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QUEEN V SECRETARY OF STATE for the ENVIRONMENT Ex parte ROCHFORD DISTRICT COUNCIL [2000] EWHC Admin 337 (12th May, 2000)
CASE NO: CO/4875/98
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
CROWM OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Friday 12 May 2000
BEFORE:
THE HON MR JUSTICE TURNER
THE QUEEN
V
THE SECRETARY OF STATE
for the ENVIRONMENT
Ex parte ROCHFORD DISTRICT COUNCIL
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
____________________
MR TIM MOULD (instructed by Treasury Solicitors for the
1st Respondent)
MR JOHN DAGG (instructed by Rochford Dist. Council for the
Applicant)
____________________
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE TURNER:
1. This is an application for judicial review of the decision of a
planning inspector dated 23rd October 1998 under which he determined that there
should be a partial costs order in favour of developers. There had been an
appeal to the inspector against the non-determination of a planning application
by the applicants (the District Council) under which the developers had applied
for permission to develop 45 category II sheltered apartments for the elderly
together with manager's accommodation and ancillary facilities on land at 63-69
Eastwood Road, Rayleigh, Essex.
2. In paragraph II of the costs decision letter, the inspector directed
himself in accordance with Circular 8/93 and recognised that costs may only be
awarded against a party who had behaved unreasonably and thereby caused another
party to incur unnecessarily, or waste, expenditure. The developers had sought
to recover the whole of their costs mainly on the grounds that the District
Council had not maintained their own Local Plan in accordance with Government
policies successively announced in PPG1, PPG6 and PPG13. That part of the
District Council's approach to the application and Inquiry which the inspector
criticised was in relation to the impact which the developers' proposals would
have on retail function and economic viability on the centre of Rochford.
3. The case which was advanced by the present applicants in support of
this application, as identified in form 86a, was that the inspector had found
the applicants to have acted unreasonably in two respects which led to the
making of the (partial) order against them. First, it was said that there was
a lack of objective basis for the applicant's position in relation to the
policy SAT3 (as to which, see below) incorporated into the local plan and its
subsequent monitoring in the context of later planning guidance; PPG1, PPG6 and
PPG13. The applicant's had misapplied that guidance in respect of housing in
the town centre. Secondly, it was said that the applicant's opposition to the
developers' application was mistaken since the Local Plan did not preclude
residential development in secondary shopping areas contrary to the applicant's
stance at the Inquiry. The grounds advanced in support of the present
application are that:
(a) the inspector misapplied the appropriate test to the evidence for the
Council on the retail issue. Specifically he took into account the pre-Inquiry
position adopted by the applicant's officers when he ought to have considered
the evidence in relation to this issue as a whole and its case at the Inquiry
based on its experts' evidence which, to an extent, made good any deficiency in
its earlier position;
(b) the inspector failed to consider the stand of government policy which
advocates maintenance and enhancement of the shopping component in town centres
while at the same time encouraging mixed development of housing and other
elements in town centres; instead he concentrated on that aspect of national
policy which favoured housing in town centres.
Both aspects of the policy should have been considered. If they were not, the
applicant's position on the retail issue "cannot be fairly judged."
(c) the inspector failed to take account of the Structure Plan policy SH1 (see
below) when considering national policy regarding maintenance and enhancement
of the shopping functions of the town centre;
(d) the inspector failed to give adequate or intelligible reasons for his
finding of unreasonableness in relation to the applicant's interpretation of
Local Plan SAT3 and the strategy at paragraph 9.2.0 of that document.
4. The developers have not appeared on the present application which is
resisted solely by the named respondent. This summary of the issues raised or
sought to be raised on this application create an immediate sense of unease,
because there may be implicit within it a challenge to the underlying decision
on the merits of the original decision, which it is not now open to the
applicants to pursue.
5. The essence of the applicant's submissions is that when approaching
the costs' issue, conduct by the applicants antecedent to the developers'
appeal was irrelevant to the award of costs. It was no more part of the
inspector's responsibility to pass retrospective judgment in relation to the
applicant's policy SAT3 than it was to review the applicant's internal decision
making processes. It was submitted that only the applicant's conduct with
reference to their behaviour at, and in relation to, the Inquiry was relevant
to the exercise of the inspector's power to make a costs' order against
them.
6. The starting point for this exercise has to be the statutory and
other non-statutory provisions which enable an inspector to make a costs'
order. Under section 250 (2) of the Town and Country Planning Act 1990 the
provisions of sub-sections 2 to 5 of section 250 of the Local Government Act
1972 apply to local inquiries. By section 250 (5) of the Act of 1972 the
Minister has power to "make orders as to the costs of the parties at the
Inquiry." The power to make such orders, is thus, untrammelled. By Circular
8/93, the Department of the Environment sought to provide guidance on how this
power should properly be exercised. Annex 1, paragraph 1, of the Circular
provides that costs are awarded only when "unreasonable" behaviour is held to
have occurred. Examples of such behaviour are to be found in Annexes 2 to 4.
