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GILBERT STIRK and ORS v. BRIDGNORTH DISTRICT COUNCIL  EWCA Civ 701 (11th October, 1996)
THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL (CIVIL DIVISION)
APPEAL FROM HIGH COURT OF JUSTICE
GERALD MORIARTY QC
Courts of Justice
11 October 1996
e f o r e:
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STIRK & ORS
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Aided Transcript of the Palantype Notes of
Bernal Reporting Limited, 180 Fleet Street,
0171 831 3183
Shorthand Writers to the Court)
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J STEEL QC with MR T JONES
(Instructed by Messrs Sharpe Pritchard, London WC1V 6HQ, London Agents for the
Legal Department, Bridgnorth District Council, Shropshire WV16 5AA) appeared on
behalf of the Appellant
J C TAYLOR QC with MR P GOATLEY
(Instructed by Messrs Haden Stretton Miller, Walsall, WS1 1EL) appeared on
behalf of the Respondent
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U D G M E N T
approved by the Court
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11 October 1996
U D G M E N T
JUSTICE THORPE: Behind this appeal lies a dispute as to the future expansion
of the village of Albrighton in Shropshire. The appellants are the Bridgnorth
District Council, the local planning authority for Albrighton. The respondents
are a consortium of landowners who stand to gain from the future expansion of
the village. In the 1970s the land in question was included within an interim
green belt protecting the village. In 1990 the county council published a
draft structure plan which was the subject of an examination in public in
November 1991. This led to a report which was submitted to the Secretary of
State. He published modifications and finally approved the county structure
plan in December 1992. This structure plan contained a new policy (2/48A)
which required the appellant council to have regard to the needs of the West
Midland Metropolitan Area for housing within reasonable commutable distance by
public transport. It was said that in preparing its local plan the council
would have to give careful consideration to the drawing of boundaries for any
council's preparation of its local plan overlapped the development of the
county's structure plan. The impact of the modification to the county
structure plan was considered by the council planning committee in March 1992.
The minute prepared by the officers contained this paragraph:
Secretary of State's wish for development to be located with regard to the
availability of public transport is in line with the Government's current
thinking on 'green' issues and so it may prove difficult to sustain an
objection to proposed Policy 2.48A on the ground that the Council would not
wish to see any significant expansion of Albrighton. An alternative course of
action for the Committee would be to wait and see whether the Green Belt inset
boundary around Albrighton is raised as an issue at the local plan deposit
stage and if so either argue strongly that further expansion of the village
would seriously harm its character and amenities or propose adjustments to the
inset boundary for consideration at the local plan inquiry."
alternative course seems to have found favour for, when the local plan was
first deposited in June 1992, paragraphs 13.6 and 13.10 in particular proposed
that the protection of the interim green belt boundary should be maintained.
In August 1992 the first respondent, alone of the consortium members, lodged
23 September 1993 the Department of the Environment objected to the green belt
proposals. The letter of objection contains this paragraph:
is important that you look carefully at
Green Belt boundaries, including those around the large settlements of
Bridgnorth and Albrighton, to see whether adequate provision is made for
longer-term growth. In the case of Albrighton, I draw your attention to
paragraph 5.2.6 of the Secretary of State's Draft Modifications, in which he
refers to the importance of making housing provision in settlements such as
Shifnal and Albrighton which are well served by public transport links to the
December 1992 the appellant issued a statement on the objections. Paragraph
1.17 described the village in these terms:
the rate and amount by which the settlement has expanded, the centre of
Albrighton still retains the character and friendly atmosphere of a village.
These attributes are, however, extremely fragile, and there is justifiable
concern that further peripheral development would put so much pressure on the
centre that its character would be harmed. The road network and car parking
capacity of the village centre in its present form could not accommodate the
needs of a substantially larger population and yet to accommodate this pressure
by improving road capacity and creating additional car parking could only be
achieved by destroying much of the character of the Albrighton Conservation
1.19 concluded that it was strongly felt that no provisions should be made for
longer term expansion in setting the green belt inset boundary. It is to be
noted that this statement makes no reference to the new structure plan policy
public inquiry into the local plan was conducted by an inspector between 2
February and 2 March 1993. In October 1993 he reported. He recorded the first
respondent's objection at paragraph 10.12 and the council's response at 10.39.
