Adamson v Secretary of State for Communities and Local Government

JurisdictionEngland & Wales
JudgeMr Justice Ouseley
Judgment Date18 January 2016
Neutral Citation[2016] EWHC 827 (Admin)
Date18 January 2016
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/5110/2015

[2016] EWHC 827 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

The Courthouse

1 Oxford Row

Leeds

West Yorkshire

LS1 3BG

Before:

Mr Justice Ouseley

CO/5110/2015

Between:
Adamson
Claimant
and
Secretary of State for Communities and Local Government
Defendant

The Claimant appeared in Person

Mr Westmoreland Smith appeared on behalf of the Defendant

Mr Forsdick QC appeared on behalf of the Interested Party

Mr Justice Ouseley
1

This is an appeal under section 288 of the Town and Country Planning Act 1990, against the decision of an Inspector, dated 11th September 2015, granting outline permission for residential development for 41 houses plus associated works on land at Edgerton, Huddersfield. The application had been made in October 2014 but the local authority had failed to determine it. The developer, Prospect Estates Ltd, appealed against the failure to determine the application.

2

After the appeal had been lodged and before the informal hearing held into the appeal, are the Kirklees Metropolitan Borough Council as planning authority had resolved that it would have refused planning permission on a variety of grounds. However, following the provision by the developer of further information, together with negotiations over a contribution to affordable housing, the local authority found itself satisfied that planning permission should be granted and adopted that stance at the informal hearing.

3

The opposition to the principle of development and to much of the detail therefore came from the local residents with the Clayton Fields Action Group, chaired by the claimant, Mr Adamson, to the fore. Many local residents were in attendance and the Inspector would plainly have been well aware of the extensive opposition to the proposal.

4

Indeed, the claimant (as defendant, appellant and finally respondent,) had been involved in litigation that went all the way to the Supreme Court, culminating in 2014 in the quashing of the registration of Clayton Fields as a village green — see Adamson & Ors v Paddico (267) Ltd [2014] UKSC 7. The quashing of the registration in February 2014 paved the way for the application which led to the appeal.

5

The Decision Letter describes 10 main issues, to a number of which the challenge had been directed. The terms of the challenge can be found in three documents. First, are the grounds of challenge which are short. They were preceded by a longer pre-action protocol letter and shortly before the hearing of the appeal were supplemented and added to by a supplementary bundle and submissions on behalf of the claimant.

6

Although some of the points in the supplementary bundle go somewhat beyond the scope of the grounds of claim it has been possible for them to be considered in the course of this hearing without prejudice to the position of the defendant, Secretary of State, and developer. The local authority is not represented.

7

In the supplemental submissions there were six points raised with some subpoints and I propose now to turn to the individual points therein raised. The first concerns affordable housing. That issue arises in this way. The developer had initially, and for some time, not wanted to make any contribution to affordable housing, contending that on its viability appraisal and applying the relevant approach no such sum was due. This was an issue on which it disagreed with the local authority and was one which lay behind the position adopted by the local authority initially.

8

The developer produced, through independent consultants Savills, its viability appraisal which was made available in the usual way and probably on the usual confidential terms to officers of Kirklees. The Council instructed its own external expert to see whether the viability appraisal was right and justified the conclusion that no sum was due. The experts and their clients initially disagreed but following discussions the developer accepted that a sum of just under £250,000 should be made available as an affordable housing contribution together with £100,000 towards other items of public planning benefit.

9

At the inquiry an issue was raised relating to the costs that had been included on the costs side of bringing the site forward for development. These related to the costs incurred in the village green litigation. Mr Adamson was well aware that a sum of money had been paid by the Legal Aid Fund to the developer, albeit in a different corporate name, in relation to the costs of the proceedings in the Court of Appeal and Supreme Court. The developer and Legal Aid Fund had agreed the Legal Aid Fund's liability at £220,000 for the Court of Appeal and Supreme Court proceedings.

10

The issue raised at the inquiry was whether that sum had been taken into account by way of reducing the costs of the development or whether the developer had taken the £200,000 but was still asserting that £200,000 was part of the costs of development; in other words double counting the costs.

11

The Council's expert deferred that question to the developer's director who answered clearly that there was no double counting; the £200,000 had been deducted from the costs put into the costs' side of the viability analysis. There the matter was left. Although Mr Adamson has sought before me to say that further questions were asked, I have declined his implicit application to be permitted to call evidence because Mr Cook, in his witness statement of 19th November 2015, had made it perfectly clear that that had been the end of the questions and no further issue in relation to that had been raised by Mr Cook.

12

Accordingly, the point raised in relation to costs at the informal hearing had been disposed of and the Inspector was entitled, on that basis, to come to the conclusions on the viability analysis and hence on the affordable housing contribution which he did. He deals with this issue in paragraph 36 to 38 of his Decision Letter:

"At the Hearing interested parties queried the above average development costs and land values cited by the appellant's viability appraisal and pointed to the possible manipulation of statistical data. However, the appraisal has been independently assessed on behalf of the Council by a qualified surveyor. This confirms that allowances for dealing with surface water and other major infrastructure works such as retaining walls are all necessary and represent substantial abnormal costs. The surveyor also confirms that the appellant's legal expenses associated with village green applications should be included because the costs were related to bringing the site forward for housing.

37. In terms of land value it was put to me that the site was only purchased for a nominal sum, and that this should be used as the starting point for the assessment. Nevertheless, the fee paid reflected its village green status at that time, which has since been removed. I am also mindful that the site is currently allocated for up to 55 houses in the Kirklees UDP. It is therefore reasonable for this to be reflected in the existing use value. An allowance for developer's profit has also been included and reflects the agreed approach between the parties.

38. When factoring these figures into account the Council's surveyor advises that the scheme would only be able to stand a financial contribution towards affordable housing of roughly £248,555. Based on the evidence provided and oral representations presented at the Hearing I have nothing before me to suggest otherwise. Although the contribution would be less than the total required by the Council's Supplementary Planning Document 2: Affordable Housing (SPD2), it would provide competitive returns to a willing landowner and willing developer to enable the development to be deliverable."

13

The Inspector therefore was satisfied, on the evidence before him, that the viability appraisals produced by the developer, assessed and, to some extent, disagreed with by the Council's surveyor, had produced an agreed figure for affordable housing contribution which was acceptable. In my judgment, on the material before the Inspector, which is what matters, the Inspector was fully entitled to come to that conclusion and had a satisfactory answer to the particular issue which had been raised.

14

Mr Adamson says that whether or not raised at the inquiry the Inspector ought to have been alerted to the fact that there were other issues to be considered in relation to the costs of bringing the development forward for the purposes of assessing the affordable housing contribution. He referred me to a letter dated 2nd March 2015 which he sent to the planning inspectorate for it to pass to the Inspector for consideration in relation to the appeal, to which was attached a letter sent by the developer's litigation solicitors to him in which a different figure was referred to. As I understand it, also with the attachments was a letter of 5th December 2014 from the solicitors who had acted for CFAG in the litigation.

15

What those letters make clear is that in so far as a larger sum was raised for consideration in relation to litigation costs, those costs were not affected by any issue of double counting and fell within the rubric of those costs which the Council surveyor said properly fell to be considered in the viability appraisal as part of the village green litigation costs. This much can be seen from the Lupton Fawcett letter. The litigation in the High Court, and as the Supreme Court judgment makes clear, was a lengthy piece of litigation. It lasted five days and for that CFAG were the claimant. The Supreme Court also refers to the extensive interlocutory proceedings. The...

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