IN THE HIGH COURT OF JUSTICE OF THE ISLE OF MAN
CHANCERY DIVISION
IN THE MATTER of the High Court Act 1991
And
IN THE MATTER of the Town and Country Planning Act 1999
And
IN THE MATTER of the Town and Country Planning Development Procedure Order 2005
And
IN THE MATTER of a decision by the Council of Ministers dated 11th January 2008 by which it refused an application by the Department of Local Government and the Environment for the erection of 257 dwellings at Crossag Farm, Ballasalla
And
IN THE MATTER of the Amended Petition of J G KELLY LIMITED and JACKSON HOMES (SOUTHERN) LIMITED re-dated 3rd July 2008
DRAFT/Judgment of Acting Deemster Sullivan Q.C. handed down
- This Petition of Doleance is brought by J G Kelly Limited and Jackson Homes (Southern) Limited (“the Petitioners”) in respect of a decision of the Council of Ministers (“CoMin”) dated 11 January 2008 refusing an application for planning permission made by the Department of Local Government and the Environment (“DoLGE”) for the erection of 257 dwellings at Crossag Farm, Ballasalla.
BACKGROUND
- The agreed background to this Petition is that on 22 December 2006 an agreement was concluded by the Petitioners and DoLGE for the development of land at Crossag Farm, Ballasalla. On the same day DoLGE submitted planning application 06/02445/B (“the Application”) in respect of that development. Upon receipt of the Application CoMin appointed Mr. John Turner BA (Hons), FRTPI, MRICS, FGS (“the Inspector”) as inspector to consider the Application and to report to CoMin with his recommendations. The Inspector held a Public Inquiry on 11, 12 July, 16 and 17 October 2007. The Inspector produced his Report to CoMin on 30 November 2007 recommending refusal of permission on the ground that “The proposed development of this site is premature pending the preparation of an Area Plan which would include commitments to the provision of primary education and road proposals for Ballasalla”. On 11 January 2008 CoMin issued a letter accepting the Inspector’s recommendations and refusing planning permission. The Petition was filed on 22 February 2008.
THE PARTIES
- The parties appearing before the Court are the Petitioners, CoMin, DoLGE, Malew Parish Commissioners and a number of individual third parties, all of whom are members of Ballasalla & District Residents Association.
LAW
- Planning applications are governed by the Town and Country Planning Act 1999, (“the Act”) and the Town and Country Planning (Development Procedure) Order 2005 (“the Order”). The relevant parts of the Act are as follows:
“9 Planning applications
(1) An application to the Department for planning approval-
(a) Shall be made in such manner as may be prescribed by a development order, and
(b) Shall include such particulars and be verified by such evidence as may be required by the order or directions given by the Department under the order…
10 Determination of planning applications
(a) Where an application is made to the Department for planning approval then, subject to the following provisions of this Part and to the provisions of the development order, grant planning approval, either unconditionally or subject to such conditions as it thinks fit: or
(b) Refuse planning approval…..
(1) The Department may-
(4) In dealing with an application for planning approval the Department shall have regard to-
(a) The provisions of the development plan, so far as material to the application;
(b) Any relevant statement of planning policy under section 3;
(c) Such other considerations as may be specified for the purpose of this subsection in a development order, so far as material to the application; and
(d) All other material considerations.
(5) A development order shall make provision for-
(a) The procedure for the determination of applications for planning approval …
(b) The exercise of functions in relation to the determination of such applications, and appeals against decisions in relation thereto;
(c) The giving of notice of any application for planning approval to any person (other than the applicant) who is the owner of the land to which the application relates; and
(d) The publicity to be given, and the consultation to be carried out, in connection with the determination of applications for planning approval.
(6) A development order may make provision for-
(a) The conduct of proceedings relating to such applications;
11 Reference of applications to Council of Ministers
(1) If it appears to the Council of Ministers that an application made to the Department for planning approval-
(a) raises any considerations of general importance to the Island, or
(b) for some other reason ought not to be determined by the Department,
The Council of Ministers may direct that the application shall be referred to and determined by it.
(2) Where the Council of Ministers grant planning approval on an application referred to them under subsection (1)-
(a) the decision of the Council of Ministers shall be laid before Tynwald, and shall not have effect until the end of the next sitting following that before which the decision is first laid; and
(b) Tynwald may, at either of those sittings, resolve that the decision be annulled, whereupon the application shall be deemed to have been refused.
(3) Without prejudice to subsection (1), a development order may provide that-
(a) an application by the Department for planning approval, and
(b) an application for planning approval for development of land any interest which is vested in, or which is occupied or controlled by, the Department,
shall be referred to the Council of Ministers.
(4) In relation to an application the subject of a direction under subsection (1), or an application to which subsection (3) applies, references in this Act to the Department shall, where the context so requires, be construed as references to the Council of Ministers.
(5) Except as provided by subsections (1) to (4), the provisions of this Part and of any relevant development order apply to an application the subject of a direction under subsection (1) or an application to which subsection (3) applies as they apply to any other application for planning approval……
Schedule 8
Transitional Provisions
1. The following, as they have effect immediately before the commencement of Part 1, shall have effect as an area plan for the purposes of Part 1, and may be varied or repealed accordingly-
(a) Articles 7,8,10 and 11 of the Isle of Man Planning Scheme (Development Plan) Order 1982.”
5. The relevant parts of the Order are as follows:
10. Reference of applications to the Council of Ministers
(1) Any application for planning approval-
(a) made by the Department, or
(b) for the development of land any interest in which is vested in, or which is occupied or controlled by, the Department,
shall be referred to and determined by the Council of Ministers.
(2) The Council of Ministers shall refer an application referred to in paragraph (1) to a person appointed for the purpose by the Council of Ministers, and the appointed person shall-
(a) consider the application and any written representations made to him with respect thereto pursuant to a notice under article 5;
(b) invite the Department to make written submissions to him in respect to the application;
(c) invite every person specified in paragraph (4) to make written representations (or further written representations) to him with respect to the application;
(d) give to the Department and every person specified in paragraph (4) an opportunity to appear before him and to make oral representations to him and to call and examine witnesses; and
(e) make to the Council of Ministers a report in writing, including his recommendations as to the determination of the application.
(3) As soon as possible after the determination by the Council of Ministers of an application under this article, the Chief Secretary shall give notice in writing of its decision to the Department and to every person specified in paragraph (4); and
(a) shall be accompanied by a copy of the report of the appointed person;
(b) If, and to the extent that, the decision does not follow the recommendation of the appointed person, shall state the reasons for the decision…
11. Inquiry procedure
The provisions of Schedule 3 apply to proceedings conducted by an appointed person under article 8(2) or 10(2).”
