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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Dowmunt-Iwaszkiewicz v First Secretary of State & Anor  EWHC 2537 (Admin) (10 November 2004)
Cite as:  EWHC 2537 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| MS ANGELE DOWMUNT-IWASZKIEWICZ
|- and -
| (1) FIRST SECRETARY OF STATE
(2) GEDLING BOROUGH COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Paul Brown (instructed by Treasury Solicitor) for the Defendants
Crown Copyright ©
THE HONOURABLE MR JUSTICE OWEN :
i) The proposal was contrary to development planned policies relating to development in the green belt
ii) The proposal was detrimental to the openness of the green belt
iii) The proposal was detrimental to pedestrian and highway safety
iv) The discharge of sewage from the development was likely to cause contamination of ground water
v) The proposal was contrary to the aims of sustainable development, as expressed in PPGs 3 and 13, and would increase reliance on the private car.
The inspector addressed each of the reasons for refusal. He rejected reasons (iii) and (iv) but upheld the council's decision in relation to reasons (i), (ii) and (v). The claimant does not seek to challenge the inspector's findings in relation to reason (v). Her challenge is directed to his conclusions in relation to reasons (i) and (ii), the 'very special circumstances' issue, and the openness of the green belt issue
At paragraphs 5 – 9 of the Decision the inspector summarised the evidence as to the contamination of the site. In November 2001 the Health & Safety Executive had strongly recommended that the asbestos containing materials (ACMs) be removed from the site and disposed of safely, and in November 2002 the council's Environmental Health Officer had strongly recommended that works be undertaken to make the site safe. Concerns had also been expressed by the Nottinghamshire Fire & Rescue Service and by the Environmental Health Officer following two fires at the site apparently lit by trespassers. The Fire Safety Station Officer considered there to be a significant risk to fire crews when attending incidents at the appeal site and would like to see the demolition of the buildings.
"10. The re-development of this previously developed land for residential purposes could provide the necessary resources to fund the remediation, and para. 20 of Annexe 1 – Circular 02/2000 acknowledges that the regeneration process is dealing with much of the inherited legacy of contaminated land. However, it is also clear from the advice in that paragraph that the fact that contamination on a site is causing unacceptable risks is not justification in itself for undertaking development that is either unsuitable or not scheduled, and specific reference is made to green belt land in this context.
11. I conclude that while it would be in the general public interest to deal with the risk associated with the presence of ACMs on this site, the presence of contamination does not amount to such an unusual situation as to constitute the very special circumstances sufficient to set aside the presumption against inappropriate development in the green belt. The proposal is therefore contrary to Policy P2 of the GLP and the Policy 3/2 of the NSP. It is also contrary to Policy ENV 26 of the emerging RLP."
"Presumption against inappropriate development
3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances. See paragraphs 3.4, 3.8, 3.11 and 3.12 below as to development which is inappropriate.
3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."
"This circular has two functions: first it promulgates the statutory guidance which is an essential part of the new regime; secondly, it sets out the way in which the new regime is expected to work, by providing a summary of Government policy in this field, a description of the new regime, a guide to the regulations and a note on the saving provision in the Commencement Order."
The summary of Government policy is contained in Annexe 1. Paragraphs 16 – 24 are headed "Action to Deal with Contamination". The section is divided into two parts, paragraphs 16 – 19 are headed "VOLUNTARY REMEDIATION ACTION", paragraphs 20 – 24 "REGULATORY ACTION". The paragraph to which the inspector made express reference in paragraph 10 of the Decision Letter is in the following terms –
"20. The regeneration process is already dealing with much of our inherited legacy of contaminated land. But there will be circumstances where contamination is causing unacceptable risks on land which is either not suitable or not scheduled for redevelopment. For example, there may be contamination on sites now regarded as Green Belt or rural land, or contamination may be affecting the health of occupants of existing buildings on the land or prejudicing wild life on the site or in its surroundings. We therefore need systems in place both to identify problem sites of this kind and, more significantly, to ensure that the problems are dealt with and the contamination remediated. "
Mr Findlay took as his starting point paragraph 36 of the speech of Lord Brown of Eaton-under-Haywood in South Bucks District Council v Porter (2)  UK HL 33,  1 WLR 1953 –
"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 "principle important controversial issues" disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required deepening entirely on the nature of the issues calling for decisions. 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 a rational decision on relevant grounds. But such adverse inference will not readily be 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 development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlining 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 agreed can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
MR JUSTICE OWEN: Mr Findlay, Mr Brown. You will have noted from the version of the judgment that has been given to you this morning that in fact it was not the draft that I had sent out to you both. It does not make any difference to the outcome, I hasten to say, but there was confusion between my clerk and me as to the final version. I have done some polishing which she had not appreciated when the versions came out to you.
