First Secretary of State & Anor v Hammersmatch Properties Ltd [2005] EWCA Civ 1360

[2005] EWCA Civ 1360Case No C1/2005/0510
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION – ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE COLLINS
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 November 2005
Before
LORD JUSTICE PILLLADY JUSTICE SMITHSIR CHRISTOPHER STAUGHTON
Between
THE FIRST SECRETARY OF STATE & ANRAppellantHAMMERSMATCH PROPERTIES LTDRespondents
MR P COPPEL (instructed by Treasury Solicitors) for AppellantsMR R GRIFFITHS QC & MR S WHALE (instructed by Thomas Eggar) for RespondentsHearing Hearing date : 20 October 2005
Judgment
[1]This is an appeal against the judgment of Collins J dated 24 February 2005 by which he quashed a decision of the First Secretary of State (“the Secretary of State”) dated 5 August 2004 following an application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”). The judge ordered that the Secretary of State’s decision be reconsidered in the light of the judgment. The Secretary of State had dismissed an appeal by Hammersmatch Properties Limited (“the respondents”) against a failure by Welwyn Hatfield District Council (“the Council”) to give notice within the prescribed period of a decision on an application for planning permission.[2]The Secretary of State had appointed an inspector to decide the appeal and, having conducted a public local inquiry, the inspector dismissed the appeal and refused planning permission. The Council had opposed the grant of planning permission. They are not represented in these proceedings. The appeal site[3]The appeal site is located within the main employment area of Welwyn Garden City being situated about 650m to the east of the primary retail core of the town centre and the railway and bus stations. The building is part of a much larger complex of industrial and associated office buildings some of which have been redeveloped and some of which are empty. The planning application was for the change of use of about half of a large two-storey building from employment use to use as a health and fitness club. The building is about 75 years old, is said to be functionally obsolescent, and is described by the inspector as an “unattractive, industrial building”. He said that it had been largely empty for about five years and attempts to let it had been unsuccessful. The Secretary of State’s decision[4]The inspector stated that there were two main issues in the case:
“Firstly, whether the proposed development is an appropriate use of employment land, having regard to local planning policies, and secondly, whether there is a need for the proposed development in this location, having regard to the sequential approach to leisure development set out in national and local planning policies.”
[5]Having referred to local planning policies, the inspector set out the relevant provisions of the Hertfordshire County Council Structure Plan Review 1998 and the Welwyn Hatfield District Plan Alteration No.1 1998. He also noted that the review of the local plan is completing its final stages, a panel of the council having accepted the report of an inspector dated 15 July 2004, subject to minor amendments. The inspector stated, and was entitled to state, that he attached considerable weight to the plan review.[6]As to that, the inspector stated:
“In his report, the [local plan] inspector recommended that the Council’s proposed policy EMP3, which said that retail and leisure uses are unacceptable in the designated Employment Areas, be deleted. He replaced this with a modified policy EMP2 which, as well as permitting proposals for Class B use in designated employment areas, subject to certain criteria, added the following paragraph: ‘Proposals for any other uses in the designated employment areas will only be permitted where it can be clearly demonstrated that the existing land or premises are no longer required to meet future employment requirements and business and community needs’. The same criteria also applied. In accepting this change the Council now propose to insert the text, ‘should generally be resisted and’ after, ‘in the designated areas’ and before, ‘will only be permitted’.”
