the redetermination at Richborough will be the favourable view of spatial vision taken on the earlier occasion. As to Fox, the respondents will seek to rely, if they have the opportunity to do so, on the favourable findings on spatial vision for the Sandbach area which the Secretary of State made in the Richborough decision. That in my judgment illustrates the unfairness of the position in which the Secretary of State's approach has put the respondents.
34. There should have been an analysis of the relevance of the Richborough decision to the Fox decision and a consideration of what the implications of favourable findings in Richborough were for the Fox appeal. If the Secretary of State was minded to depart from the spatial findings in Richborough, at least an explanation was required of why he proposed to do so. Rather than provide that, he simply relied on the existence of the High Court challenge which, upon analysis, does not begin to deal with the key question of inconsistency and also does not provide a justification for failing to address the question of inconsistency.
35. In my judgment the judge was correct to reach the conclusion he did on this issue. It was unlawful to ignore the implications of the Richborough decision when making the Fox decision. The inconsistencies against which the North Wiltshire principles guard were present in this case and have led to an unlawful decision by the Secretary of State which I too would quash.
36. The second challenge by the Secretary of State is to the judge's finding that the Secretary of State has misinterpreted his own policy document in relation to agriculture. The relevant policy is in PPS7, Sustainable Development in Rural Areas. It provides, at paragraph 28, under the heading Best and Most Versatile Agricultural Land:

"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.

37. The judge's finding on this issue is paragraph 62 and 63. The judge found that the Secretary of State's construction of the policy in his decision letter:

"…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.

38. The reference which the judge found unacceptable is at paragraph 25 of the decision letter. It is a paragraph headed overall "Conclusions"; it refers, as one would expect, to a range of issues and includes the sentence:

"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."

39. The judge found, and Mr Tucker seeks to uphold his finding, that the expression "absolutely unavoidable" does not appear in the policy statement. The policy is to be applied in two parts. First, it is to be considered whether agricultural land can be avoided. If it cannot be avoided then poorer quality land should be preferred. There is no justification, submits Mr Tucker, for the Secretary of State to read into the policy "absolutely unavoidable" in relation to BMV land.
40. In my judgment the Secretary of State does put it too strongly; the policy is carefully formulated, and to extract from it the principle stated at paragraph 25 is to take it beyond reasonable bounds. It puts the point too strongly; it is a hyperbole, which in my view is better avoided in decisions such as this.
41. However, two points have to be made: the first is that one must also consider paragraph 19 of the decision letter headed " Loss of agriculture land":

"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."

42. I respectfully say that is an entirely appropriate approach, which the Secretary of State was entitled to take on his policy statement and on its application to the facts of this case.
43. Secondly, in my judgment the use of hyperbolic language in paragraph 25 is not a ground for quashing; it was used along with a number of other reasons of importance in the case, and the use of the expression was far from being crucial to the decision arrived at. That was on a number of grounds, including that properly stated in paragraph 19.
44. I too would not have quashed the decision on this ground; I agree with the judge. What is more it does in my judgment add any significant weight to other grounds which have been or may be put forward.
45. There is a respondent's notice. Mr Tucker for the respondent said that, if the court is with him on the inconsistency point, he does not wish to pursue the points in the respondent's notice.
46. For the reasons I have given in relation to inconsistency I would dismiss this appeal.

Lord Justice Rimer:

47. I am not, with respect, convinced that the judge was right at paragraph 63 of his judgment to conclude that the Secretary of State misunderstood his own policy PPS7, paragraph 28, in relation to "Best and most versatile agricultural land". In particular, I question whether the unnecessary inclusion by him of the word "absolutely" involved any material error. I prefer, however, not to express a final view on that matter, as it is common ground that the point cannot be decisive of the appeal either way. As regards the "inconsistency" issue, I respectfully agree with my Lord that the judge came to the correct conclusion. I too would dismiss the appeal.

Lady Justice Black:

48. I agree that the appeal must be dismissed and I agree with my Lord Pill LJ's reasoning in relation to the main ground of appeal pertaining to the treatment of the Richborough decision. The ground of appeal relating to the policy in relation to agricultural land cannot succeed in these circumstances and, whilst I share the misgivings of my Lord Rimer LJ about the judge's reasoning on this issue, I do not propose to say anything further on the subject.

Order: Appeal dismissed