City & Country Bramshill Ltd v Secretary of State for Housing, Communities and Local Government

JurisdictionEngland & Wales
JudgeLord Justice Phillips,Lord Justice Arnold
Judgment Date09 March 2021
Neutral Citation[2021] EWCA Civ 320
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C1/2020/0160
Date09 March 2021
Between:
City & Country Bramshill Limited
Appellant
and
(1) Secretary of State for Housing, Communities and Local Government

and

(2) Hart District Council

and

(3) Historic England

and

(4) The National Trust for Places of Historic Interest or Natural Beauty
Respondents

[2021] EWCA Civ 320

Before:

Sir Keith Lindblom, SENIOR PRESIDENT OF TRIBUNALS

Lord Justice Phillips

and

Lord Justice Arnold

Case No: C1/2020/0160

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(PLANNING COURT)

THE HONOURABLE MR JUSTICE WAKSMAN

[2019] EWHC 3437 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

James Strachan Q.C. and Ned Helme (instructed by Pinsent Masons LLP) for the Appellant

Guy Williams and Alistair Mills (instructed by the Government Legal Department) for the First Respondent

Ben Du Feu (instructed by Historic England Governance and Legal) for the Third Respondent

Melissa Murphy (instructed by Sharpe Pritchard LLP) for the Fourth Respondent

Hearing dates: 1 and 2 December 2020

Judgment Approved by the court for handing down

The Senior President of Tribunals:

Introduction

1

This appeal raises questions on the interpretation and application of policies in the National Planning Policy Framework (“NPPF”) against the development of “isolated homes in the countryside” and on the assessment of harm and benefit to “heritage assets”.

2

The appellant, City & Country Bramshill Ltd., appeals against the order of Waksman J., dated 20 December 2019, partly allowing and partly dismissing applications and appeals under sections 288 and 289 of the Town and Country Planning Act 1990 (“the 1990 Act”) and section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”), which challenged the decisions of an inspector appointed by the first respondent, the Secretary of State for Housing, Communities and Local Government, on 33 statutory appeals, under sections 78 and 174 of the 1990 Act, against refusals of planning permission and enforcement notices issued by the second respondent, Hart District Council, relating to development at Bramshill Park in Hampshire. The third and fourth respondents, Historic England and the National Trust, were objectors.

3

The site, which extends to about 106 hectares, lies between the villages of Hazeley and Eversley. It was previously used as a national and international police training college. On it stands a grade I listed Jacobean mansion and various other buildings. It also contains a grade I registered park and garden. The proposed development included the conversion of the mansion to 16 apartments and the adjoining stable block to five (appeal 1), or its conversion to a single dwelling (appeal 2), or to class B1 office space (appeal 3); the construction of 235 houses in place of some of the existing buildings (appeal 4), 14 more to the south-west (appeal 5), and nine to the north of an existing lake (appeal 6); the use of 51 residential units – once occupied by staff employed at the training college – as separate dwellings (appeal 7), retaining those against which the council had taken enforcement action alleging a material change of use without planning permission (appeals 8 to 33).

4

The inspector held a long inquiry into the appeals, which ended in February 2018. In her decision letter, dated 31 January 2019, she allowed appeals 2 and 3, granting planning permission for those proposals. She also allowed appeals 15 and 17 to 33, quashing the enforcement notices in those appeals. She dismissed appeals 1, 4 to 14 and 16. In a separate decision letter dated 14 March 2019 she dismissed City & Country Bramshill's application for costs against the council. City & Country Bramshill challenged her decisions on appeals 4 to 14 and 16, and on the application for costs. Waksman J. upheld the challenges to the decisions on appeals 7 to 14 and 16. He rejected those to the decisions on appeals 4 to 6 and on costs. The appeal before us is against that part of his order. Permission to appeal was granted by Lewison L.J. on 28 February 2020.

