Cheshire East Borough Council v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 25 February 2015 |
| Neutral Citation | [2015] EWHC 410 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 February 2015 |
| Docket Number | Case No: CO/4217/2014 |
[2015] EWHC 410 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Lang DBE
Case No: CO/4217/2014
Anthony Crean QC (instructed by Sharpe Pritchard) for the Claimant
Richard Honey (instructed by The Treasury Solicitor) for the First Defendant
Christopher Young (instructed by Gateley LLP) for the Second Defendant
Hearing date: 12 February 2015
Introduction
In this claim under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990"), Cheshire East Borough Council ("the Council") applies to quash the decision of the Secretary of State for Communities and Local Government, dated 1 August 2014, made on his behalf by an Inspector (Mr Alan Boyland), in which he allowed an appeal by Richborough Estates ("the developer"), and granted outline planning permission for up to 146 dwellings on land north of Moorfields, Willaston, Cheshire.
Willaston is a village between the towns of Nantwich and Crewe. For many years, the Council's local planning policies have sought to maintain the separate identities of Nantwich, Crewe and the settlements between them and to preserve areas of open countryside from encroachment. The proposed development is contrary to those policies and is controversial among local residents. On the other hand, the Defendant concluded that the proposed dwellings would make an important contribution towards housing requirements in a district where there was not a demonstrable a 5 year supply of deliverable housing site, as required under the NPPF.
On 2 April 2014, after the appeal was made, the Council's Strategic Planning Board considered the proposal and resolved it was minded to refuse outline planning permission for the proposed development for the following reasons:
a) It was unsustainable development located within open countryside, and it would harm interests of acknowledged importance, contrary to Policies NE.2 (Open Countryside) and RES.5 (Housing in the Open Countryside) of the Crewe and Nantwich Replacement Local Plan 2011, Policy PG5 of the emerging Cheshire East Local Plan Strategy – Submission Version, and the principles of the National Planning Policy Framework (NPPF) which seek to ensure that development is directed to the right location and open countryside is protected from inappropriate development and maintained for future generations enjoyment and use.
b) It would result in loss of the best and most versatile agricultural land contrary to NE.12 (Agricultural Land Quality) of the Crewe and Nantwich Replacement Local Plan 2011 and the NPPF, and was unsustainable development.
c) It would cause a significant erosion of the Green Gap between the built-up areas of Willaston and Rope, contrary to Policy NE.4 (Green Gaps) of the Crewe and Nantwich Replacement Local Plan 2011 and the NPPF.
d) The Council could demonstrate a 5 year supply of housing land in accordance with the NPPF and consequently there were no material circumstances to indicate that permission should be granted contrary to the development plan.
The Inspector conducted site visits and held an Inquiry. His conclusions were as follows:
a) There was not a demonstrable 5 year supply of deliverable housing sites.
b) In the light of the finding at (a), the weight of policies relevant to the supply of housing was reduced. This applied to policies NE.2, NE.4 and RES.5 in so far as their extent derived from settlement boundaries that reflect out of date housing requirements, though policy NE.4 had a wider purpose in maintaining gaps between settlements.
c) The emerging Local Plan was subject to significant objections material to this issue and had yet to be examined and so only limited weight should be attached to it.
d) Overall, the proposed scheme represented sustainable development.
The Claimant challenges the decision on the following grounds:
a) Sustainable development. The Inspector failed to understand or correctly apply the requirement of sustainable development in paragraph 14 of the NPPF, and to apply the conclusions on Green Wedges by Lindblom J. in Bloor Homes East Midlands v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin).
b) Housing supply. The Inspector irrationally and/or wrongly concluded that 1350 dwellings per annum represented the full objectively assessed need for housing, and failed to have regard to other decisions made by the Defendant on this issue, and to give adequate reasons for departing from them.
c) Policy NE.4 Green Gaps. The Inspector erred in his approach to the NPPF and section 38(6) of the Planning and Compulsory Purchase Act 2004, in treating Policy NE.4 Green Gaps as a policy for the supply of housing under paragraph 49 of the NPPF, and thus out-of-date.
The Defendants' response was, in summary:
a) Sustainability. The Inspector was entitled to assess sustainability after he reached his conclusions on the weight to be attached to the development plan and the housing supply issue, and since these issues were relevant to the overall question of sustainability, it was appropriate for him to do so. Sustainability was a question of planning judgment on the facts of the individual case. Lindblom J's conclusions in Bloor did not lay down any general principle in respect of Green Wedge policies.
b) Housing supply. The Inspector made a legitimate exercise of planning judgment on the evidence before him, adopting a benchmark figure from the Council's own emerging Local Plan. The previous inspectors' decisions did not establish a clear consensus on the housing requirement figure and the RSS figure was a "constrained" figure which could no longer be relied upon following Hunston v Secretary of State for Communities and Local Government [2013] EWCA Civ 1510. The Inspector's reasons for his conclusions on this issue were made clear to the Claimant in the decision letter.
c) Policy NE.4 Green Gaps. The Inspector correctly decided that it was a policy for the supply of housing under paragraph 49 of the NPPF and so should be treated as out-of-date. Nonetheless he considered the extent to which the proposed development breached the Green Gap policy and concluded that the adverse effects would not be significant.
Legal framework
Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with and in consequence, the interests of the applicant have been substantially prejudiced.
The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1978) 42 P &CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision.
The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) of the Planning and Compulsory Purchase Act 2004, read together with section 70(2) TCPA 1990. The NPPF is a material consideration for these purposes.
In Tesco Stores Limited v Dundee City Council [2012] UKSC 13, Lord Reed (with whose judgment Lord Brown, Lord Hope, Lord Kerr and Lord Dyson agreed) said, at [17]:
"It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 2319, 225–226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act. The effect of the predecessor of section 25, namely section 18Aof the Town and Country (Planning) Scotland Act 1972 (as inserted by section 58 of the Planning and Compensation Act 1991), was considered by the House of Lords in the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, [1997] 1 WLR 1447. It is sufficient for present purposes to cite a passage from the speech of Lord Clyde, with whom the other members of the House expressed their agreement. At p.44, 1459, his lordship observed:
"In the practical application of sec. 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan...
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