[7]The inspector also considered the draft deposit version of the Structure Plan alterations to be a material consideration. He referred to a proposed new Policy 14 which “… asks District Councils to secure ‘planned regeneration, particularly through redevelopment, including mixed use schemes to make more efficient use of employment land and buildings. Although this plan is not being progressed because of pending Development Framework changes and the emerging Regional Spatial Strategy for the East of England, its policies are a material consideration, not least because they are based on recent studies on employment land requirements.”[8]The inspector then considered the evidence, in considerable detail, in the context of the local planning policies. At paragraph 14, he stated, on the first issue, that “there is an existing surplus of employment land”. He added that when the surplus is taken up, “the District will have to find most of the space for future employment needs by actively recycling its existing employment land …” The inspector referred to policy EMP3 which provides:
“Policy EMP3 – Mixed Use Development Site east of the railway station in Welwyn Garden City. The site within Employment Area EA1 (as defined on the Proposals Map) is identified as an opportunity area for planned regeneration for mixed use development comprising primarily employment, housing, leisure and rail-related uses. Development of the site shall be in accordance with the criteria in Policy EMP2 and other relevant policies of the Plan relating to the uses proposed. Development shall also comply with a Development Brief to be approved by the Council as supplementary planning guidance. The Development Brief shall include the minimum quantum of Class B [business and industrial] floor space to be provided on the site.”
The site has been described as the Chinacorp site. The inspector stated that the policy “not only results in the loss of a sizeable chunk of employment land, significantly reducing any existing surplus, it will also allow new leisure uses such as this closer to Welwyn town centre”.[9]On the employment issue, the inspector concluded:
“15. In any case it seems to me from the wording used that policy 14 of both the Structure Plan and its Review intended any future loss of existing employment land to be identified through the Local Plan process in the same way as the Chinacorp site. This follows the cautious approach the Local Plan Inspector supports. This is what I consider planned regeneration to mean and not the piecemeal redevelopment of parts of individual buildings as proposed here. It is true that the proposal satisfies all of the criteria in policy EMP2 and would itself provide employment. It might also provide the kick-start required to regenerate the complex as a whole. But the level of employment from the proposed change of use would be much lower than if the building was refurbished for business use and a kick-start could also be provided by an imaginative business use scheme. 16. For the above reasons it cannot be said that it has been clearly demonstrated that the existing land or premises is no longer required to meet future employment requirements and business and community needs as required by policy EMP2 of the Local Plan Review. As the proposed change of use would be to Class D2 in the Town and Country Planning (Use Classes) Order, 1987, nor would the proposal comply with policy EMP2 of the currently adopted Local Plan. 17. This leads me to the conclusion on the first issue that the proposed development is not an appropriate use of employment land, having regard to local planning policies.”
[10]On the second issue, the inspector set out the relevant planning polices:
“8. Policy CLT2 of the plan Review states that the preferred location for new leisure facilities is in the District’s two town centres. If there are no suitable sites available at the centres, but there is a clear need for the facility, the Council may consider proposals on a sequential basis in line with Planning Policy Guidance: Town Centres and Retail Developments (PPG6). This would also be subject to certain criteria, including that the facility would not adversely affect the vitality and viability of the two town centres, and that the site is easily accessible by passenger transport, walking and cycling.”
[11]The inspector acknowledged in paragraph 18 that “there is a strong growth in this activity generally and that a demand for further facilities exists in the area”. He accepted that “a facility or facilities could beneficially be located in the north of the District over and above the two existing sites to the south of Welwyn.”[12]Mr Griffiths QC, for the respondents, has referred to the difference between the concept of ‘demand’ and that of ‘need’, which may in some circumstances be important but the inspector’s acceptance that “a facility or facilities” would be beneficial amounts, in planning terms in this context, to a finding of need.[13]Having referred to the possibility of a swimming pool, as to which he stated that the residents of Welwyn were disadvantaged, the inspector added:
“The appeal site is 150m outside of the 500m walking distance set out in Appendix A of Planning Policy Guidance: Town Centres and Retail Developments (PPG6) and it was conceded that it is therefore an out of centre site using the sequential approach. The appellant has not identified any suitable alternative sites in the town centre or edge of centre locations, but The Local Plan Review Inspector has identified possible options for sites or leisure use in both.”
