Jefferson v National Assembly for Wales &Anor [2007] EWHC 3351 (Admin)

[2007] EWHC 3351 (Admin)Ref CO/2310/2007
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue CARDIFF CIVIL JUSTICE CENTRE,
2 PARK STREET,
Venue CARDIFF CF10 1ETDate 30 October 2007
BEFORE HIS HONOUR JUDGE HICKINBOTTOM
SITTING AS AN ADDITIONAL JUDGE OF THE HIGH COURT
Between
MATTHEW JEFFERSONClaimantTHE NATIONAL ASSEMBLY FOR WALESDefendantNEWPORT CITY COUNCILDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Claimant appeared in person. for in personCLIVE LEWIS QC (instructed by the Treasury Solicitor)appeared for First Defendant. for The Second Defendant did not appear.
JUDGMENT

Introduction

[1]This is an application under Section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector dismissing an appeal by the Claimant Mr Matthew Jefferson against a refusal of planning permission by the Second Defendant Council (“the Council”). It raises a discrete and important issue namely, where there has been a material change between the date of a decision of a local planning authority (“LPA”) on a planning application and a decision on an appeal from the LPA (e.g. the adoption of a new development plan), should the inspector on the appeal take into account the changed circumstances or is he bound to take into account only the circumstances as they stood when the LPA made its decision?

Factual Background

[2]Mr Jefferson applied to the Council for planning permission for the erection of a two-storey side extension to a house in Bolton Road, Newport. On 23 March 2006, the Council refused the application. At that time, the current development plan for the relevant area was the Gwent Structure Plan of 1996, although a draft Newport Unitary Development Plan (“the UDP”) had been deposited. In coming to its decision, the Council took into account both the Structure Plan and the draft UDP, both of which were referred to in its decision letter.[3]Mr Jefferson appealed to the First Defendant the National Assembly for Wales (“the National Assembly”), which transferred the authority to decide the appeal to an appointed inspector, Mr Ian Osborne (“the Inspector”). Before the Inspector’s inquiry - and hence, of course, before his decision on the appeal - the Council adopted the UDP. Following an inquiry, the Inspector dismissed the appeal in a decision letter dated 7 February 2007 (“the Decision Letter”), having considered the appeal on the basis of the newly adopted UDP.[4]Mr Jefferson contends that the Inspector erred in law on three interrelated grounds, namely:(i) As a matter of construction of the relevant statutory provisions, the Inspector was bound to consider the appeal upon the material considerations as they stood at the Council’s decision, and he erred in taking into account the changed considerations as they stood at the time of his own decision on the appeal. In other words, he erred in taking into account the adopted UDP, and not taking into account the Gwent Structure Plan and unadopted UDP as they stood at the time of the Council’s decision. This was the primary ground upon which the application to quash was based.(ii) The Inspector’s decision on this issue contravened the rules of natural justice and Article 6 of the European Convention on Human Rights.(iii) The Inspector’s reasons on this issue were inadequate.[5]At the hearing before me, Mr Jefferson did not pursue further claims based upon(i) Article 1 of the First Protocol to the European Convention on Human Rights or(ii) any error by the Council (as opposed to the Inspector on behalf of the National Assembly) and I need not say anything further about those.

