![Merritt V Secretary of State for the Environment, Transport and the Regions and Another - [2000] 3 PLR 125](http://data.docslib.org/img/d420420fb2b6999533d3d27730dcccb8-1.webp)
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Estates Gazette Planning Law Reports/2000/Volume 3 /Merritt v Secretary of State for the Environment, Transport and the Regions and another - [2000] 3 PLR 125
[2000] 3 PLR 125 Merritt v Secretary of State for the Environment, Transport and the Regions and another
Queen's Bench Division
Mr Robin Purchas QC (sitting as a deputy judge of the Queen's Bench Division)
5 August 1999
Planning conditions - Grampian condition - Policy guidance - Rejection of Grampian condition by inspector on ground of unlikely fulfilment within life of permission - Whether application of policy guidance lawful - Whether inspector properly exercised discretion regarding Grampian condition
In November 1997 the applicant applied for outline planning permission for residential development of land with all the matters reserved, including means of access. That application was supported by a site plan. The applicant was willing to accept a Grampian condition restricting development on the site to four dwellings until vehicular access acceptable to the highway authority was achieved. The applicant appealed to the Secretary of State against non-determination of its application under section 78 of the Town and Country Planning Act 1990. In dismissing the appeal, the Secretary of State, by his inspector, considered that there was no reasonable prospect that a Grampian condition could be fulfilled within the time-limit imposed by a planning permission and declined to impose such a condition. The applicant applied to quash that decision on the grounds that the inspector erred: (1) in rejecting a Grampian condition for the above reason; and (2) in concluding that the applicant had failed to demonstrate that the impact on highway safety would not be unacceptable, when means of access was a reserved matter.
Held The application was allowed and the decision quashed.
The Secretary of State had adopted a policy against the imposition of Grampian conditions where there was no reasonable prospect of fulfilment within the time-limit for the permission, as set out in para 40 of the annex to Circular 11/95. It was not for the court to question the policy. That policy, having been approved, constituted a material consideration to which the inspector was entitled to, and should, have regard. The inspector was bound to consider the discretion whether to impose a condition, having regard to, but not bound by, the policy of the Secretary of State. The danger of promulgating the policy in absolute form was that the decision maker might regard himself as bound to follow that policy. There was no indication in the inspector's decision letter that the advice in the annex had been balanced with other matters, such as vehicular access and finance, which were material in considering whether, in the circumstances, the para 40 policy should be applied or whether a Grampian condition could, or should, properly be imposed. The inspector simply applied the policy as a mandatory requirement without scope for discretion on his power. The inspector's conclusion on the Grampian [2000] 3 PLR 125 at 126 condition was crucial to the conclusion that he reached on the acceptability of the proposal and the application of development plan policy.
Cases referred to in the judgment Page 2
British Railways Board v Secretary of State for the Environment [1994] 1 EGLR 197; [1994] 02 EG 107; [1993] 3 PLR 125; [1994] JPL 32, HL
Grampian Regional Council v Aberdeen City District Council (1983) 47 P&CR 633; 1984 SLT 197; [1984] JPL 590, HL
H Lavender & Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231; [1970] 3 All ER 871; (1969) 68 LGR 408
Jones v Secretary of State for Wales (1990) 61 P&CR 238; [1990] 3 PLR 102, CA
Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72, HL
Millington v Secretary of State for the Environment, Transport and the Regions [1999] 1 PLR 36 QB; [1999] 3 PLR 118, CA
Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 All ER 636; 93 LGR 403; [1995] 2 EGLR 147; [1995] 27 EG 154; [1995] 2 PLR 72, HL
Application under section 288 of the Town and Country Planning Act 1990
This was an application under section 288 of the Town and Country Planning Act 1990 by Douglas John Merritt to quash the decision of the Secretary of State for the Environment, Transport and the Regions dismissing his appeal against the non-determination by Mendip District Council of his application for planning permission.
The applicant, Douglas John Merritt, appeared in person and was assisted by his McKenzie friend, Francis Morland.
Michael Bedford (instructed by the Treasury Solicitor) represented the first respondent, the Secretary of State for the Environment, Transport and the Regions.
The second respondents, Mendip District Council, did not appear and were not represented.
The following judgment was delivered.
MR ROBIN PURCHAS QC:
In this application, Douglas John Merritt applies under section 288 of the Town and Country Planning Act 1990 to quash the decision of an inspector, on behalf of the first respondent, dismissing his appeal from the failure of the second respondents to decide his application for planning permission for residential development on land off Garston Road, Frome, Somerset.
