Hopkins Development Ltd v The Secretary of State for Communities and Local Government (1st Defendant) South Somerset District Council (2nd Defendant)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Denyer |
| Judgment Date | 25 June 2013 |
| Neutral Citation | [2013] EWHC 1783 (Admin) |
| Date | 25 June 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/10759/2012 |
[2013] EWHC 1783 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Bristol Civil Justice Centre
2 Redcliff Street,
Bristol,
BS1 6GB
His Honour Judge Denyer Q.C.
(sitting as a Judge of the High Court)
Case No: CO/10759/2012
Jeremy Cahill Q.C. and Satnam Choongh (instructed by Ashfords LLP) for the Claimant
James Maurici Q.C. (instructed by the The Treasury Solicitor) for the Defendants
Hearing Date: 25 th April 2013
His Honour Judge Denyer Q.C.:
On 8 th day of July 2011, the applicants applied for outline planning permission in respect of a residential development of land in Wincanton. The land was adjacent to the local cottage hospital. On 12 th October 2011, the application was refused. Six Grounds of Refusal were set out. (See page 284 of the bundle). Those grounds were as follows –
(1) The proposal for 58 dwellings outside the settlement boundary of Wincanton was not necessary to meet or contribute to the relevant five year housing supply.
(2) The proposal made insufficient provision for onsite public open space.
(3) The proposed developed will have an adverse effect on the amenities of existing residents and users of the hospital.
(4) The danger of noise and odours from the proposed pumping station.
(5) Access to the development through the hospital site would generate traffic movements detrimental to highway safety.
(6) Inadequate information as to how the development would have an impact on local educational and other facilities.
The Claimants duly appealed to the Secretary of State. An inspector was appointed and a local inquiry was to be held. That inquiry was held between 3 rd July and 6 th July 2012. The inquiry was governed by the Town and Country Planning Appeals Rules 2000. Certain of the Rules are relevant to matters with which I have to deal. They include –
Rule 7
(1) — An inspector may within twelve weeks of the starting date (of the inquiry) send to the parties a written statement of the matters about which he particularly wishes to be informed for the purposes of his consideration of the appeal.
Rule 11
(1) — The persons entitled to appear at an inquiry are –
(a) the Appellant;
(b) the local planning authority;
(c) a county council;
(h) any other person who has sent a statement of case.
(2) Nothing in paragraph (1) shall prevent the inspector from permitting any other person to appear at an inquiry.
Rule 14 – this deals with service of proofs of evidence.
Rule 15
(1) The local planning authority and the Appellant shall –
(a) together prepare an agreed statement of common ground; and
(b) ensure that the Secretary of State and any statutory party receives a copy of it not less than four weeks before the date fixed for the holding of the inquiry (see also Regulation 2 which defines a statement of common ground).
Rule 16(1), (2) and (3) –
(1) The inspector shall determine the procedure at an inquiry.
(2) At the start of the inquiry the inspector shall identify what are in his opinion the main issues to be considered at the inquiry and any matters on which he requires further explanation from the persons entitled or permitted to appear.
(3) Nothing in paragraph (2) shall preclude any person entitled or permitted to appear from referring to issues which they consider relevant to the consideration of the appeal but which were not issues identified by the inspector pursuant to that paragraph.
Rule 18
(3) If, after the close of an inquiry, an inspector proposes to take into consideration any new evidence or any new matter of fact which was not raised at the inquiry and which he considers to be material to his decision, he shall not come to a decision without first notifying the persons entitled to appear at the inquiry of the matter in question and affording them an opportunity of making written representations to him or of asking him to reopen the inquiry.
Both the Rules and the role of the inspector are explained and amplified in the Procedural Guidance Document produced by the planning inspectorate. This is set out at pages 246 and following of the bundle which is to be found behind divider twelve. I note in particular –
1.4.2 — This sets out a number of core principles, including in particular the critical importance of regular and continuing dialogue between the main parties to an appeal.
6.6.1 — The statement of common ground. A statement of common ground is essential to ensure that the evidence at an inquiry focuses on the material differences between the main parties.