THE DECISION
6. The Inspector recommended that planning permission be refused for one reason: “The proposed development of this site is premature pending the preparation of an Area Plan which would include commitments to the provision of primary education and road proposals for Ballasalla.” CoMin’s Decision Letter of 11 January 2008 stated:
“After consideration the Council of Ministers has accepted the recommendations contained in” (the Inspector’s report) “and the application is refused.
However in accepting this recommendation Council took particular cognisance of the following conclusions within the Inspectors report:
Para 133 – the residential use of the land would be in accord with the development plan
Para 134 – there is a need for First Time Buyers (FTB) and public sector housing within Ballasalla
Para 139 – the adverse effects could be overcome through revised proposals
Council further considers that the need for FTB and public sector housing extends to the wider strategic need as set out in the all Island Strategic Plan and the Government Strategic Plan and is a relevant consideration.
For the above reasons this refusal is without prejudice to any revised proposals.”
I am satisfied that the word “recommendations” in the letter should be “recommendation” and that this was due merely to a typing error.
PLANNING POLICY DOCUMENTS
7. The Isle of Man Strategic Plan (“SP”) came into force on 1 August 2007. By paragraph 1.2.2 “the Development Plan” consists of “a Strategic Plan and “one or more Area Plans”. Appendix 1 defines the Development Plan as consisting of:
“a Strategic Plan (this document) and one or more Area Plans, as defined in the Section 2 of the 1999 Town and Country Planning Act. It is the Department’s intention to prepare four Area Plans for the South, East, North and West of the Island”.
In paragraph A.3.6 Ballasalla is referred to as having an Area Plan, namely the 1982 Development Plan.
8. The 1982 Development Plan is described as “Isle of Man Planning Scheme (Development Plan) Order 1982 (“the 1982 Order”). There is no dispute that the application site is designated as “proposed Residential” under the 1982 Order. The 1982 Order was given the status of an Area Plan by virtue of section 46(1) and Schedule 8 paragraph 1(a) of the Act. This Area plan does not have the status of an “adopted” Area Plan and is to be treated as transitional until replaced by area plans prepared and adopted under Part 1 of the Act.
9. Planning Circular 7/91, Island Strategic Plan, Southern Sector (C) (“7/91”) was issued in September 1991. It covered an area including Ballasalla. It was not an Area Plan as there were not the resources necessary to carry out a full survey as required for an Area Plan. It was therefore only of advisory status but had been produced after a significant period of consultation, including a Public Inquiry as described in paragraphs 1.2 to 1.6 of 7/91. Paragraph 1.12 recorded that 7/91 would have a lifetime of 5 years. The same paragraph provided for amendments or additions to 7/91 if necessary but none were produced. 7/91 was expressed in paragraph 1.11 to be “in order to illustrate the policies, proposals and recommendations which are considered to be appropriate to the future of the Sector”. Policy S/T/P4 at paragraph 4.13 recited:
“4.13 THE VILLAGES AND HAMLETS ARE LARGELY UNSPOILED BY UNSYMPATHETIC DEVELOPMENT AND THIS SIUTATION MUST BE REINFORCED BY THE PREPARATION OF INDIVIDUAL PLANS FOR THESE AREAS WHICH WILL CONTINUE TO SAFEGUARD THEIR CHARACTER.”
Paragraph 5.1 recited that the sector did not present the opportunity for major development but that there was the potential for a degree of infill or the logical extension of the then existing villages and hamlets. Areas originally identified in the 1982 Order were recited to include 45 acres to the north-east of Ballasalla village in the Glashen farmland. Appendix 5 of 7/91 made certain estimates for the provision of new dwellings in various areas and upon those calculations 169 were planned for Ballasalla plus a further 50. Irrespective of the 5 year lifetime indicated within it 7/91 was rescinded by paragraph 1.5.2 of the SP.
10. Paragraph 1.6.1.of the SP is as follows:
“1.6.1 The Island has a close relationship with the UK, within which there are land-use planning systems which have the same general purpose as, and much in common with our own system. We also have indirect links with the European Union. Accordingly, where unusual matters arise, or where there is no Manx guidance, it will often be appropriate and helpful to have regard to legal judgments or advice published in the UK or the EU.”
ISSUES
11. The Petitioners rely upon 7 grounds to challenge the decision of CoMin: The first alleges that CoMin “failed to give proper, adequate and intelligible reasons for its decision to refuse planning approval”. There is no statutory authority requiring CoMin to give reasons, they only have to do so if they do not accept the recommendations of the Inspector, (see Article 10(b) of the Order). Nevertheless it is recognised good practice for administrative bodies to give reasons, see Halsbury’s Laws of England, Fourth Edition 2001 Reissue, Volume 1(1) p. 263 and South Bucks C v Porter (No2)(HL(E) [2004] 1 WLR 1953 at paragraph 36:
“36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach rational decision on relevant grounds. But such adverse inference will not be readily drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
However in my judgment they did give reasons in that they accepted the recommendation of the Inspector and it can therefore be reasonably assumed that they adopted the reasons the Inspector gave in his report.
12. The Inspector gave one reason recited in paragraph 2 herein but this is clearly a summary of his earlier “Assessment” and “Conclusions”. In paragraph 116 he considered the number of dwellings proposed, namely 257, to be too large in present circumstances, in paragraph 118 he considered that the predominance of white render for the propose dwellings would not be in character with the overall appearance of the area, in paragraph 118 he considered that the buffer landscaping and planting were inadequate to fulfil the stated aim of providing peripheral buffer planting, in paragraph 119 he concluded that some of the boundary dwellings could appear as skyline development from within the development, particularly those closer to the Crossag Road, in paragraph 121 he considered the need to repaint the exteriors of the dwellings of First-Time-Buyers (“FTB”) and social sector houses every 5 years was too great a financial burden, in paragraph 123 he considered that it would be unacceptable to complete all of the dwellings proposed before both primary school provision andd other social facilities were improved, in paragraph 128 he considered the traffic flows would be inadequate with all the dwellings proposed unless the proposed by-pass was in construction, in paragraph 137 he considered that the approval of the application would, to a degree, prejudge the outcome of any wider planning proposals for Ballasalla, in paragraph 138 he considered that if the proposal remained for so many dwellings then an Area Plan procedure should first be carried out. His conclusion can therefore be reasonably interpreted as indicating that either the number of dwellings should be reduced, taking into account issues such as render, buffer planting and skyline issues or the proposal should remain for the large number of dwellings but should be delayed until the Area Plan procedure had been concluded.
