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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Fagg v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1327 (Admin) (5 July 2002) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2002/1327.html Cite as: [2002] EWHC 1327 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		July 5, 2002

Mr Justice Lawrence Collins:

I Introduction

1. On February 19, 2002, in an Appeal Decision (“the Decision”) following a 7 day hearing, Mr A. P. Watson, an Inspector appointed by the Secretary of State for Transport, Local Government and the Regions, allowed an appeal against what had become by the time of the inquiry the refusal by Waveney District Council (“the Council”) of an application for outline planning permission by Wyncote Developments plc (“the developer”), for demolition of existing buildings and the erection of a class A1 retail food store with associated access and car parking, servicing and landscaping on land between the Thoroughfare and Saxons Way, Halesworth, Suffolk (“the Site”).
2. As the Decision recites, Halesworth is a market town and service centre for a predominantly rural hinterland. The town centre contains some 15 convenience shops, with a number of specialist convenience retailers, including butchers, bakers and greengrocers. The Site is located in the centre of Halesworth between buildings fronting the east side of the Thoroughfare, the town’s main pedestrianised shopping street and Saxons Way, the town centre relief road. The Site contains a number of buildings primarily in retail use. Part of the site is also used as an extension of the District Council’s Thoroughfare Car Park. The Site also accommodates a two-storey brick building used for car servicing and a recycling centre, located close to the site entrance.
3. The claimants are members of the Halesworth Anti Second Supermarket Lobby (“HASSL”) and appeared at the inquiry. The first claimant is the co-ordinator of HASSL and presented its case at the inquiry and gave evidence on its behalf.
4. The claimants raise two principal issues on this challenge under section 288 of the Town and Country Planning Act 1990. The first issue arises out of an objection made by HASSL at the inquiry, when HASSL objected that if the supermarket were built the whole food economy would inevitably decline leading to serious job loss and loss of choice for the local rural population: the choice to buy locally distinct produce, but, for many people, the opportunity to work. It was argued that the balance of the local food industry was a fine one; numerous small scale food producers and processors sold their products through a range of small retail outlets in the area; and the intrusion of a large multi-national, transporting goods into, and sucking money out of the area, would inevitably upset the current equilibrium with long-term and widespread damage. On this challenge the claimants say that the Inspector, in reaching his overall conclusions, failed to have regard to his finding that the proposal would have harmful impacts on local food producers and on the local rural economy; or failed to give adequate reasons to explain whether and how the harm had been weighed against the benefits in reaching the decision.
5. The second issue arises out of the fact that it was common ground at the inquiry that the Site was within a flood plain and was at risk of flooding. HASSL had advanced the case that the proposal was unacceptable because it was contrary to Local Plan policy ENV16 which provides that development within flood risk areas (including flood plains) will not be permitted. The Inspector applied PPG25, according to which the Government expects local planning authorities to apply a risk-based approach to their decisions on development control through a sequential test; when deciding applications for development at any particular location, those responsible for the decision would be expected to demonstrate that there are no reasonable options available in a lower-risk category, consistent with other sustainable development objectives. The objection is that the Inspector failed to consider or apply the sequential test in PPG25 and as a result erred by misapplying PPG25 and gave no proper reason for not following ENV16; or that he failed to give any or any adequate reasons for concluding (if he did so conclude) that lower risk options were not available.

II The decision

6. The Inspector identified what he described as the main issues:

"(a) Whether or not the proposed development would enhance or maintain the function, vitality, viability and retail character of Halesworth Town Centre;

(b) Whether the proposed development would preserve or enhance the character and appearance of the Halesworth Conservation Area;

(c) Whether the proposals accord with the provisions of the development plan and national policy which seek to minimise the need to travel and encourage journeys to be made by means other than the private car;

(d) Whether satisfactory servicing and car parking arrangements can be achieved on the appeal site;

(e) The effect of the proposed development on flood risk and its management.”

