Arrowcroft Group Plc v First Secretary of State [2003] EWHC 1067 (Admin)

Case No CO/5971/2002[2003] EWHC 1067 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 16 April 2003
Strand
London, WC2
B E F O R E:
RABINDER SINGH QC
(Sitting as a Deputy Judge of the High Court)
Between
ARROWCROFT GROUP PLCClaimant-v-
Between
FIRST SECRETARY OF STATEDefendantTAMESIDE BOROUGH COUNCILInterested PartyFAIRFIELD GOLF & SAILING CLUBInterested Party
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MS F PATTERSON QC, MR C CRAWFORD (at hearing) AND MR M CARTER (at judgment)(instructed by DLA, Leeds LS1 4BY) appeared for Arrowcroft GroupMS N LIEVEN (at hearing) AND MR J LITTON (on judgment)(instructed by the Treasury Solicitor, London SW1H 9JS) appeared for First Secretary of StateMR J FINDLAY (instructed BY Denton Wilde Sapte, London EC4M 7WS) appeared for Fairfield Golf & Sailing ClubMR OWEN (at hearing) AND MISS S HANIF (at judgment)(instructed by Sharpe Pritchard, London WC1V 6HG) appeared for Tameside
J U D G M E N T(Approved by the Court)
Crown Copyright©Wednesday, 16 April 2003
[1]THE DEPUTY JUDGE: This is an application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision letter by the defendant dated 14 November 2002 in relation to a site at Waterside Park, Audenshaw, which lies in the administrative area of Tameside Borough Council ("Tameside"), which is the relevant local planning authority.[2]At the hearing of this application I had the benefit of submissions not only by Ms Patterson QC, who appeared for the claimant, and Ms Lieven, who appeared for the defendant, but also by Mr Owen, who appeared for Tameside in support of the claimant's submissions, and by Mr Findlay, who appeared for Fairfield Golf and Sailing Club, an interested party, in support of the defendant's submissions. I am indebted to them all.[3]At the beginning of the hearing I also had before me an application by Mr Owen on behalf of Tameside for permission to file evidence and to make representations at the hearing. That application was supported by a witness statement by Mr Alan Keith Davy dated 7 March 2003. It seems to me at first blush that there was no need for Tameside to make the application since it was served with the claim form as it had to be under Order 94 rule 2(2)(d), as preserved by schedule 1 to the Civil Procedure Rules. However, since the application was made for the avoidance of doubt and since there was no objection to it by the other parties I readily granted permission. Factual background[4]In September 1996 Tameside adopted its development plan, the Tameside Unitary Development Plan ("UDP"). The UDP, as one would expect, had been some years in its gestation and there had been a UDP Inquiry in 1994. The UDP included a site-specific policy DEN1 which related to Waterside Park. It would be appropriate for me to set out the terms of certain of the policies in the UDP at this stage. Policy DEN1, so far as material, reads as follows:
"Land north of Manchester Road, east of Gorton Upper Reservoir, south of the Manchester to Guide Bridge railway and west of the proposed M66 motorway extension, comprising Denton and Fairfield Golf Courses, the Audenshaw Road NWW depot and tip, and the section of Audenshaw No 3 Reservoir west of the line of the M66, to be developed for business park, housing, golf course and public open space purposes, in accordance with the principles listed below."
There are then listed a number of principles by letter and I need read only principle (h). "An 18 hole golf course (and club house) of at least equivalent quality to the existing Denton Golf Course to be retained/re-created on around 45 hectares of the western part of the site, as shown generally on the Proposals Map." I should also refer to policy L3 which, so far as material, reads as follows:
"The loss or damage as a direct result of development, of land and facilities laid out and used for recreation and leisure purposes should be kept to a minimum. ..."
Finally in relation to specific policies I will read policy L12:
"The Council will normally oppose the release of existing children's playgrounds, laid out informal playspaces, sports pitches, education establishments' playing fields, recognised and established informal public open spaces or parks for development. ..."
Before leaving the terms of the UDP I should note that there were also a number of general objectives set out in the UDP and since considerable emphasis was placed on them by Ms Patterson it is right that I should note that they are there. I will read only briefly to give a flavour of those themes and objectives for the plan. "5.1. Objectives must be established for the UDP which relate directly to the particular circumstances, problems and potential of the Borough at this time, taking into account the Government's Strategic Guidance and the existing Council policies, and which bind together as a cohesive overall strategy. These objectives can be grouped into four broad themes as shown below:
" There then followed lettered headings (a) to (d) setting out the four broad themes. Finally paragraphs 6.1 and 6.3, which are headed UDP Policies Explanatory Note, state as follows: "6.1 The policies and proposals in this Plan, whether in Part 1 or Part 2, are not intended to operate independently or exclusively of each other. Whilst in some instances only a single reference to the Plan may be required in relation to a particular situation, in many cases two or more policies will be relevant. ... 6.3. Where more than one policy is material to the case, a scheme should as far as possible try to achieve consistency with each of these. Where conflict arises between policies, the relative weight to be given to each will need to be judged in the light of the overall objectives of the Plan and the particular circumstances involved."
[5]In 1998 an application was made by the claimant to Tameside for planning permission for development at Waterside Park. The application was for provision of a 25.5-hectare business park, 7 hectares of housing, a 45-hectare golf course, 12 hectares of open space, 7 hectares of private recreational area, a public house, a restaurant and retail and leisure services.[6]On 22 September 1998 the government office for the North West served a holding direction under Article 14 of the Town and Country Planning (General Development Procedure) Order 1995, instructing Tameside not to grant permission until the direction was removed, in order to allow the defendant to decide whether to call in the application.[7]On 30 September 1998 advice was given to the defendant by his officials that he should not call in the application.[8]However, on 2 February 1999 the defendant did call in the application by a direction made under section 77 of the 1990 Act. The reason for calling it in was "because of its possible implications for open space provision in Greater Manchester".[9]In the meantime, in January 1999, the application had been considered by Tameside, which had resolved to support the application.[10]On various dates between 6 July 1999 and 17 December 1999 a public inquiry was held into the application by an Inspector appointed by the defendant.[11]On 15 May 2000 the Inspector issued his report to the defendant. It extends to 126 pages excluding the lists of appearances and documents at the inquiry. The Inspector recommended that planning permission should be granted. Although because of its length it would not be appropriate for me to cite extensively from the Inspector's report I draw attention to it and in particular to section 9 in which were set out the Inspector's conclusions on relevant issues at the inquiry and his overall conclusions to the effect that permission should be granted.[12]However, on 30 November 2000 the defendant refused planning permission. That decision was the subject of proceedings in this court and by consent it was quashed by an order dated 1 November 2001 and sealed on 27 November 2001. It is not necessary for me to recite the reasons in the schedule to that order why the decision was quashed by consent, but I draw attention to them at Tab 11, page 210 of Volume 1 of the court bundle.[13]On 14 March 2002 the defendant sent a letter to the parties inviting representations on various matters. Paragraph 3 reads:
"Having regard to the judgment of the Court and the evidence available to the Secretary of State at present, he wishes to invite representations on the following matters: (a) whether the environmental information provided in support of the planning application met the requirements of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, whether it was properly advertised and, if not, whether any interested party was prejudiced; (b) whether the housing element of the scheme conforms with Planning Policy Guidance Note 3 'Housing' in terms of the density of development, the preference for the re-use of previously developed land and car parking standards; (c) the inclusion of Waterside Park in the North West Development Agency's Regional Strategic Sites Consultation Draft and the weight that should be attributed to this; and (d) the conformity of the Waterside Park proposals with the emerging new Regional Planning Guidance. The Secretary of State will also consider representations concerning any material change in circumstances which may have arisen since the original decision was issued, whether or not they pertain to the matters set out above."
