Cotswold District Council v Secretary of State for Communities and Local Government (First Respondent) Fay and Son Ltd (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 27 November 2013 |
| Neutral Citation | [2013] EWHC 3719 (Admin) |
| Docket Number | Case No: CO/3629/2013 CO/7880/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 November 2013 |
[2013] EWHC 3719 (Admin)
Mr Justice Lewis
Case No: CO/3629/2013
CO/3626/2013
CO/7880/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT BIRMINGHAM
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms S Sheikh and Mr G Mackenzie (instructed by Sharpe Pritchard) for the Claimant (in all cases)
Mr R Kimblin (instructed by The Treasury Solicitor) for the Secretary of State (First Defendant) (in all cases)
Miss M Cook (instructed by Coffin Mew LLP) for the Second Defendant in the first case
Mr Peter Goatley (instructed by Davies & Partners) for the Second Defendant in the second case
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
These are two applications to quash decisions of the Secretary of State for Communities and Local Government granting planning permission for development in the Tetbury area of Gloucestershire and one application for judicial review of a decision making a partial award of costs in one of the cases. By the first decision ("the Highfield decision") dated 13 February 2013, the Secretary of State allowed an appeal by Fay & Son Ltd. ("Fay") against the refusal by the Council, Cotswold District Council, of outline permission for a residential development for up to 250 units and related development on land at Highfield Farm, Tetbury, Gloucestershire. By the second decision ("the Berrells Road decision") dated 13 February 2013, the Secretary of State allowed an appeal by Hannick Homes and Development Ltd. ("Hannick") against the refusal by the Council of outline permission for a residential development of up to 39 units and related development on land at Berrells Road, on the edge of Tetbury, Gloucestershire. Both sites are within an Area of Outstanding National Beauty ("AONB").
Both decisions involved consideration of whether the Council had demonstrated that it had a supply of land sufficient to meet their housing requirements for the next five years. As part of the assessment of that requirement, the Secretary of State accepted the inspector's recommendation that the housing requirement should be based on the lower of two estimates of need, derived from figures produced as part of the preparation of a draft Regional Spatial Strategy for the South West ("the RSS") which indicated a need for 2,022 houses over the next five years. The Secretary of State considered that, applying the principles contained in the National Planning Policy Framework ("the Framework"), an additional buffer of 20% (rather than the 5% that would otherwise be added) should be added to the RSS figures as the Council had a record of persistent under delivery of housing. That resulted in an additional 402 houses being added to the figure of 2,022 to give a total requirement of 2,426. The Secretary of State accepted the inspector's recommendation that the Council did not have a five year supply of land capable of providing sufficient sites for that housing requirement.
One of the Council's principal grounds of challenge relates to another decision, given on 9 January 2013, of an inspector who allowed an appeal against a refusal of permission at another site at Top Farm, Kemble, Cirencester (the Kemble decision). That site is in a different town from the Highfield and the Berrells Road sites. The Kemble site is not in an AONB. In the Kemble decision, the inspector accepted that the number of houses proposed as part of the draft RSS process was the best minimum indication of the housing figure requirement for the next five years. He was not persuaded that it was necessary to apply the 20% buffer (rather than the 5%) in the circumstances of that case. He concluded that the Council could not demonstrate that it had a sufficient five year supply of sites even for that lower figure. He concluded that planning permission should therefore be granted. The inspector reached his conclusion that there had not been a persistent under delivery of housing solely by reference to the figures for housing requirements set out in the Gloucestershire Structure Plan Second Review ("the Structure Plan") for 1991 to 2011 although he made it clear that that conclusion was based on a Structure Plan that was now defunct and that those past figures were not a reliable guide to future need.
The inspector's decision on Kemble was not drawn to the Secretary of State's attention. The Council contends, however, that the inspector's reasoning in the Kemble decision in relation to the calculation of housing requirements, and in particular his decision not to add a 20% buffer because he was not satisfied that there had been a record of persistent under delivery, was a material consideration to which the Secretary of State should have had regard when reaching his decisions in relation to Highfield and Berrells Road. The Council contends that the Secretary of State acted unlawfully in reaching those decisions without having regard to the Kemble decision and without explaining why he was differing from the inspector in the Kemble decision. The Council also contends that the Secretary of State misinterpreted the relevant policy in paragraph 47 of the Framework in a variety of ways.
Finally, the Council seeks permission to apply for judicial review to challenge the decision of the Secretary of State to accept the recommendation of the inspector to make a partial award of costs in the Berrells Road appeal as the Council had acted unreasonably to the extent that it maintained that it could demonstrate a five year supply of housing. The Council relies on the fact that the inspector did not award costs in the Kemble decision. The Council submits that the decision of the Secretary of State that the conduct of the Council was unreasonable is itself irrational and that the Secretary of State failed to have regard to a material consideration, namely the decision on costs of the inspector in the Kemble decision.
THE PLANNING FRAMEWORK
The Legislation
Planning permission is required for development including, as here, residential development involving the building of residential homes and related building operations: see section 57 of the Town and Country Planning Act 1990 ("the 1990 Act"). Section 70 (2) of that Act provides that where an application for planning permission is made to a local planning authority, then:
"(2) In dealing with such an application the authority shall have regard to
(a) the provisions of the development plan, so far as material to the application,
(b) any local finance considerations, so far as material to the application, and
(c) any other material considerations."
The development plan is defined in section 38(3) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"). Further, section 38(6) of that Act provides that:
"(6) If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise".
In the present case, the development plan included the Regional Strategy for the South West, certain policies of the Structure Plan and certain policies of the Cotswold Local Plan. The Structure Plan covered the period 1991 to 2011. The relevant housing policies provided that 6,150 houses would need to be provided in the Cotswold District Council area between 1991 and 2011. That equated to the provision of 307.5 houses per annum.
The material considerations relevant to any planning application include the Framework. That document should be read in its entirety. Paragraph 2 provides that the Framework must be taken into account in the preparation of local and neighbourhood plans and is a material consideration in planning decision. Paragraph 6 explains that the purpose of the planning system is to contribute to sustainable development and the policies set out in paragraphs 18 to 219 of the Framework constitute the Government's view of what sustainable development in England means in practice for the planning system. Paragraph 7 explains that there are three dimensions to sustainable development: economic, social and environmental. The social dimension includes "supporting strong, vibrant healthy communities by providing the supply of housing required to meet the needs of present and future generations".
Section 6 of the Framework deals with delivering a wide choice of high quality homes. Paragraph 47 is of particular importance to these appeals and provides as follows:
"To boost significantly the supply of housing, local planning authorities should:
• use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;
• identify and update...
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