The issues in the appeal

5

The grounds of appeal raise four principal issues: first, whether the inspector erred in law in her interpretation and application of the policy against “isolated homes in the countryside” in paragraph 79 of the version of the NPPF published in July 2018 (ground 1); second, whether she erred in her approach to “sustainability” (ground 4); third, whether, in performing the duty in section 66 of the Listed Buildings Act and applying the corresponding policies in the NPPF, she failed to comply with a “principle” identified by this court in R. (on the application of Palmer) v Herefordshire Council [2016] EWCA Civ 1061, [2017] 1 W.L.R. 411 (ground 2); and fourth, whether she erred in her approach to applying development plan policies for the protection of the historic environment, in particular policies CON11, CON12, CON17 and CON18 of the adopted local plan for Hart district (ground 3). It is also contended that the decision on the application for costs was unlawful.

The inspector's “Overall Conclusions” on appeals 4, 5 and 6

6

The inspector's decision letter runs to 433 paragraphs. Her “Overall Conclusions” on appeals 4, 5 and 6 were these (in paragraph 417):

“417. Appeals 4, 5 and 6 would not provide appropriate sites for development being in an unsustainable location and resulting in isolated housing in the countryside. They would be harmful to the character and appearance of the area and would not preserve the special qualities of the listed buildings, their settings or the [registered park and garden (“RPG”)]. These matters are not outweighed by public benefits. They would not be in accord with [local plan] policies GEN1, GEN3, GEN4, T14, CON12, CON17 and national planning policy.”

The policy in paragraph 79 of the NPPF

7

Under the heading “Identifying land for homes”, paragraph 72 of the July 2018 version of the NPPF stated:

“72. The supply of large numbers of new homes can often be best achieved through planning for larger scale development, such as new settlements or significant extensions to existing villages and towns, provided they are well located and designed, and supported by the necessary infrastructure and facilities. Working with the support of their communities, and with other authorities if appropriate, strategic policy-making authorities should identify suitable locations for such development where this can help to meet identified needs in a sustainable way. … .”

8

In a passage headed “Rural housing”, paragraphs 78 and 79 stated:

“78. To promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. Planning policies should identify opportunities for villages to grow and thrive, especially where this will support local services. Where there are groups of smaller settlements, development in one village may support services in a village nearby.

79. Planning policies and decisions should avoid the development of isolated homes in the countryside unless one or more of the following circumstances apply:

a) there is an essential need for a rural worker … to live permanently at or near their place of work in the countryside;

b) the development would represent the optimal viable use of a heritage asset or would be appropriate enabling development to secure the future use of heritage assets;

c) the development would re-use redundant or disused buildings and enhance its immediate setting;

d) the development would involve the subdivision of an existing residential dwelling; or

e) the design is of exceptional quality …”.

Those two paragraphs re-appeared in the version of the NPPF published in February 2019.

9

The previous policy, in paragraph 55 of the original version of the NPPF published in March 2012, was in slightly different terms. It stated:

“55. To promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. For example, where there are groups of smaller settlements, development in one village may support services in a village nearby. Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as: …”.

10

The interpretation of the policy in paragraph 55 of the original version of the NPPF was considered by this court in Braintree District Council v Secretary of State for Communities and Local Government [2018] EWCA Civ 610, [2018] 2 P. & C.R. 9. In that case I said (in paragraphs 29 to 32):

“29. … [Under] this policy, the concept of concentrating additional housing within settlements is seen as generally more likely to be consistent with the promotion of “sustainable development in rural areas” than building isolated dwellings elsewhere in the countryside. In short, settlements are the preferred location for new housing development in rural areas. That, in effect, is what the policy says.

31. In my view, in its particular context in paragraph 55 of the NPPF, the word “isolated” in the phrase “isolated homes in the countryside” simply connotes a dwelling that is physically separate or remote from a settlement. Whether a proposed new dwelling is or is not “isolated” in this sense is a matter of fact and planning judgment for the decision-maker in the particular circumstances of the case in hand.

32. What constitutes a settlement for these purposes is also left undefined in the NPPF. The NPPF contains no definition of a “community”, a “settlement”, or a “village”. There is no specified minimum number of dwellings, or population. It is not said that a settlement or development boundary must have been fixed in an adopted or emerging local plan, or that only the land and buildings within that settlement or development boundary will...

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