Gladman Developments Ltd v Canterbury City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Floyd,Sir Terence Etherton M.R. |
| Judgment Date | 16 April 2019 |
| Neutral Citation | [2019] EWCA Civ 669 |
| Docket Number | Case No: C1/2018/1646 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 April 2019 |
[2019] EWCA Civ 669
The Master of the Rolls
Lord Justice Floyd
and
Lord Justice Lindblom
Case No: C1/2018/1646
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE DOVE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John Barrett (instructed by Addleshaw Goddard LLP) for the Appellant
Ms Isabella Tafur (instructed by Canterbury City Council) for the Respondent
Hearing date: 13 March 2019
Judgment Approved by the court for handing down
(subject to editorial corrections)
Did an inspector who allowed an appeal under section 78 of the Town and Country Planning Act 1990 against the refusal of planning permission for a development of housing misinterpret and misapply relevant policies of the development plan? That is the basic question in this appeal. It raises no new issue of law.
With permission granted by Sales L.J. on 14 September 2018, the appellant, Gladman Developments Ltd., appeals against the order of Dove J., dated 26 June 2018, quashing the decision of the inspector appointed by the interested party, the Secretary of State for Housing, Communities and Local Government, to allow Gladman's appeal against the refusal of planning permission by the respondent, Canterbury City Council, for a development of up to 85 dwellings on land at Blean Common, close to the settlement of Blean in Kent. The inspector held an inquiry into Gladman's appeal in February and March 2017. His decision letter is dated 11 July 2017. The city council's challenge was made by an application under section 288 of the 1990 Act. Dove J. upheld it on all three grounds.
The Secretary of State defended the inspector's decision in the court below, but has taken no part in this appeal.
The issues in the appeal
The appeal concerns two saved policies of the adopted local plan for the city council's area – Policy H1 and Policy H9 of the Canterbury District Local Plan First Review, adopted in July 2006 – and one policy of the draft replacement local plan – Policy SP4 of the draft Canterbury District Local Plan. Dove J. concluded that the inspector had erred in law by misinterpreting and misapplying each of those three policies, and so failed to perform his duty under section 38(6) of the Planning and Compulsory Purchase Act 2004. Gladman contends that the judge's conclusions on all three policies were wrong. There are therefore two main issues in the appeal: first in the case of the two policies of the adopted local plan, and secondly in the case of the single policy of the emerging local plan, the correctness of the judge's interpretation and of his conclusions on the inspector's application of them.
The policies in the adopted local plan
At the time of the inquiry into Gladman's appeal the development plan comprised the saved policies of the adopted local plan. The saving direction made by the Secretary of State for Communities and Local Government on 30 June 2009 stated that the “extension of saved policies listed …” was “intended to ensure continuity in the plan-led system and a stable planning framework locally, and in particular, a continual supply of land for development”. The direction saved six policies in Chapter 2 of the plan, “Providing Decent Housing”. These included Policy H1, for residential development on allocated sites; Policy H2, for a reserve allocation of land for housing; and Policy H9, for residential development on previously developed land in villages. Policy H3, which dealt with proposals for the development of unidentified large sites, for five or more dwellings, was not saved.
In Chapter 1 of the plan, “Key Vision and Strategic Development Objectives”, paragraph 1.1, under the heading “OUR DEVELOPMENT OBJECTIVES”, stated that the plan had “a long term vision for the District to concentrate development within the urban areas of Canterbury, Whitstable and Herne Bay thus enabling urban (and suburban) renaissance …”. Under the heading “HOUSING”, paragraph 1.7 said that the city council's “Urban Housing Capacity Study (2003) … indicates a significant proportion of the housing land requirement for the Plan period can be met by the release of previously-developed land in the urban areas”, but that “some “greenfield” sites will also need to be released to ensure the full housing requirement is met”. Paragraph 1.14 said that “[the] rural areas of the district are defined essentially as all those areas outside the built-up areas of the towns and villages”, that in those areas “the general countryside policies set out in this Plan, the South East Plan and Kent & Medway Structure Plan, will apply”, that the “urban areas are defined … by urban area boundaries shown on the Proposals Map”, and that “[village] boundaries are not specifically defined on the Proposals Map”. In the “CONCLUSION” paragraph 1.24 set out nine “Strategic Development Objectives”, including “a) [to] focus sustainable housing development within the defined urban areas on previously developed land, seeking to protect the environment and green space”, and “e) [to] promote sustainable rural communities and enhanced and managed environments, and to protect the countryside for its own sake, and for the benefit of all”.