6.8.2 — Proofs of evidence should not include matters which are not in dispute. They should focus on the issues of dispute remaining following the statement of common ground.
Against this background, let us look at what happened here.
It will be recalled that the original refusal outlined six matters of concern to the local authority. In June 2012, a statement of common ground was agreed between the applicants and the local authority. This is to be found at pages 41 and following of the bundle behind divider five. I note in particular –
6.6 — Given the enclosed nature of the site and its relationship to the existing urban edge of Wincanton, there is no objection to the site in landscaping terms and the consolidated area of public open space is now acceptable from a landscaping viewpoint. Therefore it is agreed that in terms of landscape impact the appeal proposal now meets favourably with the policy of the local plan.
6.16 — Refusal reason number 4 which related to noise and odours from the pumping station no longer applied.
6.17 and 6.18 – refusal reasons numbers 2 and 3 no longer applied.
6.22 and 6.23 – an agreed undertaking had been provided by the developers in relation to relevant infrastructure such that refusal reason 6 no longer applied.
It followed therefore that as between the applicants and the local authority, so far as the matters in dispute were concerned only grounds 1 and 5 remained live, i.e. whether the existing plans over the next five years contain sufficient potential houses and if they did not, then whether the national planning policy framework was then arguably applicable. Also, considerations relating to traffic movements through the hospital grounds and in particular the potential effects of such traffic upon highway safety. These then were the only two issues remaining between the main parties.
At page 38 and following (behind divider four) we have the notes issued by the inspector prior to the inquiry. These were issued by her pursuant to Rule 7 of the Rules. Paragraph 6 is headed "matters to be addressed at the inquiry." It reads as follows –
Without inhibiting the case of either main party, on the basis of material seen to date, I consider that the inquiry should focus principally on the following matters –
(1) whether there is a need for housing in the area;
(2) the effect of the proposal on highway safety;
(3) the effect of the proposal on the safety and convenience of users of the hospital and future residents;
(4) the effect of the proposal on protected trees; and
(5) the effect of the proposal on the provision for affordable housing, education provision and sports, arts and leisure facilities.
I note also that the inspector confirms at page 39 that she has received six proofs of evidence. It is legitimate to infer therefore that when she set out the matters to be addressed at the inquiry that she had had the matters dealt with in the proofs of evidence clearly in her mind. I note as well at page 40 that she says that "closing statements should follow the issues set out and seek to provide a summary of the case."
At the outset of the inquiry, the inspector set out her views as to the main issue. This was in accordance with Regulation 16(2) of the 2000 Regulations. What she said is set out in paragraph 22 of the statement of Mr Kendrick of October 2012 at pages 29 and following. Paragraph 22 reads as follows (page 34) –
"Two matters are still at contention –
1. Whether the release of the appeal site for the development would be justified. This requires the consideration of three matters –
(a) whether the council can demonstrate a five year supply for housing such that development plan housing policies can be considered out of date;
(b) if so is there an overriding need to develop and set aside the local plan policy of restraint in the countryside;
(c) if not are the proposals in accordance with the NPPF.
2. The effect of the proposal on the safe running of the hospital."
At page 91 of the bundle we have the opening statement of the local authority. I note in particular paragraph 2 in which they say:
"In our reasons for refusal we have not taken the highway authority point about the appeal site being too far away from the town centre because any significant new housing in Wincanton would have to be built at a similar or greater distance from the centre."
They do rely on the traffic ground, namely that the proposed development would prejudice the safety and amenity of hospital users (see paragraph 3). The remainder of the opening statement largely deals with the prospective adequacy or otherwise of the supply of housing in the area over the coming five year period.
At page 96 we have the closing submissions of the appellant. Paragraph 1 of that submission reads as follows –
"These submissions will cover the main issues as identified in the inspector's opening statement which were as follows –
(i) Whether the release of the appeal...
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Secretary of State for Communities and Local Government v Hopkins Developments Ltd
...ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT IN BRISTOL His Honour Judge Denyer QC [2013] EWHC 1783 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communica......