|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Belfast Chamber of Trade and Commerce, Belfast City Council and North Down Borough Council, In the Matter of  NIQB 32 (30th September, 2000)
Cite as:  NIQB 32
[New search] [View without highlighting] [Printable RTF version] [Help]
applicants in this case are Belfast City Council, Belfast Chamber of Trade and
Commerce and North Down Borough Council and they seek judicial review of a
decision by the Minister of the Environment for Northern Ireland (“the
Minister”) dated 21 March 2000 when the Information Service of the
Department of the Environment released a statement on behalf of the Minister
announcing that “outline planning permission would be granted for the
proposed new retail development on land within Belfast Harbour Estate known as
‘D5’ at Airport Road, Belfast”.
14 November 1995 Aquis Estates Limited, Anglia and General Developments Limited
and Belfast Harbour Commissioners submitted an application for planning
permission to the Department of the Environment to develop the area known as
D5. D5 comprises some 52.4 acres on the County Down side of the Belfast
Harbour Estate and the main proposals were for a retail warehouse park
(including a garden centre) of some 250,000 square feet, a retail food store of
some 65,000 square feet and leisure buildings, including a multi-plex cinema,
of some 150,000 square feet. Other elements included fast food outlets, an
adventure playground, a petrol filling station, car parks, service yards and
landscaping. D5 lies to the west of the main Belfast/Bangor Road between
Tillysburn roundabout and Holywood.
Deeny QC and Mr Fitzpatrick appeared on behalf of the applicants, the
respondent was represented by Mr Morgan QC and Mr Maguire while Mr Weir QC and
Mr Shaw represented Aquis Estates Limited and the other notice parties. I am
grateful to all three sets of counsel for their carefully prepared and well
constructed submissions from which I derived very considerable assistance.
Deeny QC grounded the applicants challenge to the impugned decision upon three
distinct grounds. In the first place, Mr Deeny QC argued that the decision had
been reached in contravention of the Department’s own policies, secondly,
that the decision gave rise to a real danger of bias on the part of the
Department and that, thirdly, there had been a failure to obtain essential
information, namely, an up-to-date retail impact assessment in relation to the
effects of the proposal on Holywood, Connswater and Dundonald.
7. Article 3(1) of the Planning (Northern Ireland) Order 1991 (“the 1991 Order”) provides that one of the general functions of the Department with respect to the development of land shall be the formulation and co-ordination of policy for securing the orderly and consistent development of land and the planning of that development. Planning policy statements are issued by the Department from time to time in accordance with this statutory function.
8. Planning policy statement 1 entitled “General Principles” confirmed that the contents of such statements will be taken into account in preparing development plans and will also be material to decisions on individual planning applications and appeals. Thus, such policy statements are clearly material considerations which are required to be taken into consideration by the Department when dealing with planning applications in accordance with Article 25 of the 1991 Order. Paragraph 59 of PPS1 states that the Department’s guiding principle in determining planning applications is that development should be permitted, having regard to the development plan and all other material considerations, unless the proposed development will cause demonstrable harm to interests of acknowledged importance.
9. The status of this type of policy statement was considered by Carswell LJ, (as he then was) in Re F A Wellworth and Company Limited Application (unreported NI 1996) in which he confirmed his view that they should not be regarded in the same way as legislation or lawfully binding conditions requiring mandatory compliance, but that rather they should be seen as setting out factors to which the Department must have regard in determining whether to grant planning permission.
the same Court of Appeal judgment Hutton LCJ referred to the well known remarks
of Lord Hoffman in
Stores Limited -v- Secretary of State for the Environment
 2 All ER 636 when he said, at page 657:
words were cited with approval by Lord Clyde in the course of his judgment in
of Edinburgh Council –v- Secretary of State
s 1 All ER 174 and I also bear in mind the words of Lord Hope in the same
case when he said, at page 177:
is at liberty to depart from the development plan if material considerations
indicate otherwise. No doubt the enhanced status of the development plan will
ensure that in most cases decisions about control of development will be taken
in accordance with what it has laid down. But some of its provisions may
become outdated as national policies change, and circumstances may have
occurred which show that they are no longer relevant. In such a case the
decision where the balance lies between provisions on the one hand and other
material considerations on the other which favour development, or which may
provide more up-to-date guidance as the test which must be satisfied, will
continue, as before, to be a matter for the planning authorities.”