In paragraph 10.54 he concluded:
prime location on the transport network cannot be denied. The village centre
should be protected from substantial traffic increases and pressure for change
in the conservation area but I am not convinced that these reasons should be
used to virtually fossilise the present urban limits."
paragraph 10.59 he added:
should therefore be some leeway for future consideration of housing development
between the metropolitan area and the outer edge of the Green Belt by easing
out the boundary at Albrighton ..."
further consideration to the rolling back of the Green Belt boundary around
inspector felt unable to go beyond a recommendation for further consideration
since the issue had for him arisen late and had been insufficiently
investigated. He described the council's assessment as "sketchy". He said:
find myself faced with problems on a wide scale, genuine concern by land owners
and local residents and little in the way of 'hard' information upon which to
base my recommendations."
report was no doubt seen by the first respondent as a substantial advance. The
council's director of planning prepared a report dated 10 February 1994 on the
inspector's report and recommendation. In particular he proposed a
modification No. 62 dealing with green belt boundaries. He referred to the
inspector's reasoning and to the new policy introduced to the county structure
plan by the Secretary of State. He then said:
the light of these comments by the Secretary of State and the Inspector's
comments, the case for making some provision for the possible long-term
expansion of Albrighton is a strong one."
specific recommendation was that the green belt boundary round Albrighton be
modified in accordance with a detailed annexed map which proposed relaxations
to the north and east. The respondent's land is within the east extension.
director's report was debated at a special meeting of the council's planning
committee on 16 February 1994. The members present were taken through the
report and offered the conclusion that it would be wrong not to provide some
scope for future development in Albrighton. The local members from Albrighton
then vehemently objected and succeeded in carrying a motion that green belt
boundaries round Albrighton should not be amended.
20 May the council published its decisions and reasons upon the inspector's
recommendations. Of course its decision upon the inspector's recommendation
that further consideration be given to rolling back the green belt boundary
round Albrighton, was negative. The stated reasons were in identical terms to
those which had been stated upon the objection first lodged by the first
respondent. They are no more than a reiteration of the previous statement. No
reference is made to the new policy introduced in the county structure plan by
the Secretary of State, nor to the inspector's conclusion and recommendation,
nor to the view of the director of planning. The reality that the local
councillors had successfully ambushed the column heading for modification is
the council's statement of decisions and reasons, objections were then lodged
by all members of the consortium and they requested a further public inquiry.
The request was refused and the local plan was adopted without further
modification. Again the council's statement on the objections repeats the
familiar refrain on Albrighton. Accordingly, on 2 November 1994, the
consortium issued notice of motion under section 287
of the Town and Country
Planning Act 1990
challenging the adoption of the local plan. The consortium
asserted that the council had failed to comply with regulations 16 to 18 of the
Town and County Planning (Development Plan) Regulations 1991 in that they had
rejected objections without proper consideration and had failed to give
adequate reasons for their decision. The application was heard by Mr Gerald
Moriarty QC (sitting as a Deputy Judge of the Queen's Bench Division) on 10
July 1995. He found for the consortium. The council now appeals his judgment.
is no dispute as to the relevant statutory framework. Section 36
of the Town
and Country Planning Act 1990
obliges a district council to prepare a local
plan for its area. The local plan must conform to the county structure plan.
The council is required to have regard to information and directions from the
Secretary of State. The Town and County Planning (Development Plan)
Regulations 1991 oblige a district council to consider any representations and
prohibit the adoption of a local plan before consideration of objections made
in accordance with the regulations. Where objections have been duly made, the
council must cause a local inquiry to be held to consider the objections.