[14]The present inspector, following the lead of the local plan review inspector, identified possible sites in the town centre. The inspector referred to the site of Oaklands College which is proposing to move to an out-of-town site. He considered the timing of the move and the need for finance. He referred to the adjacent Campus site, which he stated “could not be discounted at this stage”, and to the Chinacorp site, and to the possibility of first floor sites over the existing shops (though not for a swimming pool). He stated:
“In the light of this I do not see why part, or the entire [Chinacorp] site should not become available within a reasonable amount of time. This being so I see no reason why it, or one of the other sites I have listed in the more sequential preferable locations should not be used for a Health and Fitness Club in preference to the appeal site.”
The inspector stated that the appeal site was not a “preferred” location for a leisure facility.[15]The inspector’s conclusion, at paragraph 26, was:
“In the circumstances, I have come to the conclusion on the second issue that there is not a need for the proposed development in this location, having regard to the sequential approach to leisure development, set out in national and local planning policies.”
[16]The Secretary of State submitted to the judge a detailed statement from the inspector supporting and explaining his decision. The parties have not asked the members of the court to read it and we have not done so and have no regard to it. A decision letter should generally stand, or fall, on its own wording and merits.[17]The inspector correctly and logically considered, first, the perceived need to retain existing employment land for future employment purposes. He considered the proposed change of use, the demand for health and fitness facilities and the suitability of the site in the light of planning policies, for those facilities. He considered other sites which might meet that demand. The judgment below[18]The judge considered the issues in reverse order. Having noted the inspector’s acceptance that “a facility or facilities could beneficially be located in the north of the district”, he stated:
“In any event, it is apparent that nowadays there is a much greater and growing emphasis on the need for exercise and fitness and clubs such as the one proposed are more and more popular. I note that a welfare centre has recently been constructed in the Royal Courts of Justice for those who wish to have access to such a facility in the building.”
[19]The judge accepted that the Chinacorp site could “properly be regarded as a possible alternative” but added that since the inspector had “accepted a need for more than one facility, there was a need for more than the Chinacorp alternative”. Having referred to the other two possibilities mentioned by the inspector, the judge stated:
“He [the inspector] could not in my view have reasonably concluded, as he had to do in the light of his findings on need, that more than one of the sites was capable of providing a suitable alternative.”
The judge stated that he regarded the inspector’s finding that the appeal site was not “a preferred location for a leisure facility and would not comply with Policy CLT2” as “plainly wrong”.[20]As to the retention of the site as employment land, the judge noted that it had proved impossible to attract business tenants to the building and stated:
“The inspector’s conclusion that the proposed development was not an appropriate use of employment land, having regard to local planning policies, is not justified by the reasons he gives nor by the evidence put before him.”

The judge stated his general conclusion:

“It is in truth difficult to see how on the material before him and having regard to the unimpugned findings he made, the inspector could reasonably have decided that permission should not be granted. But all I can do is to quash his decision and remit the case for reconsideration in the light of this judgment.”
