Eshton Gregory (Hebden Bridge) Ltd v (1) Secretary of State for Communities and Local Government (2) Calderdale Metropolitan Borough Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Roger Kaye,Judge Kaye QC |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] EWHC 3611 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Claim No: CO/3069/2015 |
| Date | 17 December 2015 |
[2015] EWHC 3611 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
LEEDS DISTRICT REGISTRY
Leeds Combined Court Centre
The Courthouse,
1, Oxford Row
Leeds LS1 3BG
SECTION 288 TOWN AND COUNTRY PLANNING ACT 1990
His Honour Judge Roger Kaye QC
(Sitting as a High Court Judge)
Claim No: CO/3069/2015
and
Counsel and Solicitors:
Jonathan Easton instructed by Walker Morris LLP appeared for the Claimant
Giles Cannock instructed by Government Legal Department appeared for the Defendant
Hearing date: 30 th November 2015
Hand down Judgment: 17 December 2015
I direct pursuant to CPR PD 52 para 5.12 that no official shorthand note or mechanical recording need be taken of this judgment and that copies of the approved final version as handed down may be treated as authentic.
Date: 17 December 2015
Roger Kaye QC
This is, in substance, an appeal (technically it is an "application" but in substance an appeal), under s 288 Town and Country Planning Act 1990 ("TCPA 1990"), against a decision made by the defendant Secretary of State's Inspector dated 21 May 2015 to refuse planning permission in respect of an application by the claimant, Eshton Gregory (Hebden Bridge) Ltd, for development of land at the site of the former Hebden Bridge Fire Station, Valley Road, Hebden Bridge HX7 7BX ("the Site").
The proposed development was for:
" redevelopment of land to provide a mixed use development comprising:
• Ground Floor A1 unit with ancillary space at first floor, with three apartments; and
• Five townhouses." ("the Proposed Development")
The Ground Floor A1 unit was in fact for a Sainsbury's store over an area of 460 sq m of retail floorspace.
The Site is located within the town centre of Hebden Bridge and also within a Conservation Area. It once formed the location of the Hebden Bridge Fire Station but the buildings were demolished in 2009. Following the demolition of the fire station buildings the Site was used (with planning permission) as a temporary parking area. This permission expired on 26 January 2014.
Meanwhile, on 5 November 2007 planning permission was granted for a development comprising two commercial units with 9 apartments above and 5 town houses. The commercial units envisaged a mixed broad range of commercial uses over a retail area of some 318 sq m of floor space. This permission expired after three years and was renewed on 24 December 2010 ("the 2010 Permission"). That too expired after three years, on 23 December 2013; hence the need for permission for the Proposed Development.
Although very similar, the immediately apparent differences between the 2010 Permission and the Proposed Development were
• the difference in retail floor area (460 sq m (the Proposed Development) as opposed to 318 sq m),
• one single retail commercial unit (the Sainsbury's store) as opposed to the two commercial units with mixed commercial use, and
• 3 apartments rather than 9 (the ground floor unit was to take up ancillary space on the first floor).
Application was made for the Proposed Development jointly by the claimant and Sainsbury Supermarket Ltd ("Sainsbury's") to the Calderdale Metropolitan Borough Council ("the Council") on 10 December 2013 and validated by the latter on 16 January 2014.
The application was supported by a number of reports and statements including:
• A Planning Report;
• A design and Access Statement prepared by Colliers International ("Colliers");
• A Transport Statement prepared by Bryan G Hall (Consulting Civil and Transportation Planning Engineers) ("Bryan Hall").
The application was supported by the Planning Officer's Report ("the Officer's Report") dated 4 August 2014 which recommended approval and submitted to the Council members on 17 September 2014. The Officer's Report included favourable comments from the Council's Highways Network Manager.
