Dianne Smyth v The Secretary of State for Communities and Local Government Teignbridge District Council and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 09 December 2013 |
| Neutral Citation | [2013] EWHC 3844 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 December 2013 |
| Docket Number | Case No: CO/8108/2012 |
[2013] EWHC 3844 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Patterson
Case No: CO/8108/2012
and
Gregory Jones QC and David Graham (instructed by Leigh Day) for the Claimant
James Maurici QC (instructed by The Treasury Solicitor) for the
Rhodri Price Lewis QC (instructed by Ashfords) for the Third Interested Parties
Introduction
This is an application under s.288 of the Town and Country Planning Act 1990 ("TCPA") by Dianne Smyth on behalf of Get Involved Exminster ("GIE"), an unincorporated association of Exminster residents, who objected to an application for planning permission for the construction of 65 dwellings with associated highways and parking at Sentrys Farm, Exminster, Devon ("the site"). GIE was formed to oppose the proposals for development at Sentrys Farm.
The planning application was made by Bellway Homes Limited ("Bellway"), the second interested party, to Teignbridge District Council, ("the LPA"), the first interested party. The planning application was accompanied by a suite of documents including an ecological assessment.
Bellway had an option to purchase the land which is owned by the third interested parties.
The application site is described in the appeal form as being 1.73 hectares. It is undeveloped agricultural land on the southern edge of Exminster.
The village of Exminster is close to an area of high ecological interest. The Exe estuary is designated under Article 4 of the Birds Directive as a special protection area (SPA). It is also a Ramsar site. It supports overwintering populations of species, in particular, the avocet and the Slavonian grebe, of which it accommodates 28% and 5% respectively of the wintering population in Great Britain. The SPA was classified also under Article 4(2) of the Birds Directive for regularly supporting various migratory species over winter, in particular, the dark bellied Brent geese, dunlins, oystercatchers, black tailed godwits and grey plovers. The closest part of the SPA to the site is about some 350m or so away and known as Exminster Marshes.
Within the SPA and on the side of the estuary closest to the site is an area designated as a special area of conservation ("SAC") under the Habitats Directive known as Dawlish Warren. That contains various Annex I habitat types such as shifting dunes with European marren grass and fixed dunes with herbaceous vegetation. It supports also various Annex II plant species.
Both sites are classified as Sites of Special Scientific Interest under the Wildlife and Countryside Act 1981.
There was some pre application discussion between Bellway and the LPA during 2010. The planning application was finally submitted on 14 th February 2011. It was taken to committee on 11 th July 2011 accompanied by a full report which recommended that approval be granted. The committee, as they were entitled to, refused planning permission, and in a decision notice dated 21 st July 2011 gave reasons for refusal. They related, firstly, to the fact that the proposal was contrary to policy because it was residential development in the countryside, secondly, to the fact that the proposal was on the best and versatile agricultural land and, thirdly, to the issue of prematurity pending the adoption of a core strategy which would determine the appropriate level of growth for Exminster.
The refusal was appealed by Bellway in September 2011. GIE applied to become, and did become, a rule 6 party to the appeal. The appeal was held by way of public inquiry which opened on 31 st January 2012. GIE were present and were represented by a planning consultant, Mr Hopkins. The claimant was called as a witness. The following day during the cross examination by Mr Hopkins of Bellway's planning witness the Inspector thought it appropriate, given the nature of the questions that were being asked, to adjourn the inquiry and ask Bellway to instruct an ecologist to deal with detailed ecological matters that were being raised by GIE.
The inquiry resumed on 2 nd March 2012 and concluded 3 days later. A decision letter was issued on 20 th June 2012 which allowed the appeal and granted planning permission subject to conditions and a S106 unilateral undertaking.
Grounds of Challenge
The grounds of challenge argued before the court are as follows:
i) Was the Secretary of State's decision to grant planning permission without having carried out an Environmental Impact Assessment (EIA) of the development lawful? (the EIA issue)
ii) Was the Inspector properly and lawfully able to conclude that there was no real possibility that the development would have an appreciable adverse effect on the integrity of the nearby European protected sites for wildlife? (the Habitats Issue);
iii) Did the Inspector err in relying upon a unilateral planning obligation under S106 of the TCPA to pay a "conservation contribution" calculated using a (one size fits all) formula? (the CIL issue)
iv) Did the Inspector properly construe and apply the policies in the statutory Development Plan and National Planning Policy Framework (the Policy Issue) ;
v) Did the Inspector give adequate reasons for his decision?
The Decision Letter
The decision letter was issued on the 20 th June 2012. The Inspector, Mr Wilde, C. Eng M.I.C.E, identified the main issues in paragraph 2 as being
"(a) Whether or not there are sufficient material considerations in favour of the development so as to outweigh the provisions of the Development Plan which seek to strictly control development in the open countryside, and whether or not Exminster is an appropriate location for the proposed development.
(b) Whether or not the need for the development outweighs any impact resulting from the loss of the best and most versatile agricultural land.
(c) Whether or not the proposed development would be premature pending adoption of the Core Strategy."
The Inspector dealt first with development in the countryside. The Inspector noted that in terms of the Development Plan (the Devon Structure Plan and Teignbridge Local Plan) that the development was in the countryside and contrary to various policies which sought to strictly control development in such a location (paragraph 3).
He then referred to the National Planning Policy Framework (NPPF) and its advice (in paragraph 47) that local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide 5 years worth of housing. Usually there should be an additional buffer of 5% but if a local planning authority had a persistent record of under delivery of housing there should be a buffer of 20% to provide a realistic prospect of achieving planned housing supply. He noted that both the main parties were in agreement that there was not a 5 year housing supply in Teignbridge. The figures provided a range of housing land supply of between 1.9 years and 3.5 years. Using structure plan figures there was a 2.4 year housing land supply.
The Inspector then referred to alternative calculations produced by the claimant which showed that there was a 4.97 year housing land supply. He observed that the supply figure provided had not been scrutinised for deliverability and, therefore, he did not accept it. (paragraph 9)
He concluded on this topic in paragraph 12 as follows:
"It is evident from the figures above that whichever base figures are used that the Council do not have anything approaching a five year housing supply. From the figures supplied to me and agreed by both main parties it is also evident that the Council have failed to achieve the annual average requirement every year since 2001, thereby accruing a significant shortfall. It is also the case that there have been no new Development Plan housing allocations made since 1996. It follows that the Council's policies in respect of housing supply should not be considered up to date."
The Inspector moved on to consider whether the appeal site was an appropriate location. He concluded that with the range of facilities within a 10 minute walk of the appeal site and the availability of regular bus services and cycle routes to Exeter and Marsh Barton that the site was sustainable in transport terms. He noted that in the 2009 Strategic Housing Land Availability Assessment the appeal site fell within a broad area of search where future development may contribute towards the creation of sustainable mixed communities. Further, the Inspector concluded that the proposed development would not be significantly harmful to the character and appearance of the area. (paragraphs 13 to 16)
The Inspector went on to consider the use of the best and most versatile (BMV) agricultural land. He noted that the policies in the Local Plan and the Structure Plan were to permit development on BMV only where there was a strong case which overrode the need to protect such land. He observed that the Development Plan policy was more rigorous than other relevant policies contained within the NPPF. He concluded that he was not persuaded that the proposed development could be considered to be significant in terms of the amount of BMV that would be taken. Furthermore, given his findings regarding housing supply it was evident that a substantial need...
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