QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ELIZABETH ELEY
|- and -
(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) WATFORD BOROUGH COUNCIL
(3) VISAO LIMITED
Richard Kimblin (instructed by The Treasury Solicitor) for the First Defendant
The Second Defendant did not appear and was not represented
The Third Defendant was represented by its Managing Director Mr Innes Gray
Hearing dates: 2-3 February 2009
Crown Copyright ©
Mr Justice Wyn Williams :
"In this regard it is not considered necessary to add to the conclusions set out in the submitted Phase 1 Ecology Assessment which concluded that the site is not considered to be of high intrinsic ecological value given the lack of suitable habitat within the site. A phase 2 survey could be secured by way of planning condition and in any case the developer would have to have regard to protection set out under non-planning legislation, specifically the Wildlife and Countryside Act 1991 and the Habitats Regulations 1994."
In paragraph 7 under the heading 'Creeping development' the consultant stated:-
"It is alleged that the developer is deliberately phasing the development relative to land immediately east of the application site (land rear of 263-267 Gammons Lane) in order to avoid contributing towards affordable housing. This is simply not the case as the Applicant has no control over this neighbouring land and it would therefore be wholly unreasonable for it to be suggested that deliberate phasing is taking place. In any case the current threshold for affordable housing remains 25 dwellings or more and it is not considered that an additional 14 plus units could be achieved on this neighbouring land."
"The application was referred to Council's Conservation and Development officer who provided the following comments:
On visiting the above site I noted an outlier badger sett on the southern edge of the garden of 273 Gammons Lane. It is right in the corner, almost on the boundary of 271 Gammons Lane. In addition, there appears to be a badger run along the entire southern edge of the proposed development…… The fact that the badgers use this corridor on a regular basis and have a small ("outlier") sett here means that I recommend that the integrity of the corridor is protected within the development.
I also recommend that further surveys are undertaken, specifically to confirm the presence of badgers, ……."
"……… the general location of the proposed development and its boundary. This plan should show two named roads so as to assist the location of the appeal site or premises. The application site should be edged or shaded in red and any other adjoining land owned or controlled by the Appellant (if any) edged or shaded in blue."
"ELMAW Consulting are currently undertaking a badger impact assessment at Gammons Road, Watford; it was confirmed by ELMAW Consulting that a single entrance hole outlier badger sett was present in the rear garden of no. 273, Gammons Road and therefore an impact assessment has been commissioned to evaluate the impact the proposed development may have upon badgers and their sett in respect to their legally protected status and welfare".
The letter then went on to describe various aspects of the assessment which was being undertaken and concluded:
"Once we have identified the main sett and confirmed the functionality of the existing outlier sett and use of the rear gardens of the properties proposed for the development by the badgers, we will be in a position to advise what impacts the development may have upon badger functionality and their outlier sett, and what mitigation measures are necessary to protect both the badgers and their sett in compliance with The Protection of Badgers Act 1992."
"Finally in respect of Badgers the survey work on site with camera has now been completed. Our consultant is awaiting further records from the local Badger Group (should arrive within a week), but is already able to conclude categorically that the sett on site is an outlier only occasionally visited (NOT a main sett). Furthermore whilst the sett could be closed, he believes it can actually be retained in its current position and a simple corridor for Badgers to travel to the main sett introduced (typically 1 metre wide). This will be at the end of the gardens as the sett is located at the southern boundary. Therefore a condition could require this corridor be introduced. There is in conclusion no impact on the Badgers or the development. Of course the mature tree screen predominantly in the rear gardens of the houses in Ridge Lane on the sloping bank also already assists movement of the badgers in any case. A formal report by the consultant will be produced in about 2 to 3 weeks time as soon as the records are forthcoming from the local Badger group."
"Appeal Inspectors site visit – interim findings of ELMAW Consulting offered to Appeal Inspector. Appeal Inspector checks with Watford Planning Case Officer at site visit his opinion (officer not concerned since submitted after 9WK). Inspector concludes there was no firm evidence of Badger activity submitted by 'either party' prior to 9 week deadline and accepting interim letter would not give 3rd party opportunity to comment. Commenting, "In any event planning permission granted on the site would not override the statutory protection afforded to badgers under other legislations".
No evidence has been adduced before me to suggest that Mr Gray's summary is in any sense inaccurate. By a decision dated 13 February 2008 and received by the Third Defendant on 16 February 2008 the Inspector allowed the Third Defendant's appeal against the Second Defendant's refusal of planning permission. In relation to the issues of badgers upon the site the Inspector said:-
"17. Although a number of Badger sightings have been reported by adjoining residents, and a suspected sett was identified by the Council, there is no conclusive evidence that the latter is now used by badgers, if indeed it ever was. The appellant's survey suggests not, and there is no firm contrary evidence or any objection from any other accredited body. But in any event any planning permission granted on the site would not override the statutory protection afforded to badgers under other legislation.
