Bewley Homes Plc v The Secretary of State for Levelling Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 16 May 2024 |
| Neutral Citation | [2024] EWHC 1166 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-001993 |
and
[2024] EWHC 1166 (Admin)
THE HON. Mr Justice Holgate
Case No: AC-2023-LON-001993
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Banner KC and Matthew Henderson (instructed by Pennington Manches Cooper LLP) for the Claimant
Ned Westaway (instructed by Government Legal Department) for the First Defendant
Emma Dring (instructed by Waverley Borough Council) for the Second Defendant
Hearing date: 12 March 2024
Approved Judgment
This judgment was handed down remotely at 11.00am on 16 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mr Justice Holgate
Introduction
This is a claim by Bewley Homes plc (“Bewley”) for statutory review under s.288 of the Town and County Planning Act 1990 (“TCPA 1990”) of the decision of an Inspector in a decision letter dated 19 May 2023 (“the DL”) acting on behalf of the first defendant, the Secretary of State for Levelling Up, Housing and Communities, in which he dismissed the claimant's appeal against the decision dated 23 August 2022 of the second defendant, Waverley Borough Council (“WBC”), refusing Bewley's application for planning permission. Bewley sought outline planning permission for up to 140 dwellings at Lower Weybourne Lane, Badshot Lea, Farnham. The application reserved all matters except access. On 2 November 2023 the court granted permission to apply for statutory review, limited to ground 3.
Two earlier proposals by Bewley for 140 dwellings on the same site had also been dismissed on appeal. On 29 March 2018 the Secretary of State dismissed an appeal against WBC's refusal of detailed planning permission (“the 2018 DL”). On 21 June 2021 an Inspector dismissed an appeal (“the 2021 DL”) against WBC's refusal to grant an application for outline permission not materially different from the proposal the subject of the decision dated 19 May 2023.
The National Planning Policy Framework
This claim is concerned with policies in the National Planning Policy Framework published on 20 July 2021 (“NPPF 2021”) dealing with economic growth and productivity 1. Paragraph 8 sets out the three overarching objectives of sustainable development, which are “interdependent and need to be pursued in mutually supportive ways,” “so that opportunities can be taken to secure net gains” across each one. The three objectives are economic, social and environmental. The first one reads:
“a) an economic objective – to help build a strong, responsive and competitive economy, by ensuring that sufficient land of the right types is available in the right places and at the right time to support growth, innovation and improved productivity; and by identifying and coordinating the provision of infrastructure;”
This objective is taken up again in chapter 6
Chapter 6 is entitled “building a strong, competitive economy.” Bewley's legal challenge is particularly concerned with para.81 which deals with planning policies and decisions. But it is also necessary to refer to para.82 (on planning policies) and para.83 (also on planning policies and decisions).
Paragraphs 81 to 83 of NPPF 2021 read as follows:
“81. Planning policies and decisions should help create the conditions in which businesses can invest, expand and adapt. Significant weight should be placed on the need to support
economic growth and productivity, taking into account both local business needs and wider opportunities for development. The approach taken should allow each area to build on its strengths, counter any weaknesses and address the challenges of the future. This is particularly important where Britain can be a global leader in driving innovation 42, and in areas with high levels of productivity, which should be able to capitalise on their performance and potential.82. Planning policies should:
a) set out a clear economic vision and strategy which positively and proactively encourages sustainable economic growth, having regard to Local Industrial Strategies and other local policies for economic development and regeneration;
b) set criteria, or identify strategic sites, for local and inward investment to match the strategy and to meet anticipated needs over the plan period;
c) seek to address potential barriers to investment, such as inadequate infrastructure, services or housing, or a poor environment; and
d) be flexible enough to accommodate needs not anticipated in the plan, allow for new and flexible working practices (such as live-work accommodation), and to enable a rapid response to changes in economic circumstances.