[14]On 14 November 2002 the defendant again refused planning permission and it is that decision letter which is the subject of the proceedings before me. Because of its obvious importance to these proceedings I need to set out citations from it at some length. Paragraphs 6 to 13, so far as material, read as follows: "UDP Policies 6. The Secretary of State has had regard to S 54A of the 1990 Act, which requires him to determine the planning application in line with the policies of the Tameside Unitary Development Plan (UDP) unless material considerations indicate otherwise. He agrees with the Inspector (IR9.2) that the application scheme generally accords with Policy DEN 1 of the UDP. However he also considers that these proposals are inconsistent with some parts of DEN 1 and with other UDP policies in some important respects. He considers that these constitute critical flaws in the application for planning permission. 7. The Secretary of State has taken into account the absence of any provision for the relocation of the Fairfield Golf and Sailing Club, despite the Council's expressed wish in the written justification of policy DEN 1. The Secretary of State has also taken into account the Inspector's finding there was a shortfall in golfing provision in that area. The club, which would be lost, serves a local catchment area and meets social objectives in an area where combating social exclusion is a priority. The club has female and junior sections - both target areas that Sport England would like to see expanded. There is also a link with the Wright Robinson Comprehensive School, which has become a specialist sports college... He disagrees with the Inspector that the objection by Sport England should not carry great weight (IR 9.69) on the grounds that its predecessor organisation did not object to policy DEN 1 at the time of the UDP inquiry due to a misunderstanding that other policies would require the provision of a replacement golf course (IR 8.196). 8. The Secretary of State has also taken into account the requirement of DEN 1(h) that a golf course 'of at least equivalent quality' be provided to replace Denton Golf Club, but notes that the evidence submitted in support of the application that an inferior one might result from the current proposals [sic]. ... 9. He also considers that the proposals are contrary to policies L3 and L12 of the UDP about retaining leisure facilities. He disagrees with the Inspector's view that these policies should carry less weight than DEN 1. In his view these policies set out clear general principles on leisure provision which the current proposals do not meet. He considers that DEN 1 as a whole is consistent with policies L3 and L12 in that there was a requirement for a replacement golf course, but, as noted above these proposals do not make this provision. Housing 10. The Secretary of State has also taken into account other material considerations as well as the development plan. In particular, he agrees with the Inspector that the proposals for housing fail to conform with Planning Policy Guidance note (PPG) 3 'Housing' (9.106-109). PPG 3 expresses a presumption that previously developed sites should be developed before greenfield sites. The Secretary of State considers that the proposal to build half of the houses on land that has not previously been developed is inconsistent with this policy, is a mis-application of PPG 3's sequential search approach, and is a serious flaw in the proposals. 11. The Secretary of State has taken into consideration the Inspector's view that doubt over whether the outline application would conform with PPG 3's advice on residential densities could be overcome by the imposition of a suitable condition (IR 9.109). The Secretary of State is cautious about this approach, but agrees that it may be possible to draft an appropriate condition. However he would also need to be satisfied that the appropriate density would also be accompanied by an acceptable standard of design. 12. The Secretary of State has taken into account the inclusion of Waterside Park in the North West Development Agency's (NWDA) further list of Regional Strategic Sites. He has also taken into account the extent to which the planning application and the NWDA's list conform with the existing and the emerging new Regional Planning Guidance (RPG). He considers that the NWDA's list is premature as the emerging revised RPG is trying to establish a criteria-based approach for the subsequent identification of regional strategic sites. He has also taken into account the fact that the adopted RPG (paragraph 5.10) has a preference for using recycled land for major employment sites. He has also taken into account the sequential approach in Policy DP 1 in the emerging RPG of preferring previously developed land instead of undeveloped land for meeting development needs. By contrast most of the Waterside Park site is not recycled land. He therefore considers that the site's inclusion in the NWDA's list of strategic sites should carry little weight and that the application is inconsistent with RPG's approach to using recycled land for major developments. 13. The Secretary of State agrees with some but not all of the Inspector's conclusions about the suitability of the site for a business park (IR 9.7-9.29). He agrees that the Waterside Park catchment continues to be in need of economic regeneration. (IR 9.12). He agrees that the proposal could generate a large number of jobs (IR 9.23). He accepts the Inspector's finding that many of these jobs would be taken by people who did not live locally, but he has also taken into account the developer's intention to work with the Council to identify steps to secure recruitment, training and employment opportunities for local people. However he does not agree with the Inspector's conclusion in IR 9.27 that developing this large greenfield site would act as a catalyst to bringing other brownfield sites back into use. In his view a development of this scale on a greenfield site could undermine the RPG's strategy of channelling development on to brownfield sites in Greater Manchester. He therefore disagrees with the Inspector's conclusion in IR 9.29 that there are no significant material considerations to weigh against the site's allocation as a business park in Policy DEN 1 of the UDP, even apart from the points about golfing provision and housing policy mentioned above." (My emphasis) I should also read the conclusions of the Secretary of State at paragraph 18 of the decision letter as follows: "18. In conclusion, the Secretary of State is under a duty under S 54A of the 1990 Act to determine this planning application in line [with] the policies of the Tameside UDP unless material considerations indicate otherwise. He considers that the proposal accords with policy DEN 1 in many respects, but fails to accord with this policy in respect of golfing provision. He considers that the proposals are also inconsistent with policies L3 and L12. He considers the housing element of the proposals to be inconsistent with national policy in PPG 3. He considers that the predominantly greenfield nature of the site is inconsistent with the policy of both the adopted and the emerging RPG of locating major employment development on recycled land. Although he agrees that the development could bring many jobs to the area, he considers that it might jeopardise the overall RPG strategy of channelling development on to brownfield sites within the Greater Manchester conurbation. The Secretary of State considers these inconsistencies to be serious flaws in the proposals and hereby refuses planning permission." (My emphasis) That will suffice I hope to outline the factual context in which the present application is made to the court, but later I shall have to set out some more detailed facts in relation to some of the specific issues which are raised. Issues[15]Although the grounds were slightly differently numbered in the claim form, having considered the parties' written and oral submissions, it seems to me that the following seven issues arise in this case:(1) Whether the defendant misdirected himself in law as to the meaning and effect of section 54A of the 1990 Act as amended;(2) Whether the defendant misdirected himself in law as to the meaning and effect of Policy EC6 in the then emerging Regional Policy Guidance Note 13("RPG 13");(3) Whether the defendant complied with the duty to give adequate reasons for his decision;(4) Whether the defendant failed to take into account a material consideration;(5) Whether the defendant's decision was irrational;(6) Whether the defendant breached the rule against bias;(7) Whether the defendant otherwise breached the duty to act fairly. First issue[16]Section 54A of the 1990 Act provides as follows:
"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
[17]In essence the argument on the first issue is encapsulated as follows in paragraph 10 of Ms Patterson's skeleton argument:
"He [the Secretary of State] has failed properly to consider the development plan as [a] whole and to make a proper interpretation of the policies, particularly the site-specific policy DEN1. As a consequence he has failed to consider whether the development proposed in the application before him does or does not accord with the development plan, as required by s54A."
