Daventry District Council v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 02 December 2015 |
| Neutral Citation | [2015] EWHC 3459 (Admin) |
| Date | 02 December 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3447/2015 |
[2015] EWHC 3459 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Birmingham Civil Justice Centre
The Honourable Mrs Justice Lang DBE
Case No: CO/3447/2015
Mr Christiaan Zwart (instructed by District Law) for the Claimant
Mr Richard Kimblin (instructed by Irwin Mitchell LLP) for the Second Defendant
The First Defendant did not appear and was not represented.
Hearing date: 19 November 2015
The Claimant applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the First Defendant, made on his behalf by an Inspector on 12 June 2015, allowing the Second Defendant's appeal against refusal of planning permission for 121 dwellings in Weedon Bec, Northamptonshire.
In summary, the Claimant contended that the Inspector failed to discharge the statutory duty to determine the application in accordance with the development plan, and misapplied the National Planning Policy Framework (NPPF) in concluding that the saved policies in the Local Plan (LP) (in particular, LP Policy HS24 restricting residential development in the open countryside) ought to be given reduced weight. The Claimant also complained that the Inspector's reasons were inadequate.
By letter dated 13 October 2015, the First Defendant conceded that the decision ought to be quashed. However, the Second Defendant (the developer) continued to resist the application.
Planning history
On 28 May 2014, the Second Defendant applied to the Claimant for outline planning permission for a residential development of up to 121 dwellings, with all matters reserved save for the matter of access. The proposed development site of about 7.72 hectares comprises three agricultural fields, which include earthworks known as ridge and furrow. It lies to the south of the village of Weedon, off New Street, on ground rising up onto Round Hill, which is part of the Northamptonshire Uplands.
The Claimant refused outline planning permission on 9 October 2014. The reasons were inter alia:
"1. The proposed development would be contrary to saved local plan policies GN1 (b and f), HS22, HS24 and GN2(g) and policy S1 of the emerging JCS [Joint Core Strategy], by reason of it being large scale development outside the confines of the restricted infill village, affecting open land of significance of the character and form of the village, within the open countryside and adjacent to the SLA. Therefore applying paragraph 12 of the NPPF, permission should be refused unless other material considerations indicate otherwise. Applying the fall-back position within paragraph 14 of the NPPF, it is considered that the adverse impacts of the proposed development would significantly and demonstrably outweigh the benefits when assessed against the policies in the NPPF taken as a whole. Specifically, the proposal would not constitute sustainable development due to the following elements of conflict with the NPPF and local policies:
a) The development would be a peripheral cul-de-sac estate that suburbanise this rural village location, would erode the local, character and historic form of the settlement, would not integrate well with the existing village and would facilitate social interaction or health, inclusive communities (contrary to paragraphs 55, 58, 61 and 69 of NPPF and saved policy GN2(a) of the Daventry Local Plan).
b) The development would not be well connected to local facilities (both within and outside Weedon) and accessibility by means other than the private car would be limited in terms of both practicality and attractiveness (contrary to paragraphs 35, 36, 58, 61 and 69 of NPPF and policy S10 of the emerging JCS).
c) The development would result in loss and harm to a valued local landscape, and would diminish the recreational value of the rural right of way that runs adjacent to and through the site … (contrary to paragraphs 69 and 110 of NPPF).
d) The development would cause harm to the setting of designated heritage assets ……
The Second Defendant appealed against the refusal of outline planning permission under section 78 TCPA 1990. An Inspector, Mr David Nicholson, was appointed by the First Defendant. He conducted a site visit and held an inquiry in May 2015. By the date of the inquiry, the West Northamptonshire Joint Core Strategy Development Plan Part 1 ("JCS") had been adopted.
The Inspector allowed the appeal and granted outline planning permission for the development, subject to conditions. In his Decision Letter ("DL") dated 12 June 2015, he concluded:
"86.…I find that as the Council can demonstrate a 5 year HLS the weighted presumption in favour of sustainable development (NPPF 14) does not apply and the appeal should be determined on the normal planning balance. Nevertheless, the site would be well connected to a village with many local services and none of the harm I have identified would outweigh the benefits of providing more housing and much needed affordable housing in particular. Subject to control, through conditions and the s.106 Agreement, and having regard to all other matters raised, I conclude that the appeal should be allowed."
Applications under section 288 TCPA 1990
Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with and in consequence, the interests of the applicant have been substantially prejudiced.
The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1978) 42 P &CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision."
An Inspector's decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.
Ground 1: failure to determine the application in accordance with the development plan and misapplication of the National Policy Planning Framework
The Claimant submitted that the Inspector erred in failing to determine the application for planning permission in accordance with the development plan, and that he misapplied the NPPF. Mr Kimblin's response was that the Inspector was entitled to give reduced weight to the saved LP Policies HS22 and HS24, and that he properly applied the NPPF.
Legal Framework
The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise. Section 70(2) TCPA 1990 provides that the decision-maker shall have regard to the provisions of the development plan, so far as material to the application. Section 38(6) of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004") provides:
"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." (emphasis added)
The NPPF is a material consideration for these purposes, but it is policy not statute, and does not displace the statutory presumption in favour of the development plan: see NPPF paragraphs 11 to 13; Phides Estates (Overseas) Limited v Secretary of State for Communities and Local Government [2015] EWHC 827 (Admin) per Lindblom J. at [74].
In Tesco Stores Limited v Dundee City Council [2012] UKSC 13, Lord Reed (with whose judgment Lord Brown, Lord Hope, Lord Kerr and Lord Dyson agreed) said, at [17]:
"It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 2319, 225–226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act. The effect of the predecessor of section 25, namely section 18A of the Town and Country (Planning) Scotland Act 1972...
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