Wycombe District Council, R (on the application of) v First Secretary of State & Anor [2003] EWHC 2002 (Admin)

Case No CO/1558/2003[2003] EWHC 2002 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 28 July 2003
Strand
London WC2
B E F O R E:
MR JUSTICE RICHARDS
Between
THE QUEEN ON THE APPLICATION OF WYCOMBE DISTRICT COUNCILClaimant-v-
Between
FIRST SECRETARY OF STATEDefendantKINGSOAK HOMES LIMITEDInterested Party(Trading as KINGSOAK THAMES VALLEY)Interested 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)
MR M LOWE QC AND MISS M ELLIS (instructed by Pitmans) appeared for CLAIMANT for THE DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTEDMISS S ORNSBY (instructed by Sharpe Pritchard) appeared for INTERESTED PARTY
J U D G M E N T(As Approved by the Court)
Crown copyright©
[1]MR JUSTICE RICHARDS: This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of an Inspector appointed by the First Secretary of State granting planning permission for an apartment block on a site known as the White Blackbird in High Wycombe. The Secretary of State has not been represented at the hearing, having indicated previously in correspondence his willingness to submit to judgment. The decision is, however, defended by Kingsoak Homes Limited, the developer and interested party.[2]The claimant is the Local Planning Authority. It had refused planning permission for the development on two grounds. The first was that the proposed development, by virtue of the bulk, scale, mass and overall density of the development, would appear unduly dominant and obtrusive to the detriment of the character and appearance of the surrounding area and of the street scene. The second was that the proposed development, with limited opportunities for landscaping large areas of hard surfacing and limited private amenity areas for residents, failed to provide a satisfactory quality of external usable amenity space for residents. The present application concerns the Inspector's treatment of that second ground.[3]The relevant policy framework is as follows. The adopted development plan was the Wycombe District Local Plan adopted in July 1995. Policy H9 of that plan provided:
"RESIDENTIAL DEVELOPMENT MUST CREATE ATTRACTIVE LIVING ENVIRONMENTS WHICH SAFEGUARD OR ENHANCE THE SURROUNDING AREA, AND SHOULD PROVIDE APPROPRIATE STANDARDS OF RESIDENTIAL AMENITIES FOR FUTURE RESIDENTS. THE COUNCIL WILL HAVE REGARD TO THE GUIDELINES SET OUT IN APPENDIX 8 WHEN DETERMINING WHETHER PROPOSALS WILL ACHIEVE THIS."
[4]Policy H13, under the heading "Residents, Amenity Space and Gardens" provided:
"PROPOSALS FOR RESIDENTIAL DEVELOPMENT SHOULD NORMALLY INCLUDE CONVENIENTLY LOCATED, USABLE AMENITY SPACE. THE COUNCIL WILL HAVE REGARD TO THE AMENITY SPACE GUIDELINES SET OUT IN APPENDIX 8 WHEN ASSESSING SUCH PROPOSALS."
The supporting text in paragraph 7.37 provided that all residential development should include amenity space for residents that was attractive, usable and conveniently located and of an appropriate size. It was said that the Council considered the best amenity to be where dwellings had their own individual private gardens but it was accepted that in the case of flats communal provision might be necessary and considerable care needed to be taken over layout and design. It again referred across to the guidelines in Appendix 8.[5]Appendix 8, headed "Design Guidelines for Residential Development", stated first that the Council's overall objective was to ensure that care was taken over the design and layout of residential developments, so that attractive developments were created which safeguarded or enhanced the existing environment and provided good standards of residential amenities for future residents. In relation to amenity space, it was stated that amenity space should be usable, attractively laid out, conveniently located in relation to the dwelling it served and of an appropriate size, having regard to the size of the dwelling and the character of the area. In assessing amenity space the Council would have regard to a number of considerations, namely type of space, privacy, convenience, suitability for use and size. In relation to size, specific guidelines were laid down: for example, a minimum of 25 square metres per unit for bedsits and one-bedroom units and a minimum of 50 square metres for two-bedroom units, save that for two-bedroom flats a minimum of 35 square metres of communal amenity space would be appropriate. It was stressed that the guidelines were intended as a minimum.[6]The emerging local plan was the Wycombe District Local Plan to 2011. As it stood at the relevant date, it included a number of material policies. Policy H6 provided:
"PROPOSALS FOR NEW HOUSING DEVELOPMENT WILL BE EXPECTED TO ACHIEVE A HIGH STANDARD OF DESIGN AND RESIDENTIAL AMENITY AND TO:... (IV) PROVIDE AMENITY SPACE IN ACCORDANCE WITH POLICY H20 AND THE CRITERIA SET OUT IN APPENDIX 1."