The Relevant Statutory Provisions

[6]Planning permission from the relevant LPA is required for any “development”, which includes building operations such as those proposed by Mr Jefferson (Sections 55 and 57 of the Town and Country Planning Act 1990: in this judgment, all statutory references are to this Act, unless otherwise indicated).[7]With regard to any application for planning permission, Section 70(2) provides:
“In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material consideration.”
Therefore, in considering and deciding a planning application the LPA must have regard to all “material considerations”, including the provisions of “the development plan”.[8]The “development plan”, so far as any area in Wales is concerned, is defined in Section 27A(1) (inserted by Section 20(3)(a) of the Local Government (Wales) Act 1994):
“… [T]he development plan for any area in Wales shall be taken as consisting of: (a) the provisions of the [UDP] for the time being in force in that area, together with a copy of the relevant [LPA]’s resolution of adoption or the [National Assembly’s] notice of approval or, where part of the plan has been adopted and the remainder approved, copies of the resolution and the notice; (b) any alteration to that plan, together with a copy of the relevant [LPA]’s resolution of adoption, or the [National Assembly’s] notice of approval, or the alteration or, where part of the alteration has been adopted and the remainder approved, copies of the resolution and notice.” (a) the provisions of the [UDP] for the time being in force in that area, together with a copy of the relevant [LPA]’s resolution of adoption or the [National Assembly’s] notice of approval or, where part of the plan has been adopted and the remainder approved, copies of the resolution and the notice; (b) any alteration to that plan, together with a copy of the relevant [LPA]’s resolution of adoption, or the [National Assembly’s] notice of approval, or the alteration or, where part of the alteration has been adopted and the remainder approved, copies of the resolution and notice.”
[9]In terms of transitional provisions, it was provided that, until the adoption of a UDP, the relevant development would be the existing plan for the particular area: but, once the UDP had become fully operative, “any existing plan which is for the time being in force and any interim plan shall cease to have effect in respect of its plan area…” (Paragraph 1 of Part 1A of Schedule 2; and Article 3 of the Planning and Compulsory Purchase Act 2004 (Commencement No 6, Transitional Provisions and Savings) Order 2005). Therefore, in short, until the UDP were adopted, “the development plan” would be the existing plan(in this case the Gwent Structure Plan of 1996): but, once the UDP were adopted, that all existing plans would cease to have effect, and “the development plan” for the area would become the adopted UDP.[10]Furthermore, by Section 336:
“ ‘development plan’ must be construed in accordance with Section 38 of the Planning and Compulsory Purchase Act 2004 [“the 2004 Act”].”
[11]Section 38(6) of the 2004 Act provides:
“If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
[12]Where an LPA in England refuses an application for planning permission, then the unsuccessful applicant may appeal to the Secretary of State (Section 78(1)). In relation to Wales, by virtue of Article 2 and Schedule 1 of the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999 No 672), the Minister’s functions were transferred to the National Assembly. Unless otherwise indicated in this judgment, the relevant statutory provisions are the same for Wales and England, except that in Wales the decision-making function is devolved to the National Assembly. As the National Assembly (or indeed the Secretary of State) usually transfer the authority to decide an appeal to an inspector, in this judgment I shall generally refer to an inspector as being the relevant decision-maker on an appeal from an LPA decision.[13]Under Section 79 (under the heading, “Determination of appeals”): “(1) On an appeal under Section 78 [the National Assembly] may:(a) allow or dismiss the appeal, or(b) reverse or vary any part of the decision of the [LPA] (whether the appeal relates to that part or not), and may deal with the application as if it had been made to him in the first instance. … (4) …[T]he provisions of Sections 70, 72(1) and (5), 73 and 73A and part I of Schedule 5 shall apply, with any necessary modifications in relation to an appeal to the [National Assembly] under Section 78 as they apply in relation to an application for planning permission which falls to be determined by the [LPA] …. (5) The decision of the [National Assembly] on such an appeal shall be final. …” (a) allow or dismiss the appeal, or (b) reverse or vary any part of the decision of the [LPA] (whether the appeal relates to that part or not),

