Hunston Properties Ltd v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Hh Judge Pelling |
| Judgment Date | 05 September 2013 |
| Neutral Citation | [2013] EWHC 2678 (Admin) |
| Docket Number | Claim Numbers: CO/4686/2013 and CO/5546/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 September 2013 |
In the Matter of An Application Under Section 288 of the Town and Country Planning Act 1990
And in the Matter of An Application for Permission to Claim Judicial Review
[2013] EWHC 2678 (Admin)
His Honour Judge Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Claim Numbers: CO/4686/2013 and CO/5546/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT SITTING AT MANCHESTER
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
Mr. Paul Stinchcombe QC and Mr. Ned Helme (instructed by Photiades Solicitors) for the Claimant
Mr. Stephen Whale (instructed by the Treasury Solicitor) for the First Defendant
Mr. Matthew Reed (instructed by Head of Legal Democratic and Regulatory Services, St Albans City and District Council) for the Second Defendant
Hearing dates: 1 and 2 August 2013
Hh Judge Pelling QC:
Introduction
This is the hearing of:
i) An application by the Claimant ("HPL") under s.288 of the Town and Country Planning Act 1990 ("TCPA") for an order quashing a decision of a planning inspector ("the Inspector") appointed by the First Defendant ("SoS") by which the Inspector dismissed an appeal under s.78 TCPA by HPL against a refusal of the Second Defendant ("the Council") to grant outline planning permission for the construction of 116 dwellings, a 72 bed care home, a new road access, two tennis courts and open space ('The Scheme") at a site at consisting of land to the rear of 112–156B Harpenden Road, Sewell Park, St Albans ('the Site"); and
ii) The rolled up hearing of an application for permission and (if permission be granted) a claim for judicial review of a decision by the Inspector by which she ordered HPL to pay 20% of the Council's costs of the planning inquiry held by the Inspector ("the Inquiry") that led to the dismissal of HPL's appeal.
The hearing took place in Manchester on the 1 and 2 August 2013 pursuant to an order of Deputy Master Knapman by which she had directed transfer of the proceedings to Manchester and that the judicial review proceedings should proceed as a rolled up hearing. At the conclusion of the hearing the parties asked me to delay handing down judgment until the beginning of September in order to facilitate the holiday arrangements of the parties and their advisors. I agreed to this proposal. I also agreed to determine all post judgment issues in writing providing all parties signified their consent to this course prior to the date fixed for the hand down of this judgment.
Background
The factual background to these proceedings was described in HPL's written opening submissions as "extensive" and is described in great detail in both that document and the evidence filed in these proceedings. The background that is actually relevant to the disposal of these claims is limited.
The Site consists of 5 Hectares of open agricultural land that abuts the eastern rear boundaries of 112–156B Harpenden Road. The northern boundary of the Site abuts various sports ground pitches. The eastern boundary is marked by a hedgerow described by the Inspector in her report as " sporadic". The southern boundary is bordered by residential property save for the southeast corner where there is an access way. St Albans Girls School is to the south of this way, with its playing fields being opposite the Site. A sketch plan of the Site is at [3/1031]. The key point for present purposes is that the Site is an open green field site located almost entirely within the Metropolitan Green Belt.
HPL have made two applications for permission to the Council concerning the Site. The first was made in July 2011, was refused by the Council and a s.78 appeal against that refusal was dismissed by a planning inspector ("Mr. Papworth") in July 2012. There was no appeal from that decision although there was a formal complaint by HPL's planning consultants to the Planning Inspectorate concerning the quality of part of Mr. Papworth's reasoning. This resulted in a letter from the Inspectorate by which it was concluded that the complaint should be upheld. These events are primarily relevant to the judicial review proceedings to which I turn at the end of this judgment.
