England and Wales High Court (Administrative Court) Decisions

Braithwaite v. Doncaster Metropolitan Borough Council [2000] EWHC Admin 306 (17th March, 2000)

"(i) to advise Members of the Representations (Objections .....) received, during the Deposit period in respect of the Proposed Modifications to the Deposit Draft of the Unitary Development Plan;
(ii) to make recommendations in respect of these Representations; and
(iii) to advise Members as to whether or not to hold a further Public Local Inquiry to consider objections to proposed modifications."
Arising from a consideration of the Objections submitted, the Council is required to determine whether or not to hold a further Public Local Inquiry to consider these. The legal issues which need to be considered as part of this determination are set out below under "Legal Implications" (paras 7-13). Having examined all of the material considerations, it is my view that a further Public Inquiry is neither necessary or desirable, for the reasons referred to in my responses to the various objections set out in Appendix 1 and for the following reasons:
* none of the proposed further modifications raise issues that have not already been considered at the deposit stage, including the previous Public Inquiry;
* the great majority of legitimate issues raised by the objections have already been subject to independent scrutiny by the Inspector at the previous Inquiry;
* a fresh Inquiry would add substantially to the timescale for completing and adopting the UDP, a process which has already taken over eight years since the Commencement Order was issued. Central Government are very anxious to secure the adoption of up to date development plans nationwide and, in these circumstances, a further Inquiry would have to be very fully justified. In this case, the objections submitted do not raise issues which would justify the further delay that would be entailed in a Second Inquiry ; ...".
The recommendations to Committee set out in paragraph 15 of the report were, inter alia, as follows:
"15 It is recommended that:
(a) the content of the report and specifically the recommendations set out in Appendices 1 and 2 be approved
(b) the proposed further Modifications be placed on statutory Deposit for 6 weeks
(c) subject to the outcome of the further deposit period, no further Public Local Inquiry be held to consider Objections to proposed Modifications, or the non-acceptance of any of the previous Inspector's recommendations ..."
In Appendix 1 of his report to Committee, Mr Prior summarised the various objections to the proposed modifications to the draft UDP. After each summary Mr Prior set out his comments and recommendations in respect of the objection in question. So far as concerns the Applicants' objection, Mr Prior's summary, comments and recommendations were as follows:
"OBJECTOR: GW and MW Braithwaite
LOCATION Pastures Road, Mexborough
SUMMARY OF OBJECTION:
The Council has disregarded the Inspector's recommendation to consider the site for housing. By allocating the site RL1 the Council has raised a new issue which was not discussed at the PLI. The Council has not given adequate reasons for the new policy. The objector contends that the Council has been inequitable in its allocation of housing land in proximity to the sewage works. The site should be mostly allocated for housing. The objector argues that because policy RL1 raises new issues the Council should reopen the Public Inquiry.
COMMENT:
The Council has followed the Inspector's recommendations by reconsidering the site for housing purposes. Although the Inspector commented on housing issues and the relationship of the adjacent sewage treatment works in his report, the objector did not propose at the Deposit stage that this site should be allocated for housing. Nor did he offer any evidence at the PLI in this respect. My reconsideration, based on appropriate consultation, has resulted in a recommendation to reject housing because of the likely negative impact of the adjacent sewage treatment works. It is therefore considered that this element of the representation is not `duly made' and as such, no further action is proposed. However, the objection to the allocation of the site as an open space policy area under RL1 is a `duly made' representation. In this case I have taken the view that if the Council is to accept the Inspector's recommendation to exclude the site from the Green Belt and reject housing then it must apply an appropriate policy. Policy RL1 deals with `open space' rather than specifically `public open space' land uses. Para 9.11 of the Deposit Draft UDP explains amenity, social, cultural and ecological functions, open spaces can make an important contribution to the image of an area; they can help enhance the built environment, screen unattractive use, separate incompatible uses, act as buffers between the urban edge and the countryside and so on'. There is a need to provide a degree of separation between the sewage works and existing housing. The Inspector has rejected Green Belt and Safeguarded Land policy options. Countryside Area notation is not appropriate because it applies to land in