Ground 1: The Temporal Issue relating to Material Considerations

[14]Mr Jefferson submitted that, on the true construction of these provisions, on an appeal from an LPA, an inspector must take into account material considerations as they stood at the time of the LPA’s decision, and cannot take into account any subsequent changes. Therefore, he submitted that the Inspector erred in taking into account the adopted UDP and not taking into account the Gwent Structure Plan and unadopted UDP as they stood at the time of the LPA decision. In urging this construction, Mr Jefferson particularly relied upon the concluding words of Section 79(1), to the effect that “…[the National Assembly] may deal with the application as if it had been made to [them] in the first instance”. Relying upon comments by Sir David Cairns on identical wording in a predecessor statute (i.e. comments on Section 36(3) of the Town and Country Planning Act 1971 in Clyde & Co v The Secretary of State for the Environment [1977] 3 All ER 1123, “Clyde & Co”, at page 1126), he submitted that those words required the Inspector to deal with the matter “on the same basis” as the LPA had dealt with it, which he took to mean as taking into account only the material considerations as they stood at the time of the LPA’s decision.[15]For the National Assembly, Mr Clive Lewis QC submitted that on the proper construction of the statutory provisions, an inspector was bound to take into account the material considerations as they stood at the date of his own decision.[16]The issue of which development plan ought to be taken into account in dealing with the appeal was specifically raised at the inquiry before the Inspector. In the Decision Letter, the Inspector dealt with it as follows:
“In May 2006 the Council adopted the Newport Unitary Development Plan [UDP]. This is now the statutory development plan for the area and in accordance with Section 38(6) of the Planning and Compulsory Purchase Act 2004 this appeal must be determined in accordance with that plan unless material considerations indicated otherwise. I have considered [Mr Jefferson’s] submission that Section 79(1) of the 1990 Act means that the matter should be dealt with as though the appeal application had been made to the National Assembly at the same time that it was made to the Council, that is before the UDP had been adopted and when it therefore carried less weight. However in my view Section 38(6) of the 2004 Act means that the appeal should be determined in the lights of the development plan policy operative at the date of this decision.”
It is that part of the Inspector’s decision that Mr Jefferson submitted is erroneous on the basis I have set out above.[17]However, for the following reasons (set out in Paragraphs 18-39 below), I consider that submission is not made good: but rather, when dealing with an appeal, an inspector is bound to take into account changes in any material consideration (including any change to the development plan) that occur between the date of the LPA decision and the date of the Inspector’s own decision.[18]When an inspector hears an appeal from a decision of an LPA on a planning application, he does not merely review the decision of the LPA: it is a de novo hearing. That appears to me to be clear from the wording of Section 79(1) itself - a provision to which I shall return - but it is confirmed in cases such as Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281 (in which it was held that an appeal to the relevant Minister lay even where the LPA’s decision was void, because “the Minister’s power is in effect to deal with the matter de novo” which entitled him to deal with the application and make a decision on it himself: see page 1292H) and Robert Hitchins Builders Ltd v Secretary of State for the Environment [1979] JP 534 (in which it was confirmed that a Minister faced with an appeal against conditions applied to the permission, could deal with the application afresh and was not constrained either to strike down the conditions or dismiss the appeal). It is also the view of the standard text (see Encyclopaedia of the Law of Town and Country Planning, Vol 2, Paragraph P79.05). It is therefore well-established law that on an appeal an inspector has an original jurisdiction to hear the matter de novo. Before me, that was common ground.[19]In considering an appeal, an inspector must have regard to the development plan (Sections 70(2) and 79(4)).[20]By virtue of Section 38(6) of the 2004 Act “If regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise” (emphasis added). Mr Jefferson (with respect, quite correctly) accepted that this meant that any determination must be made in accordance with the development plan current at the time of that determination. Therefore, he accepted that, if the development plan changed between the lodging of an application for planning permission and the LPA’s decision on that application, the LPA are bound to take into account the plan as changed. That is not only in my judgment the natural meaning of the particular words of Section 38(6) of the 2004 Act, it is put beyond doubt by Section 27A of the 1990 Act:
“… the development plan for any area in Wales shall be taken as consisting of… the provisions of the unitary development plan for the time being in force for that area…”