On 18 November 2011, HPL made the application that is the subject of the s.288 appeal before me. The Council refused the application in February 2012 on three grounds, only two of which were relied on by the Council at the s.78 appeal that followed the refusal. The two grounds that remained material by the time the appeal came to be heard were first that the proposed development and its scale represented inappropriate development within the Metropolitan Green Belt in respect of which HPL had failed to demonstrate the existence of " very special circumstances" necessary to warrant development in the Green Belt and secondly that the proposed development would represent a built form of undue prominence.
HPL appealed and following an Inquiry held on 5–8 and 12–13 February 2013, the Inspector dismissed the appeal for the reasons that are set out in her Decision Letter dated 12 March 2013 ("DL"). Under the heading " Main Issues" the Inspector recorded that it was " … agreed by the parties [that] both the proposed residential development and the proposed care home would be inappropriate development in the Green Belt for the purposes of National and Local Policy …" and in consequence the main issues to be resolved were three in number of which that relevant to the proceedings before me was:
" — in the case of the proposed housing development, whether the harm by reason of inappropriateness and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development …"
Before the Inspector, HPL's case had been that there was independent and objective evidence of annual and projected housing need for St Albans of 688 households per annum for the period 2011–2028; that this produced an adjusted requirement for 3600 dwellings to be constructed over the next 5 years and that the total dwellings that could be accommodated on the sites identified by the Council as deliverable amounted to 2183 dwellings so that there was a shortfall that corresponded to unmet housing need of 1417 dwellings. This was said to constitute an element of the " very special circumstances" that justified permitting what would otherwise be inappropriate development. The Inspector rejected this submission and concluded that the appropriate housing target was 360 dwellings per annum. Since that could be accommodated on the sites identified by the Council it followed that there was no identified unmet need. Since the substantial harm to the Green Belt that would result from the proposed development was not clearly outweighed by the other material considerations that the Inspector summarises in Paragraph 71 of the DL it followed that there were no very special circumstances and the appeal was dismissed.
HPL's case is that the Inspector fell into error by adopting the 360 figure rather than the 688 figure because in arriving at that conclusion she had misconstrued and misapplied the relevant parts of the National Planning Policy Framework ("NPPF"). The Defendants each deny that was so and maintain that in truth the appeal is nothing more than an attempt to re-run the arguments that had been deployed before the Inspector " … dressed up as points of law" – see the SoS's skeleton submissions at Paragraph 13. In the end it was expressly or impliedly accepted by all parties that unless HPL succeeded on this argument, this claim was bound to fail even though an alternative ground had been identified.
Policy Framework
Down to 3 January 2013, the Regional Spatial Strategy for the East of England [known colloquially as the " East of England Plan"] ("EEP") formed part of the development plan for the East of England. It, together with Planning Policy Statement 3 ("PPS3"), carried into effect a regionalism policy. It sought to address housing shortages by focussing on 21 locations where it was considered that new development should be concentrated. A consequence was that other areas underwent less development. Provision for housing was based on a strategy for the region. It provided for a minimum annual average development between 2001 and 2021 for St Albans of 360 dwellings.
The figures set by the EEP were minimum figures because, as was acknowledged by Paragraph 5.5 of the supporting text to Policy H1, the total of minimum figures for the region "… falls significantly short of what is needed based on evidence about housing pressure, affordability and household projections." The housing target fixed pursuant to the EEP was a figure that took account of various constraints to development that did not and did not purport to identify an objective need requirement. The figure was described by the Inspector in Paragraph 26 of the DL in these terms, which it is common ground were accurate:
"The level of provision required in RSS policy H1 was justified by the specific circumstances of the District, having regard to previous Government advice in Planning Policy Guidance and Planning Policy Statements and did not simply apply Government population and household projection figures. RSS policy H1 requirement took account of the constraints to development in the District striking a balance of the social, economic and environmental objectives with the aim of achieving sustainable development. The balance was evidence based, consulted upon, subject to a sustainability appraisal, justified and publically examined. In reaching the housing requirement, the supporting text made it clear that full provision is not made for...
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