The application concerns two issues: the first of which is of general importance, namely:
1. whether the inspector erred in law in rejecting a Grampian condition as to the provision of Page 3
access on the ground that he was not convinced that there was a reasonable prospect that the condition would be fulfilled within the time-limit imposed on the permission; and
2. whether the inspector otherwise erred in concluding that the applicant had failed to demonstrate that the impact on highway safety would not be unacceptable, when means of access was a reserved matter. [2000] 3 PLR 125 at 127
With the leave of the court, Mr Francis Morland appeared as a litigation friend for the applicant. This court is indebted to Mr Morland for his courteous, clear and succinct presentation of the applicant's case.
Background
The site comprises 0.3ha within Frome, to the rear of a terrace of houses at Garston Road. The land had been disused for many years. While unallocated on the current development plan, it lay within the Garsdale project area.
Following consultation in July 1997, the second respondents' environment committee adopted a non-statutory planning brief for the project area, which comprised, in total, some 15.2ha of predominately urban land. The brief made broad allocations for employment, residential and retail commercial development. The appeal site was on the edge of the residential allocation. The brief dealt with access in section 9. It is headed:
Principle II:
Any proposals shall provide satisfactory access to, egress from and circulation within the project area. This includes access and egress within development sites.
Para 9.1 continued:
Access and road capacity are major considerations within the project area. These considerations are why a holistic approach to redevelopment has been adopted. Piecemeal development, which does not meet with the principles of the brief, will jeopardise the development of the brief area as a whole. The aim is not to preclude development from coming forward, but to ensure it contributes to the overall objectives.
Para 9.2 referred to plan V, which:
illustrates in conceptual terms the road layout showing how development in the area could take place.
That plan showed a loop road running through the project area, connecting the main road network that would give access to the appeal site.
At para 9.3, the brief stated:
The approach is endorsed "in principle" by County Highway Surveyor, subject to satisfactory details being submitted by any developer. Page 4
By para 9.5:
Preliminary advice on junction arrangements onto Christchurch Street/Portway... suggest:
*controlled signal junction at the eastern end of the site - Portway/Wallbridge; reason: visibility constraints.
[2000] 3 PLR 125 at 128
I should explain that that junction was the junction most proximate to the appeal site, and that the visibility constraints referred to the abutments of a railway bridge to the east of that junction, which would constrain visibility for a normal priority junction.
At para 9.6, the brief continued:
There is no public finance available for highway improvements or infrastructure. Highway requirements to provide access to individual sites will need to be borne by the development. Proposals will be required to identify and mitigate any traffic impact generated by the proposed development. The LPA therefore recommends early discussions with the County Surveyor to resolve any issues arising. Highway solutions will be ensured either through planning conditions or section 106 agreements.
9.7 Developers need to be mindful of the need to...
*contribute through a Section 106 Agreement to the required junction improvements... and a new junction arrangement onto Portway/Wallbridge to the east of the project area...
The appeal site's existing access was by a right of way over a driveway to Garston Road.
On 26 November 1997 the applicant applied for outline planning permission for residential development of the land, with all matters reserved, including means of access. The application was supported by a site plan. In his letter supporting the application, the applicant's agent, Mr Morland, wrote:
The land fronts an existing driveway of long standing which has not yet been adopted by the Highway Authority and which its Design Guidance suggests should not normally serve more than two dwellings to each of its junctions with Garston Road...
The applicant is therefore willing to accept a Grampian condition restricting development on the application site to four dwellings until a vehicular access acceptable to the Highway Authority is achieved direct from Wallbridge over West Yard. As you know, the House of Lords declared Grampian conditions wholly appropriate for this purpose in British Railway Board v Secretary of State for the Environment [1994] JPL 32.
I will consider the British Railways Board case later in this judgment. The reference to West Yard is to an area, allocated on the project brief for employment development, that was in separate ownership, over which the proposed road would have to pass.
On 28 November 1997 the second respondents' planning service manager required further particulars of the application, including a plan illustrating the proposed access arrangements and access to the existing highway network, and a supporting statement indicating how the proposal would conform with the adopted planning brief. The applicant declined to provide those further particulars and appealed to the first respondent against non-determination under section 78 of the Act and Article 23 of the Town and Country Planning (General Development Procedure) Order 1995. The appeal was conducted by written representations. [2000] 3 PLR 125 at 129 Page 5
In their statement, the second respondents referred to the planning brief. At para 4.1 it stated:
It is the Council's wish to see the land developed and to ensure that the necessary infrastructure which will enable this to happen takes place in a way which will also enable adjacent sites to come forward. The provision of a distributor road in the form envisaged will require contributions from all developers otherwise the objectives of the brief will be frustrated.
