England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Cardiff Civil Justice Centre 2 Park Street Cardiff
		16th March 2005

Wednesday, 16th March 2005

1. HHJ WYN WILLIAMS QC: In these proceedings Pembrokeshire County Council seek an order quashing the decision of a planning inspector appointed by the Defendant to determine a planning appeal. That planning appeal came about by reason of the refusal of the Claimant to grant outline planning permission for the erection of a dwelling house on an area of land to the west of another dwelling house known as Green Grove, Princes Gate, Narberth. Upon the appeal to the Inspector, he allowed the Appellant's appeal, granted planning permission in outline, and it is against that decision that these proceedings are brought with a view to their being quashed.
2. When the application for planning permission was considered by the Claimant it was refused on two grounds. The second ground related to highway safety considerations and is irrelevant to the issues raised before me. Consequently, I say no more about that. The first ground, however, is at the heart of what the debate before me has been about. It reads as follows:

"The application site includes land outside the defined settlement limit. Policy GEN03 of the South Pembrokeshire Local Plan does not permit development outside settlement limits and the proposal is therefore considered to be contrary to that policy and would extend development into the open country side."

3. It is common ground between the parties that part of the application site is indeed outside the defined settlement boundary. The definition of the settlement boundary comes about by virtue of there being in force a statutory plan, the South Pembrokeshire Local Plan.
4. The settlement boundary in the vicinity of the appeal site was fixed in accordance with that plan and the boundary shown on that part of the settlement plan is copied in the bundle in these proceedings at page 19. That page is a plan which shows the settlement boundary, as I have indicated, in the vicinity of the appeal site. It also shows that the settlement limit was fixed in accordance with policy HSG02. In fact, the policies which were most material for the Local Planning Authority and the Inspector and now for my consideration are those which are entitled GEN02 and GEN03.
5. GEN02 says this:

"Settlement limits are defined for towns and villages within the plan area (see proposal map) within settlement limits development proposals would normally be permitted provided that they are of an appropriate scale and that there are no access, parking, amenity, nature conservation of public service provision objection."

6. Policy GEN03, headed "Development Outside Settlement Limits", reads as follows:

"Proposals which involve development outside settlement limits will not be permitted unless they constitute specific exceptions prescribed by other Local Plan policy. Policies and locations outside settlement limits which would contribute to the coalescence of settlements or extend ribbons of development into the open countryside will not be permitted."

7. Those policies, being part of a statutory plan, were obviously material to the consideration before the Planning Authority and the Inspector and are given statutory significance by reason of section 54(a) of the Town and Country Planning Act 1990. That section reads as follows:

"Regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material in the considerations indicate otherwise."

8. Where a local planning authority or an Inspector on appeal have to consider the issue of a statutory local plan in the context of section 54(a) of the 1990 Act, guidance is given upon the proper approach by a recent decision of the House of Lords in City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR at page 1447. That case, as its heading reveals, is a case which turns upon the proper approach to the Scottish equivalent of the English and Welsh planning legislation, but there is no difference in the wording between the two statutes and, therefore, the case is of general application.
9. In the speech of Lord Hope the following guidance is provided. Under the heading, The Planning Issues, at page 1449, Lord Hope said this:

"Section 18(a) of the Act of 1972, which was introduced by section 58 of the Planning and Compensation Act 1991, creates a presumption in favour of the development plan. That section has to be read together with section 26(1) of the Act of 1972. Under the previous law, prior to the introduction of section 18(a) into that Act, the presumption was in favour of development. The development plan, so far as material to the application, was something to which the Planning Authority had to have regard along with other material considerations. The weight to be attached to it was a matter for the judgment of the Planning Authority. That judgment was to be exercised in the light of all material considerations for and against the application for planning permission. It is not in doubt that the purpose of the amendment introduced by section 18(a) was to enhance the status in this exercise of the judgment of a development plan."

10. I interpose there that that expression of the way in which the statutory provisions developed in Scotland is equally applicable to the way they developed in England and Wales. Then I carry on in the speech of Lord Hope:

"It requires to be emphasised, however, that the matter is nevertheless still one of judgment and that this judgment is to be exercised by the decision-taker. The development plan does not, even with the benefit of section 18(a), have absolute authority. The Planning Authority is not obliged to adopt Lord Guest's words in Simpson v Edinburgh Corporation ... 'slavishly to adhere to' it. It is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan would ensure that in most cases decisions about the control of development would be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policies change or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development or which may provide more up-to-date guidance as to the test which must be satisfied will continue, as before, to be a matter for the Planning Authority.

