England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		3rd March 2008

1. JUDGE MACKIE: This is an application by the claimant, Mr Dixon, under Section 288, seeking to challenge the decision of an inspector, Mr Anthony Wilson set out in a letter of 22nd December 2006. That decision followed an inquiry held over two days in June 2006 which had included a site visit by the inspector on the second of those two days. The inspector was considering an appeal under Section 78 of the Town and Country Planning Act 1990 against the decision of Lake District Park Authority to refuse outline planning permission for residential development, affordable housing, as it was described, at land off Daner Road in Staveley within the National Park.
2. The appeal was against a refusal in April 2004 of an application submitted in July 2002. As there was no local authority needs assessment the claimant, Mr Dixon, had one prepared by a respected local professional, Mr Coates (whose firm is referred to in that Decision Letter as "CA"), and he produced his survey in March 2004. This was added to by an addendum in July 2004 and a second application for permission made at the same time. In August 2004 the Cumbria Rural Housing Trust ("RHT") produced a housing needs survey which was supplemented by an annex in May 2005 which concluded that Staveley needed no more than 17 households. A second planning application was refused on 17th March 2006. Elsewhere in the area planning permission was in 2006 given for 13 units at Caldrigg Fold and for two at Reston Hall.

THE LAW

3. The approach to applications under Section 288 needs to be identified before I turn to the facts. Section 70 of the 1990 Act provides that:

"In determining applications for planning permission the decision maker shall have regard to the provisions of the development plan, so far as material to the application and to any other material considerations."

4. Section 38(6) of the of the Planning and Compulsory Purchase Act 2004, provides that:

"If regard is to be had to the development plan for the purpose of any determination made under the planning acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."

5. It is the job of the planning inspector, of course, to determine the planning merits for him or herself and the discretion conferred on the High Court to intervene arises under Section 288, only if the decision is not within the powers of the Act or if relevant requirements have not been complied with.
6. Other legal considerations are not greatly in dispute. In deciding whether there has been an error of law an inspector's decision ought to be construed in a reasonably flexible manner and not as a contract or statute. A decision letter must be read in good faith and as a whole and, as was observed in Seddon Properties v Secretary of State of the Environment [1981]:

"Because the letter is addressed to the parties who are well aware of all the issues involved and all the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph."

7. So one does not expect to see every single point taken by each side recorded, examined, accepted or rejected.
8. Similarly, the duty on the inspector to give reasons does not extend beyond that which is necessary to deal with the main issues in dispute as explained by the House of Lords in South Bucks DC v Porter.
9. Each side has emphasised particular points of law. Counsel for the claimant has referred to Gransden & Co Ltd v Secretary of State for the Environment And Gilingham BC [1995] in which Woolf J, as he then was, said this:

"The fact that a body had to have regard to the policy did not mean that it needed necessarily to follow the policy. However, if it was going to depart from the policy, it had to give clear reasons for not doing so in order that the recipient of its decision would know why the decision was being made as an exception to the policy and the grounds upon which the decision was taken...

"If proper regard was not given to the policy, then the court would quash its decision unless the situation was one of those exceptional cases where the court could be satisfied that the failure to have proper regard to the policy had not affected the outcome in that the decision would in any event have been the same."

10. In support of a submission that the inspector failed to have regard to policy and in departing from it failed to explain the reasons why.
11. In the context of what she submits are material factual errors going to the heart of the inspector's decision, Ms Thomas cites well-known observations in Simplex GE (Holdings) and Another v Secretary of State for the Environment and the City of St Albans District Council [1988]:

"Where a factual error had been taken into account in reaching a decision, that decision would be ultra vires unless either the error was an insignificant or insubstantial one or the court was satisfied that, even though one reason for a decision was bad in law, the same decision would have been reached on the basis of other valid reasons."

12. He then goes on to deal with the case in question.
13. Mr Kolinsky, counsel for the defendant, took me to several authorities but the only one I refer to specifically is the decision of Sullivan J in Newbury and in particular paragraphs 5 to 8 in the judgment, which sets out the approach of the court to challenges under Section 288. He says this:

"An application under Section 288 is not an opportunity for a review of the planning merits of an inspector's decision. An allegation that an inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under Section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a re-run of the arguments on the planning merits."