the east of the Borough. It is therefore considered that there is now no option but to seek to control development through policy RL1. In contesting the Council's position on this matter the objector has argued that approval has been given, both by the Council and the Secretary of State on appeal for residential development on sites closer to the sewage works than the objection site and that therefore a significant part of the objection site should be capable of allocation for housing. The objector has offered no technical justification to his assertion that the sewage works will not cause an amenity problem to new housing and therefore the Council feels justified in being guided by the advice of its primary consultees, the Director of Environmental Services and Yorkshire Water Services Ltd in this matter. The Director of Environmental Services believes that based on the experience of other STWs there is bound to be an odour nuisance depending on certain factors. Yorkshire Water advise that the site should not be allocated for housing and have said that if given the opportunity would have objected most strongly at the PLI. YWA argue that because of the nature of the treatment processes at Mexborough, there is a need to be especially careful where residential development is concerned and since the objection site is between 170 and 270 metres from the boundary of the STW, development for housing would increase the potential for complaints from residents. The objector has cited several instances where planning permission has been granted or land allocated for housing closer to the STW than the objection site. This is certainly true, but in each case YWA has not objected. The difference in this current case is that YWA has objected in strong terms. This approach is consistent with Policy PH 13(a) (as amended) which was formulated in consultation with YWA and Environmental Services. As to the question of a reopening of the PLI, Planning Policy Guidance Note 12, Annexe A, para 69 advises `... planning authorities to hold an inquiry where objections raise matters which were not at issue at the earlier stage .... This may arise, for example, if it is proposed to substitute an entirely different proposal for one which was in the plan as considered earlier, so that the objection made to the proposed modification include new evidence.' The Council is of the opinion that the new policy RL1 is not an `entirely different proposal' to the Green Belt policy as defined in the Deposit Draft in that it seeks to secure the existing open status of the site. Policy RL1 is the only reasonable alternative in the absence of other appropriate policy options. The proposed policy notation for the objection site is not intended to prevent agricultural use of the site. Nor does the objection include new technical evidence and on this basis it is considered that there is no need to reopen the PLI.
RECOMMENDATION:
No further Modification proposed
PROPOSED CHANGE
None"
Hereafter I shall refer to Mr Prior's report to Committee as "the February 1998 Report to Committee". On 9 February 1998, the Committee considered (inter alia) the Applicants' objections. It concluded, for the reasons set out in the February 1998 report to Committee, that it should propose no further modification and that a further Inquiry should not be opened.
On 21 July 1998 the UDP was adopted by the Council, showing the site allocated as an Open Space Area, and on 30 July 1998 the Notice of Adoption of the UDP was published.
The Relevant Legal Principles
There was no dispute between the parties as to the relevant principles of law to be applied in this case and they can be summarised as follows.
(1) The decision maker must give proper, adequate and intelligible reasons which deal with the substantial points which have been raised: see Save Britain's Heritage v Number 1 Poultry Ltd (1991) 1WLR153.
(2) A deficiency in the reasons will only amount to a breach of the Statutory requirements if the interests of the Applicant have been substantially prejudiced thereby: see Save Britain's Heritage (supra) at page 167C to H.
(3) The onus is on the Applicant to satisfy the Court that there has been a failure by the decision maker to give reasons which satisfy the Statutory requirements: see Save Britain's Heritage (supra) at page 168C.
(4) The reasons to be considered are those which were given at the time of the decision: see British Railways Board v Slough Borough Council (1993) 2PLR 42 at page 49 B-C.
(5) The adequacy of reasons must be assessed by reference to whether the decision in question leaves room for genuine doubt as to what the decision maker has decided and why. This issue must be resolved on a straightforward, down-to-earth reading of the decision, without excessive legalism or exegetical sophistication see Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire DC (1993)66 P&CR 263 at pages 271-272.
(6) The weight to be attached to material considerations and, therefore, matters of planning judgment are for the purposes of this case, within the exclusive jurisdiction of the local planning authority: see Tesco Stores v Secretary of State (1995) 1WLR 759.
