Gladman Developments Ltd v Secretary of State for Housing Communities and Local Government

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Dove
Judgment Date29 January 2019
Neutral Citation[2019] EWHC 127 (Admin)
Date29 January 2019
Docket NumberCase No: CO/3276/2018

[2019] EWHC 127 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Dove

Case No: CO/3276/2018

Between:
Gladman Developments Limited
Claimant
and
Secretary of State for Housing Communities Local Government
First Defendant

and

Central Bedfordshire Council
Second Defendant

Peter Goatley (instructed by Addleshaw Goddard LLP) for the Claimant

The first Defendant did not appear and was not represented

Saira Kabir Sheikh QC (instructed by LGSS Law Limited) for the Second Defendant

Hearing dates: 6 th December 2018

Approved Judgment

Mr Justice Dove

Background

1

On the 8 th July 2016 the Claimants made an application for planning permission to the Second Defendant for development of up to 135 residential dwellings (including up to 35% affordable housing), the introduction of structural planting and landscaping, informal public open space and children's play area, surface water flood mitigation and attenuation, vehicular access points and other ancillary works at Langford Road, Henlow, Bedfordshire. That application was refused by the Second Defendant for two reasons on 6 th October 2016. The Claimants then appealed under Section 78 of the Town and Country Planning Act 1990 and this is challenge to the decision which the First Defendant's duly appointed Inspector reached on 16 th August 2018 in relation to the appeal. The decision which the Inspector made was that planning permission should be refused.

2

By the time of the public inquiry in relation to the appeal one of the reasons for refusal had been resolved, leaving the sole basis of refusal characterised by the Inspector in the following terms as the main issue before him:

“5. The main issue is the effect of the proposed development on the character and appearance of the area, with any identified harm being assessed within the context of the Council's housing land supply situation, and the effect that this in turn, has on the weight to be given to that harm.”

3

Underpinning that main issue before the inquiry was the contention that the Claimants' proposal was in breach of a number of development plan policies derived from the Central Bedfordshire Core Strategy and Development Management Policies November 2009 (“the CS”). One of those policies was policy DM4. The relevant parts of policy DM4, together with its introductory explanatory text so far as relevant to these proceedings, provided as follows:

“11.1.1 To define the boundaries between settlements and surrounding countryside the Council has through the Proposals Map, defined Settlement Envelopes for all those communities within the district that are set out in the Settlement Hierarchy. The Settlement Envelope Review which was referred in Annex G, made recommendations to amend the Settlement Envelope boundaries. In some instances, where there is ambiguity in defining that boundary, the Envelope has been used to reflect the character of the predominant land use, using the most appropriate and clear physical features on the ground.

11.1.15 Outside settlements, where the countryside needs to be protected from the inappropriate development, only particular types of new development will be permitted in accordance with national guidance (PPS7—Sustainable Development in Rural Areas) and the East of England Plan. This includes residential development on Exceptions Schemes as set out by CS7, or dwellings for the essential needs of those employed in agriculture or forestry, or that which re-uses or replaces existing dwelling.

Policy DM4: Development Within and Beyond Settlement Envelopes:

Within Settlement Envelopes, the Council will support schemes for community, education, health, sports and recreation uses or mixed community and other uses where a need for such facilities is identified through the Infrastructure Audit or up to date evidence. Where no land is available within the settlement, a site adjacent to the settlement may be granted planning permission. Such development should make the best use of available land and lead to more sustainable communities.

Within the Settlement Envelopes of both Major and Minor Service Centres, the Council will approve housing, employment and other settlement related development commensurate with the scale of the settlement, taking account of its role as a local service centre.

Within Settlement Envelopes in Large Villages, small-scale housing and employment uses, together with new retail and service facilities to serve the village and its catchment will be permitted.

Within Settlement Envelopes in Small Villages, development will be limited to infill residential development and small-scale employment uses.

Beyond Settlement Envelopes, limited extensions to gardens will be permitted provided they do not harm the character of the area. They must be suitably landscaped or screened from the surrounding countryside and buildings may not be erected on the extended garden area.”

4

The Claimants' appeal site was beyond the settlement boundary giving rise to the undisputed proposition that development would be contrary to policy DM4. The Claimant contended that there were a number of reasons why conflict with policy DM4, and other relevant policies in the CS, should be afforded less weight or treated as irrelevant to the merits of the proposal. The first of these was the contention that the Second Defendant could not identify a five-year housing land supply. The Inspector rejected that contention. The second argument raised was that the weight to be afforded to policy DM4 had to be diminished as it was out of date. As the Inspector noted in paragraph 34 of his decision the tilted balance which favours the grant of planning permission contained within paragraph 14 of the National Planning Policy Framework (“the Framework”) can be triggered when one of the relevant policies of the development plan is considered to be out of date. For the avoidance of doubt, at the time of the decision under challenge the operative version of the Framework was that published in March 2012, and all references to the Framework in this judgment are references to that document. The question of whether a policy is out of date is to be gauged against the policy contained in paragraph 215 of the Framework, which provides as follows:

“215. In other cases and following this 12-month period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given).”

5

It was the Claimants' contention before the Inspector that paragraph 215 of the Framework was particularly in point in relation to policy DM4, and that it was a policy which was not consistent with the other policies contained in the Framework, and therefore should be regarded as out of date and of little weight, leading to the application of the tilted balance in resolving the question of whether or not planning permission should be granted. The Inspectors reasons in relation to that contention were set out in paragraphs 35–41 of the decision as follows:

“35. On the surface, and read in isolation, policy DM4 is a restrictive policy based on an outdated housing need, in that it limits development outside of settlement boundaries to limited extensions to gardens, provided that they do not harm that character of that area. However the supporting text in 11.1.15 makes clear that certain types of development that are in accordance with the now defunct PPS7 will be permitted. These include exception schemes, dwellings for the essential needs of those employed in agriculture or forestry and the re-use or replacement of existing dwellings. Furthermore, the settlement envelopes referred to in the policy do not exist purely to accommodate the housing growth over the plan period but also, it is stated, to reflect the character of the predominant land use.

36. The policy is not therefore completely restrictive and, whilst I acknowledge that paragraph 113 of the Framework seeks to protect landscape commensurate with its status, and that policy DM4 does not attempt to evaluate different landscapes, the Framework also makes clear in paragraph 17 that the intrinsic character and beauty of the countryside should be recognised. Furthermore, there is nothing in the Framework that indicates that the loss of undesignated land cannot be harmful to the character and appearance of an area and this is reinforced in the Cawrey judgement, which confirms that the loss of undesignated countryside is capable of being harmful in the planning balance.

37. The overarching aim of the policy DM4 is to promote residential development in appropriate areas. This was an objective of the Core Strategy at the time that it was adopted, and whilst this was prior to the introduction of the Framework, it is still an objective that is very relevant and appropriate today and is a principle that still applies in the Framework, indeed it underpins the plan-led system, which is itself specifically supported by the Framework. Furthermore, whilst the principle of settlement boundaries is not specifically mentioned in the Framework, nor is it discounted.

38. In this particular case the Council can demonstrate a five year housing land supply which indicates that the presence and use of DM4 has not been restrictive. I acknowledge that the Inspector in the recent Meppershall decision considered that the existence of a five year housing land supply was despite the existence of policy DM4. However, to my mind the examples of instances where development has been allowed contrary to policy DM4 indicates that a balancing exercise has been carried out in a pragmatic and correct way, and that consequently DM4 has not been used to restrict suitable development.

39. I note that...

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