D5 application includes some ten retail warehouse operators occupying, in
total, approximately 250,000 square feet. It appears that this is the largest
application for retail warehouse space ever made in Northern Ireland. The
application submitted by the Applicants referred to a “retail warehouse
park” and, consequently, Mr Deeny QC submitted that the relevant policy
was policy S4 of the Belfast urban area plan rather than paragraphs 42 to 44 of
PPS5. He argued that neither the appointed member nor the Planning Service had
dealt properly with the concept of “exceptional circumstances” and
relied on the more restrictive test contained in the former policy of
permitting retail warehouse parks only in “most exceptional
circumstances”. Mr Deeny QC submitted that, in order to satisfy this
requirement the Applicant had to establish exceptional circumstances other than
the location of the retail warehouses outside a town centre.
have carefully read paragraphs 13.2.10 to 13.2.14 of the report of the
Appointed Member together with paragraph 4 and paragraph 8 of the report from
Anne Lockwood of the Retail Unit of the Planning Service to the Management
Board dated 21 October 1999 (“the Lockwood Report”) insofar as they
deal with this policy issue and, having done so, I do not think that the
approach adopted by the Department and subsequently communicated to the
Minister can be condemned, in accordance with the principles established in the
authorities cited above, as either Wednesbury unreasonable or Wednesbury
irrational. Accordingly, I reject the submissions of Mr Deeny QC on this point.
central element to the D5 proposal is a food superstore to be operated by
Sainsburys which is to occupy some 65,425 square feet. This represents a net
sales area of 40,000 square feet of which 32,000 square feet was proposed for
convenient goods and 8,000 square feet for comparison goods. Mr Deeny QC drew
my attention to the requirement in paragraph 41 of PPS5 that:
18. He also referred me to the requirement in paragraph 39 of PPS5 that “major proposals for comparison shopping or mixed retailing will only (my underlining) be permitted in out of town locations ... where the development satisfies all (my underlining) the following criteria ...”. He submitted that this wording clearly indicated a mandatory policy and that such an interpretation was supported by the purpose and intention of PPS5 namely, the protection and enhancement of the vitality and viability of town centres. Mr Deeny QC reminded the court that at paragraph 3(b) of his affidavit of 2 July 1999 Mr Hugh McKay, then Director of Professional Services in the Department’s Planning Service, recorded that:
19. Mr Deeny QC accepted that, depending upon the circumstances of a particular proposal, there might well be an inherent tension between the first two and the second two policy objectives set out at paragraph 5 of PPS5 but he submitted that, insofar as out of centre superstores were concerned, this tension was resolved by the requirements set out in paragraph 39. Mr Deeny QC noted the “countervailing factors” identified in the memorandum of 23 February 2000 from Mr McKenzie, Deputy Secretary to the Permanent Secretary and to the Minister but argued that any such factors would be taken into account during the course of a proper application of paragraph 39 of PPS5.
20. In re-assessing the D5 proposal the Lockwood Report considered that the original inquiry by the Appointed Member had misapplied retail policy in considering whether the applicants had satisfied the Department that the development was unlikely to lead to a significant loss of investment in an existing centre namely, Holywood. Referring to the proposal to develop a supermarket at Marine Parade in Holywood which had not proceeded and, therefore, represented a potential loss of investment, Mrs Lockwood observed, at paragraph 7.15 of her report:
21. Mrs Lockwood concluded that the loss of the Marine Parade investment was significant to Holywood town centre and that, consequently, the proposal failed to satisfy the paragraph 39 criteria in this respect. Mrs Lockwood also considered that the D5 proposal failed another of these criteria insofar as it was likely to undermine the convenience shopping function of Holywood and, as a result, was likely to have an adverse impact on the vitality of the centre. Mrs Lockwood also considered the likely impact of the D5 proposal on the centres at Connswater and Dundonald and, at paragraph 7.25 of her original draft of her report, she expressed the conclusion that: “In view of the likely impact on Holywood, Connswater and Dundonald it is considered the proposal fails to satisfy this criteria”. The report in the form in which it was ultimately presented to the Minister was substantially amended and in the amended version Mrs Lockwood referred rather to “concerns” about the impact of the proposal on the centres at Connswater and Dundonald. I propose to deal with the Lockwood Report in further detail at a later stage in this judgment.
