Horsham District Council v Secretary of State for Communities and Local Government (First Defendant) Barratt Southern Counties Ltd (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 23 January 2015 |
| Neutral Citation | [2015] EWHC 109 (Admin) |
| Docket Number | Case No: CO/3270/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 January 2015 |
[2015] EWHC 109 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindblom
Case No: CO/3270/2014
and
Mr David Lintott (instructed by the Head of Legal and Democratic Services) for the Claimant
Mr Richard Kimblin (instructed by the Treasury Solicitor) for the First Defendant
Mr Mark Lowe Q.C. (instructed by Osborne Clarke) for the Second Defendant
Hearing date: 19 November 2014
Introduction
It is not a general principle in planning law that an acceptable proposal for development should be turned away because a better one might be put forward instead. This case shows why that is so.
The claimant, Horsham District Council, applies under section 288 of the Town and Country Planning Act 1990, for an order to quash the decision of the inspector appointed by the first defendant, the Secretary of State for Communities and Local Government, in a decision letter dated 2 June 2014, allowing the appeal of the second defendant, Barratt Southern Counties Limited ("Barratt"), against its refusal of planning permission for a development of housing on land to the north of West End Lane in Henfield, West Sussex.
The issues for the court
The council's application to the court raises two main issues:
(1) whether, in the light of government policy in paragraph 64 of the National Planning Policy Framework ("the NPPF"), the inspector's approach to the loss of views from the appeal site was unlawful (ground 1 in the council's particulars of claim); and
(2) whether the inspector's conduct of Barratt's appeal was procedurally unfair (ground 2).
The appeal site and proposal
Henfield is a town with a population of about 5,000. Under the Horsham Core Strategy (2007) it is one of the district's Category 1 settlements. These were described in Policy CP5 of the core strategy ("Built-up Areas and Previously Developed Land") as "towns and villages with a good range of services and facilities as well as some access to public transport – capable of sustaining some expansion, infilling and redevelopment". Policy CP4 of the core strategy ("Housing Provision") said that a further development plan document would identify sites for housing development in the district. By the time Barratt's appeal came before the inspector this had not yet happened. In May 2009 the council adopted its "Facilitating Appropriate Development Supplementary Planning Document", which envisaged some new housing development being built outside the defined built-up areas of Category 1 settlements.
The appeal site is in the countryside to the west of Henfield – about seven hectares of farmland on the northern side of West End Lane. It lies outside the boundary of the built-up area, as defined under Policy DC1 ("Countryside Protection and Enhancement") of the council's adopted General Development Control Policies (2007). A public footpath runs across it, along the ridge to which the land rises from north and south.
Barratt submitted its proposal to the council in an application for full planning permission on 29 April 2013. The proposal was for a development of 160 dwellings of various sizes, with landscaping and open space, accessed from West End Lane. New housing on this scale is not development of a kind identified by Policy CP1 of the core strategy as normally acceptable in the countryside. On 22 August 2013 the council refused planning permission for seven reasons, including that the proposed development was "an unacceptable form of development in the countryside …" (the first reason for refusal), that it would "[fail] to protect the townscape character of the area …" (the third reason for refusal), and that it "would result in substantial material harm to the landscape character of the site and its rural surroundings" and "would have significant adverse impacts on the visual amenity of the surrounding area" (the fourth reason for refusal). Barratt appealed to the Secretary of State against the council's decision on 11 September 2013. In its pre-inquiry statement (at paragraph 5.18) the council summarized its case on the fourth reason for refusal in this way:
"Criterion 6 of the [Facilitating Appropriate Development Supplementary Development Document] states that the proposed development must protect, conserve and/or enhance landscape character. The Council will demonstrate that the scale, height and massing of the scheme would lead to substantial harm to the landscape character of the area, and would have a distinctly urbanising impact on the rural landscape character of the countryside."
The NPPF
The NPPF was published in March 2012 and was supplemented in March 2014 by the Government's Planning Practice Guidance ("the PPG").
Paragraph 14 of the NPPF says that the "presumption in favour of sustainable development" should be seen as a "golden thread running through both plan-making and decision-taking". For decision-taking in cases where the development plan is "absent, silent or relevant policies are out-of date", this is said to mean that planning permission should be granted unless either "any adverse impacts of doing so would significantly and demonstrably outweigh the benefits …" or "specific policies in [the NPPF] indicate development should be restricted".
The NPPF reinforces the long-standing requirement in national planning policy that local planning authorities must maintain at all times at least a five-year supply of suitable and deliverable housing land. Paragraph 49 states:
"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."
In the section headed "Requiring good design" (paragraphs 56 to 68) the NPPF lays down a series of policy principles. Paragraph 56 says that the Government "attaches great importance to the design of the built environment", and that "[good] design is a key aspect of sustainable development, and indivisible from good planning, and should contribute positively to making places better for people". Paragraph 64 says this:
"Permission should be refused for development of poor design that fails to take the opportunities available for improving the character and quality of an area and the way it functions."
This succeeded the policy in paragraphs 13 and 34 of Planning Policy Statement 1 ("Delivering Sustainable Development") – one of the statements of government planning policy replaced by the NPPF – which said that such development "should not be accepted".
The guidance on "Design" in the PPG amplifies the policy in the NPPF. Paragraph 001 answers the question "Why does good design matter?" It says that "[good] quality design is an integral part of sustainable development", that the NPPF "recognises that design quality matters and that planning should drive up standards across all forms of development", and that "[as] a core planning principle, plan-makers and decision takers should always seek to secure high quality design". Paragraph 007 – "Planning should promote local character (including landscape setting)" – says that "[the] successful integration of all forms of new development with their surrounding context is an important design objective …", and that "[views] into and out of larger sites should also be carefully considered from the start of the design process."
The inquiry
The inspector held an inquiry into Barratt's appeal on six days between 25 March and 2 April 2014. He visited the site on 1 April 2014. Both main parties were represented at the inquiry by counsel – Barratt by Mr Mark Lowe Q.C., the council by Mr David Lintott. Expert witnesses on either side were called to give evidence.
For the council planning evidence was given by one of its planning officers, Mr James Hutchison. In section 6.3 of his proof of evidence he set out his view on the "Impact of the Development on Landscape Character", though he acknowledged (in paragraph 6.3.5) that the council's Landscape Officer, Mr Matthew Bright, had "provided a detailed assessment of the significance of the impact of the proposed development on the landscape character of the area …". In paragraph 6.3.7 Mr Hutchison referred to the policy in paragraph 64 of the NPPF, remarked that "[design] encompasses a wide range of matters …", and went on to say this:
"The appeal scheme is considered to represent a poor design that fails to integrate and respond to the sensitivity of the rural landscape character of the area. The proposed development therefore fails to meet the requirements of policy [sic] 64 of the Framework, and permission should therefore be refused."
Mr Hutchison returned to that policy in paragraph 7.1.3 of his proof. There he said that the NPPF "is also clear that irrespective of whether the Council's housing policies, or any others for that matter, are out of date, poor design and design that does not take the opportunities available for improving the character of an area should be refused permission (paragraph 64 of the Framework)".
In his proof of evidence, at paragraph 4.3, Mr Bright said that the appeal site "has a very open, rural and largely undeveloped character", and that existing development on this side of Henfield "does not exert an...
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R Mary Loughlin v Wiltshire Council
...the NPPF was considered by Lindblom J in Horsham District Council v Secretary of State for Communities and Local Government & Anor [2015] EWHC 109 (Admin) at paras. 39 to 41 as follows: “39. Paragraph 64 is one of 13 paragraphs in the NPPF which explain what the Government wants the design ......