18. Whilst I accept that the wooded area along the site's southern boundary provides a potential movement corridor not only for badger but also for other kinds of wildlife, the embankment where the tree cover is heaviest is outside the appeal site and most of the habitat that this area offers would remain. In the circumstances, I conclude there is insufficient evidence of any adverse effect on wildlife to justify a refusal of planning permission."
Relevant Primary Legislation
"(a) for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission;"
Section 78 of the 1990 Act creates a right of appeal in respect of a refusal by a local planning authority of an application for planning permission. Such an appeal is made to the First Defendant and it must be made by notice in prescribed form and within a prescribed period. The First Defendant's powers upon an appeal are contained within section 79 of the 1990 Act. Sub-section (1) reads:-
"(1) On an appeal under section 78 the Secretary of State may–
(a) allow or dismiss the appeal, or
(b) reverse or vary any part of the decision of the local planning authority (whether the appeal relates to that part of it or not),
and may deal with the application as if it had been made to him in the first instance."
"(1) Any person duly authorised in writing by the Secretary of State or by a local planning authority may at any reasonable time enter any land for the purpose of surveying it in connection with–
(b) any application under Part III…………."
The sections identified in the preceding paragraph all fall within part III of the 1990 Act.
The Written Representations Procedure
"The Secretary of State may disregard further information from the appellant and the local planning authority which was not submitted within 9 weeks of the starting date unless that further information has been requested by him."
The Alleged Obligation of Disclosure
"……….. The omission from the Rules of any duty of disclosure in the absence of a formal discovery order must, we agree, be presumed to have been deliberate. Nevertheless, the freedom of a party to keep documents up his sleeve must be subject to some limitation to prevent it from being abused as an instrument of fraud or oppression……. We therefore accept the general proposition that no party is under any obligation, in the absence of an order from the [Employment Tribunal] to give discovery in the Tribunal proceedings. That is subject, however, to the important qualification that any party who chooses to make voluntary discovery of any document in his possession or power must not be unfairly selective in his disclosure. Once, that is to say, a party has disclosed certain documents (whether they appear to him to support his case or for any other reason) it becomes his duty not to withhold from disclosure any further documents in his possession or power (regardless of whether they support his case or not) if there is any risk that the effect of withholding them might be to convey to his opponent or to the Tribunal a false or misleading impression as to the true nature purport or effect of any disclosed document………"
Material Factual Errors
"63. In our view, [R v Criminal Injuries Compensation Board exp A  2 AC 330] points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between "ignorance of fact" and "unfairness" as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that "objectively" there was unfairness. On analysis, the "unfairness" arose from the combination of five factors: (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was "established", in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the Claimant could not fairly be held responsible for the error; (iv) although there was no duty on the Board itself, or the police, to do the Claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning.
64. If that is the correct analysis, then it provides a convincing explanation of the cases where decisions had been set aside on grounds of mistake of fact. Although planning inquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his Inspector, in ensuring that development control is carried out on the correct factual basis……..
65. The apparent unfairness in the Criminal Injuries Compensation Board case  2 AC 330 was accentuated because the police had in their possession the relevant information and failed to produce it. But, as we read the speeches, "fault" on their part was not essential to the reasoning of the House. What mattered was that, because of their failure, and through no fault on her own, the Claimant had not had "a fair crack of the whip". ………
66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
Application of these principles in this case
a) The Badgers Issue
b) Ownership/control of additional land
"It is alleged that the developer is deliberately phasing the development relative to land immediately east of the application site (land at rear of 263-267 Gammons Lane) in order to avoid contributing towards affordable housing. This is simply not the case as the applicant has no control of the neighbouring land and it would therefore be wholly unreasonable for it to be suggested that deliberate phasing is taking place. In any case the current threshold for affordable housing remains 25 dwellings or more and it is not considered that an additional 14 plus units could be achieved on this neighbouring land."
It seems to me that what the Third Defendant's consultant was doing in this part of the letter was (a) asserting that the Third Defendant had no control of the neighbouring land, (b) suggesting, therefore, that the Third Defendant was not deliberately phasing the development and (c) asserting that even if further development was possible the relevant threshold which would trigger the need for the provision of affordable houses could not be met on the neighbouring land taken in conjunction with the appeal site.