Forest of Dean District Council v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 04 October 2016 |
| Neutral Citation | [2016] EWHC 2429 (Admin) |
| Date | 04 October 2016 |
| Docket Number | Case No: CO/978/2016 |
| Court | Queen's Bench Division (Administrative Court) |
[2016] EWHC 2429 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN BRISTOL
Bristol Civil Justice Centre
2 Redcliff Street
Bristol
Mr Justice Hickinbottom
Case No: CO/978/2016
Peter Wadsley and Philip Robson (instructed by Forest of Dean District Council Legal Services) for the Claimant
Gwion Lewis (instructed by the Government Legal Department) for the First Defendant
Peter Goatley (instructed by Irwin Mitchell LL) for the Second Defendant
Hearing date: 4 October 2016
Approved Judgment
Introduction
This is an application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), in which the Claimant local planning authority ("the Council") seeks to quash a decision dated 14 January 2016 of an inspector appointed by the First Defendant Secretary of State, namely George Baird BA (Hons) MA MRTPI ("the Inspector"), to allow an appeal under section 78 of the 1990 Act against its decision dated 10 December 2014 and to grant planning permission for up to 95 dwellings and associated development at land north of Gloucester Road, Tutshill, Chepstow, Gloucestershire ("the Site") on the application of the Second Defendant ("the Developer"). The Site is immediately adjacent to the village of Tutshill, being separated from other dwellings by Gloucester Road and Elm Road.
At the hearing before me, the Council has been represented by Peter Wadsley and Philip Robson, the Secretary of State by Gwion Lewis, and the Developer by Peter Goatley, all of Counsel. I thank them all for their focused, and helpful, submissions.
The Council originally sought to challenge the Inspector's decision on several grounds; but, on 10 June 2016, I refused permission to proceed on all but one. The application in relation to the other grounds has not been pursued.
The sole extant ground is straightforward, discrete and narrow. Briefly, the Council through Mr Wadsley contends that the Inspector erred in the manner in which he dealt with landscape. Paragraph 109 of the National Planning Policy Framework ("the NPPF") states that: "The planning system should contribute to and enhance the natural and local environment by… protecting and enhancing valued landscapes…". That requires a planning decision-maker to determine whether the relevant landscape is "valued"; and then, if it is, to recognise that enhanced planning status by taking into account the policy that such landscapes should be protected and enhanced. The Inspector erred (it is said) by equating "valued landscape" with a landscape that is designated to have a particular landscape quality. The landscape here is not the subject of any designation; but the Inspector erred in finding that, consequently, it was necessarily also not "valued". He ought to have assessed whether the landscape was a "valued landscape" for the purposes of paragraph 109 of the NPPF; and, had he done so, it cannot be assumed that he would definitely have concluded that it was not; and it cannot be assumed that his decision to grant the application for planning permission would have been the same. The Inspector's error was therefore material, and his decision ought to be quashed.
Mr Lewis for the Secretary of State concedes that the Inspector erred in law in eliding designation of a landscape area with an area being a valued landscape; but contends that, even if the Inspector not made that error, his decision to grant planning permission would inevitably have been the same; because the Inspector properly considered landscape value (finding it to be "medium") and, in the circumstances, even if he had not erred, it is inconceivable that he would have found the landscape to be valued, or concluded that planning permission ought not to be granted. Therefore, the Council should be denied any relief.
On the other hand, Mr Goatley for the Developer submits that, if the Inspector's Decision is properly construed, it does not err in law: the Inspector properly found the landscape not to be valued because it lacked the necessary attributes, and lawfully approached the issue of valued landscape, concluding that planning permission ought to be granted. Alternatively, he submits that, even if the Inspector err in law in eliding these two concepts as alleged, then the findings he made would inevitably have led him to the same conclusion in any event; and, so, again, relief ought to be denied.
The Relevant Law and Policy
The relevant law and policy is uncontroversial.
