Borough of Telford and Wrekin v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 01 December 2016 |
| Neutral Citation | [2016] EWHC 3073 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2639/2016 |
| Date | 01 December 2016 |
[2016] EWHC 3073 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/2639/2016
Timothy Jones (instructed by Telford & Wrekin Council) for the Claimant
Tim Buley (instructed by the Government Legal Department) for the First Defendant
Jonathan Easton (instructed by Irwin Mitchell) for the Second Defendant
Hearing date: 17 November 2016
Approved Judgment
The Claimant applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the First Defendant, made on his behalf by an Inspector on 15 April 2016, in which he allowed the Second Defendant's appeal against the Claimant's refusal of planning permission for a housing development at land north of Haygate Road, Wellington, Shropshire ("the Site").
The Site comprises some 15.2 ha of gently undulating agricultural land, principally in arable use, with some trees and hedgerows. It lies adjacent to the settlement edge of the market town of Wellington, which has become part of Telford. There are built-up areas to the east and south of the Site and there is open countryside to the north. Orleton Hall (a Grade II listed mansion) lies to the west of the Site. It is set in 25 ha of park and gardens, which are on Historic England's Register of Historic Parks and Gardens. The Wellington Cricket Club has its ground and pavilion in the park. A public right of way runs across the Site, but there is no public access to the Site beyond that.
The Second Defendant (hereinafter "the developer") applied for outline planning permission for a development of up to 330 dwellings, with a new vehicular access, public open space and green infrastructure.
The Claimant (hereinafter "the Council"), which is the local planning authority, resolved to grant planning permission in May 2014, at a time when it considered that it did not have a 5 year supply of deliverable housing land. The grant was subject to completion of an agreement under section 106 TCPA 1990, and before it was concluded, the Council decided to re-consider its decision, in the light of a new expert assessment that it could demonstrate a 5 year supply of deliverable housing land. The developer then appealed to the First Defendant on the grounds of non-determination. Shortly after lodging its appeal, the developer submitted a second application for planning permission at the Site for a development limited to 290 dwellings.
The Council gave putative reasons for refusing the first application in September 2015, and refused the second application in December 2015. In summary, its reasons for refusal were as follows:
i) The proposal represented unacceptable encroachment into the open countryside and the loss of an extensive area of high quality agricultural land and would adversely affect the character and appearance of the area which has historic and sensitive value. Accordingly, the proposal was contrary to adopted Core Strategy (CS) Policies CS1, CS3, CS7, CS11, CS12, CS13 and CS14, saved Policies H9, OL6 and HE24 of the Wrekin Local Plan (WLP) and the National Planning Policy Framework (NPPF).
ii) The proposal would adversely affect the setting of the adjacent listed park at Orleton Hall and the impact upon this heritage asset would adversely affect the character and appearance of the area. Accordingly, the proposal was contrary to adopted CS Policies CS1, CS3, CS7, CS11, CS12 and CS14, saved WLP Policies OL6 and HE24 and the NPPF.
The Inspector conducted a site visit and an Inquiry lasting 7 days. He identified the main issues as:
i) The weight to be given to relevant policies for the supply of housing, and whether the Council could demonstrate a 5 year supply of deliverable housing land.
ii) The effect of the proposed development on the character and appearance of the surrounding area, and on the setting of Orleton Hall Registered Park and Gardens.
iii) Whether the appeal proposal should be seen as representing sustainable development, in terms of the NPPF.
Main issue (i). The Inspector concluded that certain housing policies, namely, CS1, CS3 and CS7 were not in conformity with the NPPF and were out-of-date. Therefore they should not be given full weight when assessed, applying NPPF 215, and the proposed development fell to be considered under the fourth bullet point in NPPF 14. The Inspector did not reach a final conclusion as to whether the Council could demonstrate a 5 year housing land supply, for the purposes of NPPF 49, although on the evidence before him, he doubted whether it could do so.
In Ground 1 of this application, the Council challenged the Inspector's reliance upon the Council's support for the decision to grant planning permission for a Sustainable Urban Extension ("SUE") outside Telford as a factor supporting his conclusion that the policies on settlement boundaries were out-of-date. Under Ground 5 of this application, the Council challenged the Inspector's conclusion that policy CS7 was not in conformity with the NPPF.
Main issue (ii). Under the heading 'Heritage Issues', the Inspector concluded that the impact of the development upon the setting of the Park would be less than substantial but the harm would be lessened dramatically if the development was limited to the smaller 290 dwellings scheme, and did not extend up to the appeal site's western boundary.
Under the heading 'General landscape matters', the Inspector concluded that saved WLP Policy OL6 dealing with Open Land was not applicable to the Site, and so not relevant. The Council challenged this conclusion in Ground 2 of this application. The Inspector accepted that the policy in NPPF 112 had to be applied as the Site comprised best and most versatile ("BMV") agricultural land, but he rejected the Council's submission that NPPF 112 was a policy which indicated that " development should be restricted" within the meaning of NPPF 14. The Council challenged this conclusion in Ground 3 of this application. After a lengthy analysis of the other policies and the objections raised by the Council and local people, the Inspector concluded that the proposed development would not have an unacceptable impact on the character and appearance of the surrounding area, and would not be at odds with the relevant development plan policies.
Main issue (iii). The Inspector concluded that the proposed development was sustainable in terms of its economic and social impacts, but the environmental aspect had to be weighed in the planning balance.
Under the heading 'Planning balance and overall conclusions', the Inspector said:
"137. In accordance with guidance contained in the Framework, there are 2 separate balancing exercises which need to be undertaken in this case, both of which have to take account of benefits which would arise from the appeal proposal. The first is the balance relating to paragraph 134 of the Framework, which requires any "less than substantial" harm to the significance of a designated asset to be weighed against the public benefits of the proposal.
…
141. Weighing these benefits against the harm to the designated heritage asset is, in my assessment, a fine balance, with clear and distinct differences between the 2 proposals. Although I am satisfied that the harm to the setting of the Park should be classed as less than substantial in the case of both the 330 dwelling and the 290 dwelling schemes, I consider it very important to retain some open views of the Park from Haygate Road to retain the significance of this aspect of its setting, and this increases the weight I feel I need to ascribe to the harm in the case of the 330 dwelling scheme. Because of this I am drawn to conclude that the harm to the significance of the Park would be outweighed by the public benefits in the case of the 290 dwelling scheme, but not in the case of the scheme for a maximum of 330 dwellings. In other words the proposal passes the "paragraph 134" test in the up to 290 dwelling scheme, but not in the up to 330 dwelling scheme.
142. Referring back to paragraphs 126 and 127 of this decision, I therefore conclude that the scheme for up to 330 dwellings would not satisfy the environmental role of sustainable development, whereas the scheme for up to 290 dwellings would. Accordingly, I further conclude that the proposed development can be considered as representing sustainable development, but only if the maximum number of dwellings is restricted to 290, and the development proceeds in general accordance with Development Framework Plan reference 5644-L-03-Rev N.
143. I now turn to the second balancing exercise which needs to be undertaken, In view of my earlier conclusions that development plan policies referred to in the putative reasons for refusal are out-of-date and should carry less than full weight because of inconsistencies with Framework policies, this is the weighted balance set out in the second bullet point of the decision-taking section of the Framework paragraph 14. This indicates, under its first limb, that planning 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. The second limb of this bullet point relates to the situation where specific policies in the Framework indicate development should be restricted, such as where designated heritage assets...
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