(7) In the local plan preparation process, where the Council is both proposer and arbiter, the obligation to deal thoroughly, conscientiously and fairly with any objection is enhanced: see Stirk v Bridgnorth DC (1997) 73P&CR 439 at page 444, per Thorpe LJ.
(8) The duty on a local planning authority to act fairly includes the decision whether to hold a further Inquiry: see British Railways Board (supra) at page 53G.
(9) When the Court reviews a decision by a local planning authority not to hold a second Inquiry, the Court should ask whether, on normal judicial review principles, the decision not to open a new Inquiry was unlawful: see Warren v Uttlesford DC (1997) UPL 1130 at page 1134 per Schiemann LJ.
(10) When a local planning authority is considering whether to hold a second Inquiry in response to objections made to proposed modifications, the fact that a proposed modification involves issues which had not been subject to consideration at the deposit stage could be a highly material consideration. Other material considerations include whether the issue had been previously subjected to independent scrutiny by an Inspector, the current advice in paragraph 69 of Annex A of PPG 12, the practical implications of a second Inquiry and whether it would potentially be of material benefit to the decision making process, the delay and desirability of securing an up-to-date adopted development plan and fairness to the Objector and to other parties: see Drexfine Holdings Ltd v Cherwell DC (1998) JPL 361 at pages 372 to 373.
The Issues and Submissions of the Parties

On behalf of the Applicants, Mr Carter submitted that the grounds of challenge in these proceedings gave rise to the following four main issues:

(1) Whether the Council was right to reject the Applicants' objection to the proposed modifications as "not duly made": see Particulars 2 of the Notice of Motion. Hereafter, I shall refer to this issue as "the Objection Issue".
(2) Whether the Inspector's recommendation that the site be considered for allocation for housing development had been considered fairly and reasonably and whether adequate reasons had been given for the decision not to allocate the site for housing: See Particulars 1 and 3 of the Notice of Motion. Hereafter, I shall refer to this issue as "the Housing Allocation Issue".
(3) Whether the Applicants' objection to the proposed modification to the draft UDP, to allocate the site as an Open Space Area under policy RL1, had been fairly or reasonably considered and whether adequate reasons had been given for the decision to allocate it as an Open Space Area: See Particulars 4, 5 and 6 of the Notice of Motion. Hereafter I shall refer to this issue as "the Open Space Issue".
(4) Whether the Council erred in declining to hold a second public inquiry, particularly with regard to the Applicants' objection to the proposed allocation of the site as an Open Space Area: see Particulars 7 and 8 of the Notice of Motion. Hereafter I shall refer to this issue as "the Second Inquiry Issue".
1. The "Objection Issue"
Mr Carter referred to the opening words of Mr Prior's comment with regard to the Applicants' objection to the proposed modifications to the draft UDP, which is to be found in the February 1998 report to Committee (see above). It was Mr Carter's submission that Mr Prior had erred in coming to the conclusion that, insofar as the Applicants' objection sought an housing allocation for the site, the objection had not been duly made because the Applicants had not sought an housing allocation at the deposit stage. Mr Carter maintained that the Applicants' objection had been made pursuant to Regulation 18 of the 1991 Regulations, that it had been made timeously, that it had satisfied the formal requirements of Regulation 18 and that, therefore, the objection had been duly made and should have been properly considered by the Council, pursuant to its obligation to do so under Section 13(6) of the 1990 Act. Accordingly, Mr Carter submitted that, by accepting and acting upon Mr Prior's recommendation that no further action be taken with regard to this element of the Applicants' objection because it had not been `duly made', the Council (through its Committee) had acted unlawfully and in breach of Section 13(6) by failing to consider the Applicants' objection properly or at all.
