Edward Ware Homes Ltd v Secretary of State for Communities and Local Government (First Defendant) Bath and North Somerset Council (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Holgate |
| Judgment Date | 27 January 2016 |
| Neutral Citation | [2016] EWHC 103 (Admin) |
| Docket Number | Case No: CO/3058 2015 AND CO/3062/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 January 2016 |
[2016] EWHC 103 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Holgate
Case No: CO/3058 2015 AND CO/3062/2015
and
Suzanne Ornsby Q.C. and George Mackenzie (instructed by Davies and Partners) for the Claimant
Hereward Phillpot Q.C. (instructed by Treasury Solicitor) for the First Defendant
The Second Defendant was not represented
Hearing dates: 7th December 2015
Introduction
The Claimant, Edward Ware Homes Limited ("EWHL") made applications to the Second Defendant, Bath and North East Somerset Council ("BANES") for residential development on three different sites, namely 47 dwellings on land at Abbots Farm Close, Paulton, 124 dwellings on land at Boxbury Hill, Midsomer Norton, and 32 dwellings on land at Cappards Road, Bishop Sutton. All three applications were refused by BANES and EWHL appealed against these refusals to the First Defendant, the Secretary of State for Communities and Local Government, under section 78 of the Town and Country Planning Act 1990 ("TCPA 1990"). The appeals were conjoined.
A public inquiry was held into the three appeals between 27 January and 27 February 2015. On 20 May 2015 the appeal concerning the Bishop Sutton site was recovered for determination by the Secretary of State. The appeal will be the subject of a report to the Secretary of State by the Inspector who conducted the public inquiry and a decision letter by the Secretary of State. The Court was informed that that appeal has yet to be determined.
On 20 May 2015 the Inspector issued decision letters dismissing EWHL's appeals in respect of the other two sites. EWHL has brought claims under section 288 of TCPA 1990 to quash the decisions in respect of the Midsomer Norton site (CO/3058/2015) and the Paulton site (CO/3062/2015). For the purpose of these claims there is no material difference between the decision letters issued in respect of the sites. The grounds of challenge are in substance identical. The claims were listed to be heard together. EWHL and the Secretary of State, but not BANES, were represented at the hearing. EWHL and the Secretary of State agreed that their submissions should be made by reference to the hearing bundle for CO/3062/2015 (with a few additional insertions). The parties' legal submissions were identical for each of the two claims and they agreed that the outcome of each ground of challenge in one claim must be the same in the other claim.
In each of the two appeals the Inspector identified one of the main issues to be:-
"Whether there is a 5-year housing land supply available in the Housing Market Area, and how that may bear upon the relevance of development plan policies affecting the direction for growth and the release of housing sites."
The grounds of challenge relate to the manner in which the Inspector dealt with that issue adversely to EWHL. The decisions on both the Paulton and Midsomer North sites also included adverse findings on other aspects of the appeal proposals. But the Secretary of State accepts that the Inspector did not treat any of those findings as a freestanding reason sufficient to justify the dismissal of the appeals, irrespective of the Inspector's treatment of the housing land supply issues. Accordingly, the parties agree that I am able to deal with the merits of each of the claims by reference to the material in CO/3062/2015.
The National Planning Policy Framework
The requirement that a local planning authority should be able to identify a 5 year supply of housing land against the requirements set out in its Local Plan is contained in paragraphs 47 and 48 of the National Planning Policy Framework ("NPPF"). Where such a supply cannot be identified the consequences for the determination of planning applications and appeals are set out essentially in paragraphs 49 and 14 of the NPPF. In summary, a presumption in favour of granting permission arises, unless:-
"— any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the polices in this Framework taken as a whole, or
— specific policies in this Framework indicate development should be restricted."
In their submissions EWHL placed considerable reliance upon the analysis of the NPPF and summary of the authorities dealing with those policies in Woodcock v Secretary of State for Communities and Local Government [2015] EWHC 1173 (Admin); [2015] J.P.L 1151. Both parties in these proceedings agreed with the analysis set out in paragraphs 86 to 108 of Woodcock, which need not be repeated in this judgment.