(emphasis added). It is also in line with both policy and case law (particularly London Borough of Newham v Secretary of State for the Environment [1986] 53 P&CR 98), to which I deal below (Paragraph 37). These concessions by Mr Jefferson were, again, properly made.[21]However, for the purposes of Section 38(6) of the 2004 Act, the decision of an inspector on an appeal is just as much “a determination … made under the Planning Acts” as the earlier decision of the LPA. That section stresses that it applies wherever any determination under the Planning Acts is made. The inspector conducts a de novo hearing (see Paragraph 18 above), and makes his own determination on it. Although I do not pray in aid the section heading to assist in the proper construction of the substantive Section 79, that heading does correctly identify the decision of an Inspector (acting on behalf of the National Assembly) as a “determination”. As reflected in the Inspector’s Decision Letter, on its proper construction and in its proper context, Section 38(6) is fatal to Mr Jefferson’s submission.[22]Mr Jefferson relied heavily upon the closing words of Section 79(1), i.e. when an appeal is made to the National Assembly, they (or an inspector appointed on their behalf) “may deal with the application as if it had been made to [them] in the first instance”. However, I do not accept that these words mean (or even support a construction) that an inspector must deal with the application by reference to policies and other material considerations as they stood at the time of the LPA’s decision.[23]Section 79(1) grants the National Assembly in Wales and the Secretary of State in England (or an inspector appointed on their behalf) powers to allow or dismiss an appeal, reverse or vary any part of the LPA decision, and “deal with the application as if it had been made to him in the first instance”. These are powers rather than obligations: and, no matter how hard he tried, Mr Jefferson was unable to persuade me that an obligation to deal with an appeal on the basis of the circumstances as they stood at the time of the LPA decision could be conjured from those words of enablement. In their context, in my view those words merely indicate that the relevant authority has an original jurisdiction and hence the power to consider the matter de novo (again see Paragraph 18 above). This perhaps appears at its most stark in Section 79(1)(b), which makes clear that the inspector may reverse or vary the decision of the LPA “whether the appeal relates to that part of it or not”: which means that, even where an applicant does not appeal a part of the LPA decision with which he is satisfied, it is nevertheless open to an inspector when to vary that part of the LPA’s decision to the disadvantage of the applicant.[24]Therefore, in my judgment, the concluding words of the section merely make clear that, when an appeal has been made, the inspector has an original jurisdiction on the appeal and is not simply reviewing the decision of the planning authority. I have already referred to Mr Jefferson’s proper concession with regard to the nature of this jurisdiction (Paragraph 18). In exercising this jurisdiction, the Courts have regularly commented upon the width of these powers and the range of the matters which an inspector must take into account on an appeal (see, e.g. Clyde & Co at page 1126F: and Barber v Minister of the Environment (1997) 51 WIR 64 at page 67D and 68A).[25]The authorities referred by Mr Jefferson (notably Clyde & Co) not only fail to provide support for his proposition that changes in material considerations that occur after the LPA’s decision cannot be taken into account on an appeal, but in my view they reveal a serious flaw in his submission.[26]In Clyde & Co, the Court of Appeal considered the issue of what constituted material considerations for planning purposes and in particular whether the desire to preserve an existing use (residential use) was material in considering an application to change the use to office use. The statutory scheme being considered was that under the Town and Country Planning Act 1971, which so far as relevant to this case was in identical terms to the 1990 Act (particularly Sections 29(1) and 36(3) of the 1971 Act being in similar terms to Sections 70(2) and 79(1)) of the 1990 Act). At page 1124D-E, Sir David Cairns (effectively giving the judgment of the Court) said: “[Section 29(1)] provides the matters to which the planning authority is to have regard, and by reason of Section 36(3) the Secretary of State has to deal with the matter on the same basis. Clearly, the ‘material considerations’ which the Secretary of State has to have regard to must be considerations material to the application. It is common ground that they must be planning considerations. Counsel for the Secretary of State contends that the desirability of providing housing is indeed a planning consideration, and that must be material to consider that factor in deciding whether to permit a change of use which would intensify an existing shortage of housing accommodation”.[27]Of this passage, Mr Lewis for the National Assembly said (Skeleton Argument, Paragraph 23):
“In other words, the Court of Appeal was addressing the question of what constitutes a material consideration for planning purposes, whilst recognising that what was a material consideration for the planning authority would be a material consideration also for the Secretary of State when considering an appeal. It was in that context that the reference to deciding the appeal on the same basis was made. The Court was not considering the different temporal question of whether the Secretary of State should have regard to the plan in force at the time of his decision or that in force (but replaced) at the time of the planning authority’s decision.”