On behalf of the Council, Mr Pickles submitted that the "Objection Issue" was misconceived and had resulted from a misunderstanding and misinterpretation of the relevant passages in Mr Prior's February 1998 report to Committee. Mr Pickles maintained that, on a full and fair reading of Mr Prior's summary of and comment on the Applicants' objection, it is clear that Mr Prior's conclusion, that an `element' of the Applicants' objection had not been duly made, was confined to that part of the objection which had suggested that it was the Council's intention not to accept the Inspector's recommendations with regard to the site. Mr Pickles referred to the opening words of Mr Barnes' reasons for objection and to the answers given to Questions 4 and 5 in the Objection form (see above). Mr Pickles submitted that the Applicants' objection was made up of two distinct elements. He argued that the first element, indicated by the answer to Question 4 in the Objection form and developed by Mr Barnes in the reasons for objection, was an objection to the Council's proposed modification to the draft UDP that the site be allocated as an Open Space Area. Mr Pickles accepted that, as part of their objection to that proposed modification, the Applicants were entitled to and had put forward an argument for a competing land use, namely the allocation of the site for housing purposes. Mr Pickles acknowledged that this first element amounted to a duly made objection within the terms of Regulation 18 of the 1991 Rules and that the Applicants were entitled to have it properly considered by the Council, pursuant to Section 13(6) of the 1990 Act.

Mr Pickles submitted that the second element in the Applicants' objection, indicated by the answer to Question 5 in the Objection form and reiterated in the opening words of the reasons for objection, was to the effect that the Applicants objected to the Council's intention not to accept the Inspector's recommendations and was thus a objection made pursuant to Regulation 16 (4) of the 1991 Regulations (see above). Mr Pickles submitted, correctly in my view, that there had been no intention on the part of the Council not to accept the Inspector's recommendations. As Mr Pickles pointed out, the Inspector had not made any specific recommendation that the site be allocated for housing development. To the extent that the Inspector did make a recommendation with regard to the site and the possibility of housing development, it was that the suitability of the site for that purpose be reconsidered. In my opinion, Mr Pickles was correct in submitting that this recommendation, if it be one, was not rejected but was accepted by the Council and acted upon in the manner already described. In the event, the Council came to the conclusion that the site was not suitable for housing.

I am therefore satisfied that Mr Pickles submissions on this issue are correct. The Inspector made no recommendation that the site be allocated for housing development. To the extent that he did make a recommendation which was concerned with the possibility of housing development on the site, his recommendation was accepted and acted upon. There was thus no intention on the part of the Council not to accept the Inspector's recommendations.
In my opinion, the context and form of Mr Prior's comment on the Applicants' objection also made it clear that he regarded that element of the objection which objected to the allocation of the site as an Open Space Policy Area to have been a `duly made' objection and he expressly stated that to be the case (see above). Furthermore, in that section of his comment which dealt with the `duly made' part of the Applicants' objection, Mr Prior expressly acknowledged and referred to the Applicants' argument that the site should be allocated for housing development (see above).
Accordingly, I am satisfied that, in coming to the conclusion that an element in the Applicants' objection was not `duly made', Mr Prior was referring only to that part of the objection which suggested that the Council intended not to make a modification to the draft UDP which had been recommended by the Inspector. For the reasons set out above, I am satisfied that Mr Prior was right to come to that conclusion. He was also correct in deciding that the Applicants' objection to the proposed allocation of the site as an Open Space Area was `duly made' and he included the Applicants' argument, that the site should be allocated for housing development, in his comment on this aspect or element in the Applicants' objection. The Applicants' housing development argument was thus included in and formed part of the `duly made' element in the Applicants' objection which was considered by the Committee at their meeting on the 9^th February 1998. Accordingly, I am satisfied that, for these reasons, this first ground of challenge fails.
2. The Housing Allocation Issue.

Mr Carter referred to the fact that, in paragraph 21/59 of his report, the Inspector had concluded

(i) that the presence of the nearby sewage treatment works did not necessarily preclude a carefully designed residential development on the site,
(ii) that the sewage treatment works is enclosed by a belt of poplar trees and
(iii) that the sewage treatment works lies downwind of the objection site (see above).

Mr Carter maintained that, in rejecting the Applicants' argument that the site should be allocated for suitable housing development, the Council's decision was flawed and irrational.