The supporting text stated in paragraph 3.27 that it was essential that any new development should achieve a high standard of design and residential amenity and that, as was indicated by revised PPG3, good design and layout could help achieve the government's objectives of making the best use of previously developed land and improving the quality and attractiveness of residential areas.[7]Policy H6A provided density criteria to be satisfied by proposals for new residential development in order to make best use of land. Having set out the criteria, the policy stated:
"IN THE APPLICATION OF THESE DENSITY CRITERIA IT IS ESSENTIAL THAT DEVELOPMENTS ACHIEVE ATTRACTIVE, HIGH QUALITY RESIDENTIAL ENVIRONMENTS, COMPATIBLE WITH THEIR IMMEDIATE LOCAL CONTEXT. FAILURE TO ACHIEVE HIGH QUALITY ENVIRONMENTS WILL RESULT IN PROPOSALS BEING REFUSED, EVEN WHEN ALL OTHER CRITERIA ARE SATISFIED."
The annotation again makes clear that revised PPG3 and the document called "By Design" had been taken into account in formulating that policy.[8]Policy H20 of the emerging plan provided:
"PROPOSALS FOR RESIDENTIAL DEVELOPMENT SHOULD INCLUDE CONVENIENTLY LOCATED, USEABLE OUTDOOR AMENITY SPACE. THE COUNCIL WILL HAVE REGARD TO THE AMENITY SPACE CRITERIA SET OUT IN APPENDIX 1 WHEN ASSESSING SUCH PROPOSALS."
[9]Appendix 1 stated in its introduction that the policies sought (in line with Government advice) to achieve a high standard of design and layout for residential development. Reference was again made to revised PPG3 and the "By Design" document, showing that they had been taken into account. Under "General Design Guidelines" it was stated in relation to private amenity space:
"Private amenity space should be provided for each dwelling, although for some flats and other developments it may be provided communally in part, and in part as private amenity space for the exclusive use of the occupants of the dwelling. More important than quantity is the quality of private amenity space and its useability. Private amenity space for flats may be simply a balcony, a patio or veranda, or as a small enclosed garden for ground floor flats, generally with enough space to allow two people to sit out (about 4sqm)."
Specific design guidelines were given for high density residential development which, it is accepted, was the case with the development in issue in these proceedings. Amongst other matters stated in relation to such development was that not all dwellings would be expected to have significant private amenity space. The guidelines went on, however:
"Where the scheme is predominantly made up of houses, private amenity space should be provided in rear gardens. There is no guideline as to size, but rear to rear privacy criteria must be observed. If an adjacent dwelling has a long back garden, a short rear garden in the new dwelling may still achieve the same privacy. As a minimum, the garden must allow for two people to sit out in reasonable privacy and daylight, and be of suitable gradient and orientation. As with other types of residential development it is the quality of space rather than the quantity that is important. With flats every effort should be made to give units private amenity space with patios, balconies or verandas or small gardens for ground floor units."