22. On 25 January 2000 Mr McKay, the current Chief Executive of the Planning Service forwarded Mrs Lockwood’s report to Mr McKenzie, the Deputy Secretary, together with the views of the Planning Service. On 23 February 2000, in his turn, Mr McKenzie forwarded a number of documents to the Permanent Secretary and the Minister including the Lockwood report, the comments of the Planning Service Management Board, expressed by Mr McKay, together with his own views. Both Mr McKay and Mr McKenzie considered that the accepted failures to comply with paragraph 39 of PPS5 were “marginal” and fell to be considered in the context of a number of “countervailing factors”. It is clear that these views were ultimately accepted by the Minister.
23. It seems to me that the emphasis laid by Mr Deeny QC in his submissions upon the “mandatory” nature of the criteria contained in paragraph 39 of PPS5 is inconsistent with the principles set out in the authorities cited above. Mr Deeny QC referred to a risk to the Rule of Law if there was a public perception that laws were not be observed and followed. However, in my view, it is important to bear in mind in the planning context that planning policies, in themselves, do not confer legally enforceable rights or duties. Rather, they provide guidance for planning authorities, applicants and interested members of public as to the approach that the planning authorities will generally adopt when considering various types of planning application. The circumstances in which planning applications may arise are infinitely varying and the task of formulating, co-ordinating and implementing policy for the orderly and consistent development of land is both difficult and demanding and may frequently require the resolution of complex problems produced by competing policies and/or conflicting interests. Planning policies are but one of the material considerations that must be taken into account by the planning authority in accordance with the 1991 Order. Consequently, I reject Mr Deeny QC’s submission that compliance with the criteria contained in paragraph 39 of PPS5 is mandatory to the extent that any failure to comply automatically prohibits the granting of this type of planning permission.
24. As noted above, the first matter of which the Department must be satisfied in accordance with paragraph 39 of PPS5 is that the relevant proposal “complements or meets existing deficiencies in the overall shopping provision”. During the case there was considerable debate as to the true interpretation of the “complements test” and it is clear that this is a concept about which the Minister expressed serious concern – see, for example, the memos of the Ministerial meetings on 6 March 2000 (Exhibit SQ2) and 13 March 2000 (Exhibit SQ3). I think that it is important to take into account the following matters in relation to this criterion:
25. As I have already indicated above, I accept that, generally, Wednesbury is the relevant level of intensity to be applied when considering judicial review of the interpretation and application of planning policies. However, it seems to me that where the specific point of interpretation at issue is the natural and ordinary meaning of words, it may be that the range of reasonableness is somewhat narrower in that there may be only one or a very limited range of reasonable construction for the words in question. I bear in mind the words of Auld J in Northavon DC –v- Secretary of State for the Environment  JBL 761 quoted by Kerr J in Re F A Wellworth & Company’s Application  NI 509 at 539 in the following terms:
26. It seems to me that the starting point must be the dictionary definition of “complement” which is something that “completes, perfects, fills up or makes up a whole”. In the context of paragraph 39 of PPS5 the term is used as an alternative to meeting “existing deficiencies”. In this context it seems to me that the true interpretation is that, while there may be no deficiency, the out-of-centre proposal may, in certain circumstances, broaden or make complete a pre-existing range of shopping provision. In my view, applying the legal principles stated, the simple addition of a competitor providing the same range of shopping provision as a pre-existing operator would not be a tenable, literal or contextual, interpretation of the term. I have come to the conclusion that the Minister appears to have been given defective advice by his senior officials as a result of which he misunderstood this aspect of the policy. Failure to properly understand a policy renders a decision as defective as if the decision-maker pays no regard to the policy at all – see Woolf J, as he then was, in Gransden v Secretary of State for the Environment (1986) JPL 519. Since satisfaction of the complements test was clearly one of the major elements in the Minister’s decision the decision must be quashed upon that ground. Mr Morgan QC, supported by Mr Weir QC, submitted that the D5 proposal “overall” could be considered to pass the “complements” test, even if the foodstore did not. I express no view on this submission save to say that it was not what was put before the minister by his advisers nor was it what he decided
