[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barratt Homes (Southern Counties) Ltd v Secretary Of State For Transport, Local Government & Regions & Anor [2002] EWCA Civ 1578 (15 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1578.html Cite as: [2002] EWCA Civ 1578

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London, WC2 Tuesday, 15 October 2002

1. LORD JUSTICE KEENE: This is a renewed application for permission to appeal from a decision of Mr George Bartlett QC, sitting as a Deputy High Court Judge, permission having been refused on the papers by my Lord, Lord Justice Buxton.
2. The High Court proceedings were brought under Section 288 of the Town and Country Planning Act 1990 seeking to quash the refusal of the Secretary of State to grant planning permission on a site on the western edge of Basingstoke for residential development of 290 dwellings and certain other features. An inspector who held a public inquiry had recommended that permission be granted. The inspector had looked in some detail at the supply of housing land over the five year period 2001 to 2006. He concluded that during that period the supply would be about 600 dwellings less than the residual requirement in the district derived from the Structure Plan base line requirement.
3. In so concluding the inspector had differed from the figures put forward by the planning authority, in particular in respect of four sites. The biggest difference arose in respect of a site known as Park Prewett where his figure was 400 dwellings less than the council estimated. Most of that difference derived from the inspector's view that past performance on the site indicated that not more than 125 dwellings per annum would be completed, although some of the difference was due to his view that completions would not occur until one year into the five-year period. The remaining three sites were ones where, for various reasons, the inspector concluded that development would be delayed to some degree, so that the council had over-estimated the total likely to be completed during the five years. As a result of this predicted shortfall, the inspector concluded that at least one more greenfield site would have to be released in the district, and consequently he recommended that permission be granted.
4. The Secretary of State disagreed. He expressed concern in paragraph 9 of his decision letter about -

"the methods of prediction which have been employed by the parties and the Inspector, which, in his view do not reflect his policy in PPG3 Housing. The Secretary of State considers that the calculations and predictions adopted by the parties and the Inspector have relied too heavily on past completion rates to determine whether the release of further greenfield land is justified."

He continued in paragraph 10 as follows:

"Planning Policy Guidance Note PPG3 indicates that it is an essential feature of the plan, monitor and manage approach that housing requirements and the ways in which they are to be met should be kept under regular review. Effective monitoring is essential to the strategy of maintaining an adequate supply of land for housing and to enable its planned release. In the Secretary of State's view, while past rates of completion may be an indicator of how land may eventually be taken up it does not provide sufficient certainty now that the supply will not reach its full potential. Such predictions are no substitute for monitoring land take up as it actually occurs in order to establish whether additional land needs to be released. It is only by monitoring completions from housing sites, and ensuring, where they actually fall below assumed rates, the release of further sites, that land releases can be effectively managed and can be justified in the light of PPG3 policies to plan, monitor and manage housing land and supply. In the Secretary of State's view it is too early at present to establish with certainty that the sites the Council has identified to meet the district's housing requirement will not deliver their potential. He considers that monitoring housing supply as advocated in his policies in PPG3 will prevent the premature release of greenfield sites and not inhibit further previously developed land from coming forward."

He concluded as follows at paragraph 15:

"For the reasons given above, the Secretary of State does not agree with the Inspector's conclusion that the housing land supply situation at present justifies the release of a further greenfield site now in addition to the sites already identified by the Council. Therefore, he does not accept the Inspector's recommendation."