13. In my judgment such reasoning was sufficiently clear to enable either the Petitioners and/or DoLGE, and/or other developers to frame further and/or amended applications for planning permission. I therefore reject Ground 1 in the Petition.
14. The Petitioners’ second ground is as follows: “In refusing planning approval on the ground that “the proposed development of this site is premature pending the preparation of an Area Plan” the Council of Ministers erred in law. Alternatively, its refusal on this ground was irrational”. The Petitioners submitted that there was already an Area Plan, namely that provided in the 1982 Order. The Inspector was well aware of this and states so at paragraph 107 of his report. The Inspector was clearly referring to the need for a new Area Plan and CoMin, by adopting the Inspector’s recommendations, are reasonably to be taken as having applied the same reasoning. In my judgment there is nothing irrational in this approach.
15. Mr. Coleman, for the Petitioners, submitted that there was no legitimate concept of “prematurity” and that a refusal based upon prematurity was invalid. The route pursued by Mr. Coleman to base such submission was first to assume that this issue was an “unusual matter” so to permit recourse to the law of the United Kingdom in reliance on paragraph 1.6.1 of the SP and then to rely upon the English Planning Policy Statement 3 (PPS3):(Housing) (November 2006 (“PPS3”), which states at paragraph 72:
“72. Local Planning authorities should not refuse applications solely on the grounds of prematurity”.
In my judgment paragraph 72 has to be read in the context of paragraph 70:
“70. Where Local Planning Authorities have an up-to-date five year supply of deliverable sites that are allocated in the overall land supply, but which are not yet in the up-to-date five year supply, Local Planning Authorities will need to consider whether granting permission would undermine achievement of their policy objectives.”
I do not therefore consider that that paragraph of PPS3 is authority for his more general proposition in relation to the concept of “prematurity”. That view is confirmed by reference to another English planning document headed “The Planning System: General Principles, Product code 04 PD 02811 published in January 2005, where at paragraph 17 “Prematurity” is specifically justified as a reason to refuse planning permission. In any event I do not consider that the general issue of “prematurity” in planning matters is an “unusual matter” as is demonstrated by a number of Isle of Man authorities relied on by the Respondents including Pilling v. Department of Local Government and the Environment and Sinden 1991-98 MLR . Although this case was not directly concerned with an appeal against refusal of planning permission on the ground of prematurity the Staff of Government did not criticise the Planning Committee’s report, recording its conclusions at page 301:
“4. The Planning Committee should consider whether all the site could be developed without prejudicing study of the larger area. In view of the wording of the circular, this was an entirely correct approach”,
and at page 302 Acting Deemster Sauvain said:
“As the 1982 Order requires that circulars should be taken into account as well as the designation in the Island Plan, it is, in my view, clear that regard would have to be paid to such a circular. So far as I am aware, there has been no doubt cast on the validity of the circular- only on the weight to be given to it. Notwithstanding this inaccuracy, there is nothing, in my view, in his report which suggests Mr. Sinden was doing anything other than giving a professional planning officer’s views on the merits of the application and the policy background. What force there was in his expression of opinion about the development of the upper part of the site affecting the long-term studies of the area is best considered in the light of the subsequent considerations of the application. If it was a genuine view, it was a view that Mr. Sinden was entitled, or possibly obliged, to express in pursuance of his duty to give the Planning Committee professional advice”,
and at page 306:
“The Inspector clearly agreed with the views expressed initially by Mr. Sinden and later by Mr. Watson as to the possible prejudice to the long term planning of the area but did so on the basis of his own planning judgment. Far from relying upon any uncertainty over the status of the circular, the Inspector applied the provisions of that circular and, in concluding that Policy S/RES/P2 was applicable to some part of the site, he interpreted the circular correctly.”
For the reasons given herein I reject the Petitioners second ground.
16. The third ground relied upon in the Petition is: “The Council of Ministers erred in giving any weight to the alleged past promise of the Government regarding a study or village plan before any large scale development would be approved”. The Petitioners relied on two paragraphs of the Inspector’s report:
“114. I note that this proposal is a full planning application. Therefore, the application has to be approved with or without planning conditions, or refused. However, the Applicant made it clear that this proposal forms a part of a larger Clagh Vane scheme. The local residents considered that the present proposal should be considered in the context of the whole scheme. I consider that SP proposals for Area Plan could be an effective means of implementing the past promise of Government to prepare a Plan for Ballasalla. I will return to consider the weight to be placed on this in my final conclusion.”
“138. In the light of past Government promises to the residents of Ballasalla, I believe that great weight should be put on the proper use of the planning process. This entails publishing and examining planning proposals for the future of Ballasalla and the south of the Island under the SP, Area Plan procedure. I judge that only then can proper consideration be given to such a large proposal as this planning application. This would be in line with planning practice on the Island since the 1982 Order. The SP rescinded the Southern Sector Plan, which had been an unadopted Local Plan. I conclude that the Council of Ministers should examine this full planning application for housing against the wider processes of government under the Town and Country Planning Act 1999, and other legislation, which seek the orderly development of land.”
The Application, if granted, would increase the population of Ballasalla by a third, as was the uncontroverted evidence of the Malew Parish Commissioners at the Inquiry, see paragraph 44 of the Inspector’s report. The evidence of Mr. Allsebrook at the Inquiry was recorded at paragraph 66 of the Inspector’s report as:
“66. Mr Allsebrook recalled Government promises that there would be a Ballasalla Village Plan before any further development took place in the village. This promise has been forgotten.”
It is common ground that no specific promise was made by the Government. Mr. Allsebrook in an affidavit sworn for the purposes of this hearing confirmed that fact but relied upon the whole of the consultation process prior to the publishing of 7/91 and to proceedings before Deemster Luft.
17. Mr. Helfrich, representing CoMin referred to paragraph 113 of the Inspector’s report:
“113. The third parties argued that this proposal was premature for a number of reasons. Basically, the rescinded Sector Plan proposed a study [Policy S/RES/P1] for Ballasalla. Several local objectors stated that the Government had promised that a study or village plan would be undertaken with proper consultation before any large scale development would be approved in Ballasalla”.
