Dartford Borough Council v Secretary of State for Communities and Local Government and Another (Defendant Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eady |
| Judgment Date | 16 March 2012 |
| Neutral Citation | [2012] EWHC 634 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 March 2012 |
| Docket Number | Case No: CO/6641/2011 |
[2012] EWHC 634 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: CO/6641/2011
and
Caroline Bolton (instructed by Dartford Borough Council) for the Claimant
Cain Ormondroyd (instructed by Treasury Solicitor) for the Defendant
Hearing date: 29 February 2012
Dartford Borough Council ("the Claimant") seeks to challenge a decision of the Secretary of State for Communities and Local Government ("the Secretary of State") contained in a notice dated 1 June 2011. The effect of it was to grant outline planning permission to Skillcrown Homes Ltd for the demolition of two bungalows at Nos 64 and 66 Joydens Wood Road in Dartford and for the development of eight detached houses together with a new access road. (There were to be seven 4-bedroom and one 3-bedroom homes.) Its application had been dated 29 September 2010.
The present application is made in accordance with the provisions of s.288 of the Town and Country Planning Act 1990 which, so far as relevant, is in these terms:
"(1) If any person –
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action, on the grounds –
(i) that the action is not within the powers of the Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section. …
(2) Without prejudice to subsection (1), if the authority directly concerned with any order to which this section applies, or with any action on the part of the Secretary of State to which this section applies, wish (sic) to question the validity of that order or action on any of the grounds mentioned in subsection (1), the authority may make an application to the High Court under this section."
The Secretary of State had appointed a Planning Inspector to hear an appeal by Skillcrown Homes Ltd against the decision of the Claimant to refuse planning permission, its reasons having been set out in a decision notice dated 7 December 2010. This notice had identified two grounds for refusal, of which the first was expressed as follows:
"The proposed development of previously undeveloped garden land, including the demolition of existing housing and the creation of a new access road, would result in an undesirable form of development and an unacceptable erosion of the character of this part of Joydens Wood, diminishing the visual qualities of the street scene, contrary to PPS3 (Housing), Policies B1, H7, H8 and H10 of the adopted Local Plan 1995 and Policies DD11, H4 and H8 of the Dartford Local Plan Review Second Deposit Draft 2004."
The second ground was concerned with whether the proposed layout reached the appropriate spatial standards and with matters of scale and proportion. It is not directly relevant to the present application.
These events took place against the background of a letter from the Department's Chief Planner dated 15 June 2010 which had been addressed to all planning authorities in England:
"NEW POWERS FOR LOCAL AUTHORITIES TO STOP 'GARDEN GRABBING'
On 9 th June 2010 Government implemented the commitment made in the Coalition Agreement to decentralise the planning system by giving Local Authorities the opportunity to prevent overdevelopment of neighbourhoods and 'garden grabbing'.
I am writing to confirm that the Government has amended Planning Policy Statement 3: Housing (PPS3) with the following changes:
• private residential gardens are now excluded from the definition of previously developed land in Annex B
• the national indicative minimum density of 30 dwellings per hectare is deleted from paragraph 47
Together these changes emphasise that it is for local authorities and communities to take the decisions that are best for them, and decide for themselves the best locations and types of development in their areas.
The amended policy document sets out the Secretary of State's policy on previously developed land and housing density. Local Planning Authorities and the Planning Inspectorate are expected to have regard to this new policy position in preparing development plans and, where relevant, to take it into account as a material consideration when determining planning applications. I am copying this letter to the Planning Inspectorate.
STEVE QUARTERMAIN
Chief Planner"
In the June 2010 edition of PPS3, paragraph 68 contains the following statement:
"When making planning decisions for housing developments after 1 st April 2007, Local Planning Authorities should have regard to the policies in this statement as material considerations which may supersede the policies in existing Development Plans."
The Claimant's decision of 7 December 2010 was appealed by Skillcrown Homes Ltd, pursuant to s.78 of the 1990 Act, and on 19 April 2011 a hearing took place before the Planning Inspector appointed by the Secretary of State. The Inspector identified "the main issue" he had to determine, at paragraph 4 of his decision, as being "… the effect of the development on the character and appearance of the area in the context of the amendments to the status of garden land in [PPS3]".
At that stage, an argument was advanced on behalf of Skillcrown that the proposed development of the site would contribute towards the Claimant's achieving its housing supply target and that it could be treated as a "windfall site". It was submitted on behalf of the Claimant, however, that its Strategic Housing Land Availability Assessment had identified specific sites, as recently as July 2010, which could deliver its housing supply target to the year 2026 without the need for any windfall sites to be developed. The evidence of Mr Nicholls, one of the Claimant's senior planning officers, shows that it was accepted by both parties that development of the site was not required to meet the housing supply targets.
One of the policies from the Local Planning Review to which the Claimant had originally attached particular significance, and which was again taken into account at the hearing before the Inspector, was Policy H4. This addressed inter alia the matter of windfall sites and contained the following provisions:
"Residential development on previously unidentified sites within both built-up areas and villages confines will only be permitted if the following criteria are met:
1. The site is on previously-developed land and in a location that would facilitate sustainable development … "
It is not disputed that the appeal site was (i) "previously unidentified" and (ii) not "on previously-developed land".
The Claimant submits that its Policy H4 is consistent with PPS3 (to which reference was made in the Chief Planner's letter of 15 June 2010, from which I have quoted above). In particular, in order to demonstrate this proposition, reference was made to the following documents:
i) The footnote to paragraph 59 of PPS3 (2011 edn):
"Windfall sites are those which have not been specifically identified as available in the local plan process. They comprise previously-developed sites that have unexpectedly become available."
ii) The footnote to paragraph 59 of the previous edition of PPS3, which applied at the time of the decision in December 2010 and was expressed in the same terms.
iii) The Chief Planner's letter of 15 June 2010, confirming that the Government had amended PPS3 to exclude residential gardens from the definition of "previously-developed land" in Annex B.
The Inspector decided to grant outline planning permission to Skillcrown Homes Ltd and the Claimant now seeks to challenge the decision on two grounds, which may be summarised as follows. First, it is said " … that the decision letter concludes at paragraphs 9, 10 and 12 that this was a...
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