7. On issue (a) he concluded:

“...it appears to me that the proposed development would lead to some change in the retail character and function of Halesworth. It would in my view strengthen the role of Halesworth in the local shopping hierarchy. Although the loss of some independent convenience retailers might be considered harmful to the retail character of the town centre, the additional expenditure attracted to the town centre and the opportunity for linked shopping trips would in my opinion be beneficial to the retail character of the town centre. Although finely balanced, it seems to me that the function, vitality, viability and retail character of Halesworth town centre would be maintained and probably enhanced as a result of the proposed development.”

8. On issue (b) his conclusion was that “Subject to the satisfactory layout of the site and an appropriate design for the building and the space around it, I consider that the proposed development would not be harmful to the character and appearance of the appeal site or its surroundings. In my opinion the character and appearance of the Conservation Area as a whole would be preserved and possibly enhanced by the proposals.” On issue (c) he considered that the proposals accorded with the development plan and national policy, and on issue (d) that subject to detailed consideration there were not problems which could not be overcome.
9. On issue (e) he concluded that, having regard to PPG25 (to which I shall refer later) and subject to an appropriate condition requiring an acceptable scheme to manage the flood risk, the proposed development would not create an unacceptable flood risk. He said:

“I accept that there is a risk that the outfall drains may become blocked with detritus in times of flood thus preventing the free draining of all of the storage area. This could put at risk other areas upstream and downstream if a subsequent rise in river levels caused a second flood for which storage capacity on the appeal site would not be available. Although the risk is small it is one that would need to be addressed before the site is redeveloped.

I consider however that a means of overcoming the problem should be feasible although it may involve land lying between the appeal site and the river that is not in the control of the appellant. A ‘Grampian’ type condition could be attached to a planning permission requiring an acceptable scheme to manage the flood risk to be submitted before development commenced. Although a strict interpretation of Policy ENV16 would mean that no development should take place on the site, the subsequent advice in PPG25 is more up-to-date. Having regard to this and subject to an appropriate condition I consider that the proposed development would not create an unacceptable flood risk.”

10. Under “other considerations” he said:

“In addition to other matters that I have already addressed, HASSL also raised concerns about the impact of the proposed development on the economic and social interdependence of Halesworth and its hinterland. It was submitted that the balance of the local food industry is a fine one that would be damaged if the proposed development were to go ahead. I accept that numerous small-scale food producers and processors sell their products through a range of small retail outlets in the area. I recognise that some of those producers may experience some loss of trade through independent retailers if the proposed development takes place. However it appears to me that any impact on this particular group is likely to be limited and that adjustment to changed market conditions would be made such that the overall impact on the local rural economy would be of limited significance.”

11. His overall conclusions were these:

“The proposed development would lead to some change in the retail character and function of Halesworth. However I consider that it would strengthen the role of Halesworth in the local shopping hierarchy. Although the considerations are finely balanced, I conclude that the function, vitality, viability and retail character of Halesworth town centre would be maintained and probably enhanced as a result of the proposed development. It would thereby accord with the relevant policies in the development plan.

I consider that the proposed development would not be harmful to the character and appearance of the appeal site or its surroundings. Therefore the character and appearance of the Conservation Area as a whole would be preserved and possibly enhanced by the proposals. It would therefore accord with the relevant policies in the development plan.

I consider that the proposals accord with the provisions of the development plan and national policy which seek to minimise the need to travel and encourages journeys to be made by means other than the private car. I also consider that satisfactory servicing and car parking arrangements can be achieved on the appeal site and that the proposed signal installation would deal with traffic movements at the junction of the access to the site with Saxons Way in a safe and efficient manner.

The proposals do not at present fully satisfy the requirement of the Environment Agency that compensatory capacity for flood water equivalent to the present capacity to be created on the site should be in hydraulic continuity with the river to enable it to drain naturally. However, I take the view that subject to an appropriate condition requiring an acceptable scheme, the proposed development would not create an unacceptable flood risk.

Having regard to these considerations and taking into account all that I have seen heard and read, I conclude that the appeal should be allowed.”

