Hersch Schneck v Secretary of State for Levelling Up, Housing & Communities
| Jurisdiction | England & Wales |
| Judge | Mr Tim Smith |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3335 (Admin) |
| Docket Number | Case No: CO/1952/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 3335 (Admin)
Mr Tim Smith
(sitting as a Deputy High Court Judge)
Case No: CO/1952/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Turney (instructed by Asserson) for the Claimant
Nina Pindham (instructed by Government Legal Department) for the First Defendant
The Second Defendant did not appear at the hearing
Hearing date: 22 nd November 2022
Approved Judgment
This judgment was handed down remotely at 10.00am on Wednesday 21 December 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Mr Tim Smith (SITTING AS A DEPUTY HIGH COURT JUDGE)
Mr Tim Smith (sitting as a Deputy High Court Judge): Introduction
This claim is a challenge to an appeal decision taken by one of the First Defendant's Planning Inspectors. The Second Defendant, West Berkshire District Council ( “the Council”), is the local planning authority whose refusal of the Claimant's planning application led to the appeal in question.
Through his company Mountley Limited the Claimant owns the site known as Emerald House, Newbury Business Park, London Road, Newbury ( “the Site”). The Site was originally in office use but I was informed that it has undergone a partial conversion to residential use, in exercise of permitted development rights under the Town & Country Planning (General Permitted Development) (England) Order 2015 (SI 2015 No.596) (as amended) ( “the GPDO”), with the result that it is now in a mix of commercial and residential use. When the conversion has been completed the residential component of the Site will comprise 109 flats.
On 14 th October 2019 the Claimant applied to the Council for planning permission for an additional 13 flats that would be accommodated in a new floor to be erected on top of the building.
The planning application was refused by the Council on 20 th March 2020. The Claimant appealed against the refusal to the First Defendant. A Planning Inspector, Mr Jonathan Edwards ( “the Inspector”), was appointed by the First Defendant to decide the appeal. The appeal was conducted according to the written representations procedure with a site visit being undertaken by the Inspector on 12 th April 2021.
By his decision letter dated 22 nd April 2021 ( “DL”) the Inspector dismissed the appeal on two grounds, the first of which related to the failure of the development to make an appropriate contribution towards affordable housing and the second of which related to flood risk.
The Claimant challenges the decision to dismiss his appeal under section 288 of the Town & Country Planning Act 1990 citing three grounds which I summarise as follows: ground 1 relates to errors in the Inspector's conclusions on affordable housing, ground 2 relates to errors in the Inspector's conclusions on flood risk, and ground 3 relates to errors in the Inspector's treatment of the “fall-back” argument advanced by the Claimant as part of his submissions on the appeal.
The claim was considered on the papers by Neil Cameron KC sitting as a Deputy High Court Judge. By his Order dated 15 th July 2021 Mr Cameron KC granted permission for the claim to proceed on grounds 1 and 2 but refused permission on ground 3.
The Claimant renewed his application for permission to proceed on ground 3 and his renewed application came before me alongside the substantive hearing of grounds 1 and 2. Mr Richard Turney for the Claimant and Ms Nina Pindham for the First Defendant both agreed that it was appropriate for me to deal with the renewed application in parallel with the substantive hearing of grounds 1 and 2. In particular Mr Turney acknowledged that if he were to succeed on his renewed application for permission there would be no additional material to introduce to the Court in order for the substantive ground 3 to be argued and determined by me. I agreed to proceed on this basis.
The claim was listed for hearing originally in March 2022 and then in June 2022. The parties agreed two adjournments of those hearing dates in the hope, explained Mr Turney, that the need for the claim could be avoided through parallel discussions between the Claimant and the Council. That did not transpire and so the claim remained on foot. Both parties agreed that it was unnecessary for me to know of the circumstances behind the previous adjournments.