[18]A number of authorities were shown to me in relation to this issue. The first to which I should refer is City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, a decision of the House of Lords on section 18A of the Town and Country Planning (Scotland) Act 1972, as amended, a provision which is identical to section 54A of the 1990 Act. The leading speech was given by Lord Clyde, and the material passage from that speech reads as follows (at pages 1458-1460):
"Section 18A has introduced a priority to be given to the development plan in the determination of planning matters. It applies where regard has to be had to the development plan. ... By virtue of section 18A the development plan is no longer simply one of the material considerations. Its provisions, provided they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is thought to be useful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission. It is distinct from what has been referred to in some of the planning guidance, such as for example in paragraph 15 of ... PPG1 ... as a presumption but what is truly an indication of a policy to be taken into account in decision-making. By virtue of section 18A if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given. Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. ... In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse. Counsel for the Secretary of State suggested in the course of his submissions that in the practical application of the section two distinct stages should be identified. In the first the decision-maker should decide whether the development plan should or should not be accorded its statutory priority; and in the second, if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration. But in my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. In the particular circumstances of the present case the ground on which the reporter [equivalent to the Inspector] decided to make an exception to the development plan was the existence of more recent policy statements which he considered had overtaken the policy in the plan. In such a case as that it may well be appropriate to adopt the two-stage approach suggested by counsel. But even there that should not be taken to be the only proper course. In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to the priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate." (My emphasis) The other members of the Appellate Committee all agreed with Lord Clyde's speech and only Lord Hope of Craighead gave a separate speech of his own. In relation to section 18A of the Scottish Act he said this (at page 1450): "
It is not in doubt that the purpose of the amendment introduced by section 18A was to enhance the status, in this exercise of judgment, of the development plan. It requires to be emphasised, however, that the matter is nevertheless still one of judgment, and that this judgment is to be exercised by the decision-taker. The development plan does not, even with the benefit of section 18A, have absolute authority. The planning authority is not obliged ... 'slavishly to adhere to' it. It is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up-to-date guidance as to the tests which must be satisfied, will continue, as before to be a matter for the planning authority. The presumption which section 18A lays down is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised. The primary responsibility thus lies with the decision-taker. The function of the court is, as before, a limited one. All the court can do is review the decision, as the only grounds on which it may be challenged in terms of the statute are those which section 233(1) of the [Scottish] Act lays down. I do not think that it is helpful in this context, therefore, to regard the presumption in favour of the development plan as a governing or paramount one. The only questions for the court are whether the decision-taker had regard to the presumption, whether the other considerations which he regarded as material were relevant considerations to which he was entitled to have regard and whether, looked at as a whole, his decision was irrational. It would be a mistake to think that the effect of section 18A was to increase the power of the court to intervene in decisions about planning control. That section, like section 26(1) [of the Scottish Act], is addressed primarily to the decision-taker. The function of the court is to see that the decision-taker had regard to the presumption, not to assess whether he gave enough weight to it where there were other material considerations indicating that the determination should not be made in accordance with the development plan." (My emphasis)[19]Ms Patterson emphasised the sentence in Lord Clyde's speech (at page 1459E) where he said that the decision-maker "will also have to consider whether the development proposed... does or does not accord with the development plan." She submitted that this supported her contentions on the first issue. However, the following points should be noted about Lord Clyde's speech. First, any one or more sentences cannot be taken in isolation but must be read in the context of the speech as a whole. Secondly, the speech of any judge, however eminent, is not to be treated as a statute. Thirdly, the tenor of the speech as a whole is, as Lord Clyde said at p 1459H that it is "undesirable to devise any universal prescription for the method to be adopted by the decision-maker..." This is also supported by the speech of Lord Hope in the passages which I have read, which I do not understand to be different in substance from the speech of Lord Clyde, with whom he expressly agreed.[20]The second authority to which I should refer is the decision of Sullivan J in R v Rochdale Metropolitan Council ex parte Milne (2001) 81 P&CR 365 at 375-376:
"Since development plans contain numerous policies, the local planning authority [and where appropriate the Secretary of State] must have regard to those policies (or 'provisions') which are relevant to the application under consideration. The initial judgment as to which policies are relevant is for the local planning authority to make. Inevitably some policies will be more relevant than others, but section 70 [of the 1990 Act] envisages that the Council have regard to all, and not merely to some of the relevant provisions of the development plan. In my judgment, a similar approach should be applied under section 54A. The local planning authority should have regard to the provisions of the development plan as a whole, that is to say, to all of the provisions which are relevant to the application under consideration for the purpose of deciding whether a permission or refusal would be 'in accordance with the plan'. It is not at all unusual for development plan policies to pull in different directions. A proposed development may be in accord with development plan policies which, for example, encourage development for employment purposes, and yet be contrary to policies which seek to protect open countryside. In such cases there may be no clear cut answer to the question: 'is this proposal in accordance with the plan?' The local planning authority has to make a judgment bearing in mind such factors as the importance of the policies which are complied with or infringed, and the extent of compliance or breach." (My emphasis) Sullivan J then proceeded to quote from City of Edinburgh and said at paragraph 50: "
For the purposes of section 54A it is enough that the proposal accords with the development plan considered as a whole. It does not have to accord with each and every policy therein." (My emphasis) The next authority to which I should refer on this issue is the decision of Ouseley J in R (on the application of C) v Camden London Borough Council [2001] EWHC (Admin) 1116 (at paragraphs 162 to 165): "162. There is, in my judgment, a single determination involved in the grant of planning permission subject to conditions; the imposition of particular conditions may itself be a determination in a given case, and certainly conditions and section 106 agreements can affect the 'accordance' of the determination with the development plan. The 'accordance' of this determination has to be 'with the plan'; it is not an accordance with each relevant policy of the plan. The language of section 54A can be contrasted in this respect with the language of the Town and Country Planning (Development Plans and Consultation) (Departures) Directions 1999 which defines a 'departure application' as one 'which does not accord with one or more provisions' of the development plan. The word 'relevant' is obviously implicit. 163. I agree with what Sullivan J said in R v Rochdale MBC ex parte Milne ... at paragraphs 48 to 49, subject to that caveat about the terms of the Departure Directions. ... In the light of that decision I regard as untenable the proposition that if there is a breach of any one policy in a development plan a proposed development cannot be said to be 'in accordance with the plan'. ... 164. It may be necessary for a Council in a case where policies pull in different directions to decide which is the dominant policy: whether one policy compared to another is directly as opposed to tangentially relevant, or should be seen as the one to which the greater weight is required to be given. 165. ... There is a real risk that Mr Wolfe's suggestion that each individual relevant policy had to be examined against the proposal, and the implication that a breach of one necessarily shows a proposal out of accord with the development plan, would impose a legalistic straitjacket upon an appraisal which cannot sensibly be made in such a manner." (My emphasis)[21]The final authority to which I will refer in this context is the decision of Forbes J in the well-known case of SeddonProperties Ltd v Secretary of State for the Environment (Note) (1978) 42 P&CR 26 at 28: "In considering whether or not the Secretary of State has acted contrary to any of these principles the materials on which the court may come to a conclusion are, in general, the inspector's report and the letter of the Secretary of State setting out his decision. In approaching this task it is no part of the court's duty to subject that decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute. Because the letter is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph." (My emphasis)[22]In my judgment the Secretary of State's decision does not on proper analysis disclose any misdirection of law as to the meaning and effect of section 54A of the 1990 Act. First, section 54A is expressly referred to and summarised in both paragraphs 6 and 18 of the decision letter.[23]Secondly, the Secretary of State was not required to follow any one universally prescribed method for carrying out his exercise, which was one of planning judgment (see City of Edinburgh, in particular the speech of Lord Clyde, from which I have already cited). In particular, he was not bound, in my view, to come to a conclusion whether the proposed development was in accordance with the plan as a whole. It is one thing to say that even if there is conflict with a single policy the development may still be in accordance with the plan read as a whole, as Milne and Camden decide. However, it does not follow from that that the decision-maker is always required to answer the question whether even if there is conflict with specific policies there is nevertheless accordance with the plan as a whole. To impose such a rigid approach is to fall into the same kind of error against which the House of Lords warned in City of Edinburgh and which was described by Ouseley J in Camden as a "legalistic straitjacket".[24]Thirdly, the Secretary of State was clearly aware of the general economic policies in the UDP. It hardly needed him to spell them out, although it is notable that he referred at paragraph 18 of his decision letter (in the passage which I have stressed above) to economic regeneration. In any event, as Ms Lieven submitted, the general policies encouraging economic regeneration were reflected in the site-specific policy DEN1. What is not under challenge in this case is the Secretary of State's view that there was less than full compliance with policy DEN1 and that there was conflict with policies L3 and L12.[25]Fourthly and finally, on a fair reading of his decision letter it is clear to me that what the Secretary of State was saying was that in his view there was general conformity with policy DEN1 but not with criterion (h) and that there was inconsistency with policies L3 and L12 in the UDP. He was also saying that there were other material considerations which indicated that planning permission should not be granted. Overall, therefore, he came to the conclusion as a matter of planning judgment that material considerations, including the UDP, indicated to him that planning permission should be refused. In my view his reasoning does not disclose any misdirection as to the meaning and effect of the role which section 54A should play in his reaching that conclusion. The second issue[26]Policy EC6 (Regional Inward Investment Sites) of what was at the material time the emerging RPG 13 read as follows:
"... Such Regional Inward Investment Sites should be fully justified in terms of need and suitability and identified in consultation with the NWRA and GONW. Identification of the sites must advance and support: urban renaissance;" (My emphasis) There then follow a number of other bullet points ending with: "this RPG's Core Development Principles and the Spatial Development Framework. In addition, and in the interests of sustainability, all Regional Inward Investment Sites should be, or be designed to become: well related to existing public transport infrastructure." (My emphasis) There then follow a number of other similar bullet points, then: "and should preferably be located: ... on recycled land ..."