No specific figures by way of size standards were laid down.[10]The 2000 version of PPG Housing contains policy guidelines relevant to the issues in this case. I think it unnecessary to quote extensively from PPG3. I note, however, that in paragraph 1 it is stated that a new housing residential environment should be well-designed and should make a significant contribution to promoting urban renaissance and improving the quality of life. Paragraph 2 provides that local planning authorities should, amongst other things, provide wider housing opportunity and choice, and a better mix in the size, type and location of housing than is currently available; they should seek to create mixed communities; they should make more efficient use of land by reviewing planning policies and standards; and they should promote good design in new housing developments in order to create attractive, high quality living environments in which people will choose to live.[11]Similar sentiments are to be found, for example, in paragraphs 11 and 46. In paragraph 54, under the heading "Designing for Quality", it is stated:
"Good design and layout of new development can help to achieve the Government's objectives of making the best use of previously-developed land and improving the quality and attractiveness of residential areas. In seeking to achieve these objectives, local planning authorities and developers should think imaginatively about designs and layouts which make more efficient use of land without compromising the quality of the environment."
Reference on the need to focus on quality but also to avoid inflexibility is made in paragraph 56. Paragraphs 57 and 58 focus on the need to avoid the inefficient use of land and on the encouragement of development which involves greater intensification of land use.[12]At the outset of the inquiry the Inspector identified two main issues corresponding with the two grounds of refusal of permission by the Council. The second issue was expressed in these terms:
"Whether the proposals offer an acceptable living environment for the proposed residents, particularly in respect of the provision of external space."
The case for the Council included evidence, given in particular by the Council's Planning Officer, Miss Nicholson, in support of the Council's position that the development made inadequate provision for external amenity space and was in conflict with the adopted and emerging local plan. I think it unnecessary to set out the details. Suffice it to say that there was detailed evidence as to why the Council considered that the development was not in compliance with the plan.[13]The developer, on the other hand, as part of its case before the Inspector, contended that the development was in accordance with the relevant policies of the adopted and emerging local plan. It was contended, and supporting evidence was given by Mr Armstrong on the developer's behalf, that all the units of the proposed development made adequate provision for occupiers, who would be able to choose whether they purchased units with their own private amenity space or preferred to rely on space provided communally. The argument was that the criteria laid down in the policies were not intended to be restrictive but involved matters of qualitative judgment and that the Inspector should conclude that the relevant standards were satisfied.[14]The evidence on these issues was carried through into closing submissions by the parties before the Inspector. It is therefore clear that the question of compatibility with the relevant policies of the adopted and emerging local plan was one canvassed at some length before the Inspector and remained a principal controversial issue throughout the inquiry.[15]In his decision letter dated 11th February 2003 the Inspector expressed the view in paragraph 4 that the main issue in the case was the effect of the proposal on the character and appearance of the surrounding urban area. He recited the policy framework in terms of which no complaint is made. He then dealt with his findings on the main issue he had identified, concluding that the proposal would have no detrimental effect on the character and appearance of the area and that it would accord with the provisions of the development plan, as adopted and as emerging, which touched upon that issue.[16]He then came, under the heading "Other Matters", to deal with the issue of amenity space. He said this in paragraphs 14 and 15:
"The Council also expressed concern about the amount and quality of 'amenity space' available to the prospective residents of the development. To my mind this criticism is misplaced. First of all it was confirmed that the apartments would be offered for sale in the normal way. Clearly if prospective purchasers did not feel the outside sitting areas were adequate in size or in the level of privacy they offered then they could exercise choice and choose to approach elsewhere. Secondly, the Council's stance seems to ignore the point that there are those who would prefer not to have to maintain a larger outside space of their own. Notwithstanding the standards in the Local Plan, the appendices thereto and the Local Plan review, PPG3 points to need to widen choice. The provision of smaller residential units with little or no private outdoor space seems to me to cater for those who would prefer not to have a larger garden. I was pointed to two appeal decisions that deal with broadly similar issues ... While I have considered the content of these decisions, I have dealt with the proposal before me on its own merit."
