Cheshire East Council v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 28 October 2014 |
| Neutral Citation | [2014] EWHC 3536 (Admin) |
| Date | 28 October 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2346/2014 |
[2014] EWHC 3536 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West, Manchester
M60 9DJ
Mr Justice Lewis
Case No: CO/2346/2014
Mr Anthony Crean QC and Ms Alison Ogley (instructed by Sharpe Pritchard LLP) for the Claimant
Mr Stephen Whale (instructed by Treasury Solicitor) for the 1 st Defendant
Mr Roger Lancaster (instructed by Chadwick Lawrence LLP) for the 2nd Defendant
Hearing date: 10 th October 2014
INTRODUCTION
This is an application for an order pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision of 11 April 2014 of an inspector appointed by the Secretary of State for Communities and Local Government. By that decision, the inspector allowed an appeal by the 2 nd Defendant, Rowland Homes Limited, against the refusal of planning permission by the claimant, Cheshire East Council, and granted planning permission for 94 dwellings at Elworth Hall Farm, Dean Close, Sandbach.
In brief, the claimant contends firstly that the inspector failed lawfully to assess whether the claimant had a five-year supply of land for housing. Secondly, the claimant contends that the inspector failed lawfully to apply the presumption in favour of sustainable development contained in paragraphs 7 and 14 of the National Planning Policy Framework ("the Framework").
Thirdly, the claimant, in its skeleton argument, seeks permission to amend the grounds to contend that the inspector failed to comply with the duty imposed by regulation 9(5) of the Conservation of Habitats and Species Regulations 2010 ("the Regulations") to have regard to the provisions of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive"). In particular, the claimant seeks to contend that the inspector failed to have to regard to the obligation imposed on the United Kingdom by Article 12 to establish a system of strict protection of certain species specified in the Annex to the Habitats Directive (referred to as European Protected Species) and to determine whether the conditions for a derogation specified in Article 16 of the Habitats Directive were satisfied.
THE PLANNING FRAMEWORK
Planning permission is required for development including the carrying on of building or other works or the making of a material change of use of land: see sections 55 and 57 of the 1990 Act. In considering an application for planning permission, the planning authority must have regard to the development plan and any other material considerations: see section 70 of the 1990 Act. Furthermore, planning applications must be determined in accordance with the development plan unless material considerations indicate otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). Where a planning authority refuses planning permission, the applicant may appeal to the Secretary of State pursuant to section 78 of the 1990 Act. An inspector may be appointed to determine the appeal (or to report to the Secretary of State for him to determine the appeal).
The policies contained in the Framework are material planning considerations. The relevant provisions of the Framework, for the purposes of the present application, are as follows. First, paragraph 14 of the Framework provides that there is a presumption in favour of sustainable development. In the case of decisions on applications for planning permission, that will include:
• "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 policies in this Framework taken as a whole; or
– Specific policies in this Framework indicate development should be restricted."
Paragraph 17 of the Framework sets out 12 core planning principles including a principle that local planning authorities should:
"Proactively drive and support sustainable economic development to deliver the homes, business and industrial units, infrastructure and thriving local places that the country needs. Every effort should be made objectively to identify and then meet the housing, business and other development needs of an area, and respond positively to wider opportunities for growth. Plans should take account of market signals, such as land prices and housing affordability, and set out a clear strategy for allocating sufficient land which is suitable for development in their area, taking account of the needs of the residential and business communities."
The Framework then deals with differing aspects of delivering sustainable development. One aspect of that is identified as delivering a wide choice of high quality homes. Paragraph 47 of the Framework provides, so far as material to this application, that:
"To boost significantly the supply of housing, local planning authorities should:
…..
identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;"
Paragraph 49 of the Framework provides that:
"Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites."
Finally, Annex 2 to the Framework provides a glossary of terms used. It gives as the meaning of economic development "Development, including those within the B Use Classes, public and community uses and main town centre uses (but excluding housing development)".
THE FACTUAL BACKGROUND
The second defendant applied for planning permission originally for 96 dwellings on 10 hectares of open space and recreation land at Elworth Hall Farm, Dean Close, Sandbach in Cheshire. The application was refined during the course of consideration by the claimant and again during the inquiry into the appeal and the number of dwellings for which planning permission was sought was ultimately reduced to 94. The second defendant provided, amongst other documents, an ecology report dated March 2011. It dealt with two European Protected Species. In relation to bats, the report noted that no formal survey had been undertaken but that a survey would be necessary if works were not commenced before May 2011. In relation to great crested newts, the report again noted that no survey had been undertaken and recommended that no survey was necessary.
The claimant consulted Natural England who responded by letter dated 6 August 2012 in the following terms:
"Thank you for your consultation dated and received by Natural England on 17 July 2012.
The application form for this proposal indicates in section 13 that " there is reasonable likelihood of: protected and priority species being affected adversely or conserved and enhanced within the application site, or on land adjacent to or near the application site".
We are unable to access any survey information in support of this proposal. We would ask the authority to require the applicant to supply further information about the biodiversity and geological conservation issues and to then re-consult Natural England once that information is available."
An ecologist engaged by the second defendant expressed the view in a letter dated 18 December 2012 that the potential for great crested newts being present in a particular pond was not high. No further surveys of great crested newts or bats was undertaken. Natural England was not reconsulted on the proposed development.
A lengthy and detailed report was prepared by officers on the application for planning permission for the proposed development. The report did consider ecology, amongst other issues. The relevant part of the report summarises the requirements of Article 12 and 16 of the Habitats Directive and the obligation imposed by the Regulations on the local planning authority to have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of their functions. It noted that a European Protected Species had been recorded on site and was likely to be adversely affected by the development. It quoted from the letter of 18 December 2012 and noted the comments from the claimant's own ecologist that although only a cursory inspection had been carried out, the pond appeared to be a garden pond which was unlikely to offer a significant habitat for newts and, in the view of the Council's ecologist, a more detailed survey was not necessary. The report does not record the view of the planning officers on this matter. The report goes on to state that:
"Evidence of significant activity by other protected species has been recorded on site. Whilst the core of activity including the habitat will be retained the implementation of the proposed...
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