The reference to "Core Development Principles" in that RPG is a reference back to the heading "Core Development Principles" which includes policy DP1, which reads as follows: "Policy DP1 Economy in the Use of Land and Buildings Economy in the use of land and buildings is required. New development and other investment in infrastructure and services should be located so as to make the most effective use of land, promote appropriate mixes of uses within a site and its wider neighbourhood, make efficient use of transport facilities and assist people to meet their needs locally. Local authorities and others should ensure the continual identification and prompt appraisal of vacated land and buildings, make plans and take measures to ensure their speedy redevelopment and re-use. Buildings of very poor quality and little or no scope for re-use should be promptly removed to make way for new uses. Development plans should adopt the following sequential approach to meeting development needs, taking account of local circumstances, the characteristics of particular land uses, and the Spatial Development Framework: (i) the effective use of existing buildings and infrastructure with urban areas, including the re-use or conversion of empty buildings (if they are sound and worthy of re-use, and/or of historic interest) - particularly those which are accessible by way of public transport, walking or cycling; (ii) the use of previously-developed land, particularly that which is accessible by way of public transport, walking or cycling; and then (iii) the development of previously undeveloped land, where this avoids areas of important open space, is well located in relation to houses, jobs and other services and infrastructure and is or can be made accessible by public transport, walking or cycling." (My emphasis) It is important in this context to record that in paragraph 12 of his decision letter the Secretary of State expressly referred to "the sequential approach in policy DP1 in the emerging RPG of preferring previously-developed land instead of undeveloped land for meeting development needs." (My emphasis)[27]The first complaint in this context which Ms Patterson made is set out as follows (in paragraph 16 of her skeleton argument). It reads as follows:
"... the Defendant has misdirected himself as to the meaning of Policy EC6 of emerging RPG ... That policy expresses a preference for Regional Inward Investment Sites to be located on recycled land. It clearly does not make it a requirement, and it is only one of a number of criteria, some of which are expressed as mandatory ('must') and others as directory or desirable characteristics ('should')."
[28]During the course of her reply Ms Patterson accepted that the correct approach which the court should adopt in this kind of context is not to substitute its own interpretation of a planning policy but to consider whether the interpretation which the decision-maker placed on it was reasonably open to him: see the decision of the Court of Appeal in R v Derbyshire County Council ex parte Woods [1997] JPL 998. In my judgment, applying that approach, the Secretary of State did not misdirect himself as to the meaning and effect of Policy EC6 in the emerging RPG 13. First, he correctly noted that the adopted RPG 13 had a "preference" for use of urban land. Secondly, he did not regard Policy DP1 in the emerging core development principles (to which policy EC expressly cross-referred) as imposing any strict requirement. Contrary to Ms Patterson's submission it is clear from the passage in the decision letter at paragraph 12 that he regarded it as imposing a preference. However he was entitled to take the view that the emerging policy was stronger than the adopted RPG 13 and was entitled to take the view that policy DP1 was one of the factors which not only should be taken into account, but "must" be applied, being one of the Core Development Principles which the policy EC6 expressly stated must be applied. Thirdly, it is clear that DP1 requires a sequential approach to be undertaken. Fourthly and finally, the fact that great emphasis was placed on this emerging policy and that allocations in the UDP might have to be reassessed in the light of that emerging policy, emerges clearly from the correspondence which took place between the Government Office for the North West and the North West Development Agency. It would not be appropriate in a judgment of this length to set out the correspondence in full, but I draw attention to that correspondence in September 2001 and following in which, as I read the letters in particular from Mr Keith Barnes on behalf of the Government Office for the North West, it is made clear that the Government Office did not regard the allocations in development plans as being fixed and that they would require possible revision in light of the emerging policy in the RPG.[29]This last point seems to me also to provide the answer to the second complaint made by Ms Patterson under this head, which is set out at paragraph 18 of her skeleton argument:
"The Defendant thus misdirected himself and/or failed to take into account a material consideration and/or acted irrationally in failing to take into account that under the sequential approach to compiling the NWDA list of sites the GONW (as agent for the Defendant) had been consulted and did not object to the inclusion of Waterside Park upon the list of strategic regional sites."
[30]In light of the correspondence to which I have referred in September 2001 and following, it is clear that the Government Office did not in fact regard the inclusion of Waterside Park in that list as being conclusive. That is entirely consistent, in my judgment, with the way in which the Secretary of State approached the matter in his decision letter, in particular at the end of paragraph 12, where he said that "the site's inclusion in the NWDA's list of strategic sites should carry little weight". Read in context, in particular in the context of paragraph 12 as a whole, it seems to me eminently clear that the Secretary of State was saying that the mere fact of the inclusion in that list of strategic sites was not enough to carry the day in contrast with the weight which he in his judgment attached to emerging policy in RPG 13.[31]Accordingly I conclude that the claimant's argument under the second issue also fails. The third issue[32]Where the law imposes a duty to give reasons the test for what will constitute adequate reasons is well-established in public law generally and in planning law in particular. As I understood the arguments, the relevant principles were common ground between the parties.[33]In Save Britain's Heritage v No.1 Poultry Ltd [1991] 1 WLR 153, at 166-167 Lord Bridge of Harwich, giving the leading speech, said this:
"The three criteria suggested in the dictum of Megaw J in In re Poyser and Mills' Arbitration ... are that the reasons should be proper, intelligible and adequate. The application of the first two of these presents no problem. If the reasons given are improper they will reveal some flaw in the decision-making process which will be open to challenge on some ground other than the failure to give reasons. If the reasons given are unintelligible, this will be equivalent to giving no reasons at all. The difficulty arises in determining whether the reasons given are adequate, whether, in the words of Megaw J they deal with the substantial points that have been raised or, in the words of Phillips J in Hope v Secretary of State for the Environment ... enable the reader to know what conclusion the decision-maker has reached on the principal controversial issues. What degree of particularity is required? It is tempting to think that the Court of Appeal or your Lordships' House would be giving helpful guidance by offering a general answer to this question and thereby 'setting the standard' but I feel no doubt that the temptation should be resisted, precisely because the court has no authority to put a gloss on the words of the statute, only to construe them. I do not think one can safely say more in general terms than that the degree of particularity required will depend entirely on the nature of the issues falling for decision. Whatever may be the position in any other legislative context, under the planning legislation, when it comes to deciding in any particular case whether the reasons given are deficient, the question is not to be answered in vacuo. The alleged deficiency will only afford a ground for quashing the decision if the court is satisfied that the interests of the applicant have been substantially prejudiced by it. This reinforces the view I have already expressed that the adequacy of reasons is not to be judged by reference to some abstract standard. There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given. Here again, I disclaim any intention to put a gloss on the statutory provisions by attempting to define or delimit the circumstances in which deficiency of reasons will be capable of causing substantial prejudice, but I should expect that normally such prejudice will arise from one of three causes. First, there will be substantial prejudice to a developer whose application for permission has been refused or to an opponent of development when permission has been granted where the reasons for the decision are so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the Act. Secondly, a developer whose application for permission is refused may be substantially prejudiced where the planning considerations on which the decision is based are not explained sufficiently clearly to enable him reasonably to assess the prospects of succeeding in an application for some alternative form of development [it is particularly that second limb on which Ms Patterson place reliance]..."
