Bovis Homes Ltd and Another v Secretary of State for Communities & Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 02 September 2016 |
| Judgment citation (vLex) | [2016] EWHC J0902-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3029/2016 |
| Date | 02 September 2016 |
[2016] EWHC J0902-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
The Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Holgate
CO/3029/2016
Mr R. Kimblin QC and Ms T Osmund-Smith (instructed by Loxley) appeared on behalf of the Claimants
Mr R Honey and Mr N Westaway (instructed by the Government Legal Department) appeared on behalf of the First Defendant
Dr A. Bowes (instructed by Leigh Day) appeared on behalf of the Third and Fourth Defendants
Bovis Homes Limited and Miller Homes Limited apply for permission to bring an application under section 288 of the Town and Country Planning Act 1990 to challenge a decision given by the First Defendant, the Secretary of State for Communities and Local Government, on 5 May 2016 dismissing an appeal against the refusal of planning permission for a mixed use development, which included 650 dwellings on land at Leckhampton, Cheltenham.
The hearing today is only concerned with the arguability of the proposed grounds. I am grateful to all counsel for the clarity with which they have set out their submissions, both in writing and orally, and in particular to Mr Kimblin QC, who has with commendable economy and precision identified the true points which his clients would wish to argue in contrast to the diffuse grounds which originally were presented to the court.
Ground 2
I deal first of all with Ground 2, which essentially raises non-compliance with the consistency principle (with its accompanying duty to give reasons) as set out in the line of cases which includes North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & CR 137. It is submitted that there has been a failure to comply with that principle as regards two earlier planning decisions take together: first, the preliminary findings of the examining Inspector ("the Examiner") on the Joint Core Strategy and second, the decision letter issued by the Secretary of State on the Brockworth site, which I believe lies about 4 kilometres away from the Claimants' site.
Turning to the chronology, the Brockworth inquiry was held in July 2015. The Bovis inquiry was held in September through to 2 October 2015. The Inspector's report on the Brockworth inquiry was issued on 4 December 2015. The preliminary findings of the Examiner on the Joint Core Strategy, EXAM 146, were published on 16 December 2015. The Inspector's report on the Bovis inquiry was issued on 11 January 2016. The Brockworth decision letter was issued on 31 March 2016 and the Bovis decision letter followed on 5 May.
It is common ground that when he reached his decision on the Bovis appeal the Secretary of State did have before him the preliminary findings of the Examiner. During this hearing I was told that those findings were sent to him by the Claimants, albeit without any specific representations as to how they should be dealt with in their appeal. I am prepared to assume that the Brockworth decision letter should be treated as if it were also before the Secretary of State when the Bovis appeal was determined. Irrespective of whether or not it was specifically presented to him by the Claimants, both decision letters were signed by the same official. But I note that no submissions were made to the First Defendant about how the Brockworth decision should be treated in the Bovis appeal.
The consistency point that the Claimants seek to argue in relation to the Brockworth decision letter focuses upon the status given by the Secretary of State to the draft Joint Core Strategy as regards each of the two sites. It is common ground between the parties that in order for that matter to be evaluated, it is necessary to look firstly at what the Examiner said in EXAM 146. The Claimants place heavy reliance upon paragraph 4 of that document which contained an overall conclusion that "the thrust of the spatial strategy is sound." It is submitted that the weight to be attached to the strategy should have been similar in both of the decision letters. However, it is necessary to read EXAM 146 as a whole. In paragraph 4 itself it is to be noted that the Examiner encouraged the JCS authorities to give further consideration to some rebalancing of development towards Gloucester and Tewkesbury, on the basis that the draft JCS had proposed to meet a significant part of Gloucester's OAN through urban extensions to Cheltenham which instead might justifiably be located closer to Gloucester's urban edge. So, the Examiner's endorsement of the draft strategy was not unqualified. But more pertinently when we turn to his specific conclusions on the Brockworth site, it is clear that the Examiner accepted that exceptional circumstances had been made out for the release of that site from the Green Belt without qualification. In part, that conclusion took into account the fact that the Green Belt function of the land was compromised by the A417 which severs it from the more extensive area of Green Belt lying beyond.
In the examination of the draft Joint Core Strategy there were no other issues affecting the allocation of the Brockworth site, such as the possible identification of "local green spaces" ("LGS"). By contrast, in relation to the Bovis site, the Examiner distinguished between that part of the allocation which lies within Tewkesbury from that part lying within Cheltenham. In addition, the Examiner was fully aware of the outstanding appeal in relation to the Bovis site (see paragraph 58 of EXAM 146). In paragraph 59, the Examiner said:
"In summary, balancing the harms and the benefits of this site, in my judgment some residential development is justified on the Cheltenham part of the site. Nonetheless, this should not be on those areas that have high landscape and visual sensitivity. With this proviso, I am minded to find that the Cheltenham part of the allocation is sound. Submissions are invited from the JCS authorities only on what capacity is justified on this site in view of my comments." (quotation unchecked)
The question of visual sensitivity and landscape value was a matter which was considered in great detail by the Inspector dealing with the Bovis's section 78 appeal. The other aspect of the Cheltenham part of the Bovis site concerned designation of "local green spaces", where the Examiner concluded that there was a real justification for including a designation of LGS within the Cheltenham allocation. He requested the JCS authorities to consider putting forward areas for designation as LGS for him to consider. That conclusion is entirely consistent with the Inspector's view on Bovis's section 78 appeal that as regards LGS policy, the proposal should be treated as premature in relation to the examination process. That is not a conclusion with which this court could conceivably interfere.
I then turn to the Brockworth Inspector's report in the context of the conclusions reached by the Examiner in EXAM 146. The arguments really centre on paragraph 15.80 of the Inspector's Report. First, the Inspector considered the application of Green Belt policy and concluded that very special circumstances had been demonstrated in accordance with paragraph 88 of the NPPF. He then referred to two points which he regarded as being of particular importance in relation to the proposed housing. The second was that:
"It is the case that the approach of the JCS is based on strategic allocations and associated alterations to the Green Belt and it adheres to the recognition of the planning merits of an urban extension north of Brockworth. Also, the Inspector for the JCS examination has indicated acceptance as to the question of exceptional circumstances. Bearing in mind that the JCS has been prepared so as to be broadly consistent with current national policy, this suggests that considerable weight should be attached to that broad approach and as a consequence the contribution which the application site is expected to make to the strategic planning of the area." (quotation unchecked)
It would appear that in the Brockworth appeal the Inspector had taken into account the conclusion which the Examiner had already expressed in an earlier document (ie. before EXAM 146 was issued) that there were exceptional circumstances to justify the release of the Brockworth site from the Green Belt. That is made clear in the Secretary of State's decision letter. Then in paragraph 5 of his decision the Secretary of State explicitly referred to EXAM 146. He took the view that EXAM 146 did not raise any new matters that would affect his decision and consequently he had not circulated it for comment by parties at the inquiry. That is perfectly understandable in the context of that case because the key point to be gleaned from EXAM 146 in relation to the Brockworth site was exactly the same point as the Inspector in his report had derived from the earlier document issued by the Examiner.
At paragraph 8 of the decision letter the Secretary of State said that the JCS identified the land at Brockworth for housing with a capacity of 1500 units. The allocation was for substantially the same land as was the subject of the planning application before the Secretary of State. At paragraph 19 of his decision letter the Secretary of State said that because the proposal on the Brockworth site was in keeping with the emerging JCS, he...
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