Cheshire East Borough Council v Secretary of State for Communities and Local Government (First Defendant) Renew Land Developments Ltd (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 16 March 2016 |
| Neutral Citation | [2016] EWHC 571 (Admin) |
| Docket Number | Case No: CO/5040/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 March 2016 |
[2016] EWHC 571 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: CO/5040/2015
and
John Hunter (instructed by Sharpe Pritchard) for the Claimant
Richard Honey (instructed by Government Legal Department) for the First Defendant
Jeremy Cahill QC and James Corbet Burcher (instructed by Irwin Mitchell LLP) for the Second Defendant
Hearing date: 9 th March 2016
Introduction
This is an application brought by Cheshire East Borough Council ("the Claimant") under section 288 of the Town and Country Planning Act 1990 for an order quashing the decision of the First Defendant's Inspector given on 7 th September 2015 allowing the Interested Party's appeal against the Claimant's refusal of outline planning permission for up to 60 dwellings with associated car parking, roads and landscaped open space on land at Kents Green Farm, Kents Green Lane, Haslington, Crewe ("the Site").
The main issue in this application is whether the Inspector's approach to the issue of "sustainable development" within paragraph 14 of the National Policy Planning Framework ("NPPF") was legally flawed. As a subsidiary point, the Defendant and the Interested Party contend that, even if it was, this made no difference to the outcome.
Essential Factual Background
The Interested Party's application for planning permission was refused by the Claimant on 17 th March 2014, on the grounds that it constituted unsustainable development within the open countryside, contrary to two policies within the Crewe and Nantwich Local Plan (constituting the development plan for these purposes) and to principles in the NPFF intended to protect such areas from inappropriate development. On 19 th– 20 th May 2015 the Interested Party's appeal was heard by way of public inquiry, and the Inspector's decision letter was issued on 7 th September 2015.
The main issue in the appeal before the Inspector was whether the Interested Party's proposal would amount to a sustainable form of development in accordance with national and local policy, having particular regard to its location on land allocated as open countryside.
The Claimant conceded that it did not have a five year supply of housing land. The effect of paragraph 49 of the NPPF was that local plan policies, promulgated in 2005, were out-of-date. The essence of the Claimant's objection to the development was that it would harm the rural character of the area.
The Inspector's reasoning process anterior to his addressing the main issue (and which I do not understand to be controversial) was as follows:
(i) the development would not comply with the local plan – this was a relevant consideration, even though the relevant polices were out-of-date.
(ii) the effect of section 38(6) of the Planning and Compulsory Purchase Act 2004 was that permission should be refused unless material considerations were found to outweigh the conflict with the development plan.
(iii) the considerations of the greatest materiality for present purposes comprised those set out in national policy, namely the NPPF.
(iv) the case effectively hinged on the issue of "sustainable development" within the meaning of paragraph 14 of the NPPF.
There was a dispute before the Inspector as to the correct approach to paragraph 14 of the NPPF. The parties before me seek to take forensic points as to exactly how their and their respective opponents' cases were advanced, but in my view that is an arid line of inquiry. It is apparent from the decision letter that the Claimant was contending that "some form of separate assessment of the sustainability of the proposed development is required before deciding whether paragraph 14 is engaged", whereas the Interested Party was contending that there was no requirement to undertake any such form of free-standing assessment, and that paragraph 14 "itself provides a sufficient basis to decide whether proposed development would be sustainable". The Inspector noted that the Interested Party's submission had the support of the First Defendant.
The Inspector favoured the Interested Party's submissions on this issue. His core reasoning is as follows:
"No prior or parallel assessment is needed, but the sustainability of the proposed development is to be judged by a positively weighted balancing of the benefits and adverse impacts against the policies of the NPPF as a whole. [DL20]
..
For the reasons set out above, I consider that apart from some very limited harm to rural character, the environmental dimension of sustainable development would largely be addressed. When assessed against the policies of the NPPF as a whole, the adverse impacts of the proposed development would not significantly and demonstrably outweigh the benefits. The proposal must therefore be regarded as sustainable development, to which the presumption in favour set by the NPPF would apply. [DL40]
…
For the reasons set out above, I conclude that the proposal would be contrary in principle to LP Polices NE.2 and RES.5, but that the conflict would be outweighed by other material considerations. These are principally the contribution that the proposal would make to meeting unmet need for market and affordable housing that arises from the borough's lack of an adequate housing supply, and the very limited harm that it would cause, thereby benefitting from the presumption in favour of sustainable development set out by the NPPF. [DL56]"
En route to the second and third of these conclusions, the Inspector had examined the planning merits of the case within the framework of the three "dimensions" of the concept of sustainable development. He concluded that the economic and social dimensions would clearly be met, and that the harm to the environmental dimension was not considerable (e.g. "some loss of rural character"; "the environmental dimension would largely be addressed"). There is no challenge in these proceedings to these exercises and expressions of planning judgment.
The Legal Framework
The concept of "sustainable development" is the bedrock of the NPPF. It is a concept very familiar to those practising and working in this field. I think that it must be obvious from a cursory examination of the concept that it is seeking to secure the attainment of a proper balance between different factors pulling in different directions. In relation to the open countryside, it must also be obvious that the factors potentially telling against development include the ecological, aesthetic and environmental, whereas – in an age of increasing demand for affordable housing – there may be a range of economic, demographic and social factors telling the other way. Thus, or so the framers of the NPPF have conceptualised the matter, development which balances these factors in the right way is "sustainable development".
It is unnecessary for present purposes to cite extensively from the NPPF. Although paragraphs 6, 7 and 8 are also relevant, the key provision is paragraph 14, which provides:
"At the heart of the NPPF is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
…
For decision-taking this means:
• approving development proposals that accord with the development plan without delay; and
• where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
— any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the polices in this Framework taken as a whole; or
— specific policies in this Framework indicate development should be restricted."
In the text of paragraph 14, there is footnote 10 after the words, "for decision-taking this means" – the footnote states, "unless material considerations indicate otherwise". After the words, "… should be restricted", there is footnote 9 which provides a number of examples, including policies relating to Green Belt.
In their skeleton arguments the parties have taken time to remind me of familiar principles of planning law applicable to this section 288 application. I naturally take these into account, but generally refrain from setting them out. However, this abstinence should yield to these three exceptions. First, that the Court should deploy a straightforward and down-to-earth reading of the Inspector's decision letter "without excessive legalism" (see Clarke Homes v SSE [1993] 66 P&CR 263). Secondly, that the proper interpretation of the NPPF is an objective question of law (see Tesco Stores Ltd v Dundee City Council [2012] UKSC 13). Thirdly, that an application of this type should be refused if, having found legal error by the Inspector, I were satisfied that there is no real possibility that the Inspector's decision might otherwise have been different (see Tesco Stores v Dundee CC [2012] UKSC 13).
The Applicant's Case
Mr John Hunter's core contention on behalf of the Claimant was that Mr Jeremy Cahill QC for the Interested Party's beguiling submissions drew the Inspector into error. Mr Hunter's submission was that paragraph 14 of the NPPF only applies to development which is assessed to be sustainable, and to allow paragraph 14 to define that question is illogical, because it is circular, a misunderstanding of what the policy says, and accordingly an error of law.
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