[34]I remind myself of what Forbes J said in the passage from Seddon Properties which I have cited above, in particular his reference to the fact that the parties are the recipients of the decision letter and they will be "well aware of all the issues involved and of the arguments deployed at the inquiry" with the consequence that "it is not necessary to rehearse every argument relating to each matter in every paragraph." I also remind myself that "brevity is an administrative virtue": see de Smith, Woolf and Jowell, Judicial Review of Administrative Action (1995, 5th Ed) page 467 paragraph 9-051. Short reasons are not to be criticised provided they are adequate in all the circumstances.[35]There were five complaints made by Ms Patterson in relation to the adequacy of the Secretary of State's reasons. The first complaint related to the regeneration point. This point relates to paragraph 13 of the decision letter which I have already cited. I agree with Ms Lieven's submissions on this point (paragraphs 13-14 of her skeleton argument), where she says:
"13. ... where he [the Secretary of State] significantly disagreed was with the suggestion that bringing forward a large, and predominantly greenfield, site would act as a catalyst to bringing other brownfield sites into use. In fact he took the view that bringing this forward this site [sic] could undermine the RPG strategy in terms of encouraging use of brownfield land. This conclusion is obviously a rational one which was open to him and which he has explained. 14. The Claimant's argument here... is that the [Secretary of State] has failed to explain how the aim of the Development Plan can be met. Firstly, that is not the task of the [Secretary of State]... He has to explain what the reasons for rejecting this application are, not what the LPA's future option and strategies should be. Secondly, it is apparent from [the decision letter] that the LPA have to place more emphasis on finding brownfield sites, and not take the relative easy option of large Greenfield sites..."
[36]One has to bear in mind that the Secretary of State was not being asked to write a research paper for future reference. He had to explain to the parties who are in an informed position why planning permission was being refused on this application and to do so in an adequate way. In my view he did so adequately in relation to the regeneration point.[37]The second complaint under this head relates to housing and PPG 3, and relates in particular to paragraph 10 of the decision letter. As Ms Lieven submitted, and having in mind the guidance given by Forbes J in Seddon Properties and Lord Bridge in the Save case, it is necessary to look at this issue in its proper context. The context included the request in March 2002 for further representations from the parties following the quashing by this court of the earlier decision letter. That request expressly referred to this issue. The context also includes the representations which in fact were made in response, it seems, to that request on behalf of Tameside. "B2 Housing --- B.2.2. Supply, which includes an estimate for windfalls based on urban capacity studies, is estimated at 7212 over the plan period, 75% would be on brownfield sites. There is therefore a potential shortfall of sites to meet needs, and development at Waterside Park will be needed to help overcome this shortfall." This can be compared to the approach to be taken under PPG3 (2000), from which I will read material parts. First, against the sidenote Background, it is said:
"The PPG provides advice on the role of the planning system in relation to housing policy. It updates and amends the policies contained in the 1992 edition. It records the Government's switch from a policy of 'predictand provide' to a policy of 'plan, monitor and manage' ... and the national target of securing by 2008, that 60% of additional housing should be provided on previously-developed land..." (My emphasis) Turning to the substantive paragraphs in PPG3, first, paragraph 6: "
In some regions or sub-regions there may be concentrations of previously-developed land within one authority and a lack of it in neighbouring authorities. In such circumstances, the RPBs [Regional Planning Bodies] and structure planning/UDP authorities should work together to focus new housing development in areas where previously-developed land is available (or where there are existing dwellings suitable for re-use or buildings suitable for conversion) in preference to developing greenfield sites." I move on to paragraph 8 which, so far as material, reads as follows. "It is an essential feature of the plan, monitor and manage approach that housing requirements and the ways in which they are to be met, should be kept under regular review. The planned level of housing provision and its distribution should be based on a clear set of policy objectives, linked to measurable indicators of change..." Next I will go to paragraph 23 which, so far as material, reads as follows:
"The national target is that by 2008, 60% of additional housing should be provided on previously-developed land and through conversions of existing buildings. Each region will propose its own recycling target to be set in RPG, which should contribute to achieving the national target. Structure plan/UDP and local planning authorities should adopt their own land recycling targets in development plans which will contribute to attaining the regional target and which are consistent with data from their urban housing capacity studies..." (My emphasis) Under the heading Allocating and Releasing Land for Development, paragraphs 32 and 34 read as follows: "32. In determining the order in which sites identified in accordance with the criteria set out in paragraphs 30 and 31 should be developed, the presumption will be that previously-developed sites (or buildings for re-use or conversion) should be developed before greenfield sites. The exception to this principle will be where previously-developed sites perform so poorly in relation to the criteria listed in paragraph 31 as to preclude their use for housing (within the relevant plan period or phase) before a particular greenfield site. ... 34. Sufficient sites should be shown on the plan's proposals map to accommodate at least the first five years (or the first two phases) of housing development proposed in the plan. Site allocations should be reviewed and updated as the plan is reviewed and rolled forward at least every five years. Local planning authorities should monitor closely the uptake of both previously-developed and greenfield sites and should be prepared to alter or revise their plan policies in the light of that monitoring. However, it is essential that the operation of the development process is not prejudiced by unreal expectations of the developability of particular sites nor by planning authorities seeking to prioritise development sites in an arbitrary manner."