28. Before the judicial review application brought by Belfast Chamber of Commerce and Belfast City Council relating to the planning permission originally granted for the D5 proposal the Department successfully resisted an application for discovery of documents. However, immediately prior to the hearing, on 7 July 1999, the Department produced an affidavit exhibiting a submission by the then Chief Executive of the Planning Service to Mr McKenzie, dated 11 February 1998 and a subsequent submission by Mr McKenzie to the then Minister dated 12 February 1998. The memorandum produced by the Chief Executive identified a number of ways in which both the D5 and Tesco proposals appeared to contravene policy requirements and policy objectives and recorded that the acceptance of two food store proposals at this location would be inconsistent with planning policy. Nevertheless, the memorandum went on the recommend that planning permission should be granted. Despite this obvious non-sequitur, Mr McKenzie referred only to “reservations” as to the impact of the proposals on the shopping centres of Holywood, Connswater and Dundonald and went on to advise that, on balance, permission should be granted. The matter proceeded before Kerr J who referred to the recommendation made by the Chief Executive as both “difficult to understand” and “mystifying”. In relation to the memorandum produced by Mr McKenzie for the Minister Kerr J observed that it could “... scarcely have been more dismissive of the Planning Service’s views”. Kerr J considered that Mr McKenzie had not only failed to highlight the Planning Service’s views but he had misrepresented them insofar as it was suggested that the Planning Service entertained “reservations” about the matter when they clearly thought that the development would have a detrimental effect on the relevant centres. He also observed the Mr McKenzie’s memorandum “conspicuously failed to deal with the conclusions of the Planning Service that the proposals were in conflict with PPS5”. Mr Morgan QC, who had also appeared for the Department on that occasion, conceded that it was impossible to contend that the decision to grant planning permission had been validly made.
29. Against this background, Mr Deeny QC was sharply critical of the decision by the Department to afford Mr McKenzie a central role in the reconsideration of the D5 application. As I have already noted above, Mr McKenzie, as Deputy Secretary, was once again an important part of the conduit by which the Department’s views were ultimately conveyed to the Minister. Mr Deeny QC sought to support his case of bias against Mr McKenzie by reference to a number of other planning applications in which Sainsburys had been concerned and in relation to which Mr McKenzie had also played an important role.
the course of his submissions Mr Deeny QC accepted on behalf of the applicants
that they must establish a real danger of bias which
(my underlining) the decision-maker. In so doing, Mr Deeny QC based himself
upon Simon Brown LJ’s ninth proposition set out at page 152d of his
At page 152d Simon Brown LJ said:
31. Therefore, I propose to approach this aspect of the case by ascertaining the relevant circumstances and then asking myself whether, in the light of those circumstances, there was a real danger of bias on the part of Mr McKenzie, which affected the impugned decision, in the sense that he might unfairly have regarded the D5 proposal with favour because it involved Sainsburys.
33. Ultimately, after giving the matter careful consideration I am not satisfied that Mr Deeny QC has established a real danger of bias on the part of Mr McKenzie. It should not be thought that this conclusion in anyway endorses Mr Quinn’s decision to include Mr McKenzie in the decision-making process in these circumstances. Indeed, in my view, his inclusion made this judicial review almost inevitable.
Department accepts that the D5 proposal fails to comply with the third
criterion set out in paragraph 39 of PPS5 insofar as the applicants cannot show
that the proposal is unlikely to have an adverse impact on the vitality or
viability of an existing centre or undermine its convenience or comparison
shopping function. However, Mr McKay, the current Chief Executive of the
Planning Service formed the view that this failure was “marginal”
and this view was accepted by the Minister and no doubt made a significant
contribution to his deliberations when he came to balance this policy failure
against “countervailing factors”. On behalf of the Department, Mr
Morgan QC accepted that the Minister did rely upon Mr McKay’s assessment
that the policy failure was marginal and that if this assessment was incorrect
the Minister’s decision could not stand.