In the appeals before the Inspector EWHL contended that BANES was unable to identify a 5 year supply of housing land so the presumption in paragraph 14 of the NPPF applied. BANES disagreed. As was pointed out by Lindblom J (as he then was) in Crane v Secretary of State for Communities and Local Government [2015] EWHC 425 (Admin), even where this presumption applies, the NPPF does not, indeed it could not, displace the statutory framework for the determination of planning applications contained in section 70(2) of the TCPA 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004"). It does not displace the statutory presumption in favour of the development plan. The NPPF operates within that framework. Although the NPPF deems housing supply policies set out in the development plan to be out of date, that is essentially a mechanism for engaging the presumption in paragraph 14 of the NPPF. The Framework does not go on to prescribe that no weight or little weight should be given to those housing supply policies. Indeed, it says nothing about how much weight they should or might receive. That is a matter for the judgment of the decision-maker dealing with a particular planning application (see paragraphs 62 to 74 of Crane). That judgment would take into account the nature of and reasons for the shortfall and how it is being addressed. As Lindblom J put it:-
"[Paragraph 14 of the NPPF] does not prevent a decision-maker from giving as much weight as he judges to be right to a proposal's conflict with the strategy in the plan…."
The Bath and North East Somerset Core Strategy
The development plan policies central to the Inspector's decisions and EWHL's challenge are contained in the Core Strategy adopted by BANES on 10 July 2014.
Policy DW1 sets a spatial strategy for the whole of the district to promote sustainable development by focussing new housing, jobs and community facilities in Bath, Keynsham, and the Somer Valley. The Paulton and Midsomer Norton sites are greenfield locations in the Somer Valley area and outside settlement boundaries. Policy DW1(1) seeks to ensure that for the Somer Valley:-
"there is deliverable space to enable job growth in the towns and principal villages…to a create a thriving and vibrant area which is more self-reliant socially and economically"
Policy DW1(2) makes provision for (inter alia) "an increase in the supply of housing by around 13,000 homes" in the district as a whole. Policy DW1(3) prioritises "the use of brownfield opportunities for new development in order to limit the need for development on greenfield sites."
The spatial strategy for the district distinguishes between Bath, Keynsham, the Somer Valley and the Rural Areas. Paragraph 1.06 of the Core Strategy states that Bath is the main urban centre of the district, complemented by a range of towns and villages. According to paragraph 1.10, the Somer Valley "covers the urban areas of Midsomer Norton…together with a rural hinterland containing the principal villages of Peasedown, St. John and Paulton". The area houses 25% of the district's population. The Somer Valley was formerly part of the North Somerset coalfield. It is now an important centre for the printing and packaging industry, but "a number of recent factory closures have increased the already high level of out-commuting". The overall challenge for the district is said to be to achieve growth in a manner that is socially, economically and environmentally sustainable, which includes "increased local employment, less overall commuting …" (page 11 of the plan).
The Strategic Objectives of the Core Strategy identify issues needing to be addressed by the policies of the plan (see paragraph 1.15). Objective 1 includes "reducing the need to travel by achieving a closer alignment of homes, jobs, infrastructure and services". Objective 2 includes "making optimum use of brownfield opportunities in meeting housing and economic development needs and avoiding greenfield land as far as possible". Paragraph 1.16 states that "the principal purpose of the Core Strategy is to set out clearly the spatial distribution of development within the District in order to deliver the … strategic objectives outlined above".
Paragraph 1.26g of the Core Strategy states that the 5 year supply of housing land will be maintained against the district-wide requirement of about 13,000 new dwellings. That figure is said not to be a cap on housing delivery. For example, additional large windfall sites may come forward for development. EWHL accepted before the Inspector (see paragraph 171 their Closing Submissions) that Table 1b forms part of the spatial strategy in the development plan. The Table sets out the distribution of the new housing required across the district (with...
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