14. The learned judge goes to explain why in paragraphs 7 and 8.

THE DECISION LETTER

15. The decision of the inspector must, for reasons that I have already given be seen as a whole. It is not useful for me to read large chunks of it in a vain effort to set out all matters referred to but I do need to summarise the structure of the decision in order to give coherence to the very clear and helpful arguments I have heard from both sides.
16. Paragraph 6 identifies correctly two main issues: first, whether the site should be developed for housing to meet an identified local need as an exception to policies providing for housing restraint in the countryside and in a National Park in particular; second, the effect of the proposed development on the character and appearance of the relevant part of the Lake District National Park.
17. The inspector then sets out the relevant planning policies at paragraphs 7 and 8, which broadly establish that as an exception to the policies of restraint in the countryside housing may be permitted in a few clearly identified exceptional circumstances where there is a demonstrated local need for affordable housing. The policies identified are H8 of the Lake District National Park Local Plan, policy H20 of the Cumbria and Lake District Joint Structure Plan and National Policy, as then in force in the circulars referred to. There are competing claims referred to by the inspector between the appellant and the National Park Authority as to the extent of the local need and, as one sees, the inspector's decision involved an evaluation of the approach of each.
18. In paragraph 9 he refers to the National Park Authority Supplementary Planning Document on demonstrating housing need, known as the SPD, which was adopted in June 2006. He also highlights the SPD's three essential components: first, that the households must be inappropriately housed to establish genuine housing need: secondly, that they are unable to afford to rent and/or buy on the open market; thirdly, they have to live in the locality. The inspector said that he was placing substantial weight on the SPD.
19. Then he sets out between paragraphs 10 and 20 his evaluation of the (inaudible).
20. In paragraph 10 he refers to the importance of the robustness of the survey methodology used.
21. In paragraph 11 he reiterates that the SPD was the appropriate benchmark against which housing needs survey work must be assessed. Although only very recently published it had been used previously by local agencies in its draft consultative version.
22. In paragraph 12 and 13 he refers to the surveys, one obtained by the claimant and two others conducted by the CRHT. He records that 15 local needs dwellings have been permitted, making 15 in all, and he refers to the conclusion of the National Park Authority that there is an unmet need for only two households in the relevant parish. Paragraph 14 refers to the appellants claims that there is still a shortfall of 16 units and that there are categories of households whose needs are not met. At paragraphs 16 and 17 he evaluates the competing surveys and reaches conclusions.
23. At paragraph 18 he endorses the approach of looking for genuine need within individual communities within the National Park.
24. At paragraph 19 he refers to a mix of dwelling types, which I shall come on to shortly.
25. He then concludes in paragraph 20:

"In the absence of a clearly demonstrated, current, local housing need in Staveley parish the proposal would be in conflict with the Local Plan Policies."

26. Between paragraphs 21 and 23 he considers the effect of the development on the character and appearance of that part of the National Park. He concludes at paragraph 22:

"The proposed housing would thus extend beyond the clearly defined development limit of the village and I consider that it would have a harmful effect on both the openness of the larger site and the visual contribution which this area presently makes to the character and appearance of the immediate setting of the village."

FAILURE TO APPLY POLICY?

27. Against that background Miss Thomas for the claimant makes a number of succinct criticisms. The first ground upon which she relies is what she says is a failure by the inspector to apply planning policy, which she says vitiates his decision. For reasons I have already mentioned she submits that if the inspector was going to depart from the relevant policy he had to spell out what he was going to do and explain why.
28. She refers to H20, which states that housing development is only permitted where it is of a scale and type which is designed to contribute to the identified housing needs of the locality. She notes that the SPD provides that:

"The kind of development you are proposing should be the kind required by the needs survey. If the survey found no needs for flats and you are proposing flats for rent then you would not be meeting the identified housing needs for the locality."

29. She draws attention to the fact that the permitted developments at Caldrigg and Reston would not be providing the house types to meet the identified needs, which is shown from the materials submitted to the inquiry by Mr Coates and referred to further in his witness statement in support of this application. She says that as a result the inspector failed to apply those policies. He should have focussed on the fact that the claimant's scheme will meet precisely the needs which the other developments fail to provide.
30. She says that the inspector relied on a series of observations in paragraph 19 which she criticises. First is this:

"I also agree with the authority that whilst one of the proper planning objectives for such a housing scheme should be to provide a suitable mix of dwelling types the allocation of properties to households, whether these are families, couples or single persons, is a matter for other agencies in the local planning department."