It is to that part of the Inspector's decision that the challenge is mounted.[17]There is no dispute before me as to the relevant legal principles. In brief, I am reminded of the duty on an Inspector to give reasons for his decision. Where a decision-maker fails to give reasons that are proper and intelligible and which fail to deal with the substantial points raised he acts contrary to law. The decisions must be such that it enables the reader to understand on what grounds the decision has been reached, and be in sufficient detail to enable him to know what conclusions he has reached on the principal important controversial issues. For those last propositions reference is of course made to Save Britain's Heritage and No 1 Poultry Ltd [1991] 1 WLR 153.[18]A further relevant principle is that, whether a decision-maker chooses to follow policy or to reject it, he must give sound and clear-cut reasons why he does so. The duty to give reasons is as rigorous whether policy is being followed or breached. If a decision-maker decides not to apply a policy he must explain why. The recipient of a decision is entitled to know on what basis a decision is taken: whether an Inspector is disregarding policy, whether he says the policy applies, or whether he is making an exception to policy. A local planning authority will be substantially prejudiced by a decision to grant planning permission in which the planning considerations on which the decision was based, particularly if they relate to planning policy, are not explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future applications: see again in particular Save at page 167.[19]Mr Lowe QC, for the developer, reminded me of the whole of the passage of Lord Bridge's speech on that page. He took no issue with the principles to which I have just referred, which I have taken from the skeleton argument of Miss Ornsby, for the claimant. He did, however, point out, and again this is not a matter of dispute, that reasons may be briefly stated and elaboration is not to be looked for, and that in this field decisions are directed to an informed readership or a tutored audience and are to be read accordingly.[20]Against the background of those uncontentious principles, Miss Ornsby makes these submissions in relation to the Inspector's decision. First, as to the fact that the Inspector did not deal with the issue of external amenity space as a main issue in his decision letter, although he had identified it as such at the outset of the inquiry, she accepts that that is not in itself decisive of anything but submits that it indicates a failure by the Inspector to get properly to grips with this issue. He has effectively downgraded it, treating it only as a concern.[21]The way in which he deals with that concern in paragraph 14 is flawed in a number of respects. First, the Council does not know whether the proposed development in this case has been found by the Inspector to be in accordance with the adopted local plan or not. Secondly, it does not know whether it has been found to be in accordance with the emerging local plan or not. It follows that the Council does not know whether, on the Inspector's findings, the proposal is or is not in accordance with the development plan or, therefore, what conclusion the Inspector has reached concerning compliance of the development with section 54A of the 1990 Act.[22]If the proposal is in accordance with the development plan, the Council is entitled to know that and to know why; if it is not in accordance with the plan, then equally the Council is entitled to know that and to know why. In short, the decision letter is such that the Council does not know what conclusions the Inspector has reached on one of the principal controversial issues before him.[23]Miss Ornsby, whilst accepting that reasons can be stated briefly, submits that there are no reasons at all here; and whilst accepting that one considers the matter from the point of view of an informed readership, submits that the informed reader simply does not know what conclusions have been reached and whether the proposal does or does not comply with section 54A. She submits further that insofar as the Inspector places reliance on PPG3 in support of the conclusion he does reach, he has erred in his treatment of PPG3. PPG3 was taken into account in the formulation of the emerging policies, which is something that the Inspector does not grapple with. In any event, it does not provide a justification for the view that purchasers can choose to live elsewhere if development is not appropriate, so that one need not be concerned with inappropriate development. For all those reasons, it is submitted that the decision should be quashed.[24]Mr Lowe, for the developer, submits first that there is no problem in the Inspector dealing with the issue of external amenity space under the heading of "Other Matters" rather than as a main issue. It was a judgment for him to make in the light of everything he heard at the inquiry and how to approach it in his decision; his approach was rational.