Paragraph 5.8 of 7/91 referred to “DETAILED STUDIES SHOULD THEREFORE BE INITIATED” and on page 22 of 7/91 Ballasalla was indicated as an area “PROPOSED FOR A STUDY”. Paragraph 5.9 stated:
“ NO ADDITIONAL DEVELOPMENT WILL BE PERMITTED IN THE FOREGOING AREAS UNTIL THE APPROPRIATE STUDIES HAVE BEEN COMPLETED OR IT CAN BE DEMONSTRATED THAT A DEVELOPMENT BASED ON DESIGNATED RESIDENTIAL AREAS CAN BE SATISFACTORILY INTEGRATED WITH THE EXISTING COMMUNITY. THESE STUDIES WILL INDICATE FIRSTLY WHETHER ANY ADDITIONAL DEVELOPMENT SHOULD IN FACT OCCUR AND SECONDLY, IF DEVELOPMENT IS TO OCCUR, THEN THE MANNER IN WHICH IT MAY BE CARRIED OUT WILL BE FIRMLY LAID DOWN BY THE DEPARTMENT. ANY INTERIM DEVELOPMENTS WOULD BE SEEN TO PREJUDICE SUCH A CONCEPT.”
Although the 1982 Order designated the area the subject of the Application as “proposed residential” the proposal for 257 houses was substantially more than had been considered appropriate in 7/91.
18. Reading 7/91 as a whole it is, in my judgment, both reasonable and rational to hold, as did the Inspector, that there had been a form of “promise” to provide some further plan for Ballasalla before further major development took place. In so far as the Inspector believed or considered that there had been some more specific promise by the Government, he was wrong but in my judgment it does not invalidate his findings in respect of a promise. He placed “great weight” on the proper use of the “planning process” as a whole. He would have been entitled to rely upon the advisory nature of 7/91 without any further promise to found his view that a further study was necessary before major development such as contemplated by the Application was considered. The Inspector does not appear to have been told, as he makes no mention of this in his report, but I was told in these proceedings, that the south of the Island is to be the first area subject to an Area Plan in line with current legislation and that the commencement of the preparation of such a plan is imminent.
19. Mr. Coleman relied upon the case of R v East Sussex County Council,ex p Reprotech [2002] 4 All E R 58 for the proposition that no reliance can be placed on a promise given in a planning context: Lord Hoffman stated at paragraphs 33-35:
“[33] In any case, I think that it is unhelpful to introduce private law concepts of estoppels into planning law. As Lord Scarman pointed out in Newbury DC v Secretary of State for the Environment, Newbury DC v International Synthetic Rubber Co Ltd [1980] 1 All ER 731 at 752, [1981] AC 578 at 616, estoppels bind individuals on the ground that it would be unconscionable for them to deny that what they have represented or agreed. But the consequences of private law should not be extended into ‘the public law of planning control, which binds everyone’. (See also Dyson J in R v Leicester City Council, ex p Powergen UK Ltd [1999] 4 PLR at 100.)
[34] There is of course an analogy between private law estoppels and the public law concept of a legitimate expectation created by a public authority, the denial of which may amount to an abuse of power (see R v North and East Devon Health Authority, ex p Coughlan (Secretary of State for Health intervening [2000] 3 All ER 850, [2001] QB 213). But it is no more than an analogy because remedies against public authorities also have to take into account the interests of the general public which the authority exists to promote. Public law can also take into account the hierarchy of individual rights which exist under the Human Rights Act 1998, so that, for example, the individual’s right to a home is accorded a high degree of protection (see Coughlan’s case [2000]3 All ER 850 at 883-884, [2001] QB 213 at 254-255), while ordinary property rights are in general far more limited by considerations of public interest (see R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2001] 2 All ER 929, [2001] 2 WLR 1389).
[35] It is true that in early cases such as Wells’ case and Lever (Finance) Ltd v Westminster Corp [1970] 3 All ER 496, [1971] 1 QB 222, Lord Denning MR used the language of estoppels in relation to planning law. At the time the public law concepts of abuse of power and legitimate expectation were very undeveloped and no doubt the analogy of estoppels seemed useful. In the Western Fish case the Court of Appeal tried its best to reconcile these invocations of estoppels with the general principle that a public authority cannot be stopped from exercising a statutory discretion or performing a public duty. But the results did not give universal satisfaction (see the comments of Dyson J in Ex p Powergen [1999] 4 PLR 91 at 100-101). It seems to me that in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppels and the time has come for it to stand upon its own two feet.”
The facts of that case were substantially removed from the facts of this, a planning committee had indicated that no change of use permission was required and that conditions could/would be varied, however no formal application had been made and, when it was, such indication was reversed. In this case the factual situation is closer to a legitimate expectation than to an issue of estoppel. The Inspector made it clear that he did not feel bound by such indication but took it into account along with all other considerations. That, in my judgment, he was entitled to do.
20. The Petitioners’ fourth ground is as follows: “In the event that the Council of Ministers is taken to have agreed with the Inspector’s conclusions outwith his single recommendation, its decision is legally flawed for the following reasons:
(1) The Inspector erred in law in finding a conflict with Strategic Policy 2:
(2) The Inspector erred in law in finding a conflict with Housing Policy 4 of the Strategic Plan;
(3) The Inspector failed to give proper, adequate and intelligible reasons for his conclusion that ‘it would be unacceptable to complete all these dwellings before the primary school and other social facilities are improved’ (IR 123).
The Inspector in paragraph 109 of his report considered there was an anomaly in SP Strategic policy 2 which is as follows:
“New development will be located primarily within our existing towns and villages, or, where appropriate, in sustainable urban extensions of these towns and villages. Development will be permitted in the countryside only in the exceptional circumstances identified in paragraph 6.3.”
“Sustainable Urban Extensions” are defined in Appendix 1 of the SP as:
“Involves the planned extension of a city or town and can contribute to creating more sustainable patterns of development when located in the right place, with well-planned infrastructure including access to arrange of facilities, and when developed at appropriate densities.”