The Council as Second Defendant filed an Acknowledgement of Service along with Summary Grounds of Resistance indicating an intention to defend the proceedings alongside the Secretary of State as First Defendant. Following the grant of permission on grounds 1 and 2 the Council's representative advised that its Summary Grounds would serve as its Detailed Grounds of Resistance too. Ultimately the Council elected not to appear at the hearing and to leave the defence to the claim in the hands of the First Defendant, although its Summary Grounds were not withdrawn and so I have had regard to them in addition to the written and oral submissions made on behalf of the Claimant and the First Defendant.
The final procedural point to note is that the Order of Mr Cameron KC granting permission included a series of standard case management directions. One of those related to the filing of skeleton arguments, firstly by the Claimant and then by the Defendants. The Claimant's skeleton argument was filed late. This prompted an application from the First Defendant for an amendment to the directions allowing him to file his own skeleton argument late. I granted that application and reserved a decision on the costs of it.
Factual Background
Originally the Site was an office building. In September 2018 the Claimant applied to the Council for a determination of whether prior approval was required for the exercise of permitted development rights under Part O of the GPDO to change the use of the Site from an office use to form 109 residential apartments. On 25 th October 2018 the Council confirmed that prior approval was not required, subject to compliance with certain conditions. Those conditions were complied with and hence the Site benefits from the permission for 109 apartments conferred by the GPDO.
Thereafter on 7 th October 2019 the Claimant submitted a planning application ( “the Application”) to the Council for development at the Site to:
“Increase the height of the building and replacement mansard roof to include provision for a new third floor of residential accommodation (13 units), provision of dormer windows on second floor and scheme of external design treatment to facilitate works”
The statutory development plan is the West Berkshire Core Strategy 2012. Two policies of particular relevance to this claim are policies CS6 (related to the provision of affordable housing) and CS16 (related to flood risk).
Dealing firstly with affordable housing, policy CS6 provides as follows:
“ Provision of Affordable Housing
In order to address the need for affordable housing in West Berkshire a proportion of affordable homes will be sought from residential development. The Council's priority and starting expectation will be for affordable housing to be provided on-site in line with Government policy.
Subject to the economics of provision, the following levels of affordable housing provision will be sought by negotiation:-
• On development sites of 15 dwellings or more (or 0.5 hectares or more) 30% provision will be sought on previously developed land, and 40% on greenfield land;
• On development sites of less than 15 dwellings a sliding scale approach will be used to calculate affordable housing provision, as follows:-
• 30% provision on sites of 10 – 14 dwellings; and
• 20% provision on sites of 5 – 9 dwellings.
Proposed provision below the levels set out above should be fully justified by the applicant through clear evidence set out in a viability assessment (using an agreed toolkit) which will be used to help inform the negotiated process.
In determining residential applications the Council will assess the site size, suitability, and type of units to be delivered. The Council will seek a tenure split of 70% social rented and 30% intermediate affordable units, but will take into consideration the identified local need and the site specifics, including funding and the economics of provision.
The affordable units will be appropriately integrated within the development. The Council will expect units to remain affordable so as to meet the needs of both current and future occupiers. Where this is not relevant or possible, the subsidy will be recycled for the provision of future affordable housing.”
The First Defendant's planning policies are found in the National Planning Policy Framework, the current edition dating from 2021 ( “NPPF”). The NPPF also includes policies requiring the provision of affordable housing in connection with certain proposals for residential development.
The Council's suite of planning policies also includes The West Berkshire Planning Obligations Supplementary Planning Document (2014) ( “the SPD”). It includes an acknowledgement that applicants may seek to demonstrate that planning obligations which policy ordinarily requires cannot be provided due to viability constraints. It advises, at paragraph 40:
“If an applicant wants to demonstrate that the S106 obligations cannot be provided due to exceptional viability circumstances, the applicant will be required to submit an open book viability assessment to the Council for consideration”
By reason of this policy the Claimant submitted with the Application various supporting documents including a financial viability appraisal ( “the FVA”)....
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