[28]I agree - in respect of material considerations, Clyde & Co was concerned with “what” rather than “when”. The case stresses that the nature of the material considerations (including the development plan) that have to be considered by the LPA and later by an inspector on appeal are the same. This is what Sir David Cairns meant by the LPA and inspector having to deal with the case “on the same basis”: the matters which the LPA and inspector have to consider and take into account are in their nature the same - the “material considerations” in this sense do not change. However, this does not mean or even suggest that the inspector must have regard to the development plan and other material considerations as they stood at the time of the LPA decision - crystallised and locked at that time. For the reasons I give below, to crystallise them at that time would be neither consistent with policy nor rational. In any event, the use of the particular phrase “material considerations” is at least strongly suggestive of the considerations being taken into account as they stand at the time that the relevant determination: other phrases (such as perhaps “material circumstances”) being more appropriate if it were intended that the inspector took into account matters retrospectively. That suggestion becomes overwhelming when viewed in the full context of the statutory scheme, including particularly Section 38(6) of the 2004 Act and the de novo nature of the inspector’s consideration of an appeal. In my judgment, that puts beyond any real doubt the construction contended for by the National Assembly.[29]Given the terms of Section 38(6) of the 2004 Act set in the proper context of the statutory scheme of which it forms part, it would need the clearest words elsewhere for the submission of Mr Jefferson to be made good. Had Parliament intended a crystallisation of circumstances as at the date of the LPA decision, then it could and in my view would have made that clear. One example where there is such crystallisation in a scheme involving statutory challenges to Government decisions can be found in Section 12(8) (b) of the Social Security Act 1988, which concerns appeals from decisions made on behalf the Secretary of State in respect of welfare benefits. Such appeals are made to a Social Security and Child Support Appeals Tribunal, who are constrained as follows:
“In deciding an appeal under this section, an appeal tribunal… shall not take into account any circumstances not obtaining at the time when the decision appealed against was made.”
The word “circumstance” rather than “consideration” is used in that provision: but nevertheless Parliament deemed it necessary to include express provision limiting the circumstances to which the tribunal could have regard to those that pertained at the time of the decision-makers decision. There is no similar provision in the Town and Country Planning Act 1990.[30]As it is, I consider the construction of the relevant provisions in the scheme focussed on the 1990 Act on their face only capable of one construction, namely the construction put forward by the National Assembly, i.e. that an inspector has to take into account material considerations (including the development plan) as they stand at the date of his decision.[31]I am comforted in my conclusion because that construction is also supported by both the policy of the statutory scheme and case law.[32]With regard to policy, the intention of the legislative scheme is to control developments to ensure that developments not in accordance with current policy are not permitted. Of course, that policy is ever evolving and ever changing, as the result of political change and the constant reviewing of weight given to the wide range of factors that are politically relevant to the planning of developments. That current policy is that to be taken into account is reflected in Section 38(5) of the 2004 Act, which provides that, where there is conflict between two policies, then the latter policy prevails. However, the paramountcy of the current policy is perhaps best reflected in Section 27A of the 1990 Act, which provides that the development plan is the plan “for the time being in force” and “any alteration” (see Paragraph 8 above). The submissions of Mr Lewis on this issue had considerable force. The general intention of the statutory scheme is that planning applications are determined and permission granted or refused by reference to the currently applicable policy and other material considerations as at the time of the decision. The intention is not to freeze the planning framework as at the time of the application for permission, or create a situation where permission has to be granted for a development which, on current policy at the time of that decision, is unacceptable in planning terms.[33]As I understand it, Mr Jefferson accepts that this is the case in respect of the period between the application being made and the application being determined by the LPA. He contends that the crystallisation does not take place until the LPA have made their decision. However,(a) the appeal is by way of a de novo hearing and, especially in the light of the provisions of Section 38(6) of the 2004 Act, in my judgment for the reasons I have already given it would take the clearest words in the scheme to allow the construction contended for by Mr Jefferson; such words are not there: and(b) Mr Jefferson was not able to give any rational basis for crystallising circumstances as at the time of the LPA decision (rather than at the time of the application - which logically could “stop the clock” so far as circumstances were concerned) or at the time of the determination on the appeal.[34]Mr Jefferson further submitted that the fact that, once planning permission is ultimately granted, a development can be built on the basis of that permission even if planning policy later changes to the extent that, if permission were then sought, it would not be granted supports his contention that material considerations have to be crystallised at some stage which (he submits) is at the date of the LPA decision. Of course, once an application for planning permission has been ultimately decided in favour of a grant, then the successful applicant must be enabled to act upon the permission irrespective of later changes in planning policy or other material considerations. However, that proposition in no way supports the contention that material considerations are or should be crystallised at some stage before the ultimate determination of the application, namely (as he contends) at the time of the LPA decision irrespective of any appeal process.