“6. An application under Section 288 is not an opportunity for a review of the planning merits of an Inspector’s decision. An allegation that an Inspector’s conclusion on the planning merits is Wednesbury perverse, is in principle, within the scope of a challenge under Section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a re-run of the arguments on the planning merits. 7. In any case, where an expert Tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the Site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable. 8. Moreover, the Inspector’s conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the Site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task ….”
“3. The grounds for a challenge under Section 23 are constrained; that is to say this hearing is not an opportunity to re-run the merits of the compulsory purchase order, it is simply an opportunity to see whether there is any procedural or legal error in the process of confirmation…. 8. “…. The change in the rules reflected the reality in planning and compulsory purchase order enquiries and other inquiries of a similar kind. It is very difficult to disentangle straightforward findings of fact from matters of a judgment or opinion and thus one very often sees finding of facts and conclusions and opinions mixed up …. If it can be demonstrated that in reaching his or her conclusions the Inspector has omitted to make an essential finding of fact, not a matter of disputed judgment, then that may form the basis of a legal challenge ….”
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need only refer to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon a future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the Court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
“…. A decision letter must be read (1) fairly and in good faith, and as a whole without an unduly legalistic or critical approach; (2) in a down-to-earth manner, and not as if it were a legal instrument; (3) as if by a well informed reader who understands the principal controversial issues in the case: see Clarke Homes v Secretary of State for the Environment(1993) 66 P&CR 263 , at 271; Seddon Properties v Secretary of State for the Environment(1981) 42 P&CR 26 at 28; and South Somerset District Council v Secretary of State for the Environment(1993) 66 P&CR 83 .”
“…. There are dangers in over-simplifying issues of this kind as also of over-complicating them. I hope I am not over-simplifying unduly by suggesting that the central issue in this case is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved as the parties agree on a straightforward down to earth reading of his decision letter without excessive legalism or exegetical sophistication….”
“…. To what extent is the Secretary of State entitled to use compulsory powers to acquire the land of a private individual? It is clear that no Minister or public authority can acquire land compulsorily except the power to do so be given by Parliament: and Parliament only grants it, or should only grant it, when it is necessary in the public interest. In any case, therefore, where the scales are evenly balanced – for or against compulsory acquisition – the decision – by whomsoever it is made – should come down against compulsory acquisition. I regard it as a principle of our constitutional law that no citizen is to be deprived of his land by any public authority against his will, unless it is expressively authorised by Parliament and the public interest decisively so demands …. If there is any reasonable doubt on the matter, the balance must be resolved in favour of the citizen.”
“24. There are circumstances in which the Secretary of State might lawfully confirm a compulsory purchase order even though he cannot conclude that the related development would, or would probably, go ahead …. 34. There may very readily be cases where the Secretary of State concludes (a) that the public interest decisively requires the development to go ahead; (b) that it is less likely, or much less likely, to go ahead without a compulsory purchase order; (c) but that even if the order is made he cannot conclude that it will probably go ahead….”
“Provided additional funding sources have been explored authority be given to the Director of Finance and Corporate Service to arrange and enter into such agreements as she considers prudent for additional borrowing up to a maximum of£1.8 million pounds to bridge the remaining funding gap.”
“…. Policy T8 envisages the need for enabling development only in the context that the retention of an amusement park proved not to be viable. The receipt of grant funding means that enabling development is no longer essential for the restoration of the amusement park.”
“A general indication of funding intentions, and of any commitments from third-parties, will usually suffice to reassure the Secretary of State that there is a reasonable prospect that the scheme will proceed.”
“108. The resolution to borrow£1.8 million pounds was made in May 2010, at which time the scheme was not the one before the Inquiry. Members were advised that the proposal would generate 700,000 visitors and 200 jobs and that they could recoup the money by developing the non-HAP land. TDC’s case now is that the scheme would now generate 350,000 visitors and that there would be 14 full time jobs at the HAP with a further 32 FTEs in the summer. There is no intention of developing the non-HAP land. Thus the benefits of the expenditure have been severely reduced and the means of recouping it gone. The Secretary of State cannot assume that TDC members are still willing to borrow£1.8 million pounds in these very changed circumstances. A new resolution is needed.” “ …. As the works have already been severely pared down there is no room for savings and any increase in cost would have to be met by a reduction in the HAP offer. The inadequacies of TDC’s case on this aspect are so many and manifest as to make it impossible to confirm the CPO.”
“192. It is, however, quite clear from the evidence that the question of compensation has been considered by the Council and that it has made provision for it. The Council’s reluctance to divulge its estimate of the sum involved is entirely reasonable as this could prejudice later negotiations between the parties. The amount of compensation payable is a matter to be decided quite separately and has no bearing on whether or not the Order should be confirmed.”
“…. In all, three separate Business Plans have been produced for the HAP each prepared by a firm with specialist knowledge of the industry.”
