Page 1 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.