Bdw Trading Ltd (trading as David Wilson Homes (Central, Mercia and West Midlands)) v The Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 01 April 2015 |
| Neutral Citation | [2015] EWHC 886 (Admin) |
| Date | 01 April 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5572/2014 |
[2015] EWHC 886 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
Mr Justice Hickinbottom
Case No: CO/5572/2014
Hugh Richards (instructed by Gateley LLP) for the Claimant
Richard Kimblin (instructed by the Treasury Solicitor) for the First Defendant
The Second Defendant was not represented and did not appear
Hearing date: 26 March 2015
Introduction
This is an application under Section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), in which the Claimant seeks to quash a decision dated 24 October 2014 of an inspector appointed by the First Defendant Secretary of State, Ms Victoria Lucas-Gosnold LLB MCD MRTPI ("the Inspector") to dismiss an appeal against the decision of the Second Defendant local planning authority ("the Council") dated 24 March 2014 to refuse planning permission for a proposed development of 114 dwellings on 4.9 hectare site at Walton Heath, Common Lane, Stone, Staffordshire ("the Site").
Before me, Hugh Richards appeared for the Claimant, and Richard Kimblin for the Secretary of State; and I thank them both at the outset for their assistance.
The Legal and Policy Background
In relation to planning decisions, the following propositions, relevant to this claim, are well-established and uncontroversial.
i) A planning decision-maker must take into account all material considerations (section 70 of the 1990 Act).
ii) Although what amounts to a material consideration is a matter of law, the weight to be given to material considerations is exclusively a matter of planning judgment for the decision-maker, who is entitled to give a material consideration whatever weight, if any, he considers appropriate. That discretion is subject only to (a) express statutory provision or guidance which might inform the exercise of the discretion; and (b) the decision not being irrational in the sense of Wednesbury unreasonable, i.e. a decision to which no person in the position of the decision-maker and on the evidence before him could reasonably come ( Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G). Because the exercise of discretion involves a series of planning judgments, in respect of which an inspector or other planning decision-maker has particular experience and expertise, anyone who challenges a planning decision on Wednesbury grounds, faces "a particularly daunting task" ( Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 75 (Admin) at [8] per Sullivan J, as he then was).
iii) Section 70(2) of the 1990 Act expressly provides that "the development plan" is a material consideration. The content of the development plan is defined in section 38 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to include "development plan documents" for the relevant area. However, the development plan is not simply a material consideration, because section 38(6) gives it a particular status. It provides that:
"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."
Therefore, section 38(6) raises a presumption that planning decisions will be taken in accordance with the development plan. It is enough if the proposal accords with the development plan considered as a whole: it does not have to accord with each and every policy ( R (Cummins) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 1116 (Admin) at [161]–[162] per Ouseley J).
iv) The general approach required of decision-makers by section 38(6) was recently considered in R (Hampton Bishop Parish Council) v Herefordshire Council [2013] EWHC 3947 (Admin) ("Hampton Bishop"), in which Richards LJ, giving the judgment of the court, said this (at [28]):
"… It is up to the decision-maker how precisely to go about the task, but if he is to act within his powers and in particular to comply with the statutory duty to make the determination in accordance with the development plan unless material considerations indicate otherwise, he must as a general rule decide at some stage in the exercise whether the proposed development does or does not accord with the development plan."
That was, Richards LJ said, the true gist of City of Edinburgh v Secretary of State for Scotland [1997] 1 WLR 1447, to which I was referred by Mr Kimblin. The rule Richards LJ expounded is of general application, although it may not apply where (e.g.) the development plan has been overtaken by more recent policy statements such that it is appropriate to give it no weight ( Hampton Bishop at [28]) or only minimal weight ( North Cote Farms Limited v Secretary of State for Communities and Local Government [2015] EWHC 292 (Admin) at [64]).
v) Whether a proposed development does or does not accord with a development plan as a whole is, of course, a matter of substance and not form. Where the relevant planning decision-maker does not expressly state that he has considered and determined that issue, on the basis of the decision looked at as a whole and in its full context, it may nevertheless be apparent that he has done so.
vi) "Material considerations" in this context also include statements of central government policy now set out in the National Planning Policy Framework ("the NPPF"). Any local guidance is also a material consideration.
vii) A decision-maker must interpret policy documents properly, the true interpretation of such policy being a matter of law for the court ( Tesco Stores Ltd v Dundee City Council [2012] UKSC 13).
viii) An inspector's decision letter cannot be subjected to the exegesis that might be appropriate for a statute or a deed: it must be read as a whole and in a practical and common sense way, without resorting to strained interpretation of the relevant policies ( Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at page 28 per Forbes J; and R (TW Logistics) v Tendring District Council [2013] EWCA Civ 9 at [18] per Lewison LJ).
ix) Although an application under section 288 is by way of statutory appeal, it is determined on traditional judicial review grounds.
x) Article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010 No 2184) requires that the reasons for refusal of planning permission be set out in the decision notice in terms that are clear, precise and complete specifying all policies of the development plan that are relevant to the decision. Reasons for a decision must be sufficient to enable a party to understand how any such issue, of fact or law, has been resolved ( South Bucks District Council v Porter (No 2) [2004] UKHL 33 at [36] per Lord Brown). However, (a) as Cranston J recently emphasised in Arsenal Football Club plc v Secretary of State for Communities and Local Government [2014] EWHC 2620 (Admin) at [34], an inspector is only required to deal with and give reasons in respect of the main issues in dispute before him, not every material consideration; and (b) a reasons challenge will only succeed if the aggrieved party has been substantially prejudiced by the failure to provide an adequately reasoned decision.
The relevant national policy is now of course found in the NPPF. Paragraphs 11–12 confirm the statutory status of the development plan. Paragraph 17 provides, as a core planning principle, that planning should "be genuinely plan-led…"; and also "seek to secure… a good standard of amenity for all existing and future occupants of land and buildings…". Paragraph 14 states that a presumption in favour of sustainable development is at the heart of the NPPF and should be seen as "a golden thread running through both plan-making and decision-taking". For the latter it says:
"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 the relevant policies are out of date, granting permission unless:
—any adverse impacts of so doing 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."
Paragraph 49 of the NPPF provides that housing applications should be considered in the context of the general presumption in favour of sustainable development found in paragraph 14.
With regard to local policy, at the time the Council refused the application for planning permission in this case, the development plan included various saved policies from the Council's 2001 Local Plan, although a new plan (The Plan for Stafford Borough ("the Stafford Plan")) was emerging. However, by the time of the Inspector's decision, the Council had adopted the Stafford Plan, which overtook the earlier policies. It became the main development plan document. The Inspector, having given the parties an opportunity to address the relevant policies in that plan, rightly had regard to the policy position as at the date of her determination.
Within the new Stafford Plan, Spatial Principle 1 ("Policy SP1") states...
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