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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> St Albans City and District Council v Secretary of State for Communities And Local Government & Ors [2015] EWHC 655 (Admin) (13 March 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/655.html Cite as: [2015] EWHC 655 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
ST ALBANS CITY AND DISTRICT COUNCIL |
Claimant |
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and – |
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SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT HELIOSLOUGH LIMITED HERTFORDSHIRE COUNTY COUNCIL 4. GOODMAN LOGISTICS DEVELOPMENT (UK) LIMITED and STRiFE LIMITED |
Defendants Interested Party |
____________________
Stephen Whale (instructed by The Treasury Solicitor) for the First Defendant
Martin Kingston QC and David Forsdick QC (instructed by Hogan Lovells) for the Second Defendant
Paul Stinchcombe QC and Ned Helme (instructed by Wayne Leighton LLP) for the Interested Party
Hearing dates: 3rd and 4th February 2015
____________________
Crown Copyright ©
MR JUSTICE HOLGATE:
Background
Green Belt policy
"When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
First Appeal
(i) The need for SRFIs to serve London and the South East was capable of being a very special circumstance clearly outweighing harm;(ii) If it had been demonstrated that no other site would come forward to meet the need for further SRFIs to serve London and the South East that would be satisfied by the appeal proposal, he would have taken the view that the harm to the Green Belt and other harm identified from the proposal would be outweighed by the need to develop a SRFI on the appeal site, and would have recommended the grant of planning permission.
"The Secretary of State considers that the need for SRFIs to serve London and the South East is a material consideration of very considerable weight and, had the appellant demonstrated that there were no other alternative sites for the proposal, this would almost certainly have led her to conclude that this consideration, together with the other benefits she has referred to above were capable of outweighing the harm to the Green Belt and the other harm which she has identified in this case (IR 16.202). However, like the Inspector, she considers the appellant's Alternative Sites Assessment to be materially flawed and its results to be wholly unconvincing (IR 16.203). She considers this failing to be critical. In view of this, she concludes that the appellant has not shown that the need for the proposal or the benefits referred to above constitute other considerations which clearly outweigh the harm to the Green Belt and other harm which this development would cause, and that very special circumstances to justify the development have not been demonstrated."
Second Appeal
Challenge in the High Court to the dismissal of the second appeal
Redetermination of the second appeal
Grounds of challenge
(i) The Secretary of State erred by setting a legal test requiring a "very good reason" to be shown for departing from a conclusion reached in the 2008 Inspector's Report and the 2008 decision letter on the first appeal. In this way the Secretary of State improperly fettered his discretion when determining the second appeal;(ii) The Secretary of State failed to take into account his decision dated 7 July 2014 in which he refused the application by Veolia ES (UK) Limited for planning permission for a waste management facility on a site at New Barnfield, 4 miles away from the Helioslough site.
Relevant legal principles
"(1) If any person –
(a)…….
(b) is aggrieved by any action on the part of the Secretary of State to which this section applied and wishes to question the validity of that action on the grounds –
(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
He may make an application to the High Court under this section.
(2), (3), (4) …..
(5) On any application under this section the High Court –
(a) …..;
(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirement in relation to it, may quash that order or action."
Ground 1
The issue
The King's Cross case
"17. I accept the submission of Mr Hobson, QC, on behalf of the Claimant, that the weight to be attached in any particular case to the desirability of consistency and decision-making, and hence the weight to be attached to the March 2006 resolution, was a matter for the Committee to decide in November 2006. However, given the desirability in principle (to put it no higher) of consistency in decision-making by local planning authorities, Mr Hobson rightly accepted that in practice the Committee in November 2006 would have to have a "good planning reason" for changing its mind. That is simply a reflection of the practical realities. If a local planning authority which has decided only eight months previously, following extensive consultations and very detailed consideration, that planning permission should be granted is unable to give a good and, I would say, a very good planning reason for changing its mind, it will probably face an appeal, at which it will be unsuccessful, following which it may well be ordered to pay costs on the basis that its change of mind (for no good planning reason) was unreasonable.
18. Mr Hobson submits, correctly, that while a material change of circumstances since an earlier decision is capable of being a good reason for a change of mind, it is not the only ground on which a local planning authority may change its mind. A change of mind may be justified even though there has been no change of circumstances whatsoever if the subsequent decision taken considers that a different weight should be given to one or more of the relevant factors, thus causing the balance to be struck against rather than in favour of granting planning permission.