At para 4.5:
There is no issue of principle between the appellant and the Local Planning Authority in terms of the use proposed for the site. It is however considered that the determination of the current application without a clear picture of how it contributes to achieving the aims of the brief would set a dangerous and difficult precedent as the implementation of the brief can only take place if each site plays its part in meeting its aims. The current application does not show how it would do this and thus the necessary road provision, and the way in which each side is to contribute to junction improvements which allow proper access to the area as a whole, cannot be considered.
In their conclusion, the second respondents sought dismissal of the appeal. Alternatively, at para 5.3:
The issue of access to the site is dealt with through the Grampian condition. This would ensure no development could take place until adequate access into the site had been submitted and agreed by the Local Planning Authority.
On 8 April 1998 the applicant's planning consultant wrote, responding to the statement, including:
In any event, permission for the proposed development need not prejudice the future implementation of the local authority's planning brief, in the event of it ever being statutorily adopted, after appropriate public consultation, and in the event of adjacent landowners being prepared to cooperate in its implementation. This is because appropriate safeguards could be incorporated in the grant of permission, by way of conditions, should the inspector consider it necessary or appropriate. In any event, market forces are such that the appellant would properly ensure adequate flexibility in the development in any event.
In his response, the applicant maintained his contention that the existing access was adequate for four dwellings. In respect of the Grampian condition, he stated:
The means of access is a reserved matter. It is in our opinion adequate for 4 dwellings in any event... and should not be subject to a Grampian condition in respect of residential development within that quantum. For the avoidance of doubt, if the Inspector is minded to impose any Grampian condition, it should specify its meaning clearly; that "adequate" refers solely to the needs of the application site itself and not to any wider development scheme.
[2000] 3 PLR 125 at 130
By a letter dated 23 March 1998, the highways development officer for Somerset County Council (the highway authority) made a representation referring to the planning brief, and continued:
On its own it does not have, or in any event the application does not show, an access to the public highway which is suitable to cater for additional residential development on this land.
It is my view, therefore, that the development of this land on its own may well prejudice the aims of the Garston development brief. The application does not show any details of any means of access to the highway and, therefore, without this information my only option is to recommend the application for refusal.
The applicant responded to that representation, but no further details of access were provided.
On 28 April 1998 the second respondents made a further representation, including: Page 6
Access at the western end of the brief area has already been provided. Bloor Homes have provided £30,000 to the Council for junction improvements in Christchurch Street East and the principal retail site is currently on the market with developer interest. The objectives to the brief area are encapsulated in the allocation in the Mendip District Plan Deposit Version which will be published on 21 May. It is not true to say that there is no landowner support for the scheme. On the contrary, the brief has been worked through with landowners and only the appellants have objections to it.
The key point is that the brief envisages that the highway impact of each scheme in the brief area will be examined and assessed to ensure that it plays its part bringing forward the highway solution which unlocks the overall problems of the area. An ad hoc decision will frustrate this aim and sterilise land...
The objectives of the brief have not been frustrated. The premises at Garsdale, the largest area of land associated with the brief and a retail allocation in the forthcoming local plan deposit draft, are currently on the market.
The areas referred to in that representation were areas allocated for retail development in the western part of the planning brief area.
In his decision letter dated 18 May 1998, the inspector referred to the written representations. At para 2, he noted that the means of access was reserved for future consideration. In para 3 he said:
From my inspection of the site and its surroundings and from the written representations made, I consider that the main issue in this appeal is the impact of the proposed development on highway safety.
In paras 4 to 6 of the decision letter, he dealt with policies and guidance. In para 4, he referred to structure plan policy TR10, noting: [2000] 3 PLR 125 at 131
In particular, the development should have suitable access to appropriate roads and conform with appropriate standards for highway design: in addition, adequate and safe arrangements should be made for local traffic circulation and access during both the construction and operational phases.
He referred to the housing policies in the structure plan and other policies in the adopted local plan. He concluded:
I shall decide the appeal having regard to the Development Plan and shall make my determination in accordance with it unless material considerations indicate otherwise.
In para 5, he referred to the planning brief, including principle II (which I have set out above). In para 6, he referred to PPG 1 and 13. In para 7 he described the appeal site.
