Gladman Developments Ltd v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 24 July 2019 |
| Neutral Citation | [2019] EWHC 2001 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5063/2018 |
| Date | 24 July 2019 |
[2019] EWHC 2001 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dove
Case No: CO/5063/2018
and
Richard Kimblin QC and Thea Osmund-Smith (instructed by Addleshaw Goddard LLP) for the Claimant
Richard Honey (instructed by Government Legal Department) for the 1st Defendant
Non-appearance and no representation for the 2 nd Defendant
Hearing dates: 14th & 16th May 2019
Approved Judgment
On the 31 st August 2016 the Claimant applied to the Second Defendant for outline planning permission for up to 225 residential dwellings (including up to 25% affordable housing) and associated hard and soft infrastructure, on land at Town Road, Cliffe Woods, Kent. That application was refused on the 5 th May 2017. Two reasons for refusal were relied upon by the Second Defendant. The first reason for refusal related to the accessibility of Cliffe Woods for development of the scale that was proposed. The second reason related to the adverse impact of the proposals upon the character and amenity of the local area. The Claimant appealed against the refusal of planning permission to the First Defendant pursuant to section 78 of the Town and Country Planning Act 1990. On the 13 th September 2017 the First Defendant recovered the appeal for his own determination and directed that a public inquiry be held into the proposals.
The public inquiry opened on the 28 th November 2017, and during the course of the inquiry on the 29 th November 2017 a Statement of Common Ground was agreed between the Claimant and the Second Defendant in respect of the issues involved in the appeal. In particular, the Statement of Common Ground agreed as follows in relation to nature conservation issues:
“Ecology
5.13.1 The parties agree that subject to the imposition of appropriate conditions, including an Environmental Construction Management Plan, the proposal is considered the be acceptable in terms of Ecology and accords with Policies BNE35, BNE38 and BNE39 of the Medway Local Plan 2003.”
Amongst those matters which the Inspector noted in his report as being agreed between the Claimant and the Second Defendant was that the tilted balance from paragraph 14 of the National Planning Policy Framework (“the Framework”) from 2012, which was before him at the time of completing his report, was engaged in striking the planning balance in the case. That was because it was accepted that there was a significant shortfall in the five year housing land supply requiring the application of the tilted balance when reaching an overall conclusion as to whether planning permission should be granted. The Inspector identified the main issues arising in the appeal to be the accessibility of the appeal site; the effect of the development of the appeal site on the character and appearance of the area and its landscape; and, applying the tilted balance, whether any adverse impacts of the proposals would significantly and demonstrably outweigh the benefits of the scheme.
Significantly, for the purposes of the application before the court, there was no issue raised in relation to any adverse nature conservation consequences arising from the proposal. In particular no adverse consequences were identified in respect of the impact of any additional recreational pressures on the Thames Estuary Marshes SPA/RAMSAR and the Medway Estuaries and Marshes SPA/RAMSAR sites.
The relevant parts of the Inspector's conclusions in relation to the planning balance which led him to recommend that the appeal be allowed and planning permission be granted were as follows:
“133. In summary, there would be some conflict with Policy BNE25(i) of the Medway Local Plan in terms of the effect on the landscape. However, the development would offer access by a range of transport modes, as required by BNE25(i), although new residents may also rely on private vehicles. The scheme would be not be located within an existing urban area, as prioritised by Policies S1 and S2. Importantly, though, the Council cannot demonstrate a five year supply of housing. Moreover, Policy BNE25 is not fully compliant with the Framework, and, together with Policies S1 and S2, they are not delivering the necessary provision of housing. This diminishes the weight that can be attached to any conflict with these policies.
134. The significant ongoing housing shortfall attracts substantial weight in favour of granting permission for the proposals, unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies of the Framework taken as a whole. I am satisfied that none of the reasons put forward for opposing the development establishes that the harm would be significant or would demonstrably outweigh the benefits. Therefore, notwithstanding any conflict with Policies BNE25, S1 and S2 of the Local Plan, I recommend that the appeal should succeed, subject to the imposition of conditions.”
The Inspector's report was dated the 29 th March 2018. On the 12 th April 2018 the Court of Justice of the European Union (“the CJEU”) handed down judgment in the case of People Over Wind and Sweetman v Coillte Teoranta [C-323/17]. The detail of this decision is discussed below, but in essence the CJEU made clear that in undertaking a screening assessment as to whether or not Appropriate Assessment is required for a plan or project under article 6(3) of Council Directive 92/43/EEC (“the Habitats Directive”) it is not permitted to take account of measures intended to avoid or reduce the harmful effects of the plan or project under consideration. This was a departure from the domestic jurisprudence on this issue which had, since the case of R (on the application of Hart DC v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin); [2008] 2 P&CR 16, held that it was permissible to take account of mitigation measures, or measures designed to avoid or reduce the harmful effects of a plan or project, at the time when undertaking the screening assessment required by Article 6(3) of the Habitats Directive to examine whether or not Appropriate Assessment was required.
On the 28 th June 2018 the First Defendant wrote to the Claimant and the Second Defendant inviting the parties' representations as to, firstly, whether or not an appropriate assessment was required in the light of the decision in People Over Wind and, secondly, their views as to the correct application of planning policy in the light of the People Over Wind decision. The reference to planning policy was in particular a reference to paragraphs 14 and 119 of the 2012 edition of the Framework which provided as follows:
“14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
…
For decision-taking this means:10
— approving development proposals that accord with the development plan without delay; and
— where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
–– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
–– specific policies in this Framework indicate development should be restricted. 9
…
9 For example, those policies relating to sites protected under the Birds and Habitats Directives (see paragraph 119) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, Heritage Coast or within a National Park (or the Broads Authority); designated heritage assets; and locations at risk of flooding or coastal erosion.
…
119. The presumption in favour of sustainable development (paragraph 14) does not apply where development requiring appropriate assessment under the Birds or Habitats Directives is being considered, planned or determined.”
In response to the letter of the 28 th June 2018 the Claimant provided a note addressing its views of the implications. Firstly, in relation to whether or not Appropriate Assessment was now required the note observed as follows:
“In the light of the recent judgment of the Court of Justice of the European Union in People Over Wind (PoW) it is acknowledged that an Appropriate Assessment (AA) is now required in relation to the appeal proposals for land at Town Road, Cliffe Woods. This is because mitigation was taken into account in previous Habitats Regulation Assessment ( HRA) screening process undertaken by Natural England and Medway Council, in reaching their conclusion of no likely significant impact on the Thames Estuary and Marshes SPA/Ramsar and the Medway Estuaries and Marshes SPA/Ramsar sites as a result of the appeal proposals. The mitigation considered comprised:
— Payment of a financial contribution towards the Strategic Access Management and Mitigation Strategy (SAMMS)
The appeal proposals include the provision of 3.8 ha of on-site pubic open space (POS) and green infrastructure (GI) which is an integral part of the proposed development. The opportunity that the on-site POS/GI presents through the creation of new recreational routes was also considered by Natural England and Medway Council in reaching the conclusion. For the avoidance of doubt, the on-site POS/GI is not proposed in order to mitigate likely significant effects on the European designated sites.
As such, GDL have instructed our ecologists to prepare an ‘Information for AA’ document to ensure that the Inspector, as the current Competent...
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