III The first issue: harmful impact on local food industry

12. The claimants’ case is that the Inspector accepted that there would be harmful impacts on the local food industry and the economy of the rural hinterland. Whilst he also found that the impacts would be “limited” or “of limited significance” this merely quantified the scale of the harm he found would be caused, and was not a finding that there would be no harm. In reaching his overall conclusion the Inspector failed to have regard to his finding that the proposal would have harmful impacts on local food producers and on the local rural economy.
13. The Inspector found only three benefits would result from the proposal: a “probable” retail benefit by enhancing the Town Centre, although the considerations were “finely balanced”; a “possible” townscape benefit by enhancing the Conservation Area; and a transport benefit by minimising the need to travel and encouraging journeys to be made by non-car modes. The Inspector’s findings on the other main issues were that harm could be avoided by the imposition of appropriate conditions rather than that any benefit would arise.
14. The claimants say that nowhere in the Decision did the Inspector balance the identified harm to local food producers and to the local rural economy against the benefits so as to reach an overall conclusion having regard to all material considerations. In reaching the conclusion that the appeal should be allowed the Inspector failed to have regard to a material consideration. From the reasoning in the Decision it appears that the Inspector discounted the harmful consequences to local food producers and to the local rural economy simply because they would be in his view limited in scale. Whilst he was entitled to give a material consideration no weight, where he chose to give it some weight (albeit “limited”) he had then to include it in any balance of benefits against harm. He failed to bring the identified harm into the overall balance.
15. But the issue raised by HASSL was considered by the Inspector and he took account of and considered it in the paragraph (quoted above at paragraph 10), which appears under the heading of “other considerations” before the Inspector’s overall conclusions including his conclusion that the proposal will have a beneficial effect on the role of Halesworth in the local shopping hierarchy, that the function, vitality, viability and retail character of Halesworth town centre would be maintained and probably enhanced as a result of the proposed development and that the proposal is in accordance with the relevant development plan policies.
16. There is no basis in the Decision for the suggestion that he failed to take into account the identified harm in the overall balance: the HASSL argument on impact on local food producers and to the local rural economy is recorded and considered by the Inspector. It is not suggested that the Inspector erred in not listing this issue among the main issues or in his findings as to the retail, transport and conservation benefits of the proposed development. The conclusion that the impacts were “limited” is entirely a matter for the Inspector. I accept the Secretary of State’s submission that since he found the alleged impact to be “limited” that was something which plainly on the Inspector’s reasoning further reduced the weight to be attached to this consideration. The weight to be given to such a consideration is clearly for the Inspector.
17. Alternatively it is said that the Inspector failed to give adequate reasons to explain whether and how the harm had been weighed against the benefits in reaching the Decision. Since the harm was a key part of the case advanced by the claimants they have been substantially prejudiced by this failure in the Inspector’s reasoning.
18. I consider that this objection has no substance. Rule 19(1) of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 requires the Inspector to give reasons for his decision. Those reasons must be proper, adequate and intelligible and deal with the substantial points that have been raised, but the decision should not be subjected to the scrutiny appropriate to a statute; because the decision is addressed to parties who are well aware of all the issues involved and of the arguments deployed at the inquiry it is not necessary to rehearse every argument relating to each matter in every paragraph and the decision letter should be read as a whole: Seddon Properties Ltd. v. Secretary of State for the Environment (1981) 42 P & CR 26; Save Britain’s Heritage v. Number 1 Poultry Ltd [1991] 1 WLR 153 at 165. The question is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given, for example, in the case of an opponent of the development, where the reasons are not explained sufficiently clearly to indicate what impact, if any, they may have in relation to the decision on future applications: Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 at 168
19. Although regard must be had to every material consideration an Inspector need not mention them all. What is required is that the reasons are stated in sufficient detail to enable the reader to know what conclusion has been reached on the principal important controversial issues, and not on every material consideration, however insignificant: Bolton Metropolitan District Council v Secretary of State for the Environment (1996) 71 P & CR 309, at 314.
20. What is a material consideration is a matter of law, but the weight to be given to a material consideration is a question of planning judgment, which is entirely a matter for the decision-maker: Tesco v Secretary of State for the Environment [1995] 1 WLR 758 at 780. The Inspector identified the main issues, of which the first was “[w]hether or not the proposed development would enhance or maintain the function, vitality, viability and retail character of Halesworth Town Centre.” He made a detailed assessment of the retail issues identified by him in the light of the relevant development plan and national policies. He said that, although the loss of some independent convenience retailers might be considered harmful to the retail character of the town centre, the additional expenditure attracted to the town centre and the opportunity for linked shopping trips would be beneficial to the retail character of the town centre. He concluded that the proposed development would lead to some change in the retail character and function of Halesworth, but that that it would strengthen the role of Halesworth in the local shopping hierarchy; and the positive transport benefits of the proposal in terms of promoting more sustainable transport choices and reducing the need to travel, especially by car.
21. He then referred to the rural economy point under “other considerations” (paragraph 10 above) and concluded: “Having regard to these considerations and taking into account all that I have seen heard and read, I conclude that the appeal should be allowed.” Read as a whole the reasoning of the Decision is entirely adequate and intelligible. Detailed consideration was given to this issue, but it was not a principal controversial issue, and there was no duty to articulate the reason why it did not outweigh the other considerations, which is obvious from the Decision as a whole.