In paras 8 to 10, he considered the site's existing access and its suitability, concluding at para 10:
However, in my opinion and for the reasons given above, the driveway is not suitable to serve new residential development.
He then turned to consider: "HIGHWAY SAFETY - ACCESS TO WALLBRIDGE" as follows:
11. I note the Highway Authority's comment, in recommending refusal, that the application does not show any details of any means of access to the highway; I also note your observation that this suggests that the Council failed to forward to the Authority your letter of 26 November 1987 which was submitted in support of the application. Nevertheless I Page 7
agree with the Council that the principle of residential development of the appeal site is acceptable, subject to considerations regarding open spaces and a statutory relationship being achieved and development on adjoining land. However, from the evidence available to me, it would appear that access to development on the appeal site would have to be obtained across land which is outside your client's control and which forms part of the Garsdale Project Area. The Planning Brief for the Project Area highlights access and road capacity as major considerations and points out that the road layout, within the Area, needs to service all the Area's development sites and provide access/egress onto the adopted highway at Garsdale to the west and Wallbridge to the east of the Project Area. The identified point of access onto Wallbridge is about 130m south-east of the appeal site, where the gated entrance to the former coalyard stands, and you have indicated that the appellant would be willing to accept a Grampian condition restricting development on the appeal site to 4 dwellings until an acceptable vehicular access is achieved direct from Wallbridge over West Yard. In this respect, you have drawn my attention to the (28 October 1993) House of Lords judgment in British Railways Board v Secretary of State for the Environment and others. However, in view of the lack of suitable access from Garston Road to any residential development on the appeal site, I shall consider the option of dealing with matters of access through a Grampian condition to the effect that no development of the site could take place until a suitable access is provided.
[2000] 3 PLR 125 at 132
12. Given the approach to development which has been proposed on the Development Brief and the emphasis currently placed on making effective use of brownfield sites, I have little doubt that comprehensive redevelopment of the Project Area will occur. Also, bearing in mind the Brief's proposals and the constraints which exist on the ground, I regard the identified point of access onto Wallbridge as the most likely route into the eastern end of the Area and thereby to the appeal site. However, as I saw when I visited the site, improvements are needed at this point of access, because of the restricted visibility available to drivers leaving the Area to join Wallbridge, which is a busy road. At the site visit, my particular attention was drawn to the railway bridge structure which limits views eastwards to the extent that visibility would be below the 90m standard recommended in PPG 13 for a minor road distance of either 4.5m or 9m, depending on the circumstances. I consider that, without these improvements, traffic from the developed appeal site and from other developed areas at this end of the Project Area would cause problems of highway safety at this point of access. It is clear from the Development Brief that there is no public finance available for highway improvements or infrastructure and that developers need to contribute through a Section 106 Agreement to a new junction arrangement here. However your client has shown no willingness to enter into such an Agreement and you maintain that developers should not be compelled to enter into one; indeed, planning permission cannot be granted subject to a condition that the applicant enters into a Section 106 Agreement. You have also indicated that, if I were to attach a Grampian condition, it should refer solely to the needs of the appeal site itself and not to any wider development scheme.
13. However, in the circumstances of this case, I consider that it would be inappropriate for me to consider the needs of the appeal site in isolation for the following reason. I am not convinced that there is a reasonable prospect that the necessary improvements to the infrastructure within the Project Area, where roads will need to be built to an acceptable standard, and outside the Area, at the identified junction with Wallbridge, would be made within the time-limit which would be imposed by the permission. These considerations lead me to the view that a Grampian condition dealing with matters of access would not overcome the planning objection to your client's proposals. Thus, whilst details of the means of access to the site are reserved for future consideration, you have not demonstrated to my satisfaction your client's proposals would not cause or would overcome dangerous highway conditions outside the Area. I am led to conclude from the information available to me on this main issue that the impact of the proposed development on highway safety would be unacceptable and that your client's proposals fail to satisfy the requirements of the Development Plan, in particular Structure Plan Policy TR10.
The inspector went on to dismiss the appeal.