31. It is common ground that the reference to "other agencies" does not assist the argument one way or the other. Paragraph 19 goes on:

"In any event I understand the number and type of dwelling to be provided in Staveley have been specifically tailored to reflect the households as being identified in genuine housing need. I also share the Authority's view that once a household has been identified as being in housing need a three bedroom dwelling can be used in future to accommodate most such households, irrespective of its size and composition."

32. Miss Thomas submits that the observation, "I understand that the number and type of dwellings provided in Staveley have been specifically tailored to reflect those households being in general need", is an observation not supported by any evidence and is not correct. Secondly, she says that the inspector's acceptance of the view that a three bedroom dwelling could accommodate most households identified to be in need runs contrary to the sections of the SPD and of H20 which I have quoted. She submits that that approach is inconsistent with the obligation upon the inspector to give substantial weight to what the SPD says. This causes Miss Thomas to submit that the inspector failed properly to apply the policy and failed to take into account the appellant's evidence that there continued to be a need for these particular house types despite what would become available at Caldrigg and Reston.
33. Mr Kolinsky for the Secretary of State submits that that approach is misconceived. He submits that it is plain from any fair reading of the decision as a whole that the inspector had regard to the question of mix of dwelling types as it is put in paragraph 14, as, "One of the proper planning objectives for such housing schemes". The inspector concluded, as he was entitled to, that the mix of the existing planning permission was satisfactory, as one sees from the rest of paragraph 19 and paragraph 13.
34. He also submits that this logic specifically acknowledges that three bedroom properties provide flexibility because they could be used to accommodate most households. That is a matter of common sense, unaffected, he submits, by Miss Thomas' submission, based on no evidence that a three bedroom property would never be, in the context of affordable homes, within the reach of people who otherwise would qualify for a much smaller dwelling.
35. So he submits that the inspector gave weight to the flexibility of three bedroom houses in meeting local housing need and that, as one sees from paragraph 19 of the decision, this was consistent with the approach that was urged upon him by the National Park Authority. He was at that point choosing between submissions and preferring those of the National Park Authority. In his submission that does not begin to amount to an error of law which should cause the court to quash the decision.
36. On this first point it seems to me that counsel for the Secretary of State is correct. It is something of a leap to find a failure to apply policy in the observation in paragraph 19. The references to the suitable mix of dwelling types to not amount to the inspector deciding, in effect, that he is not going to follow a particular policy. The reference to his understanding the number and type of dwellings to be provided in Staveley seems to me either to be a statement of his conclusions upon that point or to refer back to what he says at paragraph 13. Further, the question of mix is the last of a series of considerations which leads the inspector to his centred conclusion that he prefers to CRHT to that of CA. In those circumstances it does not seem to me that the claim there has been a failure to apply planning policy can succeed.

ERRORS OF FACT?

37. The next claim made on behalf of the claimant is one of a series based on errors of fact which it is submitted were made by the inspector. The claimant says that it is all very well giving the inspector a broad discretion when it comes to policy but where, for example, he chooses to prefer one approach to another in the exercise of judgment that judgment can and should be overridden if it is shown that the conclusions which he reached resulted from errors of fact.
38. The first point which is made by Miss Thomas is that the inspector makes a material error of fact in paragraph 16 when he asserts Mr Coates' survey date did not have the same level of scrutiny applied to it as the CRHT survey date. She says there was, in fact, no scrutiny by the interested party, that is the National Park Authority, of the original CRHT survey and it had no access to it. She submits that this error clearly led the inspector to give more weight to the CRHT survey than he otherwise would have done.
39. Similarly she says there are other inaccuracies such as an allegation there was key information about the personal financial circumstances of some respondents missing from Mr Coates' survey and the Coates' addendum, which I mentioned earlier, presented information to the inquiry about housing affordability cross-referenced to income. She also points out that the inspector refers to what is said to be meticulous testing of the CRHT date, particularly personal financial information, without referring to the evidence that two thirds of the respondents failed to answer the crucial questions in the survey and I was taken to the survey to point that out. I say at once that these particular points are immaterial. The inspector is not obliged to set this figure of detail.
40. The position of the Secretary of State is that that is a non point because the decision in paragraph 16 does not suggest that there was the scrutiny of the original returns from the CRHT survey by the National Parks Authority which is relied upon the claimant says the inspector mistakenly.
41. Mr Kolinsky submits that the inspector is relying on the process of reevaluation of the survey by the CRHT against the three components of housing need set out in paragraph 13. He submits the inspector was entitled to conclude, as he did, that the exercise conducted in the CRHT survey was more robust and there was no error of law or material fact in the passages of which Miss Thomas complains.
42. In order to resolve that issue between the parties I have to look at what each paragraph says in full in the overall context of the decision letter. Paragraph 16 reads:

