CEG Land Promotions II Ltd v Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 18 July 2018 |
| Neutral Citation | [2018] EWHC 1799 (Admin) |
| Docket Number | Case No: CO/5381/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 July 2018 |
[2018] EWHC 1799 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/5381/2017
and
Mr James Strachan QC AND Mr Ned Helme (instructed by CLYDE AND CO) for the Claimant
Mr Tim Buley (instructed by GOVERNMENT LEGAL DEPARTMENT) for the Defendant
Aylesbury Vale District Council did not appear
Hearing dates: 3 & 4 JULY 2018
Judgment Approved
The Claimant sought planning permission from Aylesbury Vale District Council for up to 175 dwellings and associated development on land adjoining Wendover in Buckinghamshire. The application was not determined in the allotted time; the Claimant appealed to the Secretary of State. Following an Inquiry, the Inspector dismissed the appeal in a Decision Letter, DL, dated 9 October 2017.
The Inspector concluded that the District Council did not have a five-year supply of housing land. Accordingly, she concluded that [14] of the National Planning Policy Framework, the Framework, applied; permission therefore should be granted unless the adverse impacts significantly and demonstrably outweighed the benefits, “when assessed against the policies in the Framework taken as a whole”. In planning jargon, this “tilted the balance” in favour of granting permission: the “tilted balance” was thus in operation. She accepted the Claimant's argument that [109] of the Framework, a policy which deals with the protection of landscape, to put it very generally for the moment, was not a specific policy which indicated that development should be restricted. Had she concluded that it was such a policy, the “tilted balance” would have been disapplied.
However, she concluded that there were indeed adverse impacts of the development which would significantly and demonstrably outweigh the benefits. She summarised these in DL [146]:
“146. In this case I have concluded that there would be moderate to substantial harm to landscape character, limited harm to the setting of the AONB, moderate to substantial harm to settlement character and the rural setting of Wendover. There would also be material adverse visual effects and the irrevocable loss of part of a valued landscape. In these important environmental respects the proposal would be contrary to development plan policies which are entirely consistent with the Framework. Due to the overarching nature of the policies and the degree of contravention I conclude that the proposal would be contrary to the development plan as a whole. In combination this accumulation of harms would be significant in terms of their scale and severity and as such they attract very substantial weight.”
Mr Strachan QC, who also appeared for the Claimant at the Inquiry, challenged the decision on one ground for which he had received permission from Holgate J, on oral renewal, and sought permission to amend his grounds to challenge it on a new but related basis. Both concerned the Inspector's approach to the landscape issues. He had permission to contend that she had misinterpreted [109] of the Framework, because she had failed to identify any features of the development site itself which could make it “valued landscape” for the purposes of [109]; she had misinterpreted a number of High Court judgments, including one of mine, which Mr Strachan submitted, properly understood, required the development site itself to have such characteristics as would make it a “valued landscape”; it was inadequate if the development site itself lacked such characteristics and was but part of a wider area which had those characteristics. This was Ground 1.
The ground which he sought to add was the logically prior issue of whether the policy in relation to “valued landscape” in [109] of the Framework, permitted the same harm to be double counted, once under the [109] evaluation and once under the Development Plan evaluation. He submitted that it did not, but that the Inspector had irrationally adopted such an approach. This was Ground 1A. He accepted that this latter point had not been argued before the Inspector, but he said that this was because the route whereby she had reached her conclusion, and which raised this issue of law, had not been anticipated. Mr Strachan did not raise this as an issue of fairness.
It was convenient to hear all the argument however on both issues, and I did so. I now grant permission to the Claimant to amend their grounds to add Ground 1A, and I grant permission to argue it. It does, on analysis, raise a point of law on the interpretation of the DL, notably of DL [76], which depends in part on the interpretation of the Framework. There are no other issues, such as an analysis of other Plan policies, for reasons to which I come, upon which an Inspector's appraisal would be necessary, if this point were to be raised. There are no factual or evidential issues, and the point, if raised, could not have called for further evidence. There is no prejudice to the Defendant or the Interested Party. This does not give rise to any of the issues which I dealt with in [23] of Humphris v SSCLG [2012] EWHC 1237 (Admin).
Mr Strachan's submission that he should be excused for not having raised the issue before the Inspector because he had not anticipated the sequence of arguments which might raise it, largely because of his unexpected success in persuading the Inspector that [109] of the Framework did not contain a specific policy restrictive of development, is unnecessary. His contention, at root, is that the Inspector adopted an approach which is irrational. It should not be necessary to forewarn an Inspector against irrationality, in order to be able to challenge a decision which is irrational, albeit that forewarned an Inspector might have avoided it by coming to a different or differently reasoned conclusion. Mr Buley, for the Secretary of State, had objected to the amendment, in particular because it might have raised issues which required further consideration by the Inspector but he did not in the end press the point, particularly in the light of the way the argument developed. But, in judging whether he is right as to the nature of the Inspector's approach, I shall bear in mind that it does not appear to have been foreshadowed by the arguments of either side, or raised by the Inspector for their comment.
The Decision Letter and the Inspector's approach to landscape issues
The most relevant development plan policies, as described by the Inspector, were those in the Aylesbury Vale District Local Plan, adopted in 2004. She identified three policies of relevance to landscape issues. The first was GP.35, a general policy in the section headed “Materials and Design Details.” It stated:
“GP.35 The design of new development proposals should respect and complement:
(a) the physical characteristics of the site and the surroundings;
(b) the building tradition, ordering, form and materials of the locality;
(c) the historic scale and context of the setting;
(d) the natural qualities and features of the area; and
(e) the effect on important public views and skylines.”
The Inspector described this in DL [26] as “a general design policy applicable to all development and, as such, the Appellants agree that it is up-to-date and should be accorded full weight.” She also referred, second, to a policy relating to rights of way, and continued in DL [27]:
“Finally RA.2 confirms that, other than for specific proposals and land allocations, new development in the countryside should avoid reducing open land which contributes to the form and character of rural settlements, having regard to the need to maintain the individual identities of settlements. Again the judgments required in relation to this policy are applicable to all prospective developments and the Appellants accept that this policy should be accorded full weight. All of these three policies are consistent with the core planning principles in the Framework which, amongst other things, seek to ensure that the intrinsic character and beauty of the open countryside is protected.”
This policy is in the section of the Local Plan entitled “Coalescence of Settlements.”
She did not refer to the policies dealing with designations providing special protection for parts of the extensive countryside within the District: Chilterns AONB, Areas of Attractive Landscape and Local Landscape Areas. None of those designations covered the appeal site.
I should also mention former policy RA.1, which stated that the Council, in dealing with proposals for development in rural areas, would give priority to the need to protect the countryside for its own sake. Development in the countryside would not be permitted unless it was necessary for certain appropriate rural activities. This policy was no longer part of the development plan; the District Council stated that it was not saved because sufficient guidance was provided by PPS 7. Of course, this in its turn has been superseded by the Framework. The Inspector did not and had no need to refer to it. But I refer to it because I had to consider the relationship between the coverage of the Local Plan policies and any gap which might be filled by the policies of the Framework in [109], for the purposes of allowing Ground 1A to be argued, and in deciding it.
The first main issue the Inspector dealt with was entitled “Effect upon the character and appearance of the landscape.” She described the location of the site and, in DL[33], stated that it lay within the Chilterns National Character Area, and at District level, within the Southern Vale Landscape Character Area. She summarised the...
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