He submitted that, in reaching its decision, the Council had purported to rely upon advice which had been given by its own Director of Environmental Services, Mr David Craven, and by Yorkshire Water, both of whom had been consulted about the suitability of the site for housing development, following receipt of the Inspector's report and recommendations (see above). Mr Carter acknowledged that, in his written response dated 14 April 1997, Mr Craven had expressed the view that there was bound to be an odour nuisance, the severity of which would depend on several factors, including wind direction. So far as concerns Yorkshire Water's response, Mr Carter characterised its letter of 12 May 1997 as a mere repetition of its objection to the housing development on the site to the West (PH1 5/16), for which planning permission had ultimately been granted on appeal. Mr Carter also pointed out that the Council had granted planning permission for housing development on a site to the south of the objection site ("the Hovematch site"), whose geographical relationship to the sewage treatment works was said to be similar to that of the site. Mr Carter pointed out that this apparent inconsistency in approach on the part of the Council had been specifically raised by Mr Barnes in his reasons for objection (see paragraphs 12 and 13). Mr Carter submitted that this inconsistency in approach could not be justified simply by referring to the absence of any objection by Yorkshire Water with regard to development of the Hovematch site (see the final part of Mr Prior's February 1998 report to Committee as quoted above), because that justification does not take account of Yorkshire's Water's unsuccessful objection to the development for housing purposes of the site to the West (PH1 5/16). Accordingly, it was Mr Carter's submission that the Council's consideration of a possible housing allocation for the site was flawed and the resulting decision irrational and Wednesbury unreasonable for the following main reasons:
(i) Mr Craven's response had alerted Mr Prior to the fact that variable factors, such as wind direction, were important. Notwithstanding the importance of wind direction as a relevant factor, it was neither specifically considered in Mr Prior's February 1998 report to Committee, nor did it form any part of that report.
(ii) Mr Prior's February 1998 report to Committee did not deal with or draw attention to the Inspector's factual conclusion that the site was downwind of the sewage treatment works.
(iii) Mr Prior's February 1998 report to Committee gave an unbalanced and selective justification for the suggested inconsistent approach to housing development on other sites in the near vicinity of the sewage treatment works because it failed to draw attention to Yorkshire Water's unsuccessful objection to housing development on the site to the West (PH1 5/16).
(iv) Yorkshire Water's response, when consulted about the site, was a mere repetition of its unsuccessful objection to housing development on the site to the West.
It was Mr Carter's submission that no weight should have been given to Yorkshire Water's consultation response, in the absence of any explanation as to why that objection still held good with regard to the site, notwithstanding the fact that the same objection had been rejected in relation to the site to the West (PH1 5/16).
On behalf of the Council, Mr Pickles submitted, correctly in my view,. that Yorkshire Water's Consultation response was not a mere repetition of its earlier and unsuccessful objection to housing development on the site to the West (PH1 5/16). He pointed out that the site to the West is further away from the sewage treatment works than the site. Furthermore, Yorkshire Water had expressed its objection to housing development on the site in strong terms and had stressed the importance of Policy PH13 of the draft UDP, the material terms of which are as follows:
"PH13
The Borough Council will seek to promote the highest standards of residential development through the following:
(a) Resisting new development where it would be affected by excessive traffic, noise, fumes, smells or unsightliness, in particular residential development within 400 metres of a sewage treatment works ..."
As Mr Pickles pointed out, there had been no predecessor to Policy PH13 upon which Yorkshire Water could have relied when objecting to housing development for the site to the West. Accordingly, Yorkshire Water's strongly expressed objection was altogether more formidable since it was entirely consistent with the applicable and soon to be approved policy statement.
Mr Pickles submitted that, having regard to the fact that the Applicants had not provided any technical or other detail in support of the objection, the Council's decision could not possibly be stigmatised as irrational in the light of Mr Craven's advice that there was bound to be an odour nuisance and the strongly expressed and policy - consistent objection put forward by Yorkshire Water.
In my opinion, Mr Pickles' submissions on this aspect of the matter are plainly correct and, accordingly, for those reasons the second ground of challenge also fails.