The presumption which section 18(a) lays down is a statutory requirement. It has the force of law behind it but it is in essence a presumption of fact and it is with regard to the facts that the judgment has to be exercised. The primary responsibility thus lies with the decision-taker. The function of the court is, as before, a limited one. All the court can do is review the decision as the only grounds on which it may be challenged in terms of the statute are those which section 233(1) of the Act lays down. I do not think it is helpful in this context therefore, to regard the presumption in favour of the development plan as a governing or paramount one. The only questions for the court are whether the decision-taker had regard to the presumption whether the other considerations which he regarded as material were relevant considerations to which he was entitled to have regard and whether, looked at as a whole, his decision was irrational. It would be a mistake to think that the effect of section 18(a) was to increase the power of the court to intervene in decisions about planning control. That section, like section 26(1) is addressed primarily to the decision-taker. The function of the court is to see that the decision-taker has regard to the presumption not to assess whether he gave enough weight to it where there were other material considerations indicating that the determination should not be made in accordance with the development plan."

11. As is clear from that passage, Lord Hope gives guidance not just to the decision-maker himself or herself upon the correct approach to the decision-making process but also gives guidance to this court upon how it should approach the issue of whether the decision of a decision-maker should be quashed or upheld. Accordingly, it seems to me that what I should do in this case is to apply that guidance from Lord Hope to the facts in this case.
12. In my judgment, it cannot be seriously argued that in making his decision the Inspector did not have regard at all to section 54(a). Although he does not specifically mention it in his decision letter, the whole language of his paragraphs 2 to 5 is consistent only with the proper understanding of section 54(a) and a faithful attempt to apply it. I did not understand the Council in reality to say that he had not sought to apply it. Rather, the challenge was upon the way he had applied it. But lest I have misunderstood the submissions on that point, in my judgment he did apply and seek to apply section 54(a) in a proper manner, and one consistent with the language of the statute itself.
13. It is clear from section 54(a) that to justify departure from the development plan there had to be a material consideration or material considerations which justified that course being taken. The next issue for this court, therefore, is to consider whether the Inspector identified a consideration or considerations which was or were capable of being material in the relevant sense. A glance at paragraph 5 of his judgment reveals that he certainly believed that he had.
14. Paragraph 5 of the judgment reads as follows:

"I accept that the settlement limits have been tightly drawn to exclude the paddock to the rear of Green Grove and that the line of evergreen trees proves a critical boundary. Nonetheless, because of the limited dimensions of the indent with the limits to either side of it roughly lining up, I am of the view that proposal represents a reasonable rationalisation that would not result in an encroachment into the surrounding countryside that would be materially harmful to character and appearance. For the above reasons, I consider that the circumstances of this particular case represent a material consideration which, as an exception, is sufficient to outweigh the conflict with the Local Plan."

15. That the Inspector was seeking to identify what he regarded as a material consideration is further fortified, in my judgment, by the first part of paragraph 3 of his decision letter. That is headed Main Issues, and paragraph 3(a) reads as follows:

"I consider the main issues in this case to be

(a) the effect of the proposal on the character and appearance of the surrounding country side."

16. Reading paragraphs 3 and 5 together leaves me in no doubt that the Inspector sought to identify and in his own mind did identify a material consideration or considerations. Was what he identified capable of being a material consideration? In the context of this case, that is the main attack, as I see it, made by the claimant. In effect, the claimant says that what the Inspector identified as being a material consideration cannot be in the context of this case.
17. In my judgment, the material consideration identified was that the proposal did not result in an encroachment into the surrounding countryside that would be materially harmful to its character and appearance. It is true that the Inspector begins the sentence in which that phraseology is to be found with the phrase, "The proposal represents a reasonable rationalisation." There he could only have been speaking about the line of the settlement boundary or settlement limit. In my judgment, however, it would be erroneous to read those two phrases disjunctively. In my judgment, the sentence must be read as a whole to see whether or not the Inspector truly intended to, and did, identify the material circumstances which he relied upon.
18. Was the Inspector correct in his opinion or appraisal that that which he identified as a material circumstance was, in fact, such a material consideration? In my judgment, he was correct. A finding that a proposal will not result in an encroachment into the surrounding countryside that would be materially harmful to character and appearance is properly to be regarded as the identification of a material consideration within section 54(a). If authority is needed to support such a conclusion, it is to be found in a decision put before me by Mr Rhodri Williams, the decision being Westminster City Council v Great Portland Estates PLC (1985) 1 AC 661.
19. During the course of his speech in that case, Lord Scarman said this at page 670, letters C to E:

"It is a logical process to extend the ambit of Lord Parker LCJ's statement so that it applies not only to the grant or refusal of planning permission and to the imposition of conditions, but also to the formulation of planning policies and proposals. The test, therefore, of what is a material consideration in the preparation of plans or in the control of development in respect of planning permission and in local plans, is whether it serves a planning purpose, and a planning purpose is one which relates to the character of the use of the land."