[35]Therefore, in my judgment policy considerations also support the construction advocated by the National Assembly.[36]Turning to case law, I was helpfully referred to a number of cases by Mr Lewis. The most directly applicable was R v Secretary of State for the Environment ex parte Bickenhall Parish Council [1987] JPL 773. An application for planning permission was called in by the Secretary of State, and an inspector appointed. He recommended that the application be refused, in part because a proposed alteration to the relevant Structure Plan was awaited and he considered planning permission should await the adoption of a local plan. The alteration to the Structure Plan was then approved. The Secretary of State subsequently gave his decision, granting permission. In doing so, he took into account the amendment to the Structure Plan which was made only after the inquiry. The parish council applied to have the decision quashed on the basis that the Secretary of State ought not to have taken into account the amendment to the development plan.[37]Of the argument that, by having regard to the amendment to the Structure Plan the Secretary of State had acted unlawfully by taking into account something which he ought not to have taken into account, Nolan J held (at page 777) that this submission fell foul of statutory provisions in the same terms as those in the current scheme (i.e. Sections 29(1) and 35(4) of the Town and Country Planning Act 1971) which, he said:
“… plainly require the Secretary of State, when dealing with an application, to have regard to the provision of the development plan. The development plan was the Structure Plan as amended (see Section 20(1)) [cf Section 27A(1) of the 1990 Act: see Paragraph 8 above). That had to mean the Structure Plan as it stood at the time of the decision. Therefore the Secretary of State could not be faulted for having regard to it, but on the contrary was bound to do so”
. Whilst this case is not binding on me, it directly supports the construction suggested on behalf of the National Assembly; it does not appear to have been disapproved or even questioned during the course of the last 20 years, and is of considerable persuasive value; and, in my respectful view, it is correct. Equally supportive are Nottinghamshire County Council v Secretary of State for the Environment [EWHC] 188 Admin (Sullivan J) and London Borough of Newham v Secretary of State for the Environment (1986) 53 P & CR 98 (in which it was common ground - and therefore not the subject of decision by the court (Webster J) - that a policy which came into force after an inquiry but before the final decision should be taken into account by the decision-maker), to which I was also referred.[38]Indeed, I consider that R (Erine Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370 (relied upon by Mr Jefferson) is also supportive of the National Assembly’s suggested construction, rather than that contended for by Mr Jefferson. That case concerned a judicial review of a LPA’s decision granting planning permission: and particularly concerned the position where a material consideration arises for the first time or changes after an LPA resolves to grant planning permission but before the issuing of the decision notice that permission has actually been granted. Mr Jefferson particularly relied upon Paragraph 122 of the judgment of Jonathan Parker LJ:
“In my judgment, an authority’s duty to “have regard to” material considerations is not to be elevated into a formal requirement that in every case where a new material consideration arises after the passing of a resolution (in principle) to grant planning permission but before the issue of the decision notice there has to be a specific referral of the application back to committee. In my judgment the duty is discharged if, as at the date at which the decision notice is issued, the authority has considered all material considerations affecting the application, and has done so with the application in mind - albeit that the application was not specifically placed before it for reconsideration.”
He also referred me to Paragraphs 124-5, in which the Court of Appeal held that there would be no breach of Section 70(2) by the LPA if the existence of the material consideration was not and could not have reasonably have been discovered or anticipated prior to the issue of the decision notice. However, in those paragraphs the Court also held that, if the delegated officer became aware of the new material consideration before he signs the decision notice, Section 70(2) requires the LPA to have regard to that new material consideration before finally determining the application. I agree with the submission of Mr Lewis - the whole tenor of the decision supports the submission of the National Assembly before me that generally the statutory scheme focuses on material considerations (including the development plan) as they stand at the time the particular decision-maker makes his decision, whether that decision-maker be a LPA or an inspector. In short, it reflects and indeed underscores the true construction of Section 38(6) of the 2004 Act as I have determined above which, in my judgment, is crucial in this case.[39]Therefore, in my view, the ordinary words used in the statutory provisions, principle, policy and precedent all point against the construction of the statutory scheme relied upon by Mr Jefferson, and towards that contended for by Mr Lewis on behalf of the National Assembly namely that, when the National Assembly in Wales (or the Secretary of State in England, or an inspector to whom the decision is entrusted) considers an appeal, then it must do so on the basis of material considerations as they stand at the date of its own decision.[40]Mr Jefferson’s application on the first ground consequently fails.

