Cheshire East Borough Council v The Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 20 March 2013 |
| Neutral Citation | [2013] EWHC 892 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 March 2013 |
| Docket Number | Case No: CO/102732/2012 |
[2013] EWHC 892 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRTAIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
B4 6DS
Mr Justice Hickinbottom
Case No: CO/102732/2012
Anthony Crean QC (instructed by Messrs Shoesmiths) for the Claimant
James Maurici (instructed by the Treasury Solicitor) for the First Defendant
Paul Tucker QC (instructed by Messrs Aaron & Partners LLP) for the Second and Third Defendants
Introduction
Until his death in November 2012, Norman Dale and his wife Mildred owned Loachwood Farm, Congleton, which they had farmed for many years. The farm was jointly owned and, since Mr Dale's death, Mrs Dale has owned the entire freehold.
On 21 February 2011, they submitted an application to their local planning authority, the Claimant Council ("the Council"), for planning permission for up to two hundred dwellings, highways and associated works on part of their farmland. Gladman Developments Limited has an Option and Promotion Agreement with them to purchase the site, exercisable upon the grant of planning permission.
On 28 July 2011, the Council refused planning permission. The Dales appealed under section 78 of the Town and Country Planning Act 1990 ("the 1990 Act"), and the First Defendant Secretary of State appointed an inspector Andrew Jeyes ("the Inspector") to conduct and determine the appeal. He held a public inquiry over five days between 13 December 2011 and 10 February 2012. On 18 August 2012, he issued a decision letter, allowing the appeal and granting outline planning permission for the proposed development.
On 28 September 2012, the Council commenced this claim under section 288 of the 1990 Act, to quash that decision.
The claim has not had a conventional course. On 15 October 2012, Mr and Mrs Dale issued an application to strike out the claim as having no reasonable prospect of success. That prompted the Council, on 12 March 2013, to do two things. First, it abandoned its claim as original cast and, in a skeleton argument, reformulated its claim on different, if somewhat overlapping, grounds. Second, it issued its own cross-application for summary judgment. Those cross-applications were listed to be heard today, 20 March 2013, for half a day. Last week, having seen the Claimant's applications and the skeleton arguments, I directed there be a hearing for directions on Thursday last, 14 March. At that hearing, I ordered that the applications for amendment, strike out and summary judgment be set down for a hearing of one day, today, on a rolled-up basis, i.e. with the substantive hearing of the section 288 application, if necessary, being dealt with at the same hearing as those applications; so that this claim would be ultimately determined, one way or another, at a single hearing. I thank the parties (and, if I may, particular Counsel) for their cooperation and industry, which have ensured that this hearing has been an effective one.
The parties have made submissions on the principles on which amendments to a section 288 claim should be allowed, and the circumstances in which such a claim should be struck out or alternatively allowed on a summary basis. However, all are agreed that the merits of the claims, as the Claimant now wishes to pursue them, are at the heart of each of these applications. I shall consequently start with those merits, and leave to one side for the moment the various procedural issues.
The Grounds of Challenege
As originally put, the Claimant's claim involved a widespread attack on the Inspector's decision for failing to recognise an alleged sea-change in the proper approach to planning decisions brought about by the Localism Act 2011, which, it was said, required the local planning authority to be "in the driving seat of spatial planning for its area, including housing land provisions." However, that contention, in more or less identical terms, was considered recently in this court by Males J in Tewkesbury Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 286 (Admin), a judgment which refutes it in comprehensive terms. It is no longer pursued by the Claimant in this claim, and I need say no more about it other than to acknowledge the wisdom of its abandonment.
The Claimant now wishes to pursue, and to pursue only, two far more discrete grounds of challenge to the inspector's decision, as follows.
First, on 21 February 2011, the Council adopted and published a document entitled "Interim Planning Policy on the Release of Housing Land" ("the IPP"), which was adopted pending the formulation and adoption of a Local Development Framework Core Strategy. The Claimant contends that the Inspector misunderstood the Council's case with regard to the IPP, which was that, within a relatively short period of time, the IPP (which had been the subject of public consultation, sustainability appraisal and habitat regulations assessment, and had been adopted by the Council) would make up the shortfall in deficit in housing land supply; with the result that it was irrational for the Inspector to have given the IPP only "limited weight", as he did; or, alternatively, the Inspector failed adequately to explain why he had given the IPP only that degree of weight.
Second, it is submitted on behalf of the Council that the Inspector misunderstood, and hence misapplied, the relevant national guidance with regard to a local planning authority's obligation to demonstrate periods of housing land supply.
The Relevant Legal Background
The relevant general legal background is uncontroversial. In relation to planning determinations generally, whether by a local planning authority or by an inspector on behalf of the Secretary of State on appeal, the following propositions relevant to this claim are well established:
(i) In determining a planning application, the decision-maker must take into account all material considerations (section 70 of the 1990 Act). Policy guidance by the Secretary of State is a material consideration, albeit one that is the subject of particular provision to which I shall come shortly.
(ii) Whilst he must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for the decision-maker, who is entitled to give a material consideration whatever weight (if any) he considers appropriate, subject only to his decision not being not being irrational, in the sense of Wednesbury unreasonable ( Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759 at page 780 f-g). The courts have consequently left such decisions to be taken by the appointed decision-maker on the basis of guidance promulgated by the Secretary of State (see, e.g., R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 at [60] per Lord Nolan, [129] per Lord Hoffmann and [159] per Lord Clyde. As a result, a challenge to an inspector's determination on the basis that it is irrational has been said to be "a particularly daunting challenge" ( R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin) at [8] per Sullivan J (as he then was)).
(iii) A decision-maker must interpret national policy properly. The true interpretation of such policy is an objective matter of law for the court ( Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 especially at [18] per Lord Reed). Where a decision-maker has misunderstood a policy (including a plan), that may found a challenge to his decision if that misunderstanding is material, i.e. if his decision would or might have been different if he had properly understood matters ( Somerset District Council v Secretary of State for the Environment [1993] 11 PLR 80 at page 82H per Hoffmann LJ).
(iv) An inspector's decision cannot be subjected to the sort of exegesis that might be appropriate for a statute or a deed or a contract (the Dundee case at [19] per Lord Reed). It must be read as a whole and in a practical and common sense way; in the knowledge that it is addressed to the parties, who will be well aware of the issues and the arguments deployed at the inspector's inquiry, so that it is not necessary to rehearse every argument, but only the principal controversial issues. Reasons for a decision must be sufficient to enable a party to understand how any such issue of fact or law has been resolved, but no more is lawfully required. In any event, a reasons challenge will only succeed if the failure to provide an adequately reasoned decision results in substantial prejudice to an aggrieved party (see Seddon Properties Ltd v Secretary of State for the Environment [1978] 42 P&CR 26 at page 28 per Forbes J, the South Somerset case at page 83 per Hoffmann LJ, and South Bucks District Council v Porter (No 2) [2004] UKHL 33 at [36] per Lord Brown).
The Statutory Framework
Again, the relevant law is uncontentious. It was helpfully set out at some length in the judgment of Males J in the Tewkesbury case. For the purposes of this claim, I can be somewhat shorter, but I gratefully acknowledge my debt to Males J for setting out the relevant provisions in that judgment with clarity and completeness.
Section 70(2) of the 1990 Act as amended by section 143 of the Localism Act 2010 provides that, in...
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