Section 70(2) of the 1990 Act provides that, in dealing with an application for planning permission, a decision-maker must have regard to the provisions of "the development plan", as well as "any other material consideration". "The development plan" sets out the local planning policy for an area, and is defined by section 38 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to include adopted local plans.
Section 38(6) of the 2004 Act 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."
Section 38(6) thus raises a presumption that planning decisions will be taken in accordance with the development plan, but that presumption is rebuttable by other material considerations.
The relevant adopted local plan for the Site was the Council's Core Strategy adopted in February 2012 ("the Core Strategy") together with saved policies from the Council's Local Plan 2005. There was also an emerging Allocations Plan.
Policy CSP1 of the Core Strategy provides that the design and construction of new development must take into account important characteristics of the environment and conserve, preserve or otherwise respect them in a manner that maintains or enhances their contribution to the environment, including their wider context. Mr Wadsley emphasised the disjunctive nature of "maintained or enhanced", compared with paragraph 109 of the NPPF in which the terms are used conjunctively ("protected and enhanced"), such that the status conferred by paragraph 109 is the greater. In achieving that, Policy CSP1 sets out a number of matters that must be considered, including: "The effect of the proposal on the landscape including [Areas of Outstanding Natural Beauty] and any mitigation/enhancement that is necessary or desirable". Paragraph 6.5 of the notes to the Core Strategy states:
"Overall the variety of landscapes is an outstanding feature of the Forest of Dean District and it is vital that development proposals take account of this, as well as any nature conservation or archaeological and/or historical interests. The impact on the landscape will primarily be evaluated using the Council's Landscape Supplementary Planning Document and the Landscape Assessment. It will be a key consideration in the evaluation of any development proposal."
"Material considerations" in this context include statements of central government policy which are now largely set out in the NPPF. The true interpretation of policy, including the NPPF, is a matter of law for the court to determine ( Tesco Stores Ltd v Dundee City Council [2012] UKSC 13).
A landscape area may be designated in a number of ways, including internationally, nationally or by a local authority. Whilst the principle landscape designations in England are as National Parks, Areas of Outstanding Natural Beauty and Heritage Coasts, these are supplemented by a host of non-statutory designations, mostly made by local authorities. Once designated, a landscape is the subject of identified protection.
I have already referred to the terms of paragraph 109 of the NPPF (see paragraph 4 above), which is at the heart of this application. "Valued landscape" is not defined in the NPPF itself; but its scope and definition were considered recently in Stroud District Council v Secretary of State for Communities and Local Government [2015] EWHC 488 (Admin) ("Stroud"). Ouseley J held that the NPPF is clear in distinguishing "valued landscape" from landscape which has a "designation" (see [13]); and he considered that "valued" meant something other than popular, such that landscape was only "valued" if it had physical attributes which took it out of the ordinary (see [14] and [18]). That reasoning was followed by Patterson J in Cheshire East Borough Council v Secretary of State for Communities and Local Government [2016] EWHC 694 (Admin); and, before both the Inspector and me, it has been uncontentious. It reflects, at least to an extent, the Landscape Institute's Guidelines for Landscape and Visual Impact Assessment ("the GLVIA"), which also makes clear that an absence of designation does not necessarily mean an absence of landscape value. The GLVIA identifies various factors that may be relevant in the assessment of landscape value, in something known as "Box 5.1".
I should also briefly refer to paragraphs 47 and 49 of the NPPF, which provide that, if the relevant authority cannot demonstrate a five-year plus buffer supply of housing land at the time of a decision for specific housing development, then that weighs in favour of a grant of permission. In particular, in those circumstances, relevant housing policies are to be regarded as out-of-date, and hence (i) they are of diminished weight; and (ii) there is a presumption of granting permission unless the adverse impacts of granting permission "significantly and demonstrably" outweigh the benefits, or other NPPF policies indicate that development should be restricted in any event. In this case, the Inspector found that the Council had...
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