Spatial Policy 3 identified Ballasalla as a Service Village. Applying the description of a village the Inspector held that Ballasalla was not a town and not therefore subject to a “Sustainable Urban Extension”. To that extent the Inspector held that the Application did not comply strictly with Strategic Policy 2. He must therefore have been satisfied that the land the subject of the Application was situated outwith the village. However in Appendix 3 Ballasalla is listed as an existing settlement and paragraph A.3.7 states that Ballasalla is one of “the towns and villages to which the Strategic Policy at Paragraph 4.3.1.refers”. The Petitioners submit that the glossary description of a “Sustainable Urban Extension” apparently only applying to a town and not to a village is incorrect and that this is plain to see, alternatively that Ballasalla was incorrectly described as a village in Spatial Policy 3. As a result, the Petitioners submit that the Inspector failed to give the Application the full weight of policy support it deserved. It is not necessary in these proceedings to establish whether in fact there was a mistake and whether Ballasalla was meant to be defined as a village or a town. I am satisfied that the SP provided only guidelines to the Inspector and he so accepted by referring to the “strict” interpretation in paragraph 109. Paragraph 4.1.3 of the SP states that:
“the framework provided by these policies collectively should enable the growth and development of the community to be accommodated in accordance with our Strategic Aim and Objectives, guiding the preparation of Area Plans and the development control processes.”
The Inspector did what he was required to do namely he applied an overall planning judgment taking the planning guidelines into account.
21. In paragraphs 110 and 112 of his report the Inspector finds that the Application is not in accordance with Housing Policy 4 which is as follows:
“Housing Policy 4:
New housing will be located primarily within our existing towns and villages, or, where appropriate, in sustainable urban extensions of these towns and villages where identified in adopted Area Plans: otherwise new housing will be permitted in the countryside only in the following exceptional circumstances:
(a) essential housing for agricultural workers in accordance with Housing Policies 7,8,9 and 10;
(b) conversion of redundant rural buildings in accordance with Housing Policy 11; and
(c) the replacement of existing rural dwellings and abandoned dwellings in accordance with Housing Policies 12,13 and 14”
He referred to the same anomaly in respect of the definition of Ballasalla as a village and also opined that the meaning of “Sustainable Urban Extensions” in Appendix 1 required that the infrastructure and range of facilities must exist and not merely be a proposal. He also opines that there is no Adopted Area Plan for Ballasalla as required by Housing Policy 4. He was correct to so hold in that the only plan was the zoning for residential use in the 1982 Order, the SP anticipated a new adopted area for the south of the Island in due course.
22. Had the Inspector in fact misinterpreted the SP he would have been forced to conclude that any residential development on the Application site was outwith the SP but he did not do so accepting that the intention was to provide a substantial number of residential dwellings. Again he was entitled to take all material considerations into account and exercise a planning judgment and I reject the submission that his interpretation of the SP led him to apply incorrect weight to Housing Policy 4.
23. Finally under this ground the Petitioners criticised the Inspector’s report at paragraph 123. The Inspector referred to the school’s capacity at paragraph 16. The proposed development was anticipated to require 50 to 75 extra places at the school whereas the present spare capacity was only 19. There was no legal commitment to the building of a new school. There was ample evidence upon which the Inspector could base his findings. He was entitled to rely upon the factual evidence from a number of local residents that there were insufficient Youth facilities and other social facilities.
24. The fifth ground relied upon is: The decision of the Council of Ministers was procedurally unfair in that the Inspector failed to give the Department the opportunity to comment on his view that there would be little spare capacity at the traffic lights proposed as part of the Planning Application after 2009”. They submit that had DoLGE’s consultant been asked to consider this point she would have said that the unchallenged traffic modelling exercise provided by DoLGE showed clear reserve capacity at the signalised junction. This however was dealt with by the Inspector at paragraph 20:
“ 20. ....The proposal signalised Douglas Road junction has been calculated as operating within its capacity in 2009, with a 3.3% practical reserve capacity in the pm peak.”
In paragraph 128 he referred to the “unchallenged statistical evidence” on behalf of DoLGE. Mr. Coleman submitted that she would also have said that the modelling of the signals was also very much a worst case as it did not take into account the phasing of the development over the likely timescale of the project’s life and that a material amount of the committed development previously assumed in the South of the Island included in the modelling would not now take place. It is not submitted that this evidence could not have been adduced at the Inquiry had DoLGE wished to do so. CoMin, in submissions, relied upon several propositions in the field of planning law which are conveniently summarised by Ousley J in R (on the application of St. James’ Homes Ltd) v the Secretary of State [2001] EWHC Admin at paragraphs 75 to 77:
“75. ....The Claimant had its chance to put forward all the evidence which it subsequently referred to. There was no obligation on the Inspector to forewarn it of how his mind might be working.
....
76. ...an Inspector may not appreciate the significance of an issue for his recommendation or decision until after the Inquiry was closed and his report largely written and he may well believe the issue has been sufficiently ventilated.
...
77. ...It was not incumbent upon the Inspector to give any indication of the way his mind was working; plainly it is useful if he does so, but he may not yet have reasoned his solution.”
CoMin also relied on Westminster Renslade Ltd v the Secretary of State (1984) 48P & CR 255 where Forbes J at pages 262-3 said:
“It is not right in these cases to subject a report of this kind to an analytical scrutiny that, as I have said before, might be more appropriate to a statute or a contract. This report, including its appendices, extended to 73 closely typed foolscap pages and ran into 303 paragraphs of text. I have no doubt that, if one went through it with a fine tooth-comb, one could find sentences not as happily expressed as they might be, but that does not seem to me to be a legitimate exercise before this court when coming to argue that some point has been taken that should not have been taken or some point left out that should not have been left out or that the Inspector has not expressed himself very clearly on this or that point. It seems to me that this is a long and careful report, grappling with a host of evidence and arguments that took some seven days to hear, and it would be wrong to pick out an odd phrase that perhaps is not as happily expressed as it might be.
It seems to me that, on this first point, the Inspector was perfectly entitled to come to the conclusion to which he did come that the proposed office development was too large in scale having regard to the significance of the local passenger interchange and the amount of office development in the other preferred areas.
Then there is the question of the pedestrian bridge. It is said that there was no material before the Inspector to support an objection to the proposed car and pedestrian bridge on the grounds of noise. Then the Notice of Motion goes on to say:”In so far as the Secretary of State also took into account the Inspector’s views as to alleged defects of the proposed road system (of which the bridge formed part), he failed to have regard to a material factor, namely that the scheme was agreed between all the responsible authorities and supported by all the qualified engineering evidence given at the Inquiry and that the Inspector himself had no engineering qualifications.”