19. An example canvassed during the course of submissions was that of a local planning authority which resolved to grant planning permission for an inappropriate development in the green belt, subject to a section 106 agreement, on the basis that the very special circumstances prayed in aid by the applicant outweighed the harm to the green belt and other harm. On revisiting the matter when the section 106 agreement was finalised, that local planning authority could properly reverse its earlier decision if, on reflection, it considered the harm was not outweighed by the special circumstances. Thus, it was not necessary for the Committee in November 2006 to be satisfied that there had been any material change of circumstances since March 2006. It was entitled to conclude that, having regard to all the circumstances considered in March 2006, a different balance should be struck.
20. Neither the defendant nor the interested party dissented from the proposition that, as a matter of law, there did not need to have been a material change of circumstances in order to justify a different decision in November 2006. A change in circumstances was one of the more obvious reasons which might justify a change of mind by a local planning authority, but it was not the only possible reason."
(i) There did not have to be a material change of circumstance to justify a change of mind on the part of the Council (paragraph 18);(ii) Absent a material change of circumstances a subsequent decision-maker may be justified in reaching a different conclusion because he considers that a different weight should be given to one or more relevant factors, thus resulting in the planning balance being struck in a different way and a different outcome (paragraph 18). The Judge gave a practical example of how such a situation could arise (paragraph 19);
(iii) In view of the "desirability in principle…. of consistency in decision-making by local planning authorities" the Claimant accepted that the Council would have to have a good reason for changing its mind. The Judge added that bearing in mind the "practical realities", namely that a decision to refuse might well lead to a successful appeal to the Secretary of State and an order for costs, the Committee would have to have "in practice" "a very good planning reason" for changing its mind (paragraphs 18 and 26).
The circumstances of the present case
"…the Council has, to a considerable extent, followed the assessment of the Inspector in relation to the degree of impact on the Green Belt and has, accordingly, considered it appropriate to adopt those findings, but not wholly. It has decided that it is appropriate not to agree with Inspector Phillipson on the questions of whether the development will contravene the purpose of preventing settlements from merging with one another."
Could the Secretary of State simply have said "I disagree with the first decision"?
Whether the Council was impeded in presenting its case at the second inquiry
"The Council has the responsibility for the presentation of its own case and whether or not, in the circumstances, its evidence remains within the bounds of reasonableness."
The parties' submissions at the second inquiry on the first appeal decision
(i) A change of mind from the earlier decision would need to be based upon a "good reason";(ii) A "good reason" could be, but was not restricted to, a change of circumstances;
(iii) The decision-maker may have a "good reason" to reach a different decision simply because he takes a different view from the previous decision-maker or decides that the balance should be struck in a different way;
(iv) A new argument, piece of evidence or compelling presentation of evidence could amount to a "good reason"
(v) Thus, there was no principle which limited the Secretary of State to considering whether there had been a change of circumstance since the previous decision. Such an approach would involve an error of law.
Discussion
"13.16 Therefore, following the findings in the Kings Cross Railway Lands Group case, whereas for reasons of consistency I accept that identical cases should be decided alike, I consider that neither I nor the Secretary of State are bound to follow either the conclusions of the previous Inspector or the decision provided that there are very good planning reasons, which are clearly explained, why such disagreement has occurred."
"13.19 Therefore, in my opinion, the Secretary of State may consider that, if there is a very good planning reason, he is able to differ from the conclusions or decision of his predecessor."
The same conclusion also applied to DL 22.
"Therefore, I do not dissent from the previous conclusions of the Secretary of State. Neither it appears from submissions, does the Council, albeit it claims that the effects would be unacceptable."
The Inspector stated that the acceptability or otherwise of the impacts was a matter for the final planning balance. He returned to the subject at IR 13.107 and plainly said that he agreed with the conclusions in the 2008 decision letter "based on the evidence I heard at this inquiry".
"I have no reason to disagree" (IR 13.54)
"there has been no convincing evidence submitted to this inquiry to cause me to come to a different conclusion in relation to areas 3 to 8" (IR 13.105)
"there is no sound reason why I should depart from those views" (IR 13.106)
"I have no reason to disagree with that conclusion (IR 13.110).