[25]As to what he says in paragraphs 14 and 15 of the decision, Mr Lowe points out first that the Inspector had correctly summarised the relevant policies. It is important, he says, when considering those policies to bear in mind that they involve qualitative judgments and are not prescriptive and inflexible. He points out for example that policy H9 of the adopted plan refers to "appropriate" standards, and that policy H13 is again not prescriptive and refers to the Council "having regard to" the guidelines in the Appendix. Those guidelines again refer to a range of qualitative criteria, and insofar as they set out certain specific space standards, those should be seen as the servant to the broader qualitative judgment to be made as to whether appropriate provision has been made.[26]Similar points are made by Mr Lowe in relation to the relevant policies of the emerging plan, where of course he has the additional point available to him that no space standards are set out at all in relation to high density development at least. He is able to focus on the existence of qualitative criteria and passages such as those which state that quality of private amenity space is more important than quantity.[27]It is with those points in mind that one should read the Inspector's conclusion in paragraphs 14 and 15, submits Mr Lowe. On a fair reading the Inspector, it is submitted, can be seen to have reached the conclusion that appropriate provision was made in respect of amenity space, and that there is here a finding that the proposal meets the requirements of the adopted and emerging local plan. It is to be noted that in paragraph 15 the Inspector says in terms that he has dealt with the proposal "on its merits."[28]Mr Lowe seemed inclined to accept that in paragraph 14, where reference was made to "notwithstanding the standards in the local plan et cetera", the Inspector appeared to be accepting that the precise space standards of the local plan were not met. But adopting a sensible reading of the decision as a whole, it is said that nonetheless the overall judgment formed was that the criteria were met and that appropriate provision was made within the terms of the relevant policies. Mr Lowe further submits that even if there were some deficiency of reasoning, it was not such as to cause substantial prejudice to the Council.[29]My conclusions on those rival submissions are these. First, it seems to me that nothing turns on the bare fact that in the decision letter, unlike at the outset of the inquiry, the Inspector did not identify the question of amenity space as one of the main issues. It was a matter for judgment for him whether he treated it as a main issue or not. He was entitled to change his position between the outset of the inquiry when he came to write his report, having heard all the evidence. Although, from what I have seen, it is clear that the issue was a principal controversial issue, I do not think that it was irrational not to treat it as a main issue. In any event, nothing really turns on whether it is labelled a main issue or not. The fact is that it was a principal controversial issue and it was incumbent on the Inspector to deal with it as such in his decision. The real question is whether he dealt with it lawfully and adequately in paragraphs 14 and 15 under the rubric "Other Matters". In my judgment, he failed to do so.[30]It is clear that the Council's case before him was that the proposed development would be contrary to the policies of the adopted local plan dealing with amenity space, and that it would also be contrary to the relevant policies of the emerging plan. By contrast, the developer's case was that it would be in compliance both with the adopted plan and with the emerging plan. Given the nature of the issue joined between the parties, it was important for the Inspector to reach a judgment one way or the other on the question of compliance with the plan. Whether a development is or is not in accordance with the development plan is of course an issue of central importance, given the terms of section 54A of the Act.[31]In this case, however, it is to my mind wholly unclear whether the Inspector has reached a judgment on that issue or what finding he has made on it, let alone what, if any, reasons he had. The thrust of paragraph 14, particularly obvious towards the end of that paragraph, seems to me to be to treat this aspect of the development plan as effectively an irrelevance. The gist of the reasoning appears to be that the amenity space provisions of the plan do not matter, since prospective purchasers can choose what degree of privacy they want and because PPG3 points to the need to widen choice.[32]Even if the Inspector were right about PPG3 pointing to the need to widen choice, that would in no way absolve him from his duty to decide, as an important input into his final decision on the grant of planning decision, whether the development would or would not accord with the adopted development plan and whether it would or would not accord with the policies of the emerging plan.