83. Planning policies and decisions should recognise and address the specific locational requirements of different sectors. This includes making provision for clusters or networks of knowledge and data-driven, creative or high technology industries; and for storage and distribution operations at a variety of scales and in suitably accessible locations.”
Footnote 42, referred to in para.81, states:
“The Government's Industrial Strategy sets out a vision to drive productivity improvements across the UK, identifies a number of Grand Challenges facing all nations, and sets out a delivery programme to make the UK a leader in four of these: artificial intelligence and big data; clean growth; future mobility; and catering for an ageing society. HM Government (2017) Industrial Strategy: Building a Britain fit for the future.”
Paragraphs 84 and 85 are policies for “supporting a prosperous rural economy”:
“84. Planning policies and decisions should enable:
a) the sustainable growth and expansion of all types of business in rural areas, both through conversion of existing buildings and well-designed new buildings;
b) the development and diversification of agricultural and other land-based rural businesses;
c) sustainable rural tourism and leisure developments which respect the character of the countryside; and
d) the retention and development of accessible local services and community facilities, such as local shops, meeting places, sports venues, open space, cultural buildings, public houses and places of worship.
85. Planning policies and decisions should recognise that sites to meet local business and community needs in rural areas may have to be found adjacent to or beyond existing settlements, and in locations that are not well served by public transport. In these circumstances it will be important to ensure that development is sensitive to its surroundings, does not have an unacceptable impact on local roads and exploits any opportunities to make a location more sustainable (for example by improving the scope for access on foot, by cycling or by public transport). The use of previously developed land, and sites that are physically well related to existing settlements, should be encouraged where suitable opportunities exist.”
A summary of the Inspector's decision letter in 2023.
The Inspector decided that there were two main issues:
(i) The effect of the proposal on the character and appearance of the area;
(ii) Any implications of housing supply or delivery for the determination of the application.
The Inspector summarised development plan policies at DL 17 to DL 29. The development plan comprised the Waverley Borough Local Plan Part 1: Strategic Policies and Sites (“LP1”), adopted on 20 February 2018, the Waverley Borough Local Plan Part 2: Site Allocations and Development Management Policies (“LP2”), adopted on 21 March 2023, and the Farnham Neighbourhood Plan made on 3 April 2020 (“FNP”). LP1, LP2 and FNP cover the period to 2032.
Policy ALH1 of LP1 sets out the number of additional homes to be provided in the plan period (DL 18).
The spatial strategy in Policy SP2 of LP1 seeks to maintain Waverley's character whilst ensuring development needs are met in a sustainable manner. So, major development on land of the highest amenity and land value, such as the AONB, is to be avoided. Development is to be focused on the four main settlements, which include Farnham (DL 19). Paragraph 5.16 of LP1 recognises that some development by the peripheral expansion of settlements will be necessary. It was common ground that the development of the appeal site, adjacent to the boundary of a main settlement, did not conflict with SP2 (DL 21).
It was also agreed that the site and immediately surrounding area do not constitute a “valued landscape” (para. 174a of NPPF 2021) (DL 22).
Under Policy RE1 of LP1 the site falls within the area designated as “Countryside beyond the Green Belt” in which the intrinsic character and beauty of the countryside is to be safeguarded (DL 23).
In the FNP the site falls outside the built-up area boundary. Under Policy FNP 10 priority is given to protecting the countryside from inappropriate development; proposals will only be permitted that enhance the landscape value of the countryside (DL 25).
The appeal site is located within a gap between Badshot Lea and Weybourne. Policy FNP 11 requires proposals on sites outside the built-up area to be assessed inter alia for their potential impact upon the visual setting and landscape features of the site and its surroundings. Proposals that fail to demonstrate that such impacts can satisfactorily be addressed or which “clearly lead to the increased coalescence of settlements” will not be supported. Paragraph 5.96 of the FNP highlights the objective of retaining the separate identities of Badshot Lea and Weybourne and the separation provided by inter alia the single field gap on Lower Weybourne Lane which breaks the built-up frontage of the two settlements. The Plan...
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