(1) Persimmon Homes (North East) Ltd (2) Barratt Homes Ltd (3) Millhouse Developments Ltd v Blyth Valley Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Lloyd,Lord Justice Hughes |
| Judgment Date | 29 July 2008 |
| Neutral Citation | [2008] EWCA Civ 861 |
| Docket Number | Case No: C1/2008/1319 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2008 |
[2008] EWCA Civ 861
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Collins
CO/7040/07
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Keene
Lord Justice Lloyd
Lord Justice Hughes
Case No: C1/2008/1319
Anthony Porten QC & Nicola Allan (instructed by Messrs Sharpe Pritchard) for the Appellant
Peter Village QC & Andrew Fraser-Urquhart (instructed by Macfarlanes) for the Respondents
Lisa Busch (instructed by Treasury Solicitor) for the Interested Party
Hearing dates: Tuesday 8 th July & Wednesday 9 th July 2008
Introduction :
This is an appeal against the quashing by Collins J of a policy in part of the development plan for the borough of Blyth Valley in North- East England. The quashing resulted from an application made under section 113(3) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) by three housing developers, the respondents to this appeal. The appellant is the local planning authority for the area. It had adopted in July 2007 a document called the Core Strategy, within which was a policy, H4, dealing with affordable housing, and it was this policy which was successfully challenged by the respondents.
The Statutory Plan Framework :
The system of development plans provided for by the 2004 Act is still relatively new and differs markedly from earlier development plan systems produced by the town and country planning legislation. Under the 2004 Act a two-tier system of plans is created, with the upper tier being a Regional Spatial Strategy. Below that come local development plans for each local planning authority's area. These local development plans consist of a number of documents. A Core Strategy is a development plan document by virtue of regulation 7 of the Town and Country Planning (Local Development) (England) Regulations 2004. Once finally adopted by the local planning authority, a development plan document becomes part of the development plan for the area for development control purposes: see section 38(3) and (6). The latter subsection provides:
“(6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
This is of significance, because one of the main categories of determination there referred to are decisions on applications for planning permission. A local planning authority, when dealing with an application for planning permission, is required by section 70(2) of the Town and Country Planning Act 1990 to
“have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.”
Consequently as a result of that provision and section 38(6) of the 2004 Act the decision on an application for planning permission must be made in accordance with the development plan for the area, unless material considerations indicate otherwise. This has been described as a “plan-led system” of development control.
The processes leading up to the adoption of a development plan document under the 2004 Act are set out in Part 2 of that Act. In preparing a local development document such as a Core Strategy, the local planning authority is required by section 19(2) to have regard to various matters. Those include:
“(a) national policies and advice contained in guidance issued by the Secretary of State;
(b) the RSS for the region in which the area of the authority is situated, if the area is outside Greater London;
…
(f) the community strategy prepared by the authority;
…
(i) the resources likely to be available for implementing the proposals in the document”
The RSS is the regional spatial strategy. The authority is also required in such preparatory work to comply with its “statement of community involvement” (section 19(3)), a statement of its policy as to the involvement in the process of those who appear to it to have an interest in matters relating to development in the area: see section 18(1) and (2). By section 19(5), the authority must also carry out an appraisal of the sustainability of the proposals in any local development document and prepare a report on the appraisal's findings.
When a document which is to be part of the development plan is thought by the authority to be ready for independent examination, it must be submitted to the Secretary of State for independent examination, which is then carried out by “a person appointed by the Secretary of State”, that is to say, a planning inspector: see section 20(1) to (4). The purpose of the examination is set out in section 20(5) as follows:
“(5) The purpose of an independent examination is to determine in respect of the development plan document—
(a) whether it satisfies the requirements of sections 19 and 24(1), regulations under section 17(7) and any regulations under section 36 relating to the preparation of development plan documents;
(b) whether it is sound.”
What is meant by “sound” in paragraph (b) of section 20(5) has been the subject of guidance by the Secretary of State in a policy document dealing with local plans and known as Planning Policy Statement 12 (“PPS 12”). The version current at the time of the events with which this appeal is concerned was one produced in 2004. At paragrapH4.24 it set out nine tests to be met if a development plan document were to be adjudged “sound”, those tests being introduced by the following passage:
“The presumption will be that the development plan document is sound unless it is shown to be otherwise as a result of evidence considered at the examination. The criteria for assessing whether a development plan document is sound will apply individually and collectively to policies in the development plan document. A development plan document will be sound if it meets the following tests:”
As Collins J said in his judgment, paragraph 15, the two tests most material for present purposes are (iv) and (vii). They read:
“(iv) it is a spatial plan which is consistent with national planning policy and in general conformity with the regional spatial strategy for the region or, in London the special development strategy and it has properly had regard to any other relevant plans, policies and strategies relating to the area or to adjoining areas;
….
(vii) the strategies/policies/allocations represent the most appropriate in all the circumstances, having considered the relevant alternatives, and they are founded on a robust and credible evidence base;”
It is evident that test (iv) reflects but goes somewhat further than section 19(1)(a), in that the latter merely requires the local planning authority in preparing a local development document to “have regard to” national policies and the Secretary of State's guidance, whereas test (iv) requires a development plan document to be “consistent” with national planning policies, and to be so (on the face of the test's wording) at the time of the examination.
I revert to the topic of the independent examination of development plan documents. By section 20(6) any one who makes representations seeking to change such a document has the right to appear before and be heard by the independent inspector. The inspector in due course must make recommendations and give reasons for them and, in effect, those recommendations are binding on the local planning authority. That is the result of a combination of section 23(2), (3) and (4). The authority may only adopt a development plan document with the modifications recommended by the inspector or with none if that is his recommendation. Once adopted, it forms part of the development plan. The 2004 Act also makes provision for the revision of such documents (section 26), just as earlier types of development plans were periodically reviewed.
The ability to challenge the legal validity of an adopted development plan document such as a Core Strategy is governed by section 113 of the 2004 Act, a provision which follows lines familiar from earlier legislation in this field. A challenge may only be brought under this section, which by subsection (3) provides that:
“(3) A person aggrieved by a relevant document may make an application to the High Court on the ground that-
(a) the document is not within the appropriate power;
(b) a procedural requirement has not been complied with.”
Ground (a) in effect amounts to an assertion that the adoption of the document in question was ultra vires, and it brings into play the normal principles of administrative law. Section 113(7) then empowers the High Court, if satisfied that the document is “outside the appropriate power”, to quash it in whole or in part. It was on this basis that Collins J quashed policy H4 in the Core Strategy.
The Blyth Valley Core Strategy and national policy :
The appellant submitted its Core Strategy document to the Secretary of State on 28 April 2006, which was followed by a consultation period. The text in the section dealing with affordable housing referred to a Housing Needs Study commissioned by the authority and published in late 2004, which had highlighted a high level of need in the borough for affordable housing. That study, carried out by a firm called Fordhams, had found that so high was the need...
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