[33]If there is any implicit finding in relation to compliance with the plan, it seems to me that it is a finding that the development would be contrary to the plan rather than a finding that it would be in accordance with the plan. I reject Mr Lowe's submission that when the decision is read as a whole, with all the relevant qualifications that are appropriate in relation to the interpretation of a document of this kind, the Inspector can be seen to have been of the view that the proposed amenity space was appropriate and in compliance with the policies of the plan. If he had made such a finding, if that was the basis upon which he was proceeding, it is very difficult to see why he needed to make or thought it right to make the point he did about PPG3. Moreover, towards the end of paragraph 14 when he says "Notwithstanding the standards in the local plan ...", I find it very difficult to accept that he is dealing there with the precise space standards rather than with the overall standards laid down as to private amenity space. The general impression that is created by the way in which he formulates that sentence is not, in my judgment, consistent with a finding on his part that the standards would be met by this development.[34]If there is an implicit finding that the development would be contrary to the plan, then it is not a properly reasoned finding and the Inspector fails altogether to engage in any proper balancing exercise of the kind required by section 54A in order to determine whether the departure from the plan is justified.[35]All this leads me to accept Miss Ornsby's submissions that the Inspector failed to give adequate and intelligible reasons for his decision. I also accept that the Inspector appears to have misunderstood PPG3 and its relationship with the policies. It is true that PPG3 places weight on flexibility and on the need to provide wider housing opportunity and choice. But it also places weight on the importance of good design and achieving a high quality of attractive residential environment.[36]In those circumstances, and since the Council took PPG3 into account in formulating the policies of the emerging plan, it seems to me that it was incumbent upon the Inspector to consider those policies more carefully and to reach a view on their applicability rather than to deal with the matter simply by reference to PPG3 as pointing to the need to widen choice.[37]It may be that this is simply another respect in which the decision can be said to be insufficiently reasoned, but I am inclined to accept that, as it was put in Miss Ornsby's skeleton argument, the Inspector went off on a frolic of his own in relation to PPG3, and that the approach he has adopted involves not just inadequate reasoning or a failure to state adequate reasons, but also a legal misdirection as to the effect of PPG and of how it is to be viewed in conjunction with policies of the sort to be found in the emerging local plan in this case.[38]In any event, I am satisfied that the Inspector's decision cannot stand. In my judgment, the Council is substantially prejudiced by the legal errors. Even if there is no misdirection as to PPG3, the deficiency of reasons makes it impossible to know whether the Inspector has erred in his approach to the grant of permission in this particular case and, in particular, as to whether he has dealt properly with the requirements of section 54A. It is also impossible to know, on the basis of this decision, how the Council's policies on the adequacy of amenity space should be approached in the future. I well understand the Council's worries about where a decision expressed in these terms might lead and about the need for a much clearer and more fully reasoned analysis of issues of the kind that were ventilated before the Inspector.[39]Accordingly, despite Mr Lowe's heroic efforts to uphold a decision that the Secretary of State was willing to consent to have quashed, the decision will be quashed and I will hear counsel about any other order.[40]MISS ORNSBY: Thank you, your Lordship. Your Lordship will have seen from the letter that was handed up this morning that the Treasury Solicitor accepts that he will pay or costs up to and including 23rd May. In the terms the order is sought that the costs be subject to detailed assessment if not agreed. I therefore ask your Lordship to make an order in those terms in respect of our costs up to and including 23rd May. Thereafter I seek our costs as against the second defendant. I understand that the amount as contained in the schedule provided to the court is agreed, and that amount, your Lordship, is £3,701.50.

MR JUSTICE RICHARDS: £3,701.50.

[42]MR LOWE: My Lord, there is just one minor point, I am looking through the schedule, that figure includes engagement at court for four hours, that is beside the travelling, taking the expeditious way we have dealt with this matter, it is only two hours, so I think the bill should be amended.[43]MISS ORNSBY: I am more than happy to accede to that. So, if your Lordship takes £200 off, that will make it £3,501.50.[44]MR JUSTICE RICHARDS: I am going to say £3,500, let us be sensible about it. The decision will be quashed. The claimant's costs up to and including 23rd May are to be paid by the first defendant, the First Secretary of State, such costs to be subject to detailed assessment if not agreed. The claimant's costs from 23rd May are to be paid by the interested party, summarily assessed in sum of £3,500. I am very grateful to you both and not least for the economical way in which you have dealt with your submissions. Thank you.