Grampian condition
As I have indicated above, it was the applicant's case throughout that, at least for the substantial residential development of the site, it would be necessary and appropriate to impose a Grampian condition preventing development taking place without the provision of an acceptable access "direct from Wallbridge over West Yard". [2000] 3 PLR 125 at 133
While the second respondents' primary submission was that the appeal should be dismissed because of prejudice to the planning brief, in the alternative they also sought a Grampian condition requiring adequate access before development took place. Page 8
The reason given by the inspector for rejecting a Grampian condition is contained in the first part of para 13 of the decision letter, that is, that he was:
not convinced that there is a reasonable prospect that the necessary improvements to the infrastructure within the Project Area, where roads will need to be built to an acceptable standard, and outside the Area, at the identified junction with Wallbridge, would be made within the time-limit which would be imposed by the permission.
As Mr Morland points out, that had not been suggested as an impediment to the imposition of a Grampian condition by any party in the written representations, nor had it been raised by the inspector.
It is common ground in this court that the inspector was there following the advice in para 40 of the annex to Circular 11/9521, which provides:
It is the policy of the Secretaries of State that such a condition should only be imposed on a planning permission if there are at least reasonable prospects of the action in question being performed before the time-limit imposed by the permission.
That paragraph has a footnote, which provides:
British Railway Board v Secretary of State for the Environment and Hounslow LBC [1994] JPL 32... the House of Lords established that the mere fact that a desirable condition, worded in a negative form, appears to have no reasonable prospects of fulfilment does not mean that planning permission must necessarily be refused as a matter of law. However, the judgment leaves open the possibility for the Secretary of State, to maintain as a matter of policy that there should be at least reasonable prospects of the action in question being performed within the time-limit imposed by the permission.
The annex continues at para 41 as follows:
Thus for example, if it could be shown that, although current sewage facilities were inadequate for a new housing estate, improvements were under way and that there are reasonable prospects that the facilities would be completed not long after the houses, it might be appropriate to grant permission subject to a condition that the houses should not be occupied until the relevant sewerage works were complete. In an appropriate case, too, it might be reasonable to use a condition requiring that the development should not commence until a particular highway had been stopped up or diverted, if there were reasonable prospects that the highway authority would be able and willing to take the necessary action.
[2000] 3 PLR 125 at 134
At first instance, in Millington v Secretary of State for the Environment, Transport and the Regions [1999] 1 PLR 36 at p48G, Judge Rich QC (sitting as a deputy High Court judge) commented on the provisions as follows:
I think that that footnote is mistaken. Certainly the case leaves it open to the Secretary of State to refuse to impose such a condition if there are reasons other than the unlikelihood of implementation. But the unlikelihood of implementation is not by itself a sufficient reason to refuse, and allowing it to be policy cannot make it so.
That case went on appeal. The Court of Appeal found it unnecessary to deal with that part of the judgment. Page 9
At p25 of the transcript (delivered on 25 June 1999 - unreported1), having referred to the relevant part of the judgment below, Schiemann LJ said at letter F:
The Secretary of State takes exception to those comments by the judge. We have not heard full argument on those points having indicated to the parties that we were not prepared to do so in the context of this appeal. The judge had in front of him argument in relation to what was a positive rather than a negative condition and so his comments in relation to negative conditions were not necessary for his decision...
We do not regard it as appropriate to lengthen our judgments by a consideration of a difficult question which has already troubled the House of Lords and the resolution of which was not necessary for the judge nor is it for us.
The original Grampian decision was the House of Lords decision in Grampian Regional Council v Aberdeen City District Council (1983) 47 P&CR 633, where the House endorsed the concept of a negative condition. Lord Keith delivered the leading opinion in that case.
In Jones v Secretary of State for Wales (1990) 61 P&CR 2382, (basing on the speech of Lord Keith) the Court of Appeal adopted as a principle that a Grampian condition could only be imposed if there was a reasonable prospect of compliance within the time-limit imposed on the permission. Accordingly, in British Railways Board v Secretary of State for the Environment [1993] 3 PLR 125 the Secretary of State had dismissed the appeal on the ground that the proposed Grampian condition in respect of access did not have a reasonable prospect of being fulfilled within the period for commencing development under the permission.
