Clarke Homes Ltd v Secretary of State for the Environment and another

Development plan — Absence of local plan — Appellants proposing large residential development — Refusal of planning application — Appeal to inspector — Inspector finding that interim planning structure still evolving — Application not to be considered in isolation — Appeal to High Court — Judge finding that inspector’s reasoning confused, but decision not vitiated — Secretary of State accepting inspector’s recommendations — Appeal to Court of Appeal — Whether defects in inspector’s reasoning vitiating Secretary of State’s decision — Appeal dismissedThe applicants, Clarke Homes Ltd, had sought outline planning permission for residential development and associated infrastructure on 7.57 ha of land between Kitling Greaves Lane and Beamhill Road, Burton-upon-Trent. They appealed against the refusal by the second respondents, East Staffordshire District Council, and on an inquiry, the inspector stated, inter alia, that there was no adopted local plan. With regard to interim planning strategy, the advice in Circular 22/84 had been taken into account on the weight to be accorded to plans which were not the subject of statutory procedures. On the question of prematurity, he stated that to release the appeal site for housing development at the present time would be prejudicial to the proper consideration of sites for housing “which will shortly come about as the interim planning strategy evolves into the statutory local plan”. He continued that the decision about the release of land for residential development on the scale which the appellants wished ought not to be taken in isolation. The interim planning strategy had not identified all land needed for housing “in the event of the housing requirement of the proposed modification to the replacement structure plan being confirmed and that the local plan is in the course of preparation”. In the Secretary of State’s letter he accepted the inspector’s recommendation. The proposal was “so substantial that to allow this appeal at this time may pre-empt decisions about the scale and location of new development which ought properly to be taken in the development plan context”. The various structure plan housing targets, the letter continued, “should be addressed in the wider planning framework of the statutory local plan process”. Clarke Homes Ltd challenged the decision of the Secretary of State in the High Court. The judge, Mr Moriarty, stated that although the inspector’s reasoning was confusing even to an informed reader, the Secretary of State’s conclusions were valid in their own right because he clearly held that there was no plan and, that the application should only be determined by reference to the structure plan when it was approved and to the subsequent local plan when they became available. The appellants appealed on the grounds, inter alia, that the Secretary of State, having neither rejected nor made good the inadequate basis of his inspector’s reasoning, his decision was flawed by a failure to provide proper and adequate reasons. Held The appeal was dismissed. 1. The inspector had set out that the appeal site was not within an area covered by an adopted local plan. Work had begun to produce a local plan, but pending the approval of the replacement structure plan, it had not progressed to adoption stage. There was an interim strategy, however, which was to be used as a control framework until the adoption of the local plan. 2. In Circular 22/84, it was stated that the absence of a local plan was not in itself a reason for refusing planning permission. Any plan for development which was not in the scheme as a local plan and had not been subject to statutory procedures could have little weight for development control purposes: see also the presumption in favour of development in PPG1, para 15. However, in PPG 15, para 29, it was stated that arguments sometimes turned on how up-to-date the development plan was, but it was “generally undesirable that policies … should be reviewed and amended ad hoc in this way … Where local planning authorities are at an advanced stage in preparing or altering their plan … they may be justified in refusing major planning applications on the grounds of prematurity …”. 3. It was clear therefore that the question of prematurity might arise and that would be justifiable to refuse planning permission where it would pre-empt decisions which ought to be taken in a development plan context. 4. In the instant case the inspector had made a valiant attempt in a situation which there was no plan which could be relied upon. Mr Moriarty found that it had been “the policies that the inspector was dealing with and the national guidance that he was taking into account were in practice almost impossible to weigh fairly one against the other in the course of the balancing exercise that he was attempting to carry out”. 5. In reply, the Secretary of State submitted, inter alia, that the report ought to be construed in a reasonably flexible manner and not as a contract or statute; that the exercise of the planning judgment was entirely a matter for the decision maker and not for the courts; the extent of the duty to give proper and adequate reasons depended on the circumstances of each case; a failure to give proper and adequate reasons would only afford a ground for challenge if the interest of the applicant had been substantially prejudiced thereby. 6. In the instant case, the Secretary of State’s conclusions were valid in their own right. He clearly stated that the proposal might pre-empt decisions which ought only to be taken in the development plan context supra. It was abudantly plain that prematurity rather than any other ground was the reason for the dismissal of the appeal by the Secretary of State. 7. However, even if that were wrong, the court was quite unsatisfied that there had been prejudice to the appellants. It was clear that the decision was within the statutory powers and it was plain to the appellants why they had lost, viz the impact on the plans still in formulation of a development in the scale of 7.5 ha. Keith Lindblom (instructed by Argles and Court, of Maid-stone) appeared for the appellants; David Elvins (instructed by the Treasury Solicitor) appeared for the first respondent, Secretary of State for the Environment; the second respondents did not appear and were not represented.