“2. With reference to IR194, I would like to make a small correction. Where I state that three separate Business Plans were prepared for the HAP I should have correctly stated that three separate Business Plans were prepared for the Site, of which two related to the HAP. The point made by the Council was that all three showed the proposals for an amusement park on the Site would be viable. I did not agree with the objectors that the Dreamland Trust had accepted that the Locum Business Plan was illogical. It was clear from Mr Laister’s evidence that the Trust did not consider the Forum report to be illogical or defective. It did, however, consider it to be on the optimistic side in its assessment of the HAP prospects. It was for that the Dreamland Trust Board decided to get a second opinion. Far from being a weakness in the case for the Council, this seemed to me to indicate how cautious the Dreamland Trust and the Council had been approaching an ambitious venture.”
“194. Much time at the Inquiry was taken up with discussions about the merits of the Business Plan. Business planning is essentially a matter of judgment rather than science. The selection of data on which they are based and assumptions made about that data rely on experience and judgment. In all, three separate Business Plans have been produced for the HAP, each prepared by a firm with specialist knowledge of the industry. Notwithstanding the dispute as to which of them should be preferred, all three conclude that an amusement park on the Dreamland site would be viable. Moreover the difference between the two latest plans is small and depends on the selection of particular rides. As the Council points out that is also a matter of professional judgment.”
“195. The Business Plan has been independently assessed by the council, prior to its decision to become associated with the Dreamland Trust’s proposals, and again by central government, the Prince’s Trust and the HLF. While there can be no guarantee that any Business Plan will prove be a wholly accurate predictor of future events the TDC/DT Business Plan has been subjected to intensive independent scrutiny and there is no reason to doubt its robustness. In short the evidence suggests that there is no reason to doubt the viability of the HAP proposals.”
“3. It is said that I erred in finding that the Council/Dreamland Trust Plan had been subjected to intensive independent scrutiny. What appears to be in dispute is whether “intensive …. scrutiny” was applied by each of these organisations. The reference to “intensive” was meant to describe the overall process, whereby the Business Plan was subject to scrutiny by a number of different organisations, including grant making bodies.”
“18. The recent subdivision of the legal title could create a false impression that the compulsory purchase order (CPO) seeks to acquire three separate and unconnected parcels of land. Dreamland has, however, always been a complete site, a single planning unit devoted to a single purpose as an amusement park. The CPO seeks to acquire all the land that has historically made up the Site.” “31. […] MTCRC’s proposals represent a complete break with the past, effectively splitting Dreamland in two and using almost half to build 474 dwellings. The HAP would be unable to expand once half of the planning unit had been permanently taken for housing. MTCRC’s proposals, whether to develop 49% of the Site for housing or simply to delete from the CPO some areas for which it has no firm proposals of its own, would radically alter the situation and create two distinct new and smaller planning units devoted to what might be incompatible uses.”
“Proposals that seek to extend, upgrade or improve the attractiveness of Dreamland as an amusement park will be permitted, development that would lead to a reduction in the attractiveness leisure or tourist potential will be resisted.”
“The exclusion of areas 5 and 6 would, therefore, restrict the regenerative effect of the proposed development, impede the implementation of Policy T8 and would be likely to result in the continued disuse of area 6.”
“Apart from retaining the existing car park, the objectors have not suggested how, if areas 5 and 6 were to be excluded from the order they could be developed in a way that complied with Policy T8. The argument that Policy T8 would be “spent” following the completion of HAP scheme, freeing the land for other forms of development, is not a good one. The Policy seeks the restoration of the amusement park on the whole of the Site and would not become redundant simply because the HAP had been created on part of it.”
“… The Business Plan predicts an annual income of£25,000 from events within the HAP land for the first five years but envisages no income from areas 5 or 6. Mr Laister suggested that these areas could produce an income of£25,000 from year 6 onwards. He was not in a position to give evidence on this matter of opinion. Moreover, if he was right, the proposal to compulsorily purchase this area of previously developed land in the heart of Margate on the basis that it would produce£25,000 in annual revenue in six years time is a measure of the quality of the Council’s case.”
“185. The objectors argue that the Order, if confirmed, should be modified so as to exclude two areas of land (areas 5 and 6) that did not form part of the HAP proposals and the leasehold part of the cinema. 186. Under the Council’s proposals areas 5 and 6 (a car park and vacant respectively) would be used as a 250 space car park for the HAP, with the remainder providing space for overflow parking and for special events that would complement the activities in the HAP. The objectors’ argument is that, apart from the 250 parking spaces – which could be provided without the need to acquire the land – these areas are not needed for the HAP and should be excluded from the order.”
“184. The objectors have offered to transfer to the Council all the land needed for the HAP for£1 . This offer, was, however, made in the context of earlier discussions and was dependent on the Council agreeing to development on the rest of the land. It was clear from the evidence at the Inquiry that the objectors’ position on this had not changed.”
“211. The MTCRC scheme assumes that the grant funding from HLF and Sea Change has been offered to TDC/DT would also be available to MTCRC. That assumption is not backed up by any evidence. On their own admission the objectors have no knowledge of the terms and conditions attached to the offers made to TDC/DT and there is nothing to suggest that the grant funding bodies have ever be asked to consider the proposition. As the two schemes are very different there can be no reasonable grounds for assuming that the grants could simply be transferred from one to the other.”