Dartford Borough Council v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 24 June 2014 |
| Neutral Citation | [2014] EWHC 2636 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2082/2014 |
| Date | 24 June 2014 |
[2014] EWHC 2636 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Patterson
CO/2082/2014
Mr S Whale (instructed by Sharpe Pritchard) appeared on behalf of the Claimant
Mr R Honey (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
Mr R Green (instructed by Bond Dickinson LLP) appeared on behalf of the Second Defendant
Introduction
On 26 March 2014, the first defendant allowed an appeal by Landhold Capital Limited, the second defendant, against a refusal by the claimant of an outline planning application to redevelop land at Knockhall Road, Greenhithe for up to 40 residential dwellings; provision of public open space; parking; access and landscaping. The existing bowling green was to be retained with relocated and enhanced bowling club facilities and car park.
The appeal had been heard at a hearing over two days on 12 and 13 February 2014 before an Inspector, Ms O'Rourke(BA Hons)DipTP MRTPI. A site visit took place on the second day.
The claimant brings a challenge under section 288 of the Town and Country Planning Act for an order to quash the decision letter. The challenge was brought originally on four grounds as follows:
1) a challenge on the basis of section 38(6) of the Planning and Compulsory Purchase Act 2004.
2) a challenge on the basis of the approach to a sustainable development.
3) a challenge on the basis of a misapplication of policy and approach on a 5 year housing land supply.
4) that there was an absence of reasons provided by the decision maker.
Just before this hearing, the claimant withdrew Ground 3, dealing with the 5 year house land supply. The case has proceeded, therefore, on the three remaining grounds.
The factual background
On 2 November 2012, a planning application was submitted to the claimant in the terms set out above. All matters, save for access, were reserved for later approval. The Secretary of State issued a screening direction that the proposed development comprised EIA development for archaeological interests, and an environmental statement dealing with that aspect accompanied the application.
On the 21 May 2013, the application was refused for four reasons. The first was not maintained. Before the hearing in February 2014 three grounds of refusal were pertinent. They were:
1) That the development proposed would encourage the use of cars by residents and would therefore be contrary to policy 10 of CS 2011.
2) That the proposed development would result in an unnecessary loss of open space, contrary to policy RT15 of the local plan 1995, CS14, and CS22 of the adopted core strategy.
3) That the disbenefits of the development were considered to outweigh the benefits such that the proposed development was contrary to CS10 of the adopted core strategy in 2011, and not, therefore, a suitable windfall housing site to bring forward for development.
In her decision letter the Inspector identified 6 main issues which she set out:
" Main Issues
9. The main issues in this case are:
A. The accessibility of the site for housing development;
B. The impact of development on the visual amenity, landscape character and biodiversity of the area;
C. Whether the development would result in the loss of a playing pitch needed to meet the recreational needs of future development in the area;
D. The contribution of the proposed development towards housing land supply;
E. Whether adequate provision is made for the development's infrastructure needs; and
F. Whether, having regard to the benefits and disbenefits of development, the proposal would represent a sustainable form of development."
She then described the site, and summarised the relevant planning policy. In paragraph 12 of the decision letter, she set out as follows:
"The formal development plan comprises the Dartford Core Strategy adopted in September 2011 (CS) and the saved policies of the Dartford Local Plan 1995 (LP). Although both plans predate the publication of the National Planning Policy Framework (NPPF), the parties agreed at the hearing that the relevant development plan policies were broadly consistent with the Framework which has at its heart a presumption in favour of sustainable development."
She then set out under a subheading "windfall policy" three paragraphs which dealt with windfall housing applications.
" Windfall policy
"16. The CS recognises that an element of supply from windfall sites can enable the early delivery of housing and increase flexibility. To that end, part 4 of policy CS10 provides that windfall sites will be assessed in the same way as planned development. Four considerations are listed: a) the site's sustainability for housing development; b) whether benefits of development outweigh disbenefits; c) the capacity of current and proposed infrastructure to serve the development; and d) where spare capacity is not available, the ability of the site to provide for its own requirements.
17. In considering the sustainability of development on windfall sites, a footnote to policy CS10 refers to the Sustainability Assessment of Housing Sites, produced by the Council in 2010. The appeal site was assessed but was not identified as a specific site for development being placed in Sustainability Band D, described as having 'more limited potential to provide sustainability benefits for the key objectives and a broadly neutral result across the other objectives with a number of potential sustainability issues.'
18. Subsequently in September 2012, the Council published a Windfall Site Practice Note setting out its approach to windfall sites. The Practice Note is not adopted policy or a supplementary planning document. However in that it gives guidance on how part 4 of policy CS10 is to be applied, it is a material consideration to which I attach some weight. A completed Windfall Site Questionnaire accompanied the application and the case officer assessed the site using the Windfall Site Matrix."
She then proceeded to deal with each of the issues that she had identified. In each issue which is relevant to the current challenge, she set out the development plan policy, national guidance if relevant and then analysed the issue against that background.
On issue A, accessibility, she concluded in paragraph 33:
"33. Policy CS10 refers at 4.a)to the sustainability of the site of which accessibility is one aspect. I now turn to consider the other issues before concluding on the balance of benefits and disbenefits and the overall sustainability of the site for housing development."
On Issue B, visual amenity, landscape, character and bio-diversity said:
"34. Local Plan policy RT15 resists development that would involve the loss of private or educational open space 'where the open space is important to the environment and amenity of the area in which it is situated …' CS policy CS14 deals with green space and sets out how the Council intends to work with its partners to implement a multi-functional, high quality, varied and well-managed Green Grid. The Green Grid is defined as 'a strategic network of multi-purpose, attractive public open spaces consisting of green corridors, rivers, lakes and landscapes linked via a series of urban and countryside footpaths, Public Rights of Way, cyclepaths and roads, and designed to connect with the main open areas with the urban area.'
She concluded:
"52. I conclude on this issue that although the appeal scheme would not protect the existing open space, contrary to the provisions of policy CS14 1.e, it would contribute to the underlying aim of the policy for the delivery of a multi-functional, high quality, varied and well managed Green Grid by providing publicly accessible open space and links to the network. As such this is another matter to be weighed in the balance when considering the sustainability of the proposal and the benefits and disbenefits of development."
On issue C, the playing pitch, she concluded:
"65. Whilst there would be benefits to the Bowls Club, the scheme would result in the loss of the potential to use this private open space to meet local needs for playing pitches. I conclude on this issue that in terms of the NPPF, policy CS22 and LP policy RT15, the proposal would result in the loss of open space that could provide an opportunity to meet the sport and recreational needs of the population of the area. This is a disbenefit that must weigh against the release of the site."
Issue D related to housing land supply which I do not need to deal with.
Issue E dealt with infrastructure needs. In relation to that, the Inspector concluded:
"89: Whilst the Borough and County Councils declined to enter into a legal agreement with the appellant, they have seen and agreed the terms of the UU. I am satisfied that, other than the NHS contribution, its provisions satisfy the tests of Regulation 122 in being necessary to make the development acceptable in planning terms, directly relate to the development and fairly and reasonably relate in scale and kind. Accordingly I am satisfied that the requirements of CS policy CS10 4.c) and d) would be met."
Issue F dealt with whether the proposal would be sustainable development. Given the importance of that issue to this hearing, it is sensible to set out those paragraphs:
"90. The NPPF establishes that sustainable development should be see as the golden thread...
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