VI The second issue: flood risk

22. Local Plan policy ENV16 provides that:

"Development within flood risk areas (including washlands and flood plains) either from tidal or fluvial situations, or development which would place existing development at risk will not be permitted.”

23. It was common ground at the inquiry that the Site was within the flood plain and was at risk of flooding: the Inspector found that the Site lay within a “developed area of high flood risk”. It followed, as the Inspector found, that the proposal was contrary to ENV16.
24. The Inspector relied on more recent advice in PPG25, para. 30 and table 1, to justify not following ENV16.
25. The relevant parts of paragraph 30 of PPG25 state:

“The Government expects local planning authorities to apply a risk-based approach to the preparation of development plans and their decisions on development control through a sequential test. Developers seeking sites for housing and other development should also have regard to this test. Accordingly, in drawing up or revising policies in development plans and in considering applications for development in cases where plans do not yet reflect the following, local planning authorities should give priority in allocating or permitting sites for development, in descending order to the flood zones set out in Table 1, including the sub-divisions in Zone 3. When allocating land in development plans or deciding applications for development at any particular location, those responsible for the decision would be expected to demonstrate that there are no reasonable options available in a lower-risk category, consistent with other sustainable development objectives. It is important to note also that these zones cover only river, tidal and coastal flooding. Locally in all zones, an assessment may be needed of the risk of groundwater flooding or local flooding due to overland sheet flow or run-off exceeding the capacity of drainage systems during prolonged or intense rainfall. Flood-resistant construction may be required in all areas, depending on the results of that assessment. The run-off implications of development should also be assessed for all zones and controlled, where possible, through the use of sustainable drainage systems.”

26. The relevant parts of Table 1 provide:
TABLE 1

PLANNING RESPONSE TO SEQUENTIAL

CHARACTERISATION OF FLOOD RISK

Flood Zone (see Note a)	Appropriate planning response	Appropriate planning response	Appropriate planning response
1.	Little or no risk …..	No constraints …..	No constraints …..
2.	Low to medium risk …..	Suitable for most development …..	Suitable for most development …..
3.	High risk (see Note b) Annual probability of flooding, with defences where they exist: River 1.0% or greater …..	(a)	Developed areas. These areas may be suitable for residential, commercial and industrial development provided the appropriate minimum standard of flood defence can be maintained for the lifetime of the development …..
		(b)	Undeveloped and sparsely developed areas …..
		(c)	Functional flood plains …..