[22]When refusing permission to appeal, the judge stated that he had formed the view “that this inspector got it hopelessly wrong”. The judge could not see “any good reasons” why planning permission should not be granted. Submissions[23]Mr Griffiths seeks to uphold the reasoning of the judge. He submits that the decision of the inspector was irrational. He refers to the inspector’s use of the expression “a facility or facilities” in paragraph 18 and submits that it amounts to a finding that more than one health and leisure centre is needed. Mr Griffiths regards that as crucial to his case. Reference is also made to the possibility of the provision on the appeal site for a swimming pool, though it is not included in the present planning application.[24]Though the point was not in my view necessarily crucial to the outcome of the case, I do not accept that the inspector was making a finding of fact that at least two health and fitness centres were needed. I doubt whether that was what the inspector meant. In ordinary language a reference to the availability of leisure facilities, for example in a place of employment, does not necessarily mean that there is more than one location on site where such facilities are available. The word ordinarily describes the use rather than the location. Even if location was in mind, the extent of the required provision will depend on the floor area devoted to it rather than the number of places where that floor area is located.[25]Stress is placed on behalf of the respondents on the uncertainty of the availability of the site of Oaklands College. The evidence from the college’s advisers was that the present site is unlikely to be available for alternative development for some time. The new college may not be opened until at least September 2009. Support with funding was also required. Discussion[26]Because of the judge’s comments, it has been necessary to cite the decision letter, which was a detailed one, at some length. I would analyse the situation as follows:(a) Where land is designated in the development plan for employment use, its retention for future employment needs is a legitimate planning consideration.(b) There is also a demand (and a need) for health and fitness facilities but, not only is the extent of the need not quantified, there is no suggestion in the planning policies that it overrides the need to keep land for future employment use.(c) There is a specific planning policy, EM3, for mixed use development on the Chinacorp site. The site is 16 hectares in extent, a large one in this context. It is identified as an opportunity area for planned (as distinct from piecemeal) regeneration for mixed use development, including for leisure purposes. That will meet, or at least partly meet, the need and, as a town centre site, will best meet the policies in PPG6 and CLT2.(d) The inspector has also identified other town centre sites where the need, or part of it, could be met. While there is ample room for argument as to whether and when the need can be met on those sites, it is not irrational to regard them as possibilities. As with the Chinacorp site, they are possibilities which, in PPG6 terms, are preferable to the appeal site. With respect to Oaklands, the inspector stated that he had considered the time scale.(e) Paragraph 1.9 of PPG6 provides that “if a developer is proposing an out-of-centre development the onus will be on the developer to demonstrate that he has thoroughly assessed all potential town centre options.”[27]The appeal site was in a designated employment area. The retention of land in such an area for future use as employment land was plainly a material consideration by virtue of the local plan. The weight to be given to it was for the inspector, as the decision maker, to decide. He was entitled to make the reference he did to piecemeal redevelopment. The inspector could legitimately conclude that the site should be retained to meet future employment requirements and business and community needs.[28]As to the suitability of the site for the alternative proposed, it was a legitimate conclusion, at paragraph 24, that the site would not meet the objective of sustaining and enhancing the vitality and viability of the town centre. Points can fairly be made about the lack of availability of the alternative sites identified but the possibility that better sites, in terms of the guidance in PPG6, in addition to Chinacorp, may become available, was a legitimate planning consideration.[29]The inspector was not obliged to regard the demand for health and leisure facilities as an overriding consideration. It was for him to have regard to material planning considerations, which included a policy in relation to employment land. Indeed, by virtue of Section 54A of the 1990 Act, the inspector was obliged to make a determination in accordance with the development plan unless material considerations indicated otherwise. Subject to that limitation, the inspector could attach such weight to the requirement for employment land and to the demand for health and leisure facilities, as he saw fit, including having regard to the suitability of the appeal site, in the light of planning policies, for that purpose and the possibility of other and better sites becoming available. Conclusion[30]In those circumstances, I can find nothing irrational in the inspector’s conclusions and decision. He found that the proposed development was not an appropriate use of employment land. The manner in which he has expressed his other conclusion, at paragraph 26, may be open to criticism by reason of its brevity but it is clear from the preceding paragraphs that he considered the need for the proposed development “in this location” (my emphasis). He was striking a balance between what he had perceived as a need, though a need capable of being met elsewhere, for health and leisure facilities, with the policy of retaining the land as employment land. The question was whether the policies as to employment land were outweighed by the beneficial effect of the provision now, and on this particular site, of health and fitness facilities.[31]I do see the attractions of permitting a use for which there is a demand in an unused and obsolescent building but, in the light of the relevant planning policies, there was clear justification for the inspector, as planning authority, reaching the conclusion he did.[32]The judge has in my judgment entered the arena of planning merits and has thereby exceeded his powers. In R v Secretary State for the Home Dept ex parte Hindley [1998] QB 751, Lord Bingham CJ stated, at page 777A :
“The threshold of irrationality for purposes of judicial review is a high one. This is because responsibility for making the relevant decision rests with another party and not with the court. It is not enough that [the court] might, if the responsibility for making the relevant decision rested with [it], make a decision different from that of the appointed decision-maker. To justify intervention by the court, the decision under challenge must fall outside the bounds of any decision open to a reasonable decision-maker.”