3 and 4 The Open Space Issue and the Second Inquiry Issue
The Open Space Issue and the Second Inquiry Issue are closely related and, in many ways, overlapping issues and can be conveniently dealt with together.
On behalf of the Applicants, Mr Carter submitted that the true genesis of the proposal, that the site be allocated as an Open Space Area under Policy RL1, is Mr Prior's report to Committee in June 1997 (see above), in which no explanation or reasons are given for the proposed allocation. Mr Carter pointed out that the failure to give any explanation or reasons for the proposed allocation was repeated in the Council's Regulation 18 statement as to the proposed modifications to the draft UDP, which was published on 11 August 1997 (see page 83 of the Court bundle). Mr Carter accepted that some reasons for the proposed allocation were eventually given in Mr Prior's February 1998 report to Committee for the purposes of considering objections to the proposed modifications. However, Mr Carter maintained that the absence of any earlier explanation or reasons for the proposed allocation meant that the Applicants were quite unable to deal properly with any such proposal when they came to make their objections to the proposed modifications.
Mr Carter also criticised (a) the absence of any explanation as to why the site could not have been left without any allocation for a particular use and (b) the suggestion that Policy RL1 was not an entirely different proposal to Green Belt policy (see Mr Prior's February 1998 Report to Committee, quoted above), because that demonstrated that the Council proposed to use Policy RL1 as if it were a Green Belt Policy, whereas the Inspector had made a clear finding that it was not necessary to keep the site permanently open for Green Belt purposes or, indeed, for any other purpose.
It was Mr Carter's submission that, having regard to the foregoing and to the other matters summarised in paragraph 6.3.5 of his written skeleton argument, the Council's decision, to allocate the site as an Open Space Area under Policy RL1 was flawed and irrational.
Mr Carter submitted that this unsatisfactory state of affairs was compounded by the Council's failure to hold a Second Inquiry to consider the Applicants' objection to the proposed allocation of the site as an Open Space Area. He referred to the relevant ministerial advice which is to be found in paragraph 69 of PPG12: Development Plans and Regional Guidance, the material terms of which, current at the time, were as follows:
"69. The local authority has discretion whether to hold an inquiry into ... all or any of the objections made to its proposed modifications. .. An inquiry into objections to proposed modifications ... will not normally be necessary where the matters raised have already been considered ... In the case of a local or unitary development plan, the Secretary of State advises planning authorities to hold an inquiry where objections raise matters which were not in issue at all at the earlier stage .... This may arise, for example, if it is proposed to substitute an entirely different proposal for one which was in the plan as considered earlier, so that the objections made to the proposed modification include new evidence."
Mr Carter submitted, correctly in my view, that the question of allocation as an Open Space Area was not in issue at all at the Inquiry. The only `policy' consideration which was in issue at the Inquiry was Green Belt and that issue was decided against the Council by the Inspector. Mr Carter also referred to Mr Prior's February 1998 report to Committee (see above) and drew attention to the fact that Mr Prior had stated that "none of the proposed further modifications raise issues that have not already been considered at the deposit stage, including the previous Public Inquiry". Mr Carter submitted that this important observation by Mr Prior was plainly incorrect, insofar as it applied to the Applicants' objections. In my opinion, Mr Carter is entirely correct in that submission and it follows that the Committee did not take into account a highly material consideration when making the decision not to hold a second inquiry: see Drexfine Holdings Limited v Cherwell District Council (1998) JPL 361 at pages 372 to 373.
In my opinion, (i) the absence of adequate or any reasons for the proposed allocation of the site as an Open Space Area at a stage which would have enabled the Applicants to deal properly with that proposed modification, when objecting to it, and (2) the failure to take into account the highly material consideration that the proposed modification had not been considered at either the deposit stage or at the Inquiry, render the Council's decision to adopt the proposed modification and not to hold a Second Inquiry irrational and unreasonable and, thus, unlawful. I reject Mr Pickles' submissions to the contrary.
Accordingly for those reasons, this application succeeds. I will hear Counsel further on the appropriate form of order.