If I may take the second of those first, it does not seem to me that the fact of the engineering evidence as all one way and that the Inspector had no engineering qualifications prevented the Inspector from coming to a sound planning conclusion. The planning conclusion that he came to is set out at paragraph 24: “It seems to me that it is fundamentally wrong that a principal road should be made deliberately or incidentally more indirect. Its purposes to carry through traffic as expeditiously as possible. The initial development plan and the informal town centre plan of 1972 point the way as to how Bedfont Lane could be improved to this end.” That is the road that was being improved by the bridge. “If, in the absence of such a scheme, the alternative is the present proposal, it seems to me that it would be better to leave matters as they are.”
That, it seems to me, is a planning judgment. One might disagree with it (and no doubt the appellants do), but it is a planning judgment to which the Inspector was perfectly entitled to come on the material that he had before him. It must always be remembered that experts may not always be right and that tribunals are fully entitled to think that they may be wrong.”
Applying those principles to this case the Inspector was entitled to deal with the issue in the way that he did. He recited, in paragraph 20, the evidence that he had heard from the experts which included the proposition that from the 210 new dwellings accessing the Douglas Road, “the increase in traffic from this proposal would equate to one extra vehicle per minute during the morning peak traffic flow emerging towards Douglas” and in paragraph 24 that “school generated traffic had not been specifically studied. It had been included in the am peak hour”. He dealt with all the evidence on traffic in paragraphs 19 to 24 and also with the evidence from the local residents in those paragraphs summarising their evidence. In paragraph 128 he repeats some of the expert evidence, in particular the expected maximum queue length predicted of 8 pcus but continued:
“This was not explored at the Inquiry, but in my opinion it demonstrates that after 2009, with the traffic flow from this proposal and increasing traffic flows from other developments and increased vehicle usage there would be little spare traffic capacity at the traffic lights. In this connection, I believe that local experience is as helpful as theoretical predictions. Local experience is that there is traffic congestion whenever there is an impediment to the free-flow of traffic, even at present traffic levels. I have experienced some traffic delays passing through Ballasalla.”
He then refers in paragraph 129 to the long-term plan for a by-pass for Ballasalla and then concludes:
“130. In weighing up all the traffic information, statistical and evidential, I conclude that it would be most likely that the additional traffic on to Douglas Road from the application site and the introduction of the traffic lights, coupled with the general increase in traffic in the South of the Island would have an adverse effect on traffic flows on Douglas Road and through Ballasalla.”
In the circumstances I reject the Petitioners submission that there was either procedural unfairness or that the Inspector’s assessment was flawed in relation to traffic issues.
25. The Petitioners sixth ground is as follows: “In refusing the Planning Application for the stated reason that it was premature despite believing that housing was not premature on the application site and that there was in any event sufficient demand for first time buyers and public sector housing, the Council of Ministers’ refusal was irrational”. I have already dealt with the submission that there was only one reason for refusal, namely, prematurity. The Inspector’s decision was in the alternative, either there should be fewer dwellings or the proposal should wait for the local plan procedure to deal with infrastructure inadequacies. There is therefore nothing irrational in CoMin’s encouragement for alternative proposals to be put forward, either immediately, if the number of dwellings were reduced, or in due course after the planning process had been concluded with an adopted area plan for the whole of Ballasalla.
26. Ground seven in the Petition is: “Did the Council of Ministers in failing to have regard to the written evidence submitted to the Inspector, fail to have regard to a material consideration”. That ground was added to by agreement with the parties to include an eighth issue: “In the event that the court finds for the Petitioners on one or more of the foregoing issues whether, as a matter of discretion, the decision ought to be quashed and remitted back to the respondent for determination de novo”. Mr. Coleman commenced his submissions with this seventh ground, no doubt sensibly, judging that it was potentially his best ground. He spent some time referring the court to various passages in affidavits and pleadings inviting a conclusion that CoMin felt constrained to approach their task in this case in line with the decision of His Honour the First Deemster Kerruish in Re: Petition of Manx National Heritage which judgment was delivered on 12 February 2007. Such conclusion was confirmed by Mr. Helfrich who commenced his submissions by indicating that that had been CoMin’s approach however CoMin had not felt constrained with regard to matters of policy and had applied them independently of the Inspector’s report. No party took objection to such concession being made without evidence in support, that is hardly surprising as it assisted the case put forward by the Petitioners.
27. The procedure adopted in the Manx National Heritage case was not the same as in this case because it was an appeal to the Minister from the Planning Committee under Article 8 of the Order. However there are similarities in the procedure in that an Inspector is tasked with the same duties and produces a report after an Inquiry. In Manx National Heritage the Inspector produced a report in which he recommended that the appeal be allowed and planning permission be refused. The Minister considered both the report and the “appeal file” and determined not to follow the Inspector’s recommendation; he dismissed the appeal and varied the planning permission granted by the Planning Committee. In the Decision Letter it was recorded: “In the minister’s judgment, the appointed person has accorded insufficient weight in making his recommendation to the importance of maintaining Cregneash as a viable and sustainable rural community, and to there being, within that community appropriate family accommodation such as is now proposed. Accordingly, he does not accept the principal recommendation that the appeal should be allowed”. The statutory framework applied in that case has been superseded but the procedures remain substantially the same. The relevant passages from that case are as follows:
“[127] I consider that my construction of paragraph 7(4) is supported, if support be desired, by the 1982 Order itself and several factors. Paragraph 7(4) simply stated that the Minister should consider the report of the appointed person, nothing more, nothing less. In comparison, the obligations of the appointed person under Paragraph 7(3) included an obligation to invite the “Department” to make written representations and to give the “Department” an opportunity to appear before him and make oral representations and call and examine witnesses. Further, the Inspector was “a person appointed for the purpose by the Governor in Council”, the purpose being to carry out the function and duties under Paragraph 7(3). It was implicit that such a person must have been appropriately qualified. The Inspector, Mr. Kirby, was obviously such a person. Whilst a Minister of DLGE might be appropriately qualified in planning, that was not, and is not a pre-requisite qualification for his appointment to that office. The Minister is a politician who accepts political appointment to the office of Minister. His academic and/or professional qualifications and/or experience, if any, in matters of planning, were, and are not relevant considerations for ministerial appointment. The sole qualification to appointment to the Office of Minister is that the appointee must be a Member of Tynwald, see section 3 Council of Ministers Act 1990.