Finally I read from paragraph 38 of PPG3: "In considering planning applications for housing development in the interim, before development plans can be reviewed, local authorities should have regard to the policies contained in this PPG as material considerations which may supersede the policies in their plan... Where the planning application relates to development of a greenfield site allocated for housing in an adopted local plan or UDP [a reference to the sort of case with which this court is presently concerned], it should be assessed and a decision made on the application, in the light of the policies set out in this guidance. ..." (My emphasis)[38]I was also provided by Ms Lieven at the hearing with a copy of a letter by Sally Keeble MP, a relevant minister. I was told that the letter dates from May 2002 although that was not clear on the face of the document. It is addressed to a councillor at the North West Regional Assembly. On page 2 of that letter she says: "A key issue for the Region is to bring about the renaissance of the urban areas by encouraging economic growth and regeneration in a sustainable way. To achieve this we are promoting the renewal of the Region's urban areas by concentrating resources upon the selective refurbishment, conversion and redevelopment of outworn building stock, and the comprehensive improvement of older and unpopular neighbourhoods. At the same time, we are proposing to include a reduction in the annual rate of provision of totally new housing (unrelated to clearance) by 15%, and increase the proportion of housing provided on previously used (brownfield) land from 65% to 70%. The Proposed Changes give added weight to avoiding any premature release of greenfield land which would undermine attempts to promote the use of recycled land and the redevelopment of existing housing areas." (My emphasis)[39]In my view the Secretary of State did provide adequate reasons which would have been understood by a reasonable person who was aware of relevant national policy, including the revised PPG3 in 2000, and the history of this case, as the parties were. In essence what should have been apparent on a fair reading of the decision letter read in its context was that the UDP was out of date; the housing allocations in it had been made before PPG3 was revised in 2000; that the revised PPG3 requires a sequential test to be adopted and that brownfield sites should be used before greenfield sites. It should further have been apparent that the 60% figure was a national average, which might well have to be exceeded in any particular region of the country. Further, the letter of 14 March 2002 (to which I have earlier referred) had invited the parties to make representations on this as one of the specific issues of interest to the Secretary of State. For good or ill Tameside did not put in detailed representations to show they had done the sort of detailed sequential approach envisaged by PPG3. Accordingly my view is that the Secretary of State's reasons on this point were adequate when read in the context which would have been known to the informed reader.[40]I turn more briefly (because they were dealt with briefly by Ms Patterson) to the three remaining complaints under the third issue. Her next complaint related to the question of density. In my view the Secretary of State's reasoning again was adequate on this point. As Ms Lieven said at paragraph 18 of her skeleton argument:
"[The Secretary of State] states quite clearly that he accepts that density could be dealt with by condition. However, he makes clear that the terms of such condition would have to establish that the density of the housing would have to be achieved without unacceptably compromising the quality of the design."
So much is abundantly clear on a fair reading of paragraph 11 of the decision letter.[41]The next complaint under this head was in relation to the golf club. Again in my view the Secretary of State's decision letter provides adequate reasons on this point as Ms Lieven says at paragraph 20 of her skeleton argument:
"Planning is not capable of being reduced to mathematical formulae. It is impossible, and probably undesirable, for a decision maker to try to ascribe precise 'weights' to different factors as if he was in a supermarket. ..."
[42]I agree with that contention. It seems to me that it would be entirely inappropriate in a context such as planning where a number of material considerations have to be weighed in the balance and may well point in different directions to regard the exercise as if it were one in which precise weights could be given as if one were weighing up apples and oranges. Ms Patterson also complained in this context that having regard to Lord Bridge's speech in the Save case it was not clear to a developer how, if at all, they could amend the planning application for the future in the hope of permission being granted. As Ms Lieven submitted at the hearing, the sentence to which my attention was drawn in the speech of Lord Bridge cannot have the effect that a decision-maker is required in setting out his reasons to fetter himself as to how future applications would be decided even if one could predict all the circumstances which might then obtain. It is for this reason, therefore, that in my judgment the Secretary of State was not required in order to discharge his duty to give adequate reasons to say in precise terms whether by itself the provision in the planning application relating to the golf clubs would be enough to render the application unacceptable in planning terms. What he was required to do was to set out his reasoning in adequate terms. His reasoning, as is clear from a reading of the decision letter as a whole, was clearly based on his weighing a number of material considerations in the balance. In my judgment that was adequate to discharge his duty in relation to reasons.[43]Finally under this head Ms Patterson complained that it was not clear from the decision letter why the view which the Secretary of State had taken in relation to Waterside Park had been taken when compared with the view apparently taken in relation to a different site called Wavertree. I need not go into the details, but for present purposes I hope it will suffice if I refer to Volume 2 in the court bundle at page 366. As Ms Lieven submitted, Wavertree is a brownfield site, and moreover the Secretary of State does not say in his decision letter that the NWDA's list of strategic sites is irrelevant. What he did say in particular at the end of paragraph 12 was that that list "should carry little weight": I read that to mean in the context of the particular application that was before him, namely Waterside Park. It is not helpful, in my view, to refer to other sites because each site has to be considered on its own planning merits, in particular when, as Ms Lieven said, Wavertree was a brownfield site in contrast to the way in which the Secretary of State perceived the Waterside Park site. Accordingly, in my judgment, the claimant's contentions in relation to the adequacy of reasons also fail. The fourth issue[44]Ms Patterson submitted that the Secretary of State failed to have regard to a material consideration: see paragraphs 33 to 34 of her skeleton argument, which read:
"33. The Inspector had found, at para 9.144... that there continues to be a shortage of sites that in terms of location, scale and environment have the ability to attract outside investors who would be capable of beginning to fill a crucial gap in the economic base. He also found that the proposal would create a significant number of jobs for the locality that should increase over the longer term, and would be likely to act as a catalyst for, rather than as a barrier to, the regeneration of the appreciable number of smaller brownfield sites in eastern Manchester. Development of this site was essential for that strategy, as recognised by the UDP and the Inspector, as well as in accordance with the economic regional strategy produced by the NWDA in consultation with other regional stakeholders. 34. At no point in the decision letter is the issue of how else this important aim of the Development Plan can be achieved. If the Development Plan is not to be followed, the considerations for departing from it must be fully considered and addressed."
[45]In my judgment this argument cannot succeed in the light of my conclusions on the earlier issues. The Secretary of State did not fail to take into account a material decision. He was well aware of the economic context and the regeneration point in particular, but he came to a different overall conclusion as to the planning merits of this particular application from that of the Inspector. No one has suggested or could suggest that he was bound to follow the views of the Inspector. Nor was the Secretary of State required in law to explain how what Ms Patterson called the "important aim" of the UDP should be achieved in the abstract. As I have said he was not required to write a research paper for future reference. What any decision-maker has to decide when considering a planning application, as opposed to more strategic questions which may arise in the formulation of national, regional or local policy, is whether or not to grant planning permission for the particular development which is proposed in the application. That is what the Secretary of State did in this case and, in my view, he did so having had regard to all material considerations. The fifth issue[46]Although the irrationality argument was advanced in some detail in paragraphs 25 to 40 of her skeleton argument, Ms Patterson did not place much weight on this argument, as I understood her, in oral submissions before me. She fairly accepted that if she failed under the earlier issues she was most unlikely to succeed in showing that the Secretary of State's decision was irrational. She also fairly accepted, in accordance with well-established authority which it is unnecessary to cite, at paragraph 37 of her skeleton argument that "the weight to be attached to a material consideration is for the decision-maker".[47]In my judgment it is impossible to say that the Secretary of State's decision was irrational. It involved a classic exercise of planning judgment. Provided he directed himself correctly in law, as I have held that he did, and provided that he took into account all material considerations, as I have held that he did, what weight he chose to give those considerations was a matter for him. He was entitled to reach a different judgment as to where the balance lay from that of the Inspector and to conclude that in all the circumstances planning permission should be refused in the present case. The sixth issue[48]The test for apparent bias has recently been authoritatively set out by the House of Lords in Porter v Magill [2001] UKHL 67 [2002] 2 WLR 37, at paragraphs 102-103 where Lord Hope of Craighead said this:"102. In my opinion however it is now possible to set this debate to rest. The Court of Appeal took the opportunity in In re Medicaments and Related Classes of Goods (No 2) ... to reconsider the whole question. [After setting out the relevant passages from that decision Lord Hope then continued as follows:]103. I respectfully suggest that your Lordships should now approve the modest adjustment of the test in R v Gough set out in that paragraph. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to 'a real danger'. Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." (My emphasis)[49]Although Ms Patterson raised this argument in her skeleton argument at paragraphs 41-44, she did not pursue it with any vigour in her oral submissions and, in particular in her reply she fairly accepted that, if she failed on the earlier issues she would find it difficult to challenge the Secretary of State's decision on the ground of apparent bias. However, Mr Owen, on behalf of Tameside, did place greater emphasis on this ground. As I understood the argument reliance was placed on four facts to support the contention of apparent bias. First, the fact that the Secretary of State had called in the application against the advice of his officials; secondly, the fact that there had been, as was apparent from the inquiry before the Inspector, opposition to the application from local Labour MPs and Labour party members; thirdly, the fact that the Secretary of State departed from the Inspector's recommendation that permission should be granted and fourthly, the fact that certain letters requesting an assurance that the Secretary of State had not taken into account representations outside the inquiry process had been written to the Secretary of State on behalf of Tameside but had not received a substantive rely.[50]In relation to the first of those facts it would not, in my view, either by itself or taken with other facts, lead a fair-minded and informed observer to conclude that there was a real possibility of bias. Officials are there to give advice to ministers, but it is perfectly proper for ministers to take their own decisions. The fact that the original reason for calling the application in related to open space provision in Greater Manchester and not other matters does not alter the picture. No one has suggested that it was not open to the Secretary of State to call it in on that ground and I can see nothing improper about it.[51]In relation to the second factor relied on again it seems to me that this would not lead a fair-minded and informed observer to conclude that there was a real possibility of bias whether taken by itself or with other facts. It is often likely to be the case that local Members of Parliament and others will be members of the same political party as the minister responsible for a decision. That cannot be enough. It is a matter of common experience that members of the same political party may well disagree about a particular issue. It is also a matter of common experience that local MPs and other activists will, understandably, seek to protect what they regard as local interests perhaps in opposition to what the decision-maker at national level may think is the right thing to do. This will be so whether they happen to be of the same political party or of different parties: that is what we expect in a healthy democratic society. A fair-minded and informed observer is also to be taken as knowing the relevant facts, as Lord Hope's speech in Porter v Magill makes clear. Those facts include the following, which I was told by Ms Lieven on instructions from her clients:(1) The minister who took the decision had no connection with the area concerned. He was Tony McNulty, who is an MP for a constituency in London. This was in accordance with the normal policy as referred to in the speech of Lord Slynn of Hadley in R (Alconbury Developments Ltd) v Secretary ofState for the Environment, Transport and the Regions [2001] UKHL 23, [2001] 2 WLR 1389 at paragraph 46, which sets out the relevant safeguards which are in place as a matter of departmental policies: "46. On the basis of these decisions it is in my view relevant as a starting point to have regard to such procedural safeguards as do exist in the decision-making process of the Secretary of State even if in the end, because he is applying his policy to which these controls do not apply, he cannot be seen as an impartial and independent tribunal. The fact that an inquiry by an inspector is ordered is important. This gives the applicant and objectors the chance to put forward their views, to call and cross-examine witnesses... Decisions were taken by ministers who so far as possible had no connection with the area from which the case came, and in respect of the decision officer who dealt with the case it was said... that he 'works separately from the casework team of which he is nominally a part, does not discuss the merits of the planning decisions before him with an individual either within or without GO East [the Government Office which was relevant in that case] is not copied into or involved in the preparation of the Regional Planning Guidance... or the exercise of any of the Secretary of State's powers of intervention under the Town and Country Planning Act, and only has before him the information which the inspector would have had at the inquiry into the particular appeal or called in application, together with any representations made after the close of the inquiries (all relevant parties are given the opportunity to comment on any such representations where they are material or raise new matters).'" (My emphasis)(2) All representations, Ms Lieven informed me, made outside the inquiry process were copied to all parties in accordance with that policy.(3) However, those letters which were not copied (to which I will return) fell outside the policy of disclosure referred to in Alconbury because they did not raise anything material or new matters.[52]In relation to the third factor relied on the fact that the Secretary of State departed from the Inspector's report seems to me to provide no evidence of apparent bias at all. He is entitled to do so provided he acts rationally and gives adequate reasons for doing so. I have already held that he did give adequate reasons and that his view cannot be regarded as irrational.[53]In relation to the fourth factor relied on I need to set out some of the factual history in greater detail. Mr Owen relied on a series of letters on behalf of Tameside which were exchanged with the Treasury Solicitor's department on behalf of the defendant. It is I hope unnecessary for me to cite those letters in detail, but they are there for reference for any who may need to see them. The point that was essentially made was, as I have said, that in some letters in around January 2001 and following, Tameside had written to the Treasury Solicitor's department asking for an assurance that no representations had been taken into account outside the inquiry process, but there was no substantive reply to that request. I was at first concerned about this point because in principle, at least, it is open to a court to draw an adverse inference against a party to correspondence which does not deny a point or otherwise give a substantive reply to a question when it has been raised with it, particularly when it has been raised on more than one occasion. However it is always a matter for the court to draw appropriate inferences by reference to all the circumstances in the case. In order to see whether there was anything in this point I asked for a witness statement to be provided to the court and very helpfully a witness statement was provided on the second day of the hearing by Mr John Howes of the Treasury Solicitor's department, which reads as follows:
"3. I refer to the letters set out in Mr Manley's skeleton argument [on behalf of Tameside]. In respect of the letter dated 15/1/01, this letter was copied to me by the Government Office for the North West... [that must be a typing error; the letter on behalf of Tameside was in fact dated 5/1/01 and is at page 277 of the court bundle] I believe that a holding reply was sent on 15/1/01. 4. There were then three letters sent to the Treasury Solicitor dated 12 June, 2 July and 26 July 2001. I did receive each of these and passed them on to GONW. I am now aware that no response was sent. The reason for this was undoubtedly that both I myself and GONW were focussing on the question of whether the case would be fought, and at the end of the period discussing settlement with the parties. I realise that this was an oversight and I can only apologise both to Tameside and the court for our failure to reply. 5. The case was withdrawn from the list at the end of the July [sic] as the parties were in discussions. Ultimately the decision was quashed by consent on 27 November 2001. 6. I received no further letters from Tameside prior to the sealing of the Consent Order on 27/11/2001. I certainly did not, to the best of my recollection, receive their letter dated 12/10/2001, which is exhibited to the Witness Statement of Mr Davey in these proceedings. Had I received the letter I would certainly have faxed copies to my clients and filed it with all other correspondence. My clients confirm that they did not receive copies of that letter from any source. I closed the file relating to the first proceedings in May 2002, following payment of costs. 7. After the re-determination I received no further letters from Tameside relating to the issue, and perhaps wrongly I thought the point was no longer being pursued. I therefore did not follow up the query with GONW. 8. I am informed by GONW that they did not receive any post-inquiry ministerial correspondence prior to 26/10/2001 from any source. They did however receive the following: a letter from the North West Development Agency to Mr John Prescott and Mr Nick Raynsford dated 5th July 2000; a letter from Arrowcroft (the claimant) dated 16 October 2001 to Sally Keeble MP and one of 12 October 2001 from Insignia Richard Ellis (agents of the claimants) to Lord Falconer, no reply can be found to Insignia but Sally Keeble replied to Arrowcroft on 20 November 2001; a letter from Delamere and Toxteth Residents to Mr Tony Lloyd MP to which Sally Keeble MP replied on 8/4/2002; a number of letters from a local resident Mr Hall on a number of points including procedure on the first challenge and matters not relating to the application itself, replies were sent by an officer of GONW each time. Three other letters were received, one from Gerald Kaufman MP on 5th January 2002 enclosing a letter from a constituent, to which no reply was sent. And two letters from Andrew Bennett MP making inquiries as to the procedure followed in referring back to parties after the decision was quashed in November 2001. There are no substantive written representations on the application from local MPs on the Government Office files."