the course of the public inquiry conducted into the original applications in
respect of D5 and the Tesco development at Knocknagoney the Appointed Member
identified Holywood and the centres of Connswater and Dundonald as being the
centres most likely to be affected by the proposals. Retail impact analyses
were submitted to the public inquiry on behalf of Sainsburys, Tesco and
Stewarts. A table was prepared showing the estimated impact of the proposals
upon various shopping facilities in the centres likely to be affected although
the Appointed Member remarked upon the difficulties inherent in dealing with
this type of evidence which is heavily dependent upon assumptions and
subjective judgments. The expert assessment of the cumulative impact of both
food superstores varied between 115% and 125%. In relation to the
Department’s role in presenting evidence to the public inquiry the
Appointed Member had this to say at page 245 of her report on the Tesco proposal:
37. Paragraph 60 of PPS5 confirms that the Department will normally require that applications for out-of-centre or out-of-town retail development of over a 1000 square metres should be accompanied by information on, inter alia, its likely trading impact on existing centres including consideration of the cumulative effects of the proposal, recently completed retail developments and outstanding planning permissions for retail development, where appropriate. The Appointed Member referred specifically to paragraph 18 of PPS5 which provides as follows:
39. Whatever its shortcomings may have been there is no doubt that detailed expert material was placed before the appointed Commissioner by the parties concerned in the original public inquiry. That evidence and the information upon which it was based is now some 3½ years old and related to a theoretical assessment of the impact of two food superstores.
40. Since that time the Tesco development has been constructed at Knocknagoney and has been in full operation for some period of time. In such circumstances, it becomes of vital importance to examine the foundation for Mr McKay’s assessment that the additional impact of granting the D5 proposal would be “marginal”.
41. Clearly Mr McKay appreciated the significance of the new situation and I note that he stated at paragraph 3 of his affidavit of 19 May 2000 that a fresh report should be prepared which “separated the consideration of the D5 proposal from the Tesco store’s application”. This is one of the reasons which led Mr McKay to commission the report from the specialist retail unit at Planning Service Headquarters which was prepared by Mrs Lockwood. However, while Mrs Lockwood’s report did review the approach of the Appointed Member at the public inquiry to the issues of adverse impact on the vitality and viability of Holywood, Connswater and Dundonald and the undermining of their convenience and comparison shopping function, she did not, nor was she commissioned to, consider any material relating to such impact obtained subsequent to the date of the public inquiry or, in particular, subsequent to the opening of Tesco at Knocknagoney. In fact, Mrs Lockwood differed from the Appointed Member in concluding that the proposal was likely to undermine the convenience shopping function of Holywood and, in doing so, could have a “knock on” effect on the comparison function with resulting adverse impact on the vitality and viability of the centre as a whole. Mrs Lockwood also expressed concern about the impact of the proposal on Connswater and Dundonald, although she noted that the opening of Woolworths in the former and Safeways in the latter could increase the ability of these centres to withstand a loss of trade resulting from the proposal.
42. Before leaving the Lockwood report I think that it is important to make some observations about its history. During the course of the proceedings it became clear that the document exhibited by Mr McKay to his affidavit as HMcKay 1 was not the original version of the report produced by Mrs Lockwood on 21 October 1999. That original differed from the version exhibited in a number of very significant ways. For example, in the original document, after reviewing the issue of adverse impact on the relevant centres, Mrs Lockwood had concluded as follows:
43. In the version of the report exhibited to Mr McKay’s affidavit this paragraph has been entirely omitted and the reference to Connswater and Dundonald reduced to “concerns”. The exhibited document contained a number of other significant changes from the original perhaps the most fundamental being the complete removal from the first page of the words “recommendation: that the application be refused planning permission”. It appears from a further affidavit furnished by Mrs Lockwood that the changes to this document were affected subsequent to the meeting of the Planning Management Board on 15 November 1999 and as a result of “various suggestions from colleagues within Planning Service by way of comment”. In her affidavit dated 20 June 2000 Mrs Lockwood confirmed that a number of issues had been discussed at the meeting of the Management Board on 15 November 1999 and that she had been specifically requested to clarify the position with regard to zoning in the Harbour Estate in the draft Regional Strategic framework. When this matter was being debated Mr Morgan QC assured the court on behalf of Mrs Lockwood that the version of the report exhibited to Mr McKay’s affidavit represented her views and I accept entirely this honourable attitude on her part. However, I am afraid that I cannot accept the assertion made at paragraph 5 of her affidavit of 20 June 2000 that the amendments to the report did not alter the substance of it or the conclusion other than the addition of the reference to the Regional Strategic framework. In my view the report exhibited to Mr McKay’s affidavit was a substantially different document from that which had been originally produced by Mrs Lockwood. This has serious implications for the Department since I am satisfied that when Mr McKay who, as Chief Executive, chaired the Planning Management Board, purported to convey to Mr McKenzie on 25 January 2000 the Board’s views of Mrs Lockwood’s “independent professional report” he was in fact commenting upon a report which had already been significantly amended at the suggestion of the Board and “other colleagues within the Planning Service”. It is clear that Mrs Lockwood’s report played a significant role in the Minister’s deliberations and I note that she herself was present during the site visit and meeting held by the Minister, Mr McKenzie, Mr McKay and other officials on 13 March 2000. Indeed, Mr Quinn’s minute of that meeting indicates that, apart from the debate which took place in relation to the complements test, the Minister accepted that his “principal concern” should be Holywood town centre. While I appreciate that Mrs Lockwood has indicated that the final version of her report did reflect her own final views, I think that it would be unrealistic to suggest that the Minister’s concerns and questions would not have taken a different course had he been presented with the original Lockwood report. If, as Mr McKay asserts, the intention was to obtain an independent report from the specialised Retail Unit I simply do not understand why the Planning Management Board adopted this course rather than simply present the Minister with the original report, the Board’s views and, if it was felt appropriate, any change of view which Mrs Lockwood entertained as a result of discussion with the Board and her colleagues. Taking into account the history of late discovery and strong judicial criticism this was a case, if ever there was one, in which “transparency” should have been the watchword.