In delivering the leading speech in British Railways Board, Lord Keith referred to the earlier decision in Grampian and to the judgments of the Court of Appeal in Jones, and continued at p132:
As I had observed in the Grampian case, the question whether or not a certain condition is unreasonable depends on the circumstances of the case. The circumstances of the Grampian case itself were such that the proposed condition was not only reasonable but highly appropriate. One of these circumstances was that the closure of the southern part of Wellington Road
[2000] 3 PLR 125 at 135
had reasonable prospects of being brought about. It is a mistake, however, to turn the decision on its head to the effect of treating it as carrying the necessary implication that a condition is unreasonable and invalid if it does not have such reasonable prospects. The Act of 1971 contemplates that an application for planning permission may be made by a person who does not own the land to which it relates. This was made plain by section 27(1)(b) [now section 66 of the Town and Country Planning Act 1990], which provides that an application for planning permission is not to be entertained unless, in the appropriate case, the applicant accompanies it with:...
a certificate... Page 10
The learned law lord then set out the relevant parts of what was then section 27(1)(b) and section 29(3) of the 1971 Act and continued at p133C:
The owner of the land to which the application relates may object to the grant of planning permission for reasons which might or not be sound on planning grounds. If his reasons are sound on planning grounds no doubt the application would be refused. But if they are unsound, the mere fact that the owner objects and is unwilling that the development should go ahead could not in itself necessarily lead to a refusal. The function of the planning authority is to decide whether or not the proposed development is desirable in the public interest. The answer to that question is not to be affected by the consideration that the owner of the land is determined not to allow the development so that permission for it, if granted, would not have reasonable prospects of being implemented. That does not mean that the planning authority, if it decides that the proposed development was in the public interest, is absolutely disentitled from taking into account the improbability of permission for it, if granted, being implemented. For example, if there were a competition between two alternative sites for a desirable development, difficulties of bringing about implementation on one site which were not present in relation to the other might very properly lead to the refusal of planning permission for the site affected by the difficulties and the grant of it for the other. But there is no absolute rule that the existence of difficulties, even if apparently insuperable, must necessarily lead to a refusal of planning permission for a desirable development. A would-be developer may be faced with difficulties of many different kinds, in the way of site assembly or securing the discharge of restricted covenants. If he considered that it is in his interests to secure planning permission notwithstanding the existence of such difficulties, it is not for the planning authority to refuse it simply on their view of how serious the difficulties were.
In the present case British Rail applied for planning permission which would cover their own land and also land belonging to Hounslow. Hounslow's land is to be the site of the access road which they seek. The proposed condition relates simply to the stage which construction of the access road had to have reached before the construction of the houses starts and before the houses are occupied. The condition, if imposed, would not derogate from the planning permission if granted. So the position is essentially British Rail have applied for planning permission affecting land not in their ownership, a common state of affairs specifically contemplated by the Act. The proposed condition does not relate to land outside the ambit of the permission applied for. Even if it did, the relevant considerations would be the same as those to be applied where an application for planning permission relates to land not in ownership of the applicant. If the condition
[2000] 3 PLR 125 at 136
is of a negative character and appropriate in the light of sound planning principles, the fact that it appears to have no reasonable prospects of being implemented does not mean that the grant of planning permission subject to it would be irrational in the Wednesbury sense so that it would be unlawful to grant it. If it is irrational to grant planning permission subject to a condition which has no reasonable prospects of being implemented then it must be no less irrational to refuse planning permission on the ground that a desirable condition has no reasonable prospects of implementation and therefore can not be imposed. In truth, neither course is irrational. What was appropriate depends on the circumstances and is to be determined in the exercise of the discretion of the planning authority. But the mere fact that a desirable condition appears to have no reasonable prospects of fulfilment does not mean that planning permission must necessarily be refused. Something more is required before that could be the correct result.
The other members of the committee agreed with the speech of Lord Keith.
As Mr Michael Bedford, who appears for the first respondent, submits, the essential reasoning in British Railways Board is limited to the conclusion of the appellate committee that a Grampian condition could be lawfully imposed, notwithstanding the absence of any reasonable prospect of compliance within the time-limit of the permission. Thus, the remainder of the reasoning is persuasive but not binding. I do, however, note that Mr Bedford, on behalf of the first respondent, does not seek to demur from the propositions that Lord Keith there set out and that led to his conclusion in that case, with which the other members of the committee agreed.
Mr Bedford submits that Lord Keith did not, and could not, preclude the first respondent from adopting a policy against the imposition of a Grampian condition where there was no reasonable prospect of fulfilment within the time-limit for the permission. Page 11
The first respondent had adopted such a policy in para 40 of the annex. It was not for this court to question the policy of the first respondent. That policy having been approved, it constituted a material consideration to which the inspector in the present case was entitled to, and should, have regard. The inspector did just that, as he explained in para 13 of the decision letter.