27. The Council’s case before the Inspector was that the developer had not demonstrated to the satisfaction of the Planning Authority in consultation with the Environment Agency in accordance with the requirements of PPG25, that the flood risk could be satisfactorily managed, and that the proposal was therefore contrary to Policy ENV16 of the Waveney Local Plan.
28. The Environment Agency has a duty to exercise a general supervision over all matters relating to flood defence (para. D8 in Appendix D to PPG 25) and it does this by, inter alia, advising planning authorities on the implications of development proposals on flood risk issues and the environment. It is primarily via its role in the planning system that the Environment Agency seeks “to ensure the protection of the environment and to prevent future problems arising as a result of development in areas at risk from flooding” (para. D10)
29. The Environment Agency objected to the proposal on the basis that the developer had not complied with paragraph 60 and Appendix F of PPG25 by carrying out the necessary assessment of flood risk and the run-off implications. In correspondence between the Environment Agency and the developer’s expert chartered engineer, the developer provided flood risk assessments. These and the proposed scheme were not acceptable to the Environment Agency, and at the inquiry evidence was submitted by both the developer and the Council on the efficacy of the proposed flood mitigation measures in the context of the development of the site.
30. Mr Barlow of the Environment Agency gave evidence, and his proof of evidence and his summary made reference to the sequential approach in PPG25. But he reached the conclusion in his proof that the flood risk assessment provided was crude and that the scheme proposed was inadequate in the Environment Agency’s view, as it did not effectively mitigate for the loss of flood storage that would occur through the protection of the development itself. It is for that reason that it was said that there was non-compliance with PPG25. It was not suggested that that the proposal should be refused because of a failure to comply with the sequential test, and no objection to the proposal on the basis of failure to comply with the sequential test was ever made by either the Environment Agency or the Council.
31. At the inquiry the case put forward by the claimants was that the site was within the flood plain where there was a risk of flooding and the development proposal was unacceptable because it was contrary to local plan policy ENV16. HASSL was opposed to development of a supermarket of anything like the size proposed anywhere in Halesworth, but also had objections to this site because (among other reasons) of the flooding problems.
32. Basing themselves on (inter alia) ENV16 they said: “The site lies within the flood plain of the Town River and the New Cut and is at risk from flooding, particularly in view of changing weather patterns during the last decade and those projected for the future. A building of the bulk and construction of this proposal is likely to exacerbate flood risk within the immediate and surrounding area with consequent risk to the structure and fabric of other buildings in the vicinity.”
33. Mr Barlow’s evidence in chief on behalf of the Council, his cross-examination on behalf of the developer and his re-examination were directed towards the issue of whether satisfactory management and mitigation of the flood risk could be achieved over the lifetime of the proposed development. Mr Bishop gave evidence on behalf of the developer, and both his evidence in chief and cross-examination on behalf of the Council was directed to the same issue. The unchallenged evidence of the Inspector is that none of the 4 HASSL witnesses made reference to flood risk when giving evidence and they were not cross-examined on the matter. Mr Fagg made no reference to flooding during his closing submissions on behalf of HASSL, and at no time did HASSL make any mention of PPG25, the sequential test or the availability of alternative lower risk sites in Halesworth.
34. They now say that had they been told that ENV16 was not going to be followed by the inspector because of later advice in PPG25 they would have wanted to ensure that the sequential test was properly followed. They now say that they would have wanted consideration to be given to another site outside the flood plain and which contained a large shed construction used by a tyre fitting company in what was otherwise open space.
35. The claimants’ case is that in order to apply PPG25 the Inspector had properly to understand it. The Inspector purported to apply paragraph 30 and Table 1 of PPG25. As the decision maker on behalf of the Secretary of State, the Inspector was the person “responsible for the decision” and in accordance with the advice in paragraph 30 “would be expected to demonstrate that there are no reasonable options available in a lower-risk category, consistent with other sustainable development objectives…” He misunderstood and so misapplied that advice.
36. There argument is that since the Inspector found that the Site lay within a “developed area of high flood risk,” it is clear he regarded it as a site within category 3(a) of Table 1. The Indicative Floodplain Map showed that not all of Halesworth lay within the high risk zone Accordingly the Inspector was, if he was to correctly apply the advice at paragraph 30 and Table 1, obliged to demonstrate or have demonstrated to him that there were no reasonable lower-risk options available (consistent with other sustainability objectives). He entirely failed to consider or apply the sequential test in accordance with paragraph 30 or give any consideration to lower risk options. Accordingly, the Inspector not only misapplied the advice he was relying on but also having so erred gave no proper reason for not following ENV16.