The same test is appropriate upon an application under section 288 of the 1990 Act.[33]Planning judgments are for planning authorities and not the courts. In my judgment, the decision of the Secretary of State cannot be impugned. Facts were found and a legitimate planning judgment applied to them in the context of the relevant planning policies. I would allow the appeal.

LADY JUSTICE SMITH:

[34]I agree with the judgment of Pill LJ and add a few words of my own only because I have some sympathy with the views of the judge below.[35]In my view, save in one small respect, the inspector’s reasoning cannot be faulted. I have real doubt about whether some of the other sites in Welwyn which the inspector thought were suitable for leisure development could be regarded as a reasonable alternative to the site under consideration. For example, the Oaklands site might never become available and, if it does, it will not be vacant for about five years. However, if the inspector fell into error in that respect, it was not a material error because it is common ground that the Chinacorp site (which the Council has designated as a mixed development site) does provide a reasonable alternative for leisure development. So the inspector was entitled to find, as he did, that there was not a need for this health club development at the proposed site.[36]The judge below held that the inspector’s conclusions were clearly wrong and, like Pill LJ, I do not agree that they were. It seems to me that the judge allowed his personal view of the merits of this application to affect his analysis of the legal position. I think that he thought that this health club facility would be a good thing for the people of Welwyn. I have sympathy with that view. It seems to me to be a pity that the opportunity for the provision of a health club facility with a swimming pool should be lost, just because the proposed site is in a part of the town which is designated for employment purposes rather than leisure purposes. A health club would be an appropriate facility to provide in an employment area; it would be available for people working in the area before and after work; it would not be so far from the town centre as to discourage people from any part of the town from making use of it. The loss of land for employment purposes would be slight. In short, there were many positive aspects to the proposal and very little harm would be done in planning terms if it were allowed. That is a personal view, which I share with the judge. However, it is irrelevant in the present proceedings. The judicial role is to examine the lawfulness and reasonableness of the inspector’s decision. I can detect no error in the inspector’s reasoning and would therefore allow the appeal.

SIR CHRISTOPHER STAUGHTON:

[37]In his appeal decision the inspector, David Tester, said this of the building in dispute:
“The unattractive, industrial building is about 75 years old and said to be functionally obsolescent. It has been largely empty for about 5 years and unsuccessful attempts have been made to let it for the whole of this period…I agree that without refurbishment the building is unlikely to be let before the current lease expires in 2009.”
[38]Nevertheless the building is designated as employment land. There is an existing surplus of employment land in Welwyn Garden City.[39]The inspector considered the proposed Health and Fitness Club as conflicting with the town centre and leisure policies of the development plan. He said that even though there has been no local survey it is clear that there is a strong growth in this activity and that a demand for further facilities exists in the area. He added:
“I accept that a facility or facilities could beneficially be located in the north of the district over and above the two existing sites to the south of Welwyn.”
The appellant had pointed to the need for a swimming pool in Welwyn, identified by the Local Plan Inspector.[40]If I were the planning authority, I would stop preserving the Vospor building as a useless object until at some unknown but distant future date it is again required as employment land. I would allow the building, or rather part of it, to be used to meet the present need of today for health and fitness land. That was what the judge evidently had in mind. I suspect that it was what the people of Welwyn Garden City wanted, or some of them. However, I am not the planning authority, and neither is the judge. I have to follow the decision of Lord Justice Pill and Lady Justice Smith, and allow the appeal.

Cited in 2 later judgments