5. That decision is challenged by the applicant on two grounds. First, and principally, it is said that the Secretary of State failed to give adequate reasons for his decision contrary to the Inquiries Procedure Rules 2000. Mr Katkowski QC, who appears for the applicant, relies on the well established principle that reasons must be proper, intelligible and adequate and must enable the parties to understand why they have lost or won. It is contended by him that the only basis advanced by the Minister for differing from the Inspector was over the latter's use of past completion rates. Yet those rates - says Mr Katkowski - only explain part of the inspector's reasoning in respect of the Park Prewett site and form no part of the inspector's reasoning in relation to the other three sites. Mr Katkowski argues that in reality the Secretary of State has misunderstood what his inspector had done. Past completion rates play little part in the inspector's conclusions in respect of these four sites and, effectively, none at all in relation to three of those four. This is the applicant's main point.
6. There is a lesser argument contained within the same submission which derives from paragraph 8.27 of the inspector's report where the inspector had, in summary, suggested that the time scale for a review of the local plan was such that it was unlikely that the appeal site would be able to make a significant contribution towards meeting the housing land supply needed by 2006, if the site were held back. That, says Mr Katkowski, was not commented upon adequately by the Secretary of State and means that there is a lack of guidance for his clients as to what the Minister has in mind over the timing for release of this site.
7. I find this part of the applicant's case, its main point, quite unpersuasive. It is true that the Secretary of State is critical in his letter of the reliance placed by the inspector on past completion rates. It seems to me that his point is a wider one than that and emerges clearly enough from his reference in paragraph 9 to his policy in PPG3. As the judge below said, the reasons given by the Minster should be read in the light of his policy. That new version of PPG3 produced in March 2000 reflected a change in government policy, as it indicated. The change was away from what had become known as "predict and provide" under the earlier versions of PPG3 where one sought to do arithmetical calculations to predict future shortfalls of housing land and thus to make planning control decisions. The emphasis under the new policy was and is on the approach described as "plan, monitor and manage" which involves keeping housing land requirements and the ways in which they are to be met under regular review. There is, under the PPG3, to be monitoring of the situation reflected in annual reports.
8. I agree with the judge below that the crucial part of the decision letter in the present case is paragraph 10 and, in particular, the sentence -

"Such predictions are no substitute for monitoring land take up as it actually occurs in order to establish whether additional land needs to be released."

In other words, the Minister's point was, in essence, a methodological one, leading to his conclusion that it is too early to say, with certainty, whether the identified sites would deliver their potential. That reasoning, to my mind, comes across perfectly clearly from the decision letter, as the judge below well understood. It is a reasoning which applies to all four sites because factors such as when development starts or completions are achieved are also, under the new policy, best assessed under a monitoring process. That is what the Secretary of State is saying in his decision.

9. Nor do I accept that the Secretary of State misunderstood what the inspector had done. In paragraph 8 of his decision letter, while he does specifically refer to past completion rates and the use of them, he also comments about the fact that the inspector had made other adjustments to the calculations. I do not see that it is at all arguable that the Minister had thought that the inspector had proceeded solely on the basis of past completion rates and had not taken into account the other factors, particularly in respect of the three sites, apart from the Park Prewett one.
10. As for Mr Katkowski's lesser point within this main argument about the lack of guidance as to review, it seems to me the answer is quite clear: the Minister is saying that land supply is going to have to be monitored, as is the rate of development, and one will have to see what happens. He is not saying one has to wait for the review of the local plan before one can make a decision on whether or not the appeal site can be developed.
11. I can see no prospect therefore of this first and main ground of appeal succeeding.
12. The applicant's second ground I can take more briefly. It is one of irrationality. It focuses on the fact that in paragraph 11 of his decision letter the Secretary of State says:

" ..... he accepts the broad level of the council's projected supply figures."

Mr Katkowski points out that the council's projected supply figures also made use of past completion rates and so acceptance by the Secretary of State of the council's projections is, he says, irrational. The deputy judge commented on this that this passage did appear to be inconsistent with what had gone before. It seems to me that this one sentence in paragraph 11 has to be seen in context. Clearly, the Minister's main point was the need for monitoring rather than prediction. That does not prevent him from regarding the broad level - and I emphasise those words - of the council's projections as being acceptable, although those too would have to be subject to monitoring. The decision letter has to be read as a whole, not scrutinised line by line. The main thrust of the decision is clear and rational, as I have indicated earlier in this judgment. When this one sentence is read in context I cannot see any scope for a perversity challenge on this basis.

13. For those reasons I, for my part, would refuse this application.
14. LORD JUSTICE BUXTON: I agree with everything that has fallen from my Lord.
15. I would only add this. It is important to remember that the first and main ground of appeal is a complaint that the Secretary of State had not given adequate reasons for refusing planning permission contrary to the recommendations of his inspector. That claim, as it seems to me, was doomed to failure. The Secretary of State explains quite clearly, particularly in paragraph 10 of the decision letter, why he is taking the attitude he does, based on his own policy and methodology as set out in PPG3. Mr Bartlett, whose decision is what is sought to be appealed, in my judgement absolutely clearly understood that that was the Secretary of State's posture and made that clear, in particular, in paragraph 29 of his careful and detailed judgment. That is more than sufficient to dispose of the main point.
16. It should be noted that it is not suggested that it was not open to the Secretary of State to rely on his policy in PPG3 and the approach he favoured in that circular in determining his attitude to this application. All that is suggested is that he has not adequately made clear that that is what he did. In company with the judge and my Lord, that point seems to me unsustainable.
17. I also would not grant permission.
Order: Application refused