Mr Bedford submits that it could be inferred from the annex that the objectives of the policy were twofold: first, to avoid the accumulation of unimplemented permissions, an objective that itself underlay the time-limit provisions, originally introduced under the Town and Country Planning Act 1968, and that was endorsed by the House of Lords in Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 and by Lord Morris at p97B. Second, to avoid conferring a benefit on land that was dependent upon something that did not have a reasonable prospect of fulfilment within the lifetime of the permission.
He did, however, make clear, in answer to the court, that these suggested objectives were not proffered on instructions from the first respondent. This morning he helpfully further explained that he was instructed that only the first objective to which he had referred had been [2000] 3 PLR 125 at 137 the subject of other statements on behalf of the first respondent's department.
He submits further that the question of certainty is a proper planning objective and a proper matter to be considered by the first respondent in formulating his policy. A particular example is in respect of housing land provision and the difficulties for authorities where uncertainties of implementation arise.
He submits that the policy does not remove the discretion of the decision maker, whether it is the local planning authority, the first respondent or his inspector on appeal. The policy is, as he put it, merely guidance to which the decision maker should have regard in making his decision.
It is this final submission of Mr Bedford that, in my judgment, brings sharply into focus the problem in the present case. The decision maker, here the inspector on behalf of the first respondent, was under a statutory duty to determine the appeal, having regard to the development plan, so far as material, and other material considerations in accordance with section 54A of the Act; that is, to determine it in accordance with the development plan unless material considerations indicated otherwise.
In coming to his decision where, as here, the issue had been raised, he would have to consider the use of conditions to address any obstacle that he identified to the grant of permission. Policy statements from the first respondent contained in policy guidance are potentially material considerations, to which the weight to be given was a matter for the decision-maker: see Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 7591 per Lord Keith at p764 and Lord Hoffmann at p777.
One such source of guidance would be PPG 1 (to which the inspector referred in para 6 of the decision letter) and the advice in para 40 of that guidance as to the determination of planning appeals, including:
Those deciding such planning... appeals should always take into account whether the proposed development would cause demonstrable harm to interests of acknowledged importance. Page 12
That sound advice, no doubt, has in mind that any exercise of discretion in planning matters should have regard to the real implications of proposed development and its impact. If a breach of policy is technical rather than substantive, it would generally carry less weight in the decision to be made. Thus, the underlying objective or purpose of a policy may well be of significance as a consideration in the exercise of discretion in accordance with statute.
The courts have made it clear that while it is not for the courts to interfere with the formulation or administration of the first respondent's planning policies, the first respondent is not able to dictate the exercise of discretion on the basis of policy mandate: see, for example, H Lavender & Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231. It is [2000] 3 PLR 125 at 138 perhaps unfortunate that the first respondent should have adopted a policy that is couched in absolute terms; in other words, that it is his policy that a Grampian condition that might otherwise be wholly desirable, as in British Railways Board, should not be imposed because there is, as judged at the date of the decision, not a reasonable prospect of fulfilment within the permission time-limit.
In the absence of any direct assistance in the annex to the circular, I have no difficulty in accepting the first objective helpfully advanced by Mr Bedford, that is, to avoid the accumulation of stale conditions. Moreover, I can well see that the significance of the prospects of fulfilment could well be affected by the particular form of the Grampian condition proposed. Taking the first example in para 41 of the annex, it might well be undesirable to allow houses to be built, but not occupied for an indefinite period pending the provision of mains drainage. There would likely be pressure for other forms of sewerage; alternatively the houses would remain empty.
The second example in para 41, that is the requirement for the stopping up of an existing highway or, I would add, the provision of a new road, might well give rise to different considerations if the commencement of development was precluded until the particular Grampian condition was fulfilled. If that did not happen within the period of the permission, the permission would lapse with no apparent adverse implication for the underlying objective. If it did not, permission could be begun within the relevant period or, if not, it would lapse, again with no obvious adverse implication. Thus, I would have some difficulty in understanding why a condition of this kind would necessarily, or in principle, be offensive to the first objective advanced by Mr Bedford.
I believe that that would be consistent with the views expressed by Lord Keith in British Railways Board. Moreover, I note that the Grampian condition suggested by both parties in the present case, and as formulated by the inspector at the end of para 11 of the decision letter, sought to preclude any development until the Grampian condition was satisfied.
For my part, I have considerable doubt whether the second objective suggested by Mr Bedford could sensibly have underlay in the policy. As Lord Keith indicated, the structure of planning legislation is such as to concern itself with the acceptability of the development of land in the public interest. It is not generally concerned with ownership or land interest or, for that matter, implementation. The benefit of permission will generally run with the land, subject to whatever conditions are imposed, and, thus, a permission will only be capable of commencement within the specified period. If a Grampian condition is imposed, precluding development until the condition is met, development will not be able to commence until, and if, that occurs.