MR BROWN: My Lord, I have not seen the final version.
MR JUSTICE OWEN: Well, you can have it now. As I say, it makes no difference to the outcome. It was essentially stylistic alterations. I wanted to alert you to it so that you are not surprised to read something which was a little different from the original version. Would you like a moment just to read it?
MR FINDLAY: My Lord, my application is that, with the decision being quashed, the first defendant pay the claimant's costs, to be assessed if not agreed, and that there be a Community Legal Services assessment of the claimant's costs in any event. My Lord, I understand those orders are not disputed.
MR JUSTICE OWEN: Yes.
MR BROWN: My Lord, that is correct. I do not dispute the principle we should pay, and as to the amount there is no application for summary assessment to be done.
MR JUSTICE OWEN: Very well.
MR BROWN: We are agreed on that. My Lord, I do however have an application for permission to appeal. I make clear that the application is based on both of the two necessary limbs, ie that we have a reasonable prospect and that there is a point of principle involved in it.
. My Lord, in making those points I start -- if I can take it from your Lordship's judgment, you have set out the quotation from South Bucks v Porter at paragraph 17 of your Lordship's judgment where in the House of Lords Lord Brown indicated that 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 a rational decision on relevant grounds. My Lord, as far as the first part of that is concerned, misunderstanding some relevant policy, your Lordship has considered whether or not the arguments that the inspector had misunderstood the policy framework in this case are correct and has found in my favour on that point. In essence, my Lord, it comes down to whether the reasons are adequate enough to demonstrate a rational decision.
Your Lordship's finding against me on that is in paragraph 20 of the final judgment, my Lord, and if I can simply take your Lordship to the last part of that where you bear in mind the concluding sentence of paragraph 26 of Lord Brown's speech. That is the one where Lord Brown indicates that prejudice has to be shown. You say you are satisfied the claimant has been substantially prejudiced. Mr Findlay points out the claimant does not know whether you found against her as a consequence of the nature of the risk or by reference to the degree of impact by the development to the green belt or both.
My Lord, in my submission, with the greatest respect to your Lordship, that is, certainly in practical terms, a distinction without difference because if one is asking whether the balance is in favour of the proposal or against it, the simple point is that in this particular case the risks were not great enough to overcome harm to the green belt. Now, whether that is because the risks are not severe enough or the harm is too great comes down to the same thing. The risk is not great enough to overcome the harm in this particular case.
My Lord, it is on that basis that I say there is a reasonable prospect but I link that also to the argument about the point in principle because in my submission, my Lord, it is, as I submitted at the hearing, very difficult to see what else it is that an inspector could say in those circumstances.
Now, my Lord, my clients still need time to take on board and digest the full consequence of what your Lordship has said and I make the application on the point of principle now as much to preserve their position as anything else, but there is concern at present that your Lordship imposed,or may well be imposing, a very difficult burden upon the inspectorate for the future in terms of explaining why one side of the scales is heavier than the other.
My Lord, those are the two related grounds on which I make the application, unless I can assist your Lordship further.
MR JUSTICE OWEN: No, thank you, Mr Brown. You will have to make your application elsewhere.
MR BROWN: My Lord.
MR JUSTICE OWEN: Very well. The decision will be quashed; the first defendant will pay the claimant's costs, to be assessed if not agreed; and Mr Findlay you may have a Legal Services assessment of your costs in any event.
MR FINDLAY: I am much obliged my Lord.
MR JUSTICE OWEN: I am most grateful to you both for your assistance.