"However, I heard compelling evidence concerning the Authority's response to the original findings of the CRHT report, the subsequent re-evaluation of the analysis and the meticulous testing of all of the original survey data, particularly personal financial information, against the criteria of the emerging SPD, in order to demonstrate genuine housing need rather than local housing demand. On the other hand, the NPA has access to only 11 of the original forms completed by those revealed to be in housing need by the CA survey and the Authority has therefore not been able to apply the same level of scrutiny to all of the original survey data. Significantly, I heard evidence from the Authority that when the key tests of the SPD were applied to these 11 cases the NPA considered that only two households could be regarded as being in general housing need and that, possibly, one or two others may qualify on personal or health grounds. Although a similar evaluation summary prepared by the appellants from the CA data continued to reveal 31 households in legitimate housing need, this was challenged by the NPA on the basis that key information about the personal financial circumstances of some respondents was missing from the CA survey, casting some doubt upon its conclusions."

43. Mr Kolinsky is correct. The inspector is comparing one approach with another not saying that CRHT and NPA sought to do the same thing. One also has to set out paragraph 17, in which the inspector says this:

"Having taken into account all that I have read and heard I conclude that the survey results showing those persons in genuine housing need in Staveley parish recorded by the CRH team in May 2005 can be relied upon with greater confidence from those identified by the CA survey."

44. There is a danger of reading these paragraphs like passages in a statute and, as the law reminds us, that is not the way to examine inspectors' decisions. Those particular criticisms need to be seen in the context of what is an overall evaluation of everything that the inspector has seen and heard in reaching a conclusion. That conclusion is no more than that he has greater confidence in one survey than in the other. I, therefore, do not consider that there is anything in that complaint.
45. I will, however, continue to bear the criticisms in mind, given that it is Miss Thomas' case that there is a series of errors here that are cumulative and which taken together undermine confidence in the legal integrity of the inspector's decision.
46. The next matter of which complaint is made is again related to paragraphs 13 and 16 in the decision letter. The claimant points out that the inspector states that the August 2004 CRHT report was rigorously tested against the emerging SPD components of housing need and the final estimate was recorded in May 2005 as being 17 households in need. It is submitted that this is an error of fact because the SPD consultation was not published until 30th September 2005 and, therefore, the three SPD components could not have been applied to the CRHT data. It is submitted that this material error has led the inspector to give misplaced weight to the CRHT survey and it is said there is a real possibility that he would have given less weight to that survey if he had not made that error.
47. The response on behalf of the Secretary of State is that the inspector's decision specifically refers at paragraph 11 to evidence given at the inquiry of the emerging methodology SPD had used, "To inform and challenge the survey undertaken by local agencies involved in housing needs survey work", and he points out that paragraph 13 records that the CRHT's conclusions reduced from 44 houses to 17:

"... following the insistence [which I think is the National Park Authority's insistence] of the three components of housing need set out in the emerging SPD should be rigorously applied to the survey results ..."