20. Applying that guidance, in my judgment, there can be no room for reasonable doubt but that the Inspector in this case did identify what can properly be regarded as a material planning consideration.
21. On behalf of the Council, it is submitted that the finding that one of the objections commonly found to development beyond a settlement boundary was not present cannot of itself be a material consideration. I simply do not agree with that proposition. In my judgment, it clearly is such a consideration and the real issue is what weight is to be attached to it in any given case. That, of course, must depend peculiarly upon the facts of each and every given case. Having therefore correctly identified, in my judgment, a material consideration which was capable of being put in the balance against the statutory presumption arising under section 54(a), it was peculiarly for the Inspector to attach what weight to the competing factors that he saw fit. It is now well established, and the City of Edinburgh Council case reaffirms it, that this court will interfere with that balancing exercise only if the person making the decision is proved to be irrational or perverse.
22. In my judgment, there is nothing in this case to begin to suggest perversity or irrationality. There is nothing in the language used which suggests that. The Inspector saw the site, he either heard or read the evidence and I can detect no flaw in his reasoning process which would begin to allow me to categorise what he did as being either perverse or irrational. Having therefore applied, as I understand it, the test properly to be applied to a challenge of this sort, I have come to the conclusion that the challenge must fail and that the decision of the Inspector must be upheld.
23. MR WILLIAMS: My Lord, there is an application from this defendant for costs. Perhaps I should say that the second defendant played no part in this claim.
24. HHJ WYN WILLIAMS QC: I understand that, yes.
25. MR WILLIAMS: I hope a copy of the schedule has been handed up because I only have one. It does occur to me that on the second page those figures for attendances of a solicitor should not be --
26. HHJ WYN WILLIAMS QC: He or she is conspicuous by their absence.
27. MR WILLIAMS: I was told there was to be someone here so when I saw the schedule, I did not blink, but when I came to court, I did.
28. HHJ WYN WILLIAMS QC: I do not think I am inclined to ask the Local Authority to pay the Treasury Solicitor for not coming, I must say. So that is £320 to be deleted.
29. MR WILLIAMS: Presumably, travel and waiting too.
30. HHJ WYN WILLIAMS QC: Yes. Anything you want to say about the rest?
31. MR GASZTOWICZ: My Lord, I cannot resist the principle. All I say about the rest, and I am instructed to say, is that in relation to the hourly rate, £160 an hour, it is no determining feature, but my instructing solicitors have charged us £60 an hour and submit that 160 is excessive.
32. HHJ WYN WILLIAMS QC: I do not want to sound facetious, given the local taxpayers in Pembrokeshire may think it a very good thing to pay as little as possible, but your instructing solicitor's hourly rate may be very low in these circumstances.
33. MR GASZTOWICZ: That is why it is not determinative, but I just ask you to say that, regardless of whether that is reasonable or more than reasonable, £160 is, between the parties, an excessive rate.
34. HHJ WYN WILLIAMS QC: Have you got anything to say about that, Mr Williams?
35. MR WILLIAMS: On the rate, no, my Lord. It does not seem excessive. Clearly, 200 hours is not excessive. Money seems to have been saved elsewhere because, in fact, when one takes off the £300 your Lordship has added up, the figures are very similar.
36. HHJ WYN WILLIAMS QC: It is of some relevance that I do not know what happened in the Administrative Court in London, in that I do not know what rates are applied for Government solicitors, but in this court the guideline rate for a grade A fee earner, and I am assuming that Miss or Mrs Smithman falls into that category for these purposes, is £170, but I do not know, of course, that the lady does fall into that category because it is not specified on the schedule. Without getting at you, Mr Williams, it should be, should it not?
37. MR WILLIAMS: My Lord, it does not give the grade; it simply states --
38. HHJ WYN WILLIAMS QC: For all I know, she could be very junior within the Treasury Solicitors' department. One would hope that is not the case, given the amount that is being sought, but I am not actually told that. Do you know who she is?
39. MR WILLIAMS: I know, in fact, that the name of the solicitor who has had most to do with the case appears second. I think Emily Strickland was attending today but that may have been taken over while she was temporarily unable to deal with the case. So in fact it would be the latter name. What can I say? On the phone she sounds quite senior! This case was issued in London, of course. That is something that this claimant does not particularly appreciate, but there we are. Claimants sometimes do bring cases in the Administrative Court in London, saying it is quicker. It is a particular pleasure, I think, that the case has been heard here and not in London. Perhaps my solicitors would have attended if it had been.
40. HHJ WYN WILLIAMS QC: I think that I have to assume that a Government department would charge out their person at the rate appropriate to the seniority of that person. That being so, and given that this work does fall into the category which would or might attract an hourly rate of up to £170, if litigated locally, I am not persuaded that I should reduce the £160. So I propose to assess the costs summarily as the sum claimed. Let us identify the figure of £332. When I have done the mathematics, that is --
41. MR WILLIAMS: I make it £2,981, my Lord.
42. HHJ WYN WILLIAMS QC: No, I do not think so.
43. MR WILLIAMS: My Lord, the amount to come off, I think, is 400 and --
44. HHJ WYN WILLIAMS QC: Sorry, my mistake, yes. 2,981, yes. So I summarily assess the costs at £2,981 and make an order that the claimant shall pay those costs to the defendant.
45. MR WILLIAMS: I am obliged, my Lord.
46. HHJ WYN WILLIAMS QC: Thank you both very much.