As is usual with a witness statement there then follows a statement of truth and a signature from Mr Howes. Entirely properly no one suggested to me that they would wish to cross-examine Mr Howes or to file evidence in response to his statement. I therefore accept his evidence and I also accept his apology to the court. On that basis it is clear that no representations were made outside the inquiry process which were not copied to the other parties, save where, as I have said, there were letters which did not raise anything material or new matters. This was entirely in accordance with the policy referred to by Lord Slynn in Alconbury. Overall in my judgment, therefore, the facts are not such as would lead a fair-minded and informed observer to conclude that there was any real possibility of bias on the part of the Secretary of State. I therefore reject the submissions that were made in particular by Mr Owen and also in passing at least by Ms Patterson in relation to this part of the case. The seventh issue[54]Although I have framed this as a distinct issue, which it is for the purposes of analysis, on the facts of this case it must also fall away in the light of the evidence of Mr Howes (to which I have already referred under the sixth issue). It is clear on the facts that there was no breach of the duty to act fairly. This is because no representations raising anything material or new matters were taken into account outside the inquiry process which were not copied to the parties in accordance with the policy referred to by Lord Slynn in Alconbury. Conclusion[55]For the reasons which I have given this application is refused.[56]MR LITTON: My Lord, I appear on behalf of the Secretary of State in place of Ms Lieven. In the light of the judgment I would ask for the claimant to pay the first defendant's costs.[57]MR CARTER: My Lord, I appear in place of my learned friend, Ms Patterson and Mr Crawford. I obviously cannot resist that application. In the absence of agreement about the quantum of costs I wonder if they could be subject to detailed assessment.[58]THE DEPUTY JUDGE: Yes. Before you sit down, Mr Carter, I do not know if you want to say anything to me in a moment rather than now about permission to appeal.[59]MR CARTER: My Lord, yes, I do have such instructions.[60]THE DEPUTY JUDGE: Do you want to make those submissions in a moment? Let us deal with other aspects first if we can. Is there anything anyone wants to say about costs about that matter?[61]MR CARTER: My Lord, no.[62]MISS HANIF: No.[63]THE DEPUTY JUDGE: Very well. The order will be that this application under section 288 is refused and the claimant shall pay the first defendant's costs to be the subject of detailed assessment if not agreed. Would you like to say anything about permission to appeal?[64]MR CARTER: My Lord, yes, very briefly if I may. I would ask for permission to appeal in relation to your Lordship's first issue; that is in relation to section 54A. I do so on the ground that there is a compelling reason why an appeal on that subject should be heard. My Lord, I would briefly confine myself to making these submissions. The cases that the court have en referred to and your Lordship has dealt with have not dealt with the situation where material considerations have been borne in mind by a decision-maker, which in part at least were material considerations which existed at the time of the formulation of the relevant development plan. My Lord, in part at least the defendant rested his decision upon a conflict with policies L3 and L12 as against a site-specific allocation for development. In my submission it would not be appropriate to use those sorts of issues as material considerations for the purposes of a decision otherwise than in accordance with the development plan because those considerations would have been weighed by the Inspector who reported them to the deposit proposals in the UDP as they then would have been. In my submission none of the cases that have been put before your Lordship deal with that particular issue and I would submit that that is a matter which is worthy of the attention of the Court of Appeal.[65]Perhaps to make one other small point, my Lord, your Lordship did interpose in your Lordship's reading of paragraph 48 of the Milne decision where there is reference to policies in plans pulling in different directions for employment purposes - which is in open countryside policies was the example given by Sullivan J - that that was a situation which in your Lordship's judgment was not dissimilar from the situation here. In my submission it is properly arguable that there is a distinction because whereas what it appears Sullivan J was talking about was policies that are generally about employment matters weighing against policies that are generally about preservation of the open countryside. In this case, my Lord, there was a site-specific policy in favour of development of the site as against more general policies which are anti the loss of recreation facilities, if I can put it that way, which, connected to my first point, were all considered by the UDP Inspector. I confine myself to those submissions.[66]THE DEPUTY JUDGE: Do you want to say anything?[67]MR LITTON: My Lord, just very briefly, of course the test for the grant of permission is set out in Part 52 and your Lordship would have to be satisfied that either there was a real prospect of success or there was some other compelling reason why the appeal should be heard. I do not believe it has been put on the basis that there is a real prospect of success. As I understand the submission it is a compelling reason, namely that previous authorities have dealt with the point that my learned friend has sought to identify. In my submission it is not a matter which provides any compelling reason, because the formulation in the authorities not least City of Edinburgh, is that one should not apply a formulaic approach to decisions which are essentially at heart matters of planning judgment provided you take into account relevant considerations, and plainly in the context of 54A development plan is a statutory material consideration which you need to take into account.[68]So my Lord, in my submission it is not a matter which provides a compelling reason why the appeal should be heard; I do not understand the matter is being put on the basis there is any reasonable prospect of success; so permission ought to be refused.[69]MR FINDLAY: Can I add to that that as I understood my learned friend for the claimant's formulation perhaps slightly different to that which is in fact argued by Ms Patterson before your Lordship; and secondly and in any event the Secretary of State's decision that policies L3 and L12 were not inconsistent with DEN1 which was in fact attacked before your Lordship, so on that factual basis, adding to the submissions of my learned friend for the Secretary of State I oppose the application.[70]MISS HANIF: My Lord, I appear in place of Mr Owen. I have little to add suffice to say in order to protect Tameside Borough Council's position I seek to be joined in the claimant's application for permission to appeal.[71]THE DEPUTY JUDGE: For permission to appeal.[72]MISS HANIF: Yes, my Lord.[73]THE DEPUTY JUDGE: Do you want to say anything in reply?[74]MR CARTER: My Lord, only very briefly, in response to my learned friend, Mr Findlay -- my Lord, I obviously was not here, I am not the advocate who appeared on the appeal, but the reference to the way in which the Inspector considered section 54A applied to him in relation to material considerations that were pre and post-adoption of the UDP and matters that were discussed before the UDP Inspector is certainly a matter that is referred to and set out by my learned friend, Ms Patterson, in the claim form, and it is touched upon in the skeleton argument. But I am obviously not in a position to say in what detail that was advanced before your Lordship.[75]THE DEPUTY JUDGE: I am going to refuse permission to appeal in this case. My reasons in brief are first, that it has not been suggested to me that there would be any real prospect of success even in relation to the first issue, which is the only issue on which, as I understand it, the application for permission to appeal is made at all; and secondly, it seems to me, having regard to all the circumstances of this case, that there are no other compelling reasons. I do not take myself to have been laying down any new law. I have sought I hope to apply legal principles which are well-established in much more authoritative courts than this one. Accordingly permission to appeal will be refused.[76]I am, however, sympathetic to this, if you want to apply for an extension of time, given that Easter is now nearly upon us. Normally as you know you would have 14 days from now if you wanted to pursue it any further. Do you want to say anything about that?[77]MR CARTER: My Lord, I was going to raise that matter, if I may. In so far as your Lordship's judgment is concerned obviously my learned friends Ms Patterson and Mr Crawford will wish to consider that, as your Lordship has observed Easter is soon to be upon us. Also I am informed that my learned friend, Ms Patterson, is detained and will be taking a week's holiday starting this weekend, and my learned friend, Mr Crawford, is to take a fortnight's holiday starting this weekend. In those circumstances I am instructed to ask whether your Lordship would be prepared to grant 28 days for the filing of an appellant's notice in the particular circumstances from today.[78]MR LITTON: I cannot resist that.[79]THE DEPUTY JUDGE: That seems to me to make eminent sense so I will direct that if the claimant, or indeed Tameside, are so minded and wish to pursue an application for permission to appeal to the Court of Appeal then they shall have 28 days from today in which to file an appellant's notice including the application for permission. Is there anything else?[80]MR CARTER: No thank you, my Lord.[81]THE DEPUTY JUDGE: I am grateful to you all.