48. That is what led to the reduction in numbers.
49. It would appear that the component parts of the SPD were indeed available in evolving form some time before publication see, for example, pages 74 and 75 of the bundle. On examination it is clear that the inspector has not made what otherwise would seem to be an obvious error, revealed by the chronology.
50. Another alleged error relied upon is indeed an error. The inspector states in error that the evaluation summary prepared by Mr Coates showed 31 households in genuine need, the evaluation summary in June 2006 showed a higher figure of 35 households in legitimate need. He also states in error that the addendum of Mr Coates confirmed a requirement for 31 units over a period of 2.5 years, whereas it confirmed the requirement as of July 2004 for 33 units within the next five years. It is said that this is an inaccuracy which, combined with all the others, creates a cumulative effect.
51. In my judgment isolated errors of this kind which are scarcely material do not begin to form that pattern one sometimes sees of a series of small mistake that can gradually erode and then destroy confidence in the judgments formed by the decision maker. The fundamentals of the inspectors conclusions are not affected by these minor arithmetical error. These are simply not serious enough, bearing in mind the status of the document I am concerned with and the nature of the exercise which the inspector was doing.
52. Finally, the claimant submits that there has been a failure by the inspector to deal with key evidence, and that arises from the second of the two main issues in paragraph 6, which was whether or not the proposed development would harm the character or appearance of the area.
53. In this inquiry the interested party, the Authority, did not call a landscape witness but relied instead on its reply to consultation. That reply to consultation took the form of a memorandum from Chris Green of the Lake District National Park Authority which he takes a benevolent view of that issue, as one can see from his conclusion and the paragraph preceding it. These read as follows:

"As a mitigating factor the opportunity exists to present a higher quality edge to the village at this location by screening the current commercial/industrial units with buildings of a higher design specification, combined with appropriate screen enhancement and planting. The river provides a natural landscape feature as a logical boundary which could be reinforced with appropriate riverside planting.

"Conclusion. I think it is possible to develop this site without significant adverse landscape impact. The site is exceptionally well contained visually and the retention of the greater part of the field as open space means that there is no significant character change which would result in adverse landscape impacts other than for those living in houses directly opposite. Combined with the opportunities for mitigation measures described above I do not consider that the proposals in principle create the potential for landscape harm [and so on]."

54. The inspector on that issue, says this, in paragraph 23:

"I recognise that is accepted by the NPA inquiry that if a legitimate housing need is proven in Staveley any landscape harm arising from the site layout shown on the indicative plan for the second planning application would be unlikely to outweigh that identified need. Nevertheless, in the absence of a clearly identified need for significant, affordable housing in the village that could outweigh the harm that I have identified. I consider that the proposal would be sufficiently detrimental to the character and appearance of the site and its immediate surroundings to conflict with Local Planning Policies H5 and H8."

55. Ms Thomas submits that the Authority's landscape architect was, in effect, with the applicant on landscape harm. She criticises the inspector's failure to address that evidence explicitly and evaluate it before reaching the opposite view. Where an inspector is taking a contrary view to that agreed by both parties at the inquiry, for his decision letter to be robust he must deal fully and adequately with the opposing views. It is also submitted that the inspector's objection to the scheme in landscape terms is marginal because he states he agrees in principle that if there was a proven requirement for further local housing needs in Staveley this need could outweigh any harmful effects on the character and appearance of the locality.
56. Against that Mr Kolinsky submits that this issue was essentially one for the inspector, that the inspector's views have to be given the respect which follows from what Sullivan J said in paragraphs 5 to 8 of Newbury. This is a judgment informed by the expertise of the inspector, the evidence he has seen and heard and also his site visit and, in those circumstances, the scope for the court interfering with such a judgment is very limited indeed.
57. In my judgment this claim also fails. When one looks at paragraph 23 it is perfectly clear that the inspector has had regard to the views on this issue expressed by both sides and has then gone on to form, as he was fully entitled to, a view of his own. His conclusions are explicit and clear and are, in my view, in no way vitiated by a slightly inaccurate precis of the position adopted by the Authority. The inspector identifies it nonetheless as being essentially a benevolent view.
58. So for all these reasons this claim fails, essentially because I am not to conducting a rehearsing of a decision. I am required to consider this application under Section 288 of the Town and Country Planning Act 1990 and I have endeavoured to do so applying the requisite criteria.
59. There is one final point. Submissions were made, principally at the outset of this case on paper but to some extent today, based on some paragraphs that appear at the back of the decision between paragraphs 31 and 40. These appear after the list of appearances and documents and are plainly there erroneously. They appear to be a draft or the beginnings of a draft of some observations that the inspector was thinking of making. This is clearly a clerical error, a regrettable one because it necessarily causes confusion and uncertainty for the claimant. Submissions based on material obviously included by mistake to me, should have no place in a hearing of this kind. It happens from time to time that by accident drafts and first thoughts of judgments become public but this material has no standing and should not be referred to. I will hear from counsel about anything else in writing.