Ground 2: Natural Justice and Article 6

[41]During the course of the hearing, it became unclear whether Mr Jefferson relied upon the rules of natural justice and the right to a fair hearing under Article 6 as a separate ground, or whether he used them merely in support of the construction of the relevant statutory provisions for which he contended (i.e. Ground 1).[42]In either case, the ground is misconceived. Mr Jefferson accepted (again, rightly) that the rules of natural justice were for these purposes encapsulated within his Article 6 rights. However, both relate only to procedural fairness: they do not inform the content of substantive rights (as emphatically confirmed by Lord Bingham in Matthews v Ministry of Defence [2003] 1 AC 1163, at Paragraph 3: Article 6 “does not itself guarantee any particular content for civil rights in any member state”). Mr Jefferson is frustrated that, because of the adoption of the UDP, his chances of obtaining planning permission for his extension have diminished - but he does not suggest that the Inspector’s conclusion based upon the adopted UDP is challengeable if he was right to use the adopted UDP at the relevant development plan. In terms of the substantive law, I have found that the Inspector acted lawfully and properly.[43]As a procedural matter, the issue as to whether the relevant development plan that the Inspector had to take into account was the adopted UDP or its predecessor was an issue that was raised before the Inspector and he ruled upon it (see Paragraph 16 above). Mr Jefferson complained that he addressed the Inspector on the relevant statutory provisions, but the Council were not required by the Inspector to do so. However, the Inspector was not required to hear the Council representative if, having heard Mr Jefferson’s submissions on the issue, he had determined that the construction for which they contended was correct. If he was adverse to Mr Jefferson’s submissions on the issue of construction, he would of course been bound to hear those submissions out before making a ruling which, as I understand it is common ground, he did. In short, Mr Jefferson had a fair hearing, and every opportunity to put submissions on the determinative issues - including the issue as to the appropriate development plan to take into account. Elegantly as it was put as an issue of procedural unfairness, the thrust of Mr Jefferson’s complaint was not that the procedure was unfair but rather that the Inspector got the law wrong in substance. That was the first ground of challenge, with which I have dealt.[44]In any event, even if he had not heard any submissions on the construction issue from Mr Jefferson before making an adverse ruling against him, I would still have upheld the Inspector’s decision. Mr Jefferson referred me to a number of cases in which tribunals have been properly criticised for making factual findings without having heard evidence or representations on evidential matters (e.g. Dyason v Secretary of State for the Environment [1998] 2 PLR 54, especially at page 61). However, although a factual finding made without consideration of all the relevant evidence may make a decision unsafe, if a tribunal without hearing submissions simply makes a correct legal ruling which is in not reliant in any way upon factual findings and applies the correct law (which is upheld as being correct following a challenge in the court system) then a party can have suffered no prejudice by virtue of the tribunal’s failure to hear proper submissions. The same would be true if in those circumstances the tribunal failed to give adequate reasons for its legal ruling. Under Section 288, in proceedings for questioning the validity of the decision of an inspector the Court has a discretion to uphold the decision, even if the inspector has made an error. Even if an inspector made a procedural error in failing to hear submissions or failing to give adequate reasons in relation to a matter of statutory construction supported after a legal challenge, the aggrieved party would have suffered no prejudice. This Court will not lightly strike down a decision of an inspector that is patently and inevitably right, and is highly unlikely to remit a case for reconsideration on the basis of a legal ruling that would inevitably result in the same decision as that reached by the inspector originally.[45]Therefore, in this case, although I firmly consider that the Inspector did not breach either the rules of natural justice or the right to a fair hearing under Article 6, insofar as I am wrong in this - and he did - Mr Jefferson has suffered no prejudice and I would exercise my discretion in favour of upholding the Inspector’s decision.[46]For these reasons, this ground fails.