After such an inquiry, a council must prepare a statement of the decisions
reached in the light of the inspector's report. Where a council rejects
recommendations in the inspector's report, it must list the recommendations
that it rejects, invite objections and either prepare a statement of its
decision in respect of any objection or hold a further public inquiry.
has been the appellant's case throughout that they have complied with the
requirements of statute and regulations, since the refusal of a public inquiry
in July 1994 was upon the ground that the issues raised by the objections had
been adequately debated at the inquiry in February 1993, and on 25 July 1994 it
had published its response to the objections lodged by the consortium. The
respondents have contended throughout that the council's rejection of the
director's proposed modification was irrational, as was their rejection of the
consortium's request for a further public inquiry to investigate the issues
raised by the inspector in his report.
this court Mr Steel's attack on the judgment has been succinct. First he says
that the maintenance of the fragile structure of the Albrighton community was
plainly dependent on restricting further development. This was a matter of
principle which the council were entitled to uphold without considering the
nature and extent of possible relaxation of the green belt boundary. The
council's stated reasons were well in excess of any necessary minimum and were
appropriately consistent in that they were always addressing the same point of
principle. He relies on the fact that the county council issued certificates
of conformity, both in relation to the draft local plan and in relation to the
modified local plan. He emphasises the Secretary of State's powers to direct
modifications or to call in under section 43
(4) of the Act
. Since the
Secretary of State had not exercised those powers, it was to be inferred that
the adopted local plan did not breach either regional or national policies.
Taylor stresses that this is an unusual case. Ordinarily the public inquiry
will be conclusive. But here the inspector did not have the necessary evidence
to conclude the Albrighton issue. Having rejected the council's so-called
principle, he could only recommend that the resulting issue be investigated.
This constituted unfinished business that the council could not avoid merely by
reiterating their conviction which had failed to convince the inspector. As to
the debate and decision of 16 February, Mr Taylor submits that the council
could not be said to have properly performed their function without at least
acknowledging the developments between spring 1992 and spring 1994, referring
to the arguments for modification marshalled by the director of planning and
weighing the balance between these factors and their original conviction.
Secretary of State's powers to modify and call in are, he says, exceptional
powers and not such as to be directed against a parochial issue. Paragraph 73
of the Development Plan and Regional Guidance makes that clear. Paragraph 69
of the same guidance shows that, whilst a further public inquiry is exceptional
and the instances given do not extend to this case, it is plainly appropriate
where there is unfinished business from the previous inquiry.
reply Mr Steel demonstrates that the Secretary of State did give a direction on
this very local plan in relation to affordable housing within green belt areas.
He therefore submits that the inference he draws from the absence of a
direction on this modification is strengthened by the existence of a direction
Steel made the best of a difficult job, but Mr Taylor's argument is in my
judgment compelling. It is particular so set in the perspective of the
chronology over the relevant 2½ years. In March 1992 the council were
warned of the difficulties of maintaining the Albrighton interim green belt in
the light of the Secretary of State's modification of the structure plan. They
drafted the local plan disregarding that consideration. When the point was
exposed by the first respondent's objection they stated their reasoning. The
inspector rejected the principle upon which they relied and recommended
investigation of the underlying considerations. The officers then emphasised
the strength of the case for relaxation and proposed specific modifications.
The council rejected that proposal. The record of the debate on 16 February
demonstrates plainly that the essential need to balance on the one hand the
Secretary of State's modification of the structure plan and the inspector's
rejection of the asserted principle against local convictions on the other hand
was disregarded. The publication of reasons on 20 May contains nothing more
than a repetition of the rejected principle. The same can be said of the
response to the renewed objection.
accept Mr Taylor's submission that, where a council is both proposer and judge,
the obligation to deal thoroughly, conscientiously, and fairly with any
objection is enhanced. Here the overall impression that emerges is that the
council closed its mind and stubbornly reiterated throughout a policy which it
had been warned from the outset was doubtfully tenable.
Judge correctly identified the main issues as follows:
Whether the Council's consideration of the inspector's report in relation to
the first applicant's objection to the Green Belt and housing provisions of the
deposit Plan and the reasons given for that decision were adequate.
Whether the Council acted fairly in deciding not to hold a further inquiry
into the objections made by the applicants to the adoption of the Plan."
answered both questions in the negative. I consider that he was right to do
so. I would dismiss this appeal and uphold the orders below.
JUSTICE HOBHOUSE: I agree.
JUSTICE LEGGATT: I agree.
dismissed with costs; leave to appeal to the House of Lords refused.
© 1996 Crown Copyright
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