Cheshire East Borough Council v Secretary of State for Communities and Local Government Harlequin (wistaston) Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 23 February 2016 |
| Neutral Citation | [2016] EWHC 694 (Admin) |
| Date | 23 February 2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5573/2015 |
[2016] EWHC 694 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Patterson DBE
CO/5573/2015
Mr A Crean QC and Mr K Garvey (instructed by Sharpe Pritchard) appeared on behalf of the Claimant
Mr R Honey (instructed by Government Legal Department) appeared on behalf of the First Defendant
Mr P Tucker QC and Mr F Humphreys (instructed by Gateley Plc) appeared on behalf of the Second Defendant
Approved)
Introduction
On 22 October 2015 an inspector, Jonathan King, appointed by the Secretary of State for Communities and Local Government ("the defendant"), allowed an appeal by Harlequin (Wistaston) Limited against the failure by the claimant to determine within the prescribed period an application for planning permission for 150 dwellings at Wistaston Green Road, Wistaston, Crewe, Cheshire. This is an application by the claimant under section 288 of the Town and Country Planning Act to challenge that decision. The decision letter was written after a three day public inquiry and a site visit.
Background
The land which was the subject of the planning application was within a Green Gap designated in the 2005 Crewe and Nantwich local plan. Policy NE.4, entitled "Green Gaps", identified three areas on the proposals map in open countryside as Green Gaps. One was called Willaston/Rope Gap, which included the appeal site.
At the public inquiry, the claimant acknowledged that it could not demonstrate five years' deliverable supply of housing land.
The inspector in his decision letter identified the main issues as including:
i. "The effect of the proposed development on:
2. The Green Gap and its objectives;
3. The countryside and the landscape character of the area".
The inspector concluded that, first:
i. "17. The site lies within an area designated in LP policy NE.4 as the Wistaston/Nantwich Green Gap, an area of mostly undeveloped land that lies between the built up areas of Crewe (at Wistaston) to the east and Nantwich to the west. The part of the Gap that includes the site is about 2.5 kilometres in width, very nearly its widest part. Further to the south it reduces to around 900 metres."
Second, that there would be an erosion of the Gap in conflict with the first criteria of NE.4, but that the degree of erosion would not be significant and its purposes would not be materially compromised; see decision letter paragraph 19 (hereafter I will refer to the decision letter as DL and then the number of the paragraph).
Third, that the development would be contrary to the second criteria of policy NE.4, but the adverse effects would be local in their degree of impact and would only be moderate. In view of the very limited contribution that the site makes to the wider landscape, the harm to the landscape would be slight; see DL39.
Fourth, the development could contribute to a cumulative greater impact, leading to "creeping encroachment", but each proposal would have to be considered on its own merits. If permitted, the proposal should not be taken as accepting or encouraging other proposals within the Green Gap; see DL24.
Fifth, the proposal was contrary to policy NE.4.
Sixth, NE.4 was not a relevant policy for the supply of housing and was up to date.
Seventh, the inspector concluded that the development would be sustainable and benefitted from a presumption in favour of development; see DL80.
As a result, the inspector granted planning permission.
The legal framework
This is not controversial. It has been restated recently in the case of Bloor Homes v Secretary of State for Communities and Local Government [2014] EWHC 754 at [19] as follows:
i. "19. The relevant law is not controversial. It comprises seven familiar principles:
(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to 'rehearse every argument relating to each matter in every paragraph' (see the judgment of Forbes J in Seddon Properties v Secretary of State for the Environment [1981] 42 P. & C.R. 26, at p.28).
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the 'principal important controversial issues'. An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 WLR 1953, at p.1964B-G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, 'provided that it does not lapse into Wednesbury irrationality' to give material considerations 'whatever weight [it] thinks fit or no weight at all' (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J, as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74, at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] PTSR 983, at paragraphs 17 to 22).
(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann LJ, as he then was, South Somerset District Council v Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).
(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).
(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill LJ in Fox Strategic Land and Property Ltd v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann LJ in North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P. & C.R. 137, at p.145)."
The issues
The claim has been made on five grounds:
one, that the inspector erred in law in his understanding of what was a "valued landscape";
two, that the inspector misapplied policy NE.4 in respect of alternative sites;
three, that the inspector misapplied policy NE.4 in respect of the impact on the Green Gap separation;
four, that the inspector's approach to the proposal's consistency with policy NE.4 was irrational; and
five, that the inspector misapplied the test under paragraph 14 of the NPPF.
At the hearing, the claimant did not pursue ground 2 and 3. I say nothing further about them and deal with the remaining grounds. I turn, then, to ground 1.
Did the inspector misunderstand the meaning of "valued landscape" within paragraph 109 of the NPPF?
The claimant contends that the inspector conflated the meaning of "valued" and "designated" landscapes in DL27. In so doing, the inspector misinterpreted and misunderstood the term "valued landscape". The claimant relies upon the case of Stroud District Council v Secretary of State for Communities and Local Government [2015] EWHC 488 where Ouseley J concluded that if an inspector had concluded that a landscape designation was the same as valued landscape, he would have fallen into...
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