Ground 3: The Inadequacy of Reasons

[47]Mr Jefferson submitted that, in any event, the Inspector’s reasons for ruling against him on the construction point were inadequate.[48]The short answer to this ground is that the reasons were entirely adequate. The Inspector’s words were not drafted by Parliamentary Counsel, nor are they to be construed as if they were (Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at page 28). Decision letters such as this are to be considered on a “straightforward down-to-earth reading… without excessive legalism or exegetical sophistication” (Clarke Homes Ltd v Secretary of State for the Environment (1993) 66 P&CR 253 at page 272-3, per Sir Thomas Bingham MR). Bearing this guidance in mind, I consider that the Inspector made clear that he considered Section 38(6) of the 2004 Act led to the construction contended for by the Council (and that now supported by the National Assembly). With respect, I agree. I have no doubt that the reasons given by the Inspector for his ruling on this issue were adequate.[49]In any event, if the Inspector’s reasons for his legal ruling were inadequate, that ruling was nevertheless correct: and for the reasons given above (Paragraph 44) Mr Jefferson has would have suffered no prejudice and I would have upheld the Inspector’s decision.[50]For these reasons, the application fails on the third ground.

Conclusion

[51]Therefore, although I appreciate that this judgment will be disappointing to Mr Jefferson, I am firmly of the view that the Inspector did not err in any way in which I can interfere on this application. For the reasons I have given, I shall dismiss the application.[52]In relation to costs, following the submissions I heard at the end of the hearing I shall order the Claimant to pay the First Defendant’s costs of the application, which I summarily assess in the sum of £8,338.32. The overall figure for costs is in my view both proportionate and reasonable: and rates, hours and disbursements are reasonable. I shall allow the solicitor’s travelling time to the hearing because I accept that overall the First Defendant has restricted its level of costs by employing the Treasury Solicitor (on lower rates than commercially available in Cardiff), but that has meant some additional travelling costs as a quid pro quo. I will give permission to apply in relation to the costs order, any application made under that permission being made initially on paper and reserved to me. I would propose dealing with any application on the papers, unless a party applies for a hearing. The same applies to any other consequential applications. Any application shall be made by 4pm on 13 November 2007. His Honour Judge Gary Hickinbottom 30 October 2007

Cited in 1 later judgment