By paragraphs 4,5 and 6 of the same annex it is provided
4. The availability of costs awards, on specific application, is intended to
bring a greater sense of discipline to all parties in planning proceedings. A
decision to award costs against one of the princapl parties in an appeal is not
punitive. ......
5. ...The guidance is intended both to support planning authorities in the
proper exercise of their statutory responsibilities and to reflect the
principle that the planning system should not prevent, inhibit or delay
development which could reasonably be permitted, in the light of the
development plan, so far as it is material to the application, and of any other
material considerations.
6. Before an award of costs is made, the following conditions will normally
need to be met:-
(1) one of the parties has sought an award at the appropriate stage of the
proceedings (as explained in Annex 5);
(2) the party against whom costs are sought has behaved unreasonably;
and
(3) this unreasonable conduct has caused the party seeking costs to incur or
waste expense unnecessarily, either because it should not have been necessary
for the matter to be determined by the Secretary of State, or because of the
manner in which another party has behaved in the proceedings (for example,
because the arranged inquiry or hearing had to be cancelled or extended,
resulting in wasted preparatory work or unnecessary expense).
Para 11 of the same annex provides that
11. ......a planning authority may be held to have acted unreasonably if they
fail to take into account reported judicial authority, or well-publicised
appeal decisions relevant to their reasons for refusal, or relevant policy
statements in Government White Papers, DOE and WO Circulars or Planning Policy
Guidance Notes (PPGs, RPGs and MPGs).
7. Annex 3 of the Circular is specifically concerned to identify
circumstances in which costs may be awarded against planning authorities.
Under the cross heading
Unreasonable refusal of planning permission
it is provided that
7. A planning authority should not prevent, inhibit or delay development which
could reasonably be permitted, in the light of the development plan, so far as
it is material to the application, and of any other material considerations.
8. Reasons for refusal should be complete, precise, specific and relevant to
the application. In any appeal proceedings, the authority will be expected to
produce evidence to substantiate each reason for refusal, by reference to the
development plan and all other material considerations. If they cannot do so,
costs may be awarded against them. This is the ground on which costs are most
commonly awarded against a planning authority. Each reason for refusal
will be examined for evidence that the provisions of the development plan, and
relevant advice in Departmental planning guidance in PPGs, RPGs, MPGs or
Circulars, and any relevant judicial authority, were properly taken into
account; and that the application was properly considered in the light of these
and other material considerations. In any such proceedings, authorities will
be expected to produce evidence to show clearly why the development cannot be
permitted. If one reason for refusal is not properly supported, but
substantial evidence has been produced in support of the others, a partial
award may be made, against the authority, of the appellant's costs incurred in
opposing that reason. In cases where planning issues are clearly shown to be
finely balanced, an award of costs relating to substantive as distinct from
procedural, matters is unlikely to be made against the planning authority.
9. Planning authorities are not bound to adopt, or include as part of their
case, the professional or technical advice given by their own officers, or
received from statutory bodies or consultees. But they will be expected to
show that they had reasonable planning grounds for taking a decision contrary
to such advice; and they were able to produce relevant evidence to support
their decision in all respects. If they fail to do so, costs may be awarded
against the authority. .........
13. The new significance of the development plan in planning decisions,
following the implementation of section 54A of the 1990 Act, makes it all the
more important that planning authorities should take all reasonable steps to
achieve up-to-date area-wide plans, and ensure that those plans are kept
up-to-date. In cases where a planning authority refuse an application on the
basis that it does not accord with the development plan, and the plan is then
shown to be clearly out-of-date in that respect, the authority will risk an
award of costs against them, unless they can show that they are taking all
reasonable steps to bring the relevant plan up-to-date.
26. ....An award of costs may be made against the planning authority if, in
the appeal proceedings, they cannot show that they has specific and adequate
reasons for failing to make a decision; or if they cannot produce evidence to
substantiate each of their stated reasons why they would have refused planning
permission (if they had determined the application within the prescribed
period).
8. With these statutory and policy guidance criteria in mind, it
is appropriate to examine the terms in which the inspector dealt with the
relevant issues in the appeal decision letter. The inspector recorded that the
relevant policy was that contained in the Local Plan First Review Chapter 9
"Shopping, Advertisements, and Town Centres". The context of the strategy is
set out in paragraph 9.2.0 which, as pertinent to current issues, provides
(i) To define a hierarchy of shopping areas within which policies will operate
to safeguard the main areas and control changes of use in the smaller areas.
(ii) To provide a statement of land use policies and proposals for the town
centres of Rayleigh, Hockley and Rochford.
