Hopkins Homes Ltd v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 30 January 2015 |
| Neutral Citation | [2015] EWHC 132 (Admin) |
| Docket Number | Case No: CO/3971/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 January 2015 |
[2015] EWHC 132 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Supperstone
Case No: CO/3971/2014
Christopher Lockhart-Mummery QC (instructed by Howes Percival LLP) for the Applicant
Jonathan Clay (instructed by The Solicitor to the SCDC) for the Second Defendant
Hearing date: 20 January 15
Introduction
This is an application made under s.288 of the Town and Country Planning Act 1990 (as amended) ("the 1990 Act") to quash the decision letter of the Defendant (given by his Inspector) dated 15 July 2014 whereby he dismissed the Applicant's planning appeal made under s.78 of the 1990 Act.
On 6 November 2014 the Treasury Solicitor notified the court that the First Defendant did not intend to defend this appeal and would not be represented at the hearing. The Consent Order states: "The First Defendant, having carefully considered the Appeal Decision, the Applicant's grounds and witness statement evidence, has concluded that his appointed Inspector erred in law. It is accepted that the Inspector erred in law in that he failed to give adequate reasons in paragraphs 8 and 9 of the Decision Letter for his conclusions in relation to paragraph 49 of the National Planning Policy Framework ["NPPF"] and whether policies SP19, SP27 and SP29 were 'relevant policies for the supply of housing' within the meaning of paragraph 49".
Factual background
By its planning application dated 7 January 2013 the Applicant applied for planning permission to the Second Defendant for residential development of 26 dwellings, associated access and landscaping.
The appeal site lies adjacent to the settlement boundary of Yoxford as defined in the development plan. Yoxford is identified within the Suffolk Coastal District Local Plan ("LP") which was adopted in July 2013 as a Key Service Centre, which provides an extensive range of specified facilities. In the 2009 Suffolk Coastal Strategic Housing Land Availability Assessment the appeal site was the only site within the settlement of Yoxford that was identified as having development potential, all other options having been excluded following a desk-top analysis.
The policy framework
For the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004 the statutory development plan comprises the LP, and certain "saved" policies from the Suffolk Coastal Local Plan adopted by the Second Defendant in December 1994 (referred to by the Inspector as "the old Local Plan").
The LP contains the following relevant policies:
i) Policy SP19 is a Settlement Policy which provides that modest estate-scale housing development is appropriate within the defined physical limits of Key Service Centres, Yoxford being one such settlement. Outside these settlements, that is in the "Countryside", the policy provides:
"No development other than in special circumstances."
ii) Policy SP27 would "permit housing development within defined physical limits".
iii) Policy SP29, The Countryside, provides:
"The strategy in respect of new development outside the physical limits of those settlements defined as [Key Service Centres] is that it would be limited to that which of necessity requires to be located there and accords with other relevant policies within the Core Strategy (e.g. Policies SP7 or DM13); or would otherwise accord with special circumstances outlined in paragraph 55 of the National Planning Policy Framework."
Paragraph 55 of the NPPF relates to housing.
The relevant policy from the old Local Plan is policy AP4 which provides
" Parks and gardens of historic or landscape interest
The District Council will encourage the preservation and/or enhancement of parks and gardens of historic and landscape interest and their surroundings. Planning permission for any proposed development will not be granted if it would have a materially adverse impact on their character, features or immediate setting."
The appeal site forms part of an area defined as Historic Parkland by the Second Defendant in its Supplementary Planning Guidance 6 "Historic Parks and Garden" (SPG) dated December 1995.
Policy AP13 in the old Local Plan, which relates to Special Landscape Areas, states:
"The valleys and tributaries of the Rivers Alde, Blyth, Deben, Fynn, Hundred, Mill, Minsmere, Ore and Yox, and the Parks and Gardens of Historic or Landscape Interest are designated as Special Landscape Areas and shown on the Proposals Map. The District Council will ensure that no development will take place which would be to the material detriment of, or materially detract from, the special landscape quality."
Paragraph 14 of the NPPF provides, so far as is material:
"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:
? 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."
Paragraph 47 of the NPPF requires that to boost significantly the supply of housing, local authorities should
"identify and update annually a supply of specific deliverable sites sufficient to provide five years' worth of housing against their housing requirements…"
Paragraph 49 provides:
"Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up to date if the local planning authority cannot demonstrate a five year supply of deliverable housing sites."
Paragraph 135 in Part 11 of the NPPF ("Conserving and enhancing the natural environment") states:
"The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that affect directly or indirectly non-designated heritage assets, a balanced judgment will be required having regard to the scale of any harm or loss and the significance of the heritage asset."
Annex 2 (Glossary) to the NPPF provides that " Significance (for heritage policy)" means:
"The value of a heritage asset to this and future generations because of its heritage interest. That interest may be archaeological, architectural, artistic or historic. Significance derives not only from a heritage asset's physical presence, but also from its setting."
In Bloor Homes East Midlands Ltd v Secretary of State for Communities & Local Government [2014] EWHC 754 (Admin) at para 19 Lindblom J recently summarised the relevant legal principles, which, so far as they are material, are as follows:
"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to 'rehearse every argument relating to each matter in every paragraph' (see the judgment of Forbes J in Seddon Properties v Secretary of State for the Environment [1981] 42 P&CR 26 at p.28).
(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the 'principal important controversial issues'. An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and anr v Porter (No. 2) [2004] 1 WLR 1953 at p.1964 B-G).
(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, 'provided that it does not lapse into Wednesbury irrationality' to give material considerations 'whatever weight [it] thinks fit or no weight at all' (see the speech of Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at p.780 F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J, as he then was, in Newsmith v Secretary of State for the Environment, Transport and Regions [2001] EWHC 74 Admin, at paragraph 6).
(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure...
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