[128] Further, Paragraph 7(3) obligated the appointed person, in this case the Inspector, to consider the planning application, any written objections or representations made initially and prior to review, to consider all further written objections or representations, to hear oral evidence which would include examination and cross-examination, and oral representations. Thus, unlike the procedure adopted by the Minister, the Inspector’s deliberations were not confined to consideration of the “appeal file” but included consideration of oral evidence, representations and submissions. During a hearing, a party might indicate that he or she no longer relied upon one or more written objections or representations. The appointed person might not refer to such non-reliance in his report. Thus, such non-reliance would be unknown to a Minister who read the “appeal file” and the report. Further, the Inspector would have had the benefit of observing witnesses giving their evidence and the parties making their submissions and representations. The Minister did not and was not required to follow the extensive procedure which the Inspector was obliged to do. It would have been a waste of time and money and indeed the Inspector’s inquiry would have served no purpose if the Minister could determine an appeal on consideration of the “appeal file”, the Inspector’s report and recommendation. Also, bearing in mind section 3 Government Departments Act 1987 and the reference in Paragraph 7(3) of Schedule 1 to the ‘Department’, to adopt the construction given by the Minister and Mr. Harding to Paragraph 7(4) might be considered to fly in the face of natural justice and, if such procedure were undertaken post-1st.November 2006, might infringe Article 6(1) of the Convention.
...
[131] I find that in this case the Minister, no doubt upon advice, did not follow the then correct procedure under Paragraph 7(4) in that he considered, inter alia, the documentation referred to at paragraph 6 of the Minister’s affidavit,” (the “ appeal file”) “... Thus, the Minister took into account matters which he ought not to have taken into account. In consequence, this court is entitled to interfere with the Minister’s Decision, to quash the same, and to remit the issue whether the Planning Appeal should be allowed or dismissed back to the Minister of DLGE for reconsideration. The Petition succeeds on that ground.”
The equivalent provisions today are to be found in Article 8 of the Order which provides for an appeal to the Minister. Article 8(2) requires him to refer the matter to an appointed person who must carry out the same process as is described in Article 10(2), (see paragraph 5 herein). Thereafter the Minister:
“shall consider the report of the appointed person and (a) allow the appeal; or (b) dismiss the appeal; and may in either case reverse or vary any part of the decision of the Committee, whether the appeal relates to that part or not”.
Article 10 of the Order is silent as to how CoMin should consider the matter on receipt of the Inspector’s report. Therefore CoMin are not restricted in the way the Minister is on an appeal to consider the report alone.
28. The affidavit of James Anthony Brown MHK and Chair of CoMin sworn on 2 May 2008 records the way in which CoMin approached their consideration of the Inspector’s report:
“21. CoMin was concerned at some of the Inspector’s conclusions and deliberated over the weighting he had placed on third party evidence against the weighting of the two statutory documents and in particular the national need for housing which appeared not to have been taken into full consideration by the Inspector.
22. CoMin was not of the opinion that housing was premature on this site which had been zoned residential since 1982. It was strongly of the opinion that there was a sufficient demand for first time buyers and public sector housing from Ballasalla and other parts of the Island to justify the development and that any adverse effects of the development could be overcome by revised proposals. However CoMin was heedful that it needed very clear reasons for overriding the Inspector’s recommendation and it was not sufficiently satisfied that there were robust enough reasons for not following the Planning Inspector’s recommendation that the proposed development was overly dense and accordingly premature based on his assessment of the local situation in Ballasalla.
23. CoMin was conscious of the problem with extrinsic evidence in so far as this principle restricts the nature of evidence CoMin may rely upon in circumstances where it does not agree with the Independent Inspector’s findings of fact with regard to the local situation. It was felt that the core of the Inspector’s recommendation was based on his factual findings with regard to the density and prematurity of the proposed development; being issues of a local nature, in respect of which CoMin was unable to interfere.
In a subsequent affidavit Mr. Brown indicated that when referring to the housing being too “dense” he meant to refer to the overall size of the proposal and the total number of dwellings proposed. In so far as CoMin felt constrained by the Manx National Heritage case it is accepted by all parties that they were not for the reasons herein. They did, as they were entitled to do, consider matters of policy. Should they have looked at the written evidence submitted to the Inspector as submitted by Mr. Coleman? In my judgment they should not have looked at the written evidence before the Inspector for all the reasons advanced by Deemster Kerruish in Manx National Heritage. If they considered that material information had not been presented to the Inspector it was open to them to refer the matter back to the Inspector as envisaged by Deemster Kerruish in Arragon Properties v the Minister of Local Government and the Environment in a judgment handed down on 20 November 2008:
“[37] It is common ground between Mr. Quinn and Mr. Helfrich with which I fully agree, that when the appointed person usually in this case referred to as the Inspector, hears an appeal he does not merely review the Planning Committee’s decision but hears the application de novo. Upon the completion of the hearing, the Inspector makes his report to the Minister including his recommendation as to the outcome of the appeal. Pursuant to article 8(3) the Minister is required to consider the report and determine the appeal including the power to reverse or vary any part of the Planning Committee’s decision whether the appeal related to that part or not. Article 8(3) superseded paragraph 7(4) of Schedule 1 to the Isle of Man Planning Scheme (Development Plan) Order 1982 but is in materially the same terms. Under article 8(3) the Minister considers the appointed person’s report and recommendations. He also has to have regard to the development plan, policies and matters referred to in section 10(4) of the Act. The Minister relies upon the appointed person to consider and address the ‘local situation’ taking account of all relevant policies. If the Minister considers that the appointed person’s inquiry has failed to address a material matter and that, in the interests of fairness, the parties to the appeal ought to be afforded the opportunity to make representations and/or adduce further evidence, then it is within the Minister’s discretion to refer such a matter back to the appointed person.”
The Petitioners do not rely on any other evidence or matters which should additionally have been considered by CoMin. Although the matters to be considered by the Inspector are laid down in Article 10(2) of the Order he is not specifically tasked with consideration of the matters laid down in paragraph 10(4) of the Act. CoMin were so tasked by virtue of the combined effect of paragraphs 10(4), 11((4) and (5) of the Act (see paragraph 4 herein). In this case it is clear from his report that the Inspector did consider those issues and it is therefore difficult to conceive of any other matters which CoMin could consider which had not already been considered as part of the Inspector’s report or as matters of policy.