(iii) To prevent the intrusion of further non-retail uses into defined primary
shopping frontages and to maintain the economic viability of the shopping
centres.
Paragraph 9.4.11 states Policy SAT3. In his appeal decision letter, the
Inspector said:
5. Policy SAT3 concerns secondary shopping areas and must be considered in the
context of the strategy identified at paragraph 9.2.0. This paragraph states,
amongst other matters, an intention to prevent the intrusion of further
non-retail uses into defined primary shopping frontages and to maintain the
economic viability of the shopping centres. The appeal site lies within a
secondary shopping frontage area on the Rayleigh Town Centre Inset Map. Policy
SAT3 itself indicates that any non-retail ground floor uses in such areas must
reinforce the retail function, must be uses appropriate to provide in a retail
area and will normally be restricted to Classes A2 and A3 uses. .....
This served to identify one of the two principal issues on the appeal as having
been
the ..... effect on the vitality and viability of the Rayleigh town centre.
9. In his decision, the inspector had concluded that
the proposed development would sustain and enhance the vitality and viability
of the Rayleigh town centre and would comply with the relevant policies of the
development plan and national planning guidance.
10. In the costs decision letter (paragraph 18) the inspector recalled
that the retail issue had been a matter of controversy between the parties
throughout. The District Council had been unaware at the time of the Inquiry
of any research or analysis upon which its First Review of the Local Plan had
been based. Nor yet had it taken any steps other than a simple annual survey
of the occupants of the town centre to see if its policies were either
appropriate or necessary. Finally, the District Council had undertaken no
research or analysis to validate the assumption underlying SAT3 until after the
appeal process had been commenced; see paragraph 18 of the costs decision
letter. These failings were subject to stringent criticisms in the costs
decision letter (see paragraphs 19, 20 and 21). There was no explanation
forthcoming to account for these failures. It is, in my judgment an inevitable
inference that the inspector found that these failings were responsible in
large measure, if not wholly, for the time spent at the Inquiry in
investigating those matters. The expert retailing evidence had simply not
addressed them.
This led the inspector to conclude
21. My final finding on this issue relates to the simple observation that,
regardless of any findings concerning retail premises on the site the wording
of the Strategy at paragraph 9.2.0 and policy SAT3 does not preclude
residential development. Rather it simply requires that development should
reinforce the shopping function and economic viability of the town centre,
indicating that exceptions will normally (my italics) be restricted to
Class A2 and A3 uses. The Council, whilst accepting that housing is an
appropriate town centre use, gave no sound reasoning for its view that the
proposed sheltered housing would not achieve the policy objective. In failing
to give soundly based reasons for this position I conclude that the Council
acted unreasonably.
11. It will be recollected that for the applicant it had been submitted
that it was only conduct subsequent to the appeal proceedings which could
properly be taken into account in making a costs order against one of the
parties. In my judgment, this submission is completely at odds with the
provisions in paragraphs 5 and 6 of Annex1 to 8/93. The "statutory
responsibilities" to which paragraph 5 relates are plainly linked to the
principle that "the planning system should not prevent ...(or) delay
development which could reasonably be permitted ...". If there were any
uncertainty in regard to this question it is removed by the provisions of
paragraph 6 (3) where the "unreasonable conduct" has been responsible to the
applying party to incur costs either because
1. It should not have been necessary for an Inquiry to have been held at all
OR
2. Because of the manner in which the other (paying) party has behaved
in the proceedings [emphasis added].
The disjunctive OR (above) makes the main point sought to be made by the
District Council quite unarguable.
12. In the present case, the inspector was obviously concerned to
emphasise the criticism which he had made of the District Council's pre-Inquiry
conduct. That was something which could not have been ameliorated by reference
to an expert report which was only commissioned after the Inquiry had been set
up; see paragraphs 18, 19 and 20 of the costs' decision letter.
13. The second ground, of the inspector's decision as to costs, was that
the District Council had misinterpreted its own strategy and policies. It was
the fact that they have provided no reason for advancing the case that
sheltered housing would not achieve the policy objective of "reinforcing the
retail function" within SAT3 which provided the inspector's second ground of
decision; see paragraph 21 of the costs' decision letter.
14. In the result, I am satisfied that none of the criticisms made of
the inspector's decision are made out. This application must be refused.
________________
COSTS:
MR JUSTICE TURNER: In this case I have made the draft judgment available
to the parties and have incorporated any editorial corrections, and I have now
formally handed it down.
MR MOULD: My Lord, in the light of your Lordship's judgment, my
application is that this application be
dismissed, with the first respondent's costs.
My Lord, the figure has been agreed at £3,394.25.
MR DAGG: My Lord, that figure is agreed.
MR JUSTICE TURNER: Thank you very much.
© 2000 Crown Copyright
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