In Chapter 2, paragraph 2.1 under the heading “OUR OBJECTIVES” stated six “objectives for providing decent housing”, one of them “[to] maximise housing development on land that has previously been developed, is derelict or underused (brownfield land) within the urban areas”.
In the section headed “HOUSING DEVELOPMENT WITHIN THE URBAN AREAS”, under the sub-heading “Urban Housing Capacity Study (UHCS)”, paragraph 2.11 stated:
“2.11 The UHCS demonstrates that there is the potential and capacity within our existing urban areas to achieve the strategic housing requirements set out by the Structure Plan, until 2011. On the basis of this Study, the Council does not need to allocate, or grant planning permission for large new housing development outside the urban areas before 2011. … It is the City Council's intention … to continue to promote residential development on land that has been previously developed, is derelict or underused within the urban and suburban areas.”
and paragraph 2.13:
“2.13 There are some sites outside urban areas but within villages that are previously developed, used, underused or derelict. Such sites could come forward as large windfall sites if they do not have an adverse impact on the social and physical infrastructure of the villages and surrounding areas and are acceptable in all other respects. These will be assessed against policy H9. Housing development on previously developed land outside the villages will not be acceptable unless there are exceptional circumstances, and where it is sustainable.”
Policy H1 stated:
“The City Council will permit residential development on sites allocated for housing or mixed use as shown on the Proposals Map (see also all Insets). On other non-identified sites, on previously developed land within the urban areas, planning permission will also be granted unless the particular site makes an identifiable contribution to the economic, environmental or social well-being of the town or District, and there is unlikely to be an excessive supply of new housing development coming forward within the Plan period. In these circumstances policy H3 will be applied. All development will be subject to policy BE1 of the Local Plan and those sites specified in paragraph 6.62 shall be the subject of a Development Brief.”
Policy H2 and Policy H3 – which, as I have said, was not a saved policy – appeared in a section under the sub-heading “The Phased Release of Housing Sites”. In the text within that section paragraph 2.17 said that “[on] a potential housing site that forms either an extension to the urban area, or involves the development of a greenfield site, the City Council will apply sustainability and environmental criteria to test the suitability of the site for housing”. Policy H2 identified a “reserve housing provision on land adjoining Richmond Drive, Beltinge … to accommodate up to an additional 40 dwellings in the Plan period up to 2011 …”. The text preceding Policy H3, in paragraphs 2.19 to 2.21, stated:
“2.19 In view of the outcome of the assessment of the HLS, the City Council considers that it is unlikely that the phased release of sites outside the urban areas will need to come forward. However, if the allocation of new greenfield sites, in addition to the reserve site, were found to be necessary, these would be identified through the LDF process.
2.20 To ensure the correct pace of delivery of new housing in the plan period, in accordance with the phased requirements of the Structure Plan, policy H3 sets out the approach to large unidentified sites which might come forward. Applications for such large unidentified sites will be judged against need (both quantitative and qualitative) and the local plan strategy including environmental and sustainability considerations and a sequential approach to housing sites.
2.21 Acceptable proposals for housing on unidentified sites will be welcomed where such proposals are part of a comprehensive redevelopment to regenerate a designated area in the plan such as regeneration zones or town centres.”
Policy H3 stated:
“A managed approach to the release of housing sites will be applied. Proposals for the development of large sites (5 or more dwellings) which are not identified in the plan, will be permitted within the plan period if they do not prejudice the plan's environmental and sustainability strategy, and are acceptable in sequential terms compared with other available sites, or are required to meet a quantitative or qualitative need.”
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