Forest of Dean District Council v Secretary of State for Communities and Local Government (First Defendant) Gladman Developments Ltd (Second Defendant)

JurisdictionEngland & Wales
JudgeThe Hon. Mr Justice Coulson
Judgment Date04 March 2016
Neutral Citation[2016] EWHC 421 (Admin)
Docket NumberCase No: CO/4852/2015
CourtQueen's Bench Division (Administrative Court)
Date04 March 2016

[2016] EWHC 421 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Bristol Civil and Family Justice Centre,

Redcliff Street, Bristol, BS1 6GR.

Before:

The Hon Mr Justice Coulson

Case No: CO/4852/2015

Between:
Forest of Dean District Council
Claimant
and
Secretary of State for Communities and Local Government
First Defendant

and

Gladman Developments Ltd
Second Defendant

Mr Peter Wadsley and Mr Philip Robson (instructed by Legal Services, FDDC) for the Claimant

Mr Gwion Lewis (instructed by Treasury Solicitor) for the First Defendant

Mr David Elvin QC and Mr Peter Goatley (instructed by Irwin Mitchell LLP) for the Second Defendant

Hearing date: 23 February 2016

The Hon. Mr Justice Coulson
1

INTRODUCTION

1

On 12 June 2014, the second defendant developer (whom I shall call "Gladman") applied for planning permission to build up to 85 dwellings and associated works on land north of Ross Road in Newent, GL18 1BE. In February 2015, the claimant (whom I shall call "FDDC"), refused that application. Gladman appealed and there was an Inquiry in late June/early July 2015. In a written decision dated 25 August 2015, the inspector allowed Gladman's appeal and granted outline planning permission.

2

By an application made pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), lodged on 5 October 2015, FDDC challenges the decision of the planning inspector. There are four grounds of appeal as follows:

(1) Failing to consider and give reasons as to whether the site was a 'valued landscape';

(2) Incorrectly applying the National Planning Policy Framework ("NPPF") at paragraph 134 and the test on harm to heritage assets;

(3) Failing to consider the interaction between paragraph 134 and paragraph 14 of the NPPF and therefore applying the wrong test;

(4) Inadequate reasoning.

3

Unusually perhaps, the first defendant (whom I shall call "SSCLG") expressly accepts that Ground 3, the failure to consider and apply the test created by the interaction between paragraphs 134 and 14 of the NPPF, has been made out. In consequence, SSCLG joins with the claimant, FDDC, in asking me to quash the appeal decision. Gladman do not accept Ground 3. In those circumstances, in order to save both time and costs, at the hearing I invited the parties to deal with Ground 3 only, although it was of course also necessary to deal with the issue of discretion and whether, if Ground 3 was made out, the inspector's decision would still have been the same.

4

The argument on these two points alone took almost all of the time allocated for the hearing on 23 February 2016. At the end of that hearing, I gave a short ruling in which I indicated that: a) FDDC's application on Ground 3 had been successful, together with brief reasons; and that b) it could not be said that, if the inspector had applied the right test, he would necessarily have reached the same answer. In those circumstances, I allowed the application to quash. I said that, in view of the importance of the point, not only for the parties, but for what I was told was the planning process generally, I would provide a fuller written judgment explaining the reasons for my decision. This is that Judgment.

2

THE RELEVANT LEGAL PRINCIPLES

2.1

Section 288

5

Section 288 of the 1990 Act provides as follows:

" 288 Proceedings for questioning the validity of other orders, decisions and directions

(1) If any person—

(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds—

(i) that the order is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that order; or

(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds—

(i) that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.

(2) Without prejudice to subsection (1), if the authority directly concerned with any order to which this section applies, or with any action on the part of the Secretary of State to which this section applies, wish to question the validity of that order or action on any of the grounds mentioned in subsection (1), the authority may make an application to the High Court under this section.

(3) An application under this section must be made within six weeks from the date on which the order is confirmed (or, in the case of an order under section 97 which takes effect under section 99 without confirmation, the date on which it takes effect) or, as the case may be, the date on which the action is taken.

(4) This section applies to any such order as is mentioned in subsection (2) of section 284 and to any such action on the part of the Secretary of State as is mentioned in subsection (3) of that section.

(5) On any application under this section the High Court—

(a) may, subject to subsection (6), by interim order suspend the operation of the order or action, the validity of which is questioned by the application, until the final determination of the proceedings;

(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action."

I note that this claim was brought under the unamended provisions of the 1990 Act, pursuant to which permission to make the application is not required. Thus the case proceeded directly to a substantive hearing. The amended s.288 only applies to decisions taken on or after 26 October 2015.

2.2

The Correct Approach to Section 288

6

The correct approach to be adopted to a s.288 claim was set out in paragraph 19 of the judgment of Lindblom J (as he then was) in Bloor Homes East Midland Ltd v SSCLG [2014] EWHC 754 (Admin) as follows:

"19. The relevant law is not controversial. It comprises seven familiar principles:

(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p.28).

(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 W.L.R. 1953, at p.1964B-G).

(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for [2001] EWHC Admin 74, at paragraph 6).

(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] P.T.S.R. 983, at paragraphs 17 to 22).

(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p.83E-H).

(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see,...

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