The Council's approach between 2010 and 2014 to the 2010 Inspector's report
Ground 2
Points of agreement and disagreement
The obligation to take into account material considerations
(i) There is an important distinction between (1) cases where a possible alternative site is potentially relevant so that a decision-maker does not err in law if he has regard to it and (2) cases where an alternative is necessarily relevant so that he errs in law by failing to have regard to it (paragraph 17);
(ii) Following CREEDNZ [1981] 1 NZLR 172, 182; Re Findlay [1985] AC 318, 333-4; and R (National Association of Health Stores v Secretary of State for Health) [2005] EWCA Civ 154, in the second category of cases the issue depends upon statutory construction or upon whether it can be shown that the decision-maker acted irrationally by failing to take alternative sites into account. As to statutory construction, it is necessary to show that planning legislation either expressly requires alternative sites to be taken into account, or impliedly does so because that is "so obviously material" to a decision on a particular project that a failure to consider alternative sites directly would not accord with the intention of the legislation (paragraphs 25-28 and Lord Scarman in Re Findlay at [1985] AC 384);
(iii) Planning legislation does not expressly require alternative sites to be taken into account (paragraph 36), but a legal obligation to consider alternatives may arise from the requirements of national or local policy (paragraph 37).
(iv) Otherwise the matter is one for the planning judgment of the decision-maker on the facts of the case (paragraphs 28 and 36). In assessing whether it was irrational for the decision-maker not to have regard to alternative sites, a relevant factor is whether alternatives have been identified and were before the decision-maker (paragraphs 21, 22 and 35) That factor was treated as having "crucial" importance in the circumstances of Secretary of State v Edwards (1995) 68 P. &C.R. 60, in contrast to Derbyshire Dales where no alternatives had been identified and it was simply the possibility of there being alternatives which was said to be material (paragraph 22).
As Carnwath LJ noted, a similar analysis is to be found in Wade: Administrative Law (11th Edition) at pp. 324-325.
(i) the matter was fundamental to the decision; or(ii) "it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision" (emphasis added).
He continued:-
"…if the judge is uncertain whether the matter could have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid" (emphasis added)."
The law on whether a previous planning decision must be taken into account
"In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.
To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case? The areas for possible agreement or disagreement cannot be defined but they would include interpretation of policies, aesthetic judgments and assessment of need. Where there is a disagreement then the inspector must weigh the previous decision and give his reasons for departure from it. These can on occasion be short, for example in the case of disagreement on aesthetics. On other occasions they may have to be elaborate."
The findings in the Veolia decision
The findings in the Helioslough decision
The Claimant's submissions
(i) both involved major public infrastructure schemes the need for which was accepted;
(ii) both were located entirely within the Green Belt, indeed "the same Green Belt area", and were located only 4 miles apart;
(iii) both involved substantial encroachment into the countryside and substantial impacts on the openness of the Green Belt and significant harm to the Green Belt;
(i) The scale of SRFI and the area it occupies is substantially larger than the RERF. The area of the SRFI is about 12 times greater than that of the RERF and has a commensurately greater impact on openness. If the smaller scheme had a sufficient impact on openness to warrant a refusal, then the larger scheme should also have been refused "in terms of this one criteria" (emphasis added). It is also suggested that this one factor could by itself have made a difference to the outcome of the Helioslough appeal;(ii) The same point is made in relation to the overall volume of the SRFI. The volume of the RERF was said to be greater than the volume of the existing development on the New Barnfield site. The SRFI would be located on a site with very little existing development and would have a volume of 6,269,920 cu. m. compared to the 585,000 cu. m. of the RERF;
(iii) Likewise both proposals involved significant encroachment into the countryside and contributed to urban sprawl, but it is said that the sprawl of the RERF is substantially less than that of the SRFI because of the differences in the scale of the two developments and so the same consequences follow as in (i) and (ii) above;
