Barbara Robinson v Secretary of State for Communities and Local Government (First Defendant) Suffolk Coastal District Council (Second Defendant) Withers Trust Corporation Ltd (Interested Party)

JurisdictionEngland & Wales
JudgeCharles George
Judgment Date22 January 2016
Neutral Citation[2016] EWHC 634 (Admin)
Docket NumberCO/3671/2015
CourtQueen's Bench Division (Administrative Court)
Date22 January 2016

[2016] EWHC 634 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Charles George QC

(Sitting as a Deputy High Court Judge)

CO/3671/2015

Between:
Barbara Robinson
Claimant
and
Secretary of State for Communities and Local Government
First Defendant
Suffolk Coastal District Council
Second Defendant
Withers Trust Corporation Limited
Interested Party

Miss J Wigley (instructed by Richard Buxton Solicitors) appeared on behalf of the Claimant

Mr R Moules (instructed by the Government Legal Department) appeared on behalf of the Defendants

Mr S Bird QC (instructed by Withers LLP) appeared on behalf of the Interested Party

1

This is an application made under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) in respect of the decision letter (“the decision letter”) of the Secretary of State's planning inspector (“the Inspector”) issued on 25 June 2015, allowing the planning appeal of Withers Trust Corporation, the Interested Party, under section 78 of the 1990 Act and granting planning permission for up to 14 dwellings at The Street, Rushmere St Andrew, Ipswich (“the Site”). The settlement which the site immediately adjoins on its northern and eastern boundaries is known as Rushmere Street. The planning appeal was by way of written representations.

2

The Claimant is a local resident who has been heavily involved in the community trying to protect the Site from development. She objected to the planning application, and, following its refusal by the local planning authority (contrary to officers' advice), she submitted representations objecting to the planning appeal, both on her own behalf and, separately, on behalf of two local groups.

3

The Site, of approximately 3.2 acers, was found by the Inspector to have the appearance of a garden, distinct from the open land and sports pitches (which lie to its west and south respectively). It is enclosed by high hedges and used for the cultivation of fruit vegetables and the keeping of bees, the produce from which is used by the local community. Trees have been planned within the Site, many of which are memorial trees, valued by the local community but not protected by tree preservation orders (see paragraphs 5, 9, 15 and 25 of the decision letter).

4

Outline of the decision letter

5

The Inspector identified three mains issues in the appeal:

i) the effect of the proposal on the character and appearance of the area, including its implication for the open gap between Rushmere St Andrew and Ipswich; ii) whether or not adequate provision would be made for contributions towards local infrastructure; and iii) whether or not adequate provision would be made for affordable housing. The decision was structured under these three headings.

6

Under the first heading, the Inspector concluded in paragraph 18 “that the proposal would not be unduly harmful to the character and appearance of the area.” This heading included three paragraphs dealing with the development plan to which I shall be coming later. Under the second heading, he concluded in paragraph 22 “that adequate provision would be made for contributions towards local infrastructure …”. Under the third heading he concluded that “adequate provision would be made for affordable housing …”.

7

Under the heading “Other Matters”, the Inspector dealt with sustainability and the valuable of the Site to the local community:

i. “24. The village is identified in the LP as a Local Service Centre reflecting its sustainability as a location for further development. The proposal would be of significant benefit both in terms of contributing 14 dwellings towards the identified housing shortfall and in providing four affordable dwellings.

ii. 25. The site is valued by the local community because of the memorial trees. It is also used for the production of fruit, vegetables and honey and I understand that this produce is used by the community. However any community involvement in the site appears to be informal. In the absence of any formal arrangement for use of the site as a community garden I can give only limited weight to this matter.”

8

The section headed “Planning Balance” reads as follows:

i. “29. I have concluded that the proposal would not accord with saved policies AP212 and AP228 or with policy SP15 of the LP but that the harm to the landscape would be limited. On this basis I give limited weight to that harm. I have also given limited weight to the loss of the garden to the local community.

ii. 30. On the other hand I conclude that significant weight must be given to the proposal in terms of the contribution to housing supply and the affordable homes to be provided. Those weights outweigh the limited weights against the proposal. The benefits are significant material considerations which indicate that the decision should be otherwise than in accordance with saved policies AP212 and AP228 and policy SP15 of the LP.

iii. 31. The proposal would meet the social and economic aspects of sustainable development as set out in paragraph 7 of the Framework. Only limited harm would arise in respect of the environmental dimension and I conclude that the proposal as a whole would be sustainable. The limited harm arising would not significantly and demonstrably outweigh the benefits of the proposal.

iv. 32. For the reasons given the proposal would accord with policies SP1 and SP1A of the LP which require sustainable development.”

9

The conditions imposed are of no relevance to the present challenge, and preceded the Inspector's final conclusion that the appeal should be allowed.

10

Issues

11

As amended, there are three issues for the court:

i) whether the decision is procedurally vitiated by the failure of the local planning authority to provide the Inspector with its most recent forecast in relation to Housing Land Supply.

ii) whether the decision was in breach of the Inspector's duties under section 38(6) of the Compulsory Purchase Act 2014 (“the 2004 Act”) and section 70(2) of the 1990 Act in relation to the statutory development plan.

iii) whether the Inspector unlawfully failed to have regard to relevant policy as to the value of the Site as a valued community facility contained in paragraphs 69-70 and 64 of the National Planning Policy Framework (“the NPPF”).

Issue (1): Housing Land Supply

The NPPF

Paragraph 647 of the NPPF provides:

i. “To boost significantly the supply of housing, local planning authorities should:

• use their evidence base to ensure that their Local Plan meets the full objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;

• identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land … ”

12

“Deliverable” in the second bullet-point is defined in footnote 11:

i. “To be considered deliverable, sites should be available now, offer a suitable location for development now, and be achievable with a realistic prospect that housing will be delivered on the site within five years and in particular that development of the site is viable. Sites with planning permission should be considered deliverable until permission expires, unless there is clear evidence that schemes will not be implemented within five years, for example they will not be viable, there is no longer a demand for the type of units or sites have long term phasing plans.”

13

Paragraph 49 provides that:

i. “Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites.”

14

Paragraph 14 (presumption in favour of sustainable development) provides that:

i. “For decision-taking this means:

• approving development proposals that accord with the development plan without delay; and

• where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:

- any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

- specific policies in this Framework indicate development should be restricted.”

15

The decision letter

16

The decision letter contains several important references to Housing Land Supply:

i. “6. The Council states that it has 4.3 years' worth of deliverable housing sites. Where housing land supply is less than 5 years policies for the supply of housing should not be considered up to date. Paragraph 14 of the National Planning Policy Framework (the Framework) states that where relevant policies are out of date, permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits when assessed against the policies in the Framework taken as a whole.

ii. 7. The site is...

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