29. CoMin, Malew Parish Commissioners and the Third Parties submitted that the matter should not be remitted back to CoMin for further consideration whereas the Petitioners and DoLGE submitted it should be. This is a petition of Doleance and the court has a discretion whether or not to grant relief. This issue is the most difficult in the case. The fact that CoMin originally wished to have expert planning assistance before they reached a decision in this case illustrates the point which Deemster Kerruish made in Manx National Heritage that a Minister or CoMin do not usually have expert planning experience which is why the appointed person usually is such an expert. This was one of the reasons relied on by Deemster Kerruish in holding that the Minister in Arragon must rely on the Inspector’s findings in relation to the “local situation”. The authorities reflect the tension between “fact” and “planning judgment” or “planning opinion” and between “local situation” and “planning policy”. The authorities make plain that usually it is the Inspector’s remit to consider “fact” and the “local situation” but that it is for the Minister or CoMin to consider policy. The current planning regime in England is different from that of the Isle of Man but in Mr J De Mulder, Mrs.J De Mulder v The First Secretary of State, Solihull Metropolitan Borough Council [2005 EWHC 2640 (Admin) Crane J was faced with a situation where the Secretary of State disagreed with the Inspector:
“24 I turn to the principles on which the Secretary of State is entitled to differ from the Inspector.
25 In Lord Luke of Pavenham v. Minister of Housing and Local Government [1968] 1 QB 172 at 191C, Lord Denning MR said:
“Did the Minister differ from the Inspector on a finding of fact? In answering this question it is essential to draw a distinction between findings of fact by the inspector and an expression of opinion by him on the planning merits. If the Minister differs from the inspector on a finding of fact, he must notify the applicant, in accordance with the rules, before coming to a decision. But if the Minister differs from the inspector on the planning merits, he can announce his decision straight away without notifying the applicant beforehand.”
26 Those requirements were set out in regulations, now supersede by the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, rule 17(5)
“(5) If, after the close of an Inquiry, the Secretary of State –
(a) Differs from the inspector on any matter of fact mentioned in, or appearing to him to be material to, a conclusion reached by the inspector; or
(b) Takes into consideration any new evidence or new matter of fact (not being a matter of government policy),
and is for that reason disposed to disagree with the recommendation made by the inspector, he shall no come to a decision which is at variance with that recommendation without first notifying the persons entitled to appear at the inquiry who appeared at it of his disagreement and the reasons for it, and affording them the opportunity of making written representations...”
27 It is not always straightforward to decide what is a finding of fact for this purpose. Another decision on a predecessor to rule 17(5) was Portsmouth Water PLC v. Secretary of State for the Environment [1993] 3 PLR 1, a decision of Mr. Lionel Read Q.C. sitting as a Deputy high Court Judge. In that case the question was whether a development would be “detrimental to the character of the locality”. Although he held a matter of opinion or judgment might also include or involve a “matter of fact”, the opinion on the question in that case was not a “matter of fact” for the purpose of the rule.
28 I was invited, correctly, by counsel for the Defendant to bear in mind that in circumstances where an inspector has reported, he is reporting to the person who has called in the planning application for permission. The decision can be challenged only on normal administrative law grounds.
29 In Tesco Stores Ltd. V. Secretary of State for the Environment [1995] 1 WLR 759 at 780. Lord Hoffman said:
“... The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all...”
Making allowances for the different regimes in the two jurisdictions the principle still emerges that there can be a difficulty in teasing out those matters which should be left to the Inspector and those which could and should be decided by, in this case, by CoMin. Policy matters and the local factual background can become merged however I am satisfied that in this case, in spite of the belief that they were bound by Manx National Heritage CoMin did not feel so constrained in matters of policy and did consider matters of policy independent of the Inspector’s views expressed in his report.
30. Having carefully considered the evidence and the submissions I have come to the conclusion that nothing would be gained by remitting the matter back to CoMin. They considered that they were not sufficiently satisfied that there were robust enough reasons for not following the Inspector’s recommendation that the proposed development contained too many dwellings and accordingly premature based on the Inspector’s assessment of the local situation in Ballasalla. Had CoMin not considered themselves bound by Manx National Heritage there seems to be no new issue or evidence that could have been considered by them in the context of this case which was not either matters over which the Inspector had jurisdiction in that it related to the ‘local situation’ or was a matter of policy which they had already considered. CoMin, in submissions, referred to Bolton Metropolitan Borough Council v the Secretary of State for the Environment and Greater Manchester Waste disposal Authority (1991) 61 P & CR 343. Glidewell LJ considered the status of matters not taken into account by a decision maker and at page 352 held:
“The relative importance of the matter which has not been taken into account, is an aspect, and a very major aspect, of the question “was that consideration relevant?” or “should the decision maker have taken it into account?” I venture to suggest that from the authorities generally, and particularly those to which I have referred, one can deduce the following principles:
1. The expressions used in the authorities that the decision maker has failed to take into account a matter which is relevant, which is the formulation for instance in Forbes J.’s judgment in Seddon Properties, or that he has failed to take into consideration matters which he ought to take into account, which was the way Lord Greene put it in Wednesbury and Lord Denning in Ashridge Investments have the same meaning.
2. The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he had not taken it into account. Such a matter is relevant to his decision making process. By the verb “might” I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.
3. If a matter is trivial or of small importance in relation to a particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account.
4. 4. As Hodgson J. Said, there is clearly a distinction between matters which a decision maker is obliged by statute to take into account and those where the obligation to take into account is to be implied from the nature of the decision and of the matter in question. I refer back to the Creed N.Z. case.
5. If the validity of the decision is challenged on the ground that the decision maker failed to take into account a matter in the second category, it is for the judge to decide whether it was a matter which the decision maker should have taken into account.
6. If the judge concludes that the matter was “fundamental to the decision”, or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision making process, then he does not have before him the material necessary to conclude that the decision was invalid.
7. (Though it does not arise in the circumstances of this case). Even if the judge has concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief.”
Applying those principles to the facts of this case there does not appear to have been any relevant matter excluded from consideration and that CoMin did not rely on any irrelevant consideration.
31. During the course of submissions the question was raised whether an application by DoLGE could ever be called in under section 11(1) of the Act. The considered opinion of counsel appeared to be that it could not. That result would be undesirable in that it may well be that such an application would, under section 11(1) (a), raise “considerations of general importance to the Island”. It is unnecessary in this case to reach a conclusion on this matter but applying section 11(4) to section 11(1) I see no reason why it should not be interpreted to mean “If it appears to the Council of Ministers that an application made to the Council of Ministers raises any consideration of general importance to the Island the Council of Minister may direct that the application shall be referred to and determined by it”. The procedure envisaged in the Order would still apply but if CoMin granted planning permission after considering the Inspector’s report they would then have to lay that decision before Tynwald as envisaged by section 11(2) of the Act.
Linda Sullivan Q.C.