Despite the favourable reports the Council (as it is common ground it was in law entitled to 1) refused planning for the following reasons:
" The proposal fails to provide adequate facilities for service delivery vehicles leading to an increased likelihood of such vehicles obstructing the free and safe flow of traffic on Valley Road which will be detrimental to highway safety. The proposal is therefore contrary to Policy BE5 (The Design and Layout of Highways and Accesses) and Policy S2 (Criteria for Assessing Retail Developments) of the Replacement Calderdale Unitary Development Plan, which seek to ensure the free and safe flow of traffic in the interests of highway safety; and seek to ensure that developments do not create unacceptable traffic problems."
The claimant then appealed against this decision to the Secretary of State under s 78(1)(a) TCPA 1990. The Secretary of State may allow or dismiss the appeal, reverse or vary any part of the decision and may deal with the application as if made to him in the first instance (see s 79(1) TCPA 1990).
The Council contested the appeal and defended its decision. The appeal was determined, on written representations, by an Inspector appointed by the first defendant, i.e. the Secretary of State, namely by Anne Jordan BA, MRTPI ("the Inspector"). The Inspector also conducted a site visit on 30 April 2015, as she put it in her decision letter of 21 May 2015 ("the Decision Letter") at " mid-morning on market day". In addition to the material already submitted to the local planning authority, statements from Colliers, on planning issues, and Bryan Hall, on highway matters, supported the appeal.
The Inspector dismissed the appeal, setting out her reasons in the Decision Letter.
The claimant seeks an order quashing this decision. The Secretary of State defends the decision in full.
I am grateful to counsel on both sides (Mr Jonathan Easton for the claimant, and Mr Giles Cannock for the defendant Secretary of State) for the full and helpful way in which the case has been presented. Fortunately there is, in this case, no disagreement as to the relevant legal framework.
The relevant statutory framework, so far as material may be summarised as follows for present purposes:
• Section 57(1) TCPA 1990 requires planning permission for any " development". This is in turn defined by s 55(1) as " the carrying out of building, engineering, mining or other operations in, over or under land, or the making of any material change in the use of any buildings or other land".
• In dealing with the application for planning permission, s 70(2) TCPA 1990 requires the local planning authority and the Secretary of State to have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.
• Section 38(6) Planning and Compulsory Purchase Act 2004 ("P&CPA 2004") provides that, if regard is to be had to the development plan for the purpose of any determination for planning permission, that determination must be made in accordance with the development plan, unless material considerations indicate otherwise.
Further, article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2010 (SI 2010 No. 2184) (in force at the time of the Council's refusal for permission, but now superseded by the Town and Country Planning (Development Management Procedure (England) Order 2015 (SI 2015 No. 595)), provides (so far as relevant):
" 31.—(1) When the local planning authority give notice of a decision or determination on an application for planning permission …—
….
(b) where planning permission is refused, the notice shall state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision …" [emphasis added]
The relevant development plan in this case was the Replacement Calderdale Unitary Development Plan ("RCUDP").
Whilst not exhaustive, it may be helpful at the outset to set out some of the main relevant applicable principles summarised (since they are generally well-known and established) as follows:
• First and foremost an appeal to the High Court is not an opportunity to re-argue the planning merits of the case: Newsmith Stainless Steeel Ltd v Secretary of State [2001] EWHC 74 (Admin). It must be remembered that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State: Tesco Stores v Secretary of State [1995] 1 WLR 759 at 780 per Lord Hoffman.
• Nevertheless the court can interfere if the decision maker has taken into account a consideration which is immaterial, or failed to take into account one which is material: Ashbridge v Minister of Housing [1965] 1 WLR 1320 at 1326 Lord Denning MR;
• An important example of the kind of material considerations to which the Inspector would be required to have regard in determining the planning appeal generally includes the National Planning Policy Framework ("NPPF"), where, of course, relevant: Tewkesbury Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 286 (Admin), at para. 14. But the fact that a particular policy is not mentioned in a decision letter does not necessarily mean it has been ignored, as it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors: Sea Land Power & Energy Ltd v Secretary of State [2012] EWHC 1419 (QB) at para. 58 per Lang J;
• The interpretation of policy in its proper context is a matter for the courts: Tesco v Dundee CC [2012] UKSC 13, per Lord Reed at [19]–[23] but once properly understood, the application of policies is a...
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