44. Apart from the Lockwood report the only other additional piece of material referred to by Mr McKay was what he described as a “positive health check” on Holywood. This was a document exhibited to Mr McKay’s affidavit of 19 May 2000 which seems to be a paragraph from a document furnished to the “Bloomfield Inquiry” in 1999. During the course of the proceedings the Department conceded that this document was compiled prior to the opening of the Tesco development at Knocknagoney.
45. In the course of his affidavit on 19 May 2000 Mr McKay emphasised that, whether as a matter of policy or otherwise, there was no obligation on the Department to obtain independent evidence on retail impact and that the Department considered it was appropriate to re-assess the retail impact on the basis of the retail information submitted to the original public inquiry. As I have already pointed out, this evidence is now some 3½ years old and, since the public inquiry, the Tesco food store has opened at Knocknagoney and has been trading for a significant period of time. I have earlier referred to the criticism by the Appointed Member at the public inquiry of the lack of “comprehensive independent evidence” from the Department and to the absence of a “health check” compiled in accordance with the detailed requirements of paragraph 18 of PPS5. Mr McKay’s response to this criticism was to assert, at paragraph 10 of his affidavit of 19 May 2000, that he was not aware of any case in which the Department undertook its own independent retail impact study. While that may be so, I have no doubt that Mr McKay, as Chief Executive of the Planning Management Board, did not fail to appreciate the significance of the Appointed Members reference to the need for a “health check” carried out in accordance with the detailed requirements of paragraph 18 of PPS5. An independent study or report might or might not have supported Mr McKay’s judgment but it would at the very least have provided the court with some assistance in reconciling the apparently conflicting claims made by Mr McKay and Mr Singleton as to the retail health of Holywood town centre. Given the history of this application and the intense public interest which it has generated, together with the criticism articulated by the Appointed Member, the passage of time and the advent of a trading food superstore at Knocknagoney, to fail to commission a comprehensive health check specifically in relation to this proposal and at the same time to exhibit to his affidavit a health check in respect of Holywood town centre compiled for the purpose of a totally different inquiry in 1999, before Tesco started to operate, is in my view quite inadequate and almost verges on arrogance, particularly in respect of the citizens of Holywood.
46. I have come to the firm conclusion that, given the history of this application and the accepted failure of the proposal to comply with the third criterion specified in paragraph 39 of PPS5, in order to properly assess the significance of that failure it was essential that the Department should, at minimum, obtain up-to-date “health checks” on the relevant centres in accordance with the requirements of paragraph 18 of PPS5. It is clearly a matter for the Department to ensure that the proper investigations are pursued and reasonable steps taken to obtain the relevant information – see Tameside Metropolitan Borough Council –v- Secretary of State for Education and Science  Appeal Cases 1014. Indeed, while it is not for this court to direct the Department’s course of action, in the circumstances of this particular application, consideration might well be given to the commissioning of a suitable independent expert to carry out the appropriate checks. I am satisfied that in the circumstances there was no adequate basis for Mr McKay’s judgment that the failure to comply with policy was “marginal” and since it is common case that this was a vital material factor taken into account by the Minister I propose to quash his decision also on this ground.