Baroness Cuberlege of Newick and Another v Secrtary of State for Communities and Local Government and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr John Howell
Judgment Date04 August 2017
Neutral Citation[2017] EWHC 2057 (Admin)
Docket NumberCase No: CO/16/2017
Date04 August 2017

[2017] EWHC 2057 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

John Howell QC

(Sitting as a Deputy High Court Judge)

Case No: CO/16/2017

Between:
(1) Baroness Cuberlege of Newick
(2) Patrick Cumberlege
Claimants
and
(1) Secrtary of State for Communities and Local Government
(2) Dla Delivery Limited
Defendants

Ms Heather Sargent (instructed by DAC Beachcroft LLP) for the Claimants

Mr Christopher Young and Mr James Corbet Burcher (instructed by Irwin Mitchell LLP) for the Second Defendant

The First Defendant did not appear and was not represented

Hearing dates: 20, 21 July 2017

Judgment Approved

Mr John Howell QC:

1

This is an application under section 288 of the Town and Country Planning Act 1990 (" the 1990 Act") to quash a decision of the Secretary of State for Communities and Local Government allowing an appeal made under section 78 of that Act by the Second Defendant, DLA Delivery Limited, against a decision of the local planning authority, Lewes District Council, refusing it planning permission. The Secretary of State decided to grant conditional outline planning permission for a residential development of up to 50 dwellings (including affordable housing), open space and landscaping, with new vehicular and pedestrian access and car parking, on land at Mitchelswood Farm, Allington Road, Newick.

2

The Claimants are Baroness Cumberlege of Newick and her husband, Mr Patrick Cumberlege. Both are residents of Newick and members of the Newick Village Society. The Society appeared at the local public inquiry into the Second Defendant's appeal, held by Mr Matthew Birkinshaw (" the Inspector"), objecting to the grant of planning permission. Mr Cumberlege is a former chairman of the Newick Village Society. Baroness Cumberlege has been a parish, district and county councillor representing the village. They were granted permission to make this application by Lewis J.

3

The grounds on which an application under section 288 of the 1990 Act may be made, and the court's powers under it, are well-established. They were summarised by Lindblom J in Bloor Homes East Midlands Limited v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) at [19].

4

On behalf of the Claimants, Ms Heather Sargent contended that the Secretary of State's decision should be quashed given (i) his treatment of saved Policy CT1 of the Lewes District Local Plan (" the LDLP) and (ii) the relationship of the appeal site to a zone established to protect the Ashdown Forest Special Protection Area (" SPA") and Special Area of Conservation (" SAC").

5

In this case, in his decision letter dated November 23 rd 2016 (" the DL), the Secretary of State decided that Policy CT1 was out-of-date (and had, accordingly, applied the "tilted balance" set out in paragraph [14] of the National Planning Policy Framework when determining the appeal). But, in a decision letter issued shortly before, dated September 19 th 2016, in relation to a proposed residential development at Ringmer, the Secretary of State had found that Policy CT1 should be regarded as up-to-date (and, accordingly, that the "tilted balance" did not apply in determining that appeal). The first ground on which Ms Sargent contended that the Secretary of State's decision was flawed was that he had failed to take into account a material consideration in determining the appeal in this case, namely his earlier decision that Policy CT1 was up-to-date, and/or that he had failed to give any reasons why he had departed from that finding in this case.

6

Ms Sargent also contended that the Secretary of State's decision was flawed on the ground (i) that the Secretary of State had made a material error of fact in treating the appeal site as falling outside an area of 7km designated for the purpose of protecting the Ashford Forest SPA and SAC or (ii) alternatively, even if he had regarded it as sufficient if the proposed new dwellings were constructed outside that designated area, he unlawfully granted permission without imposing a condition to secure that they would.

7

The Secretary of State has decided to submit to judgment on this application on the basis of the first ground on which it is made. In a letter to this court dated March 14 th 2017, the Treasury Solicitor stated that the Secretary of State conceded that the decision should be quashed "because the Secretary of State failed to take into account the [Ringmer] decision and specifically the finding in that earlier decision that development plan policy CT1 "should be regarded as up-to-date for the purposes of this appeal". In the reasons attached to a draft consent order to quash the decision which the Treasury Solicitor had then proposed, it was stated that:

"the Secretary of State should probably be cognisant of decisions in his own name, whether or not flagged up in the materials before him: Dear v Secretary of State [2015] EWHC 29 (Admin) at [32]. The conclusion as to policy CT1 in the [Ringmer] decision was in the circumstances obviously material to the present case (adopting the language of Derbyshire Dales DC v Secretary of State [2010] JPL 34 at [28]) such that the Secretary of State was required to take the [Ringmer] decision into account as a matter of legal obligation and provide reasons for departing from his prior conclusion as to Policy CT1. The Secretary of State did not take the [Ringmer] decision into account in determining the [Newick] appeal. He concedes that this was an error of law vitiating the [Newick] appeal."

8

The local planning authority, Lewes District Council, was not served with this application as it should have been. It has indicated, however, that it is happy to waive the requirement for it to be served and that it is content for this hearing to proceed in its absence. In those circumstances I have treated the application as having been made and sufficiently served on the relevant parties.

9

On behalf of the Second Defendant, Mr Christopher Young, contended that the Ringmer decision was not a material consideration that the Secretary of State was obliged to take into account when determining the Second Defendant's appeal and that there was no realistic prospect of dwellings being constructed within the 7km zone established for the protection of the Ashdown Forest SPA and SAC.

BACKGROUND IN RELATION TO THE FIRST GROUND ON WHICH THE APPLICATION IS MADE

i. the statutory framework for determining applications for planning permission

10

In determining any application for planning permission, planning authorities must have regard to "the provisions of the development plan, so far as material to the application" and to "other material considerations": see sections 70(2) and 79(1) of the 1990 Act. Moreover "the determination must be made in accordance with the plan unless material considerations indicate otherwise": see 38(6) of the Planning and Compulsory Purchase Act 2004 (" the 2004 Act").

ii. the National Planning Policy Framework

11

As Lord Carnwath JSC pointed out in Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] UKSC 37, [2017] 1 WLR 1865, at [21], the National Planning Policy Framework (" the NPPF")

"itself makes clear that as respects the determination of planning applications (by contrast with plan-making in which it has statutory recognition), it is no more than "guidance" and as such a "material consideration" for the purposes of section 70(2) of the 1990 Act…. It cannot, and does not purport to, displace the primacy given by the statute and policy to the statutory development plan. It must be exercised consistently with, and not so as to displace or distort, the statutory scheme."

12

Thus the NPPF states that:

"196. The planning system is plan-led. Planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise. This Framework is a material consideration in planning decisions."

197. In assessing and determining development proposals, local planning authorities should apply the presumption in favour of sustainable development."

13

Paragraph [14] of the NPPF describes the "presumption in favour of sustainable development", which is said to be "[at] the heart of" the NPPF and which should be seen as "a golden thread running through both plan-making and decision-taking". It states that:

"For decision-taking this means [unless material considerations indicate otherwise]:

• 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".

The penultimate point ("any adverse impacts…") is referred to as "the tilted balance". It applies inter alia if relevant development plan polices are "out-of-date".

14

Generally the question whether a development plan policy is "out-of-date" is self-evidently a matter of planning judgment for the decision maker: see eg Hopkins Homes Ltd v Secretary of State for Communities and Local Government supra per Lord Carnwath JSC at [55]. Paragraph [49] of the NPPF states, however, that:

"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."

iii. the relevant development plan

15

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