(iv) In the Veolia case it was found that the RERF would occupy a prominent location (IR 729) and that there would be serious harm to the character and appearance of the landscape of the area (IR 777 and IR 1060). The SRFI is similarly located (i.e. gentle ridge and local area of high ground) and if the same approach had been taken in the SRFI decision as in the RERF decision, the Secretary of State would have decided that the impact across the whole site was greater than "moderate adverse";
(v) In the Veolia decision it was said that the scale of the development would be detrimental to the visual perception of the remaining gap between Hatfield and Welham Green and that would be harmful to one of the purposes of the Green Belt, namely to prevent neighbouring settlements merging into one another (DL 21). In the Helioslough decision it was concluded that the proposal would not lead to the merging of neighbouring towns, namely St. Albans merging with Radlett or Park Street and Frogmore merging with Napsbury or London Colney (DL 24 and IR 13.36 to 13.36). However, Mr. Hargreaves says that the gap between settlements to the east and west of the SRFI would be reduced to only 25%, which would be a much greater reduction than in the Veolia proposal and therefore the conclusion in the RERF decision on merger should also have been reached on the SRFI decision;
(vi) In the Veolia application the Secretary of State concluded that although the on-site landscaping proposed, including ground modelling and planting, would partially soften the appearance of the RERF and provide some mitigation by year 15, "it could not be wholly effective in view of the scale and prominent siting of the structure" (DL 24 and IR 777). In the Helioslough decision, the Secretary of State agreed (DL 25) with the conclusions of Inspector Mead (IR 13.41 to 13.44), which were similar to those of Inspector Phillipson (IR 16.14 to 16.22) and the first decision letter (DL 24 to 27). In other words, the mitigation works proposed in areas 3 to 8 would do practically nothing to ameliorate the impact of the built development (located in areas 1 and 2). The improvement in Areas 3 to 8 would not offset harm to the landscape caused by development on Area 1 and the overall impact on the entire site would be moderately adverse. Mr. Hargreaves asserts that the mitigation proposed for the SRFI would be much less effective than that proposed for the RERF and, given the larger scale and volume of the SRFI, "the Secretary of State could have reached a different view on this point had he considered the different approach adopted to the same sort of harm in the New Barnfield RERF decision";
(vii) In the Veolia case there was a "strong waste management case" and no better performing alternative sites and yet the proposal was refused permission, whereas in the SRFI case the need case was accepted as clearly outweighing the harm identified.
Discussion
Fairness
"there is no such thing as a technical breach of material justice….you should not find a breach of natural justice unless there has been substantial prejudice to the applicant as a result of the mistake or error which has been made."
The effect in this case of the quashing of the Veolia decision
Conclusion
Addendum
(i) The Claimant should pay the costs sought by the Second Defendant;(ii) The Claimant should have permission to appeal;
(iii) If the answer to (ii) is no, whether time under CPR 52.4(2) for filing a notice of appeal should be extended to 13 April 2015.
I am grateful for the written submissions which I have carefully considered.
Costs
Permission to appeal
(i) Paragraph 59 clearly states that ground 1 had to be rejected in any event for the reasons already given before reaching paragraphs 60 to 64;(ii) The judgement does not suggest that the ability of the Council to allege the legal error at an earlier point was a reason for rejecting the challenge were the Court to accept that that error had been committed;
(iii) Paragraphs 60 to 64 simply make the point that over the period from 2010 to 2014 the Council's behaviour suggests that it did not read the Inspector's report or the Secretary of State's "decisions" as having laid down a legal test. The Council's letter of 10 November 2011 did not make that point in relation to either the Inspector's report or the costs decision at all.
(i) Unlike the Colnbrook case, it has never been suggested that there was a "strategic" gap policy or issue. Instead, the issue in both the Veolia decision and the Helioslough decision concerned the application of Green Belt policy to the merger of settlements;(ii) Paragraphs 4(a) and (b) simply seek to re-argue the merits and in particular they fail to address one of the key flaws in the Claimant's case (see e.g. paragraphs 113 and 117-119 of the judgment).
(iii) Paragraph 5 of the application is misconceived. Essentially the Council was successful in having the test in Baber applied. The alleged tension between Findlay and Bolton is of no consequence, because the judgment makes it plain that Ground 2 failed applying both tests in the alternative (see paragraphs 101 and 112).
Extension of time
Note 1 I adopt the convention of referring to paragraph numbers in the Inspector’s Report and Secretary of State’s decision letter with the prefixes IR and DL respectively. [Back]