37. Alternatively the Inspector failed to give any or any adequate reasons for concluding (if he did so conclude) that lower risk options were not available. Nor was there any evidence that would support such a conclusion. The claimants are substantially prejudiced by these failings because they do not know whether the Inspector would have rejected their case on flooding had he correctly understood the advice he was purporting to apply.
38. The position of the Secretary of State is that although the Decision made no mention of the sequential approach in PPG25, national planning policies were part of the background to every planning appeal and it could be assumed that they had been taken into account, unless it could clearly be demonstrated that the were ignored. Although an Inspector must have regard to all material considerations, he is not required to mention them all; what is required is that the reasons are stated in sufficient detail to enable the reader to know what conclusion has been reached on the “principal important controversial issues”: Bolton MDC v Secretary of State for the Environment (1996) 71 P & CR 309, 313 -4.
39. The Secretary of State’s case is that the sequential approach formed part of the relevant background of the appeal and was cited to the Inspector, it was considered by the Inspector, but as it was not a principal issue in dispute between any of the parties it did not have to be specifically referred to.
40. I consider that this ground of challenge must fail. I accept that where a decision maker takes into account a policy as a material consideration it is essential that the policy is properly understood. If he fails to properly understand the policy then the decision will be as defective as it would be if no regard had been paid to the policy: per Woolf J in Gransden v. Secretary of State for the Environment (1985) 54 P&CR 86 at 94. In Hatfield Construction Ltd v. Secretary of State for the Environment [1983] JPL 605 Mr David Widdicombe QC held that national planning policies “were part of the background to every planning appeal and it could be assumed that they have been taken into account, unless it could clearly be demonstrated that they were ignored.” But in Boulevard Land Ltd v. Secretary of State for the Environment [1998] JPL 983, 991 Mr George Bartlett QC said that he did not think it right to approach the matter on the basis of assumptions, but accepted that circulars and PPGs were likely to be familiar to decision makers was one of the factors to be taken into account, and the simple absence of a reference to a particular policy would be insufficient in itself to show that the policy had been left out of account.
41. This case does not require what is little more than a difference of emphasis to be resolved. The national policy was cited to, and applied by, the Inspector. The claimants were concerned to ensure that no development at all took place in the town, as the name of their pressure group expressly recognises. The Environment Agency and the Council were concerned to ensure adequate protection. The Council’s evidence cites the sequential test. It is clear that the Council must have been aware that the existence of other alternative lower risk sites was relevant and would have assisted its case at the inquiry. The Council in opposing the appeal made no reference to the existence of other suitable and lower flood risk retail sites in Halesworth. If such sites existed there would have no reason for the Council not to have mentioned them, and every reason to the contrary. It is not credible that the Council, the authority and the Inspector all failed to appreciate the existence of the sequential test, or if they did not overlook, they all misapplied it. If there was an alternative site that was remotely possible in a very small town such as Halesworth, it is inconceivable that it would not have been mentioned in a 7 day inquiry. There is no rational conclusion other than that it was accepted that the proposal satisfied PPG25 in this regard.
42. The fact that it was not mentioned in the Decision does not make the decision lacking in reasoning, since the sequential approach was not a principal controversial issue (nor indeed an issue at all). The evidence of the inspector was that according to his recollection and his contemporaneous note none of the four HASSL witnesses made reference to flood risk when giving evidence and they were not cross-examined. During the inquiry Mr Fagg said that he could produce a video tape showing flooding in the town centre, but the inspector declined the offer on the basis that there was no dispute that flooding had occurred and that the appeal site was in the flood risk area. HASSL did not cross-examine any witness to the effect that the scheme should be refused on the basis of flooding as opposed to adequate mitigation being provided. They did not at any time say that the development failed to comply with the guidance in PPG 25 because it failed a sequential test, and accordingly the Inspector was not required to mention it.
43. The challenge therefore fails.