The first respondent has no objection to a Grampian condition of that kind that has a reasonable prospect of fulfilment within the permission period. Once the period has elapsed, however, the permission cannot, in any Page 13
event, be commenced. In these circumstances, I do not readily appreciate why the particular prospects for fulfilment of the [2000] 3 PLR 125 at 139 condition should be a matter of public concern, at least in general, as opposed to the specific. Certainly, I do not believe that that consideration could reasonably justify the mandatory form of the policy in para 40.
The absence of reasonable prospect is far from the extreme situations postulated in argument, such as the isolated piece of land with access available only theoretically from the motorway. Thus, considering the annex as a whole, I do not accept that the objectives underlying the first respondent's policy in para 40 would have included the second objective advanced by Mr Bedford.
Even if it did, it seems to me that the decision maker and, here, the inspector, was bound to consider his discretion whether to impose a condition, having regard to, but not bound by, that policy of the first respondent. The danger of promulgating the policy in an absolute form, such as para 40 of the annex, is that a decision maker may regard himself as bound to follow that policy. The challenge in the present case is not, of course, to the policy. It is to the decision. Thus, I must consider whether this inspector did properly exercise his discretion or whether he made his decision not to accept a Grampian condition simply on the basis of the first respondent's policy dicta without regard to other material considerations.
At para 10 of the decision letter, the inspector concluded that the existing access was unsuitable. He had then to decide, first, whether he could impose a Grampian condition, and, second, if so, what form it should take - in other words, whether it should be limited to the needs of the appeal site itself, as the applicant contended, or on a wider basis, as the second respondents contended.
Para 13 of the decision letter is clear. As Mr Bedford accepts, the inspector there rejected a Grampian condition in principle because he was not convinced that there was a reasonable prospect that highway improvements would be made within the period of the permission. The inspector was there, Mr Bedford says correctly, applying the first respondent's policy in para 40 of the annex. I accept that the inspector was applying the policy, but I am unpersuaded that, on the facts of this case, he was able to do that without considering the actual implications of imposing such a condition and whether it would, in fact, cause demonstrable harm.
While it is unfortunate that this aspect was never raised with the parties, there was, in my judgment, evidence to support the conclusion of the inspector that there was no reasonable prospect of fulfilment within the permission time period. In so far as the contrary was advanced by Mr Morland as a ground of challenge, I reject it. It remains the case, however, that notwithstanding that conclusion of the inspector, there was here an adopted planning brief. There was no identified physical impediment to the installation of traffic signals, which had been accepted, in principle, by the highway authority to overcome the visibility constraints. The inspector concluded in para 12 that comprehensive development of the planning brief area would occur and that the likely [2000] 3 PLR 125 at 140 access route to the eastern end of the area and to the appeal site would be as indicated in the planning brief. What was lacking was public finance and the necessary land ownership. This was, however, not a case of impossibility or, indeed, identified prejudice. There is no indication in the decision letter that the inspector balanced the advice in the annex with these other matters, which were, in my judgment, material in considering whether, in the circumstances of this case, the para 40 policy should be applied or whether a Grampian condition could, or should, properly be imposed.
I have no doubt, on the face of the decision letter read as a whole, that this inspector simply applied the Page 14
policy as a mandatory requirement without scope for discretion on his power. Given its terms, that is not altogether surprising.
As I have indicated, the inspector's conclusion on the Grampian condition was crucial to the conclusion that he reached on the acceptability of the proposal and the application of development plan policy. If he had properly considered the factors to which I have referred, and which were material to the exercise of his discretion, he may well, in my judgment, have come to a different decision. Thus, I conclude that the inspector erred in law, and the decision should be quashed on this ground.
Highway safety
In these circumstances, it is not necessary for me to deal with the applicant's second ground of challenge. I would shortly say that, had it been necessary, I would not have found in his favour. In the absence of a Grampian condition, there was, in my judgment, no basis upon which the inspector could have been satisfied that the highway objection would be overcome. That was relevant to policy TR10 of the structure plan and to his decision. That the means of access was a reserved matter did not mean that it was not material for the inspector to consider whether acceptable access could, and would, be provided for the development.
Thus, for these reasons, the application will be allowed on the first ground of challenge and the decision will be quashed.
Application allowed and the decision quashed.