James Arthur Copas and Another v Secretary of State for Communities & Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Supperstone |
| Judgment Date | 30 July 2014 |
| Neutral Citation | [2014] EWHC 2634 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1421/2014 |
| Date | 30 July 2014 |
[2014] EWHC 2634 (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/1421/2014
Matthew Reed (instructed by Messrs Sharpe Pritchard) for the Claimants
Justine Thornton (instructed by The Treasury Solicitor) for the First Defendant
The Second Defendant was not represented and did not participate
Hearing date: 15 July 2014
Approved Judgment
Introduction
This is an application made under s.288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash the decision of one of the Inspectors of the First Defendant, the Secretary of State for Communities and Local Government, dated 19 February 2014. By her decision the Inspector dismissed the appeal made by the Claimants, Mr James Copas and Mr Richard Copas, against the decision of the Second Defendant, the Royal Borough of Windsor and Maidenhead, to refuse planning permission for the erection of 23 affordable housing units, together with access, parking and landscaping ("the Development") at the rear of 99–119 Whiteladyes Lane, Cookham, Berkshire, SL6 1RL.
Mr Matthew Reed appears on behalf of the Claimants, who were the applicants for planning permission. Ms Justine Thornton appears on behalf of the Secretary of State.
The Second Defendant is the local planning authority for the area within which the Development is situated. The Council has taken no active part in these proceedings.
The Factual Background
By an application dated 23 March 2013 the Claimants sought planning permission for the construction of 23 affordable housing units on Green Belt land in Berkshire. The application was refused by the Second Defendant on 26 June 2013. The Claimants appealed against that refusal. The hearing was held on 21 January 2014, when the Inspector made a site visit. Her decision was issued on 19 February 2014.
The Inspector's Decision Letter ("DL")
The Inspector identified the main issues for the hearing as follows:
"6. The appeal site lies in the Green Belt. There is no dispute between the parties that the proposed development should be regarded as inappropriate development in the Green Belt for the purposes of the National Planning Policy Framework (the Framework) and Green Belt policies in the Royal Borough of Windsor and Maidenhead Local Plan (LP). I agree with that position.
7. The main issues therefore are the effect of the proposed development on the purposes of the Green Belt, its openness, its visual amenities and the appearance of the surrounding countryside. The final issue is 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."
The Inspector dealt with the effect of the Development on the Green Belt and neighbouring land at paragraphs 9–14. She stated:
"12. The Framework states that substantial weight should be attached to any harm to the Green Belt. In this appeal the harm by reason of inappropriateness, the loss of openness and encroachment into the countryside attracts substantial weight against the proposed development. The conflict with development plan policies GB1, GB3 and GB2 add further weight against the proposal.
13. … I conclude that the introduction of built development in this location would cause a moderate degree of harm to the open character and visual amenities of the Green Belt, in conflict with LP Policy GB2 criterion B."
The Inspector considered housing need at paragraphs 15–18. She stated:
"15. The proposal is entirely for affordable housing. Its provision would go someway towards meeting the need for significant levels of affordable housing across the borough identified in the Council's Housing Need Study (2005) and Housing Strategy 2008–2011. In rural areas the need amounted to 185 dwellings per annum. Although the 2005 Study is not area specific, the appellants concluded that a high proportion of this particular need is within the Bisham and Cookham Parish as it is one of the Borough's largest rural settlements in population terms. The more recent Cookham Housing Need Report (commissioned by Cookham Parish Council) identifies a need for 23 affordable homes in the locality. However this report appears to reflect the aspirations of a few people; it is based upon a low return of the postal survey and the identified need is not fully qualified.
16. The housing need assessments are Borough wide and the evidence indicates that affordable housing does not necessarily have to be provided in Cookham. The Council's rural exceptions Policy H4 (which I agree with the main parties is not relevant to this appeal proposal as Cookham Rise is not identified in the LP as a Recognised Settlement) is intended to address rural housing needs, setting out the criteria under which affordable housing would be permitted. Whilst a wider need for affordable housing is accepted by the Council and I consider this need is satisfactorily demonstrated in this appeal, the evidence of the number of dwellings required in Cookham is not convincing. This can therefore be given limited weight.
…
18. … I conclude that the general need for affordable housing attracts significant weight in support of the appeal proposal."
The Inspector reviewed site availability at paragraphs 19–26. At paragraph 23 she stated:
"On the basis of these assessments, the appellants consider that the need for affordable housing would not be met on sites in the Cookhams which lie outside the Green Belt; that affordable housing can only be delivered through development in the Green Belt and that there are no alternative available sites. As the villages are bordered by the Green Belt the appellants conclude that almost any site would be subject to the same or similar constraints as the appeal site. Their evidence regarding potential housing sites in the identified Green Belt areas, conservation areas and on flood plains and their comparative assessments of the development potential of those sites are persuasive. Furthermore, the Council's representative indicated at the hearing that he would not necessarily disagree with the appellants' conclusions about the identified alternative sites."
As a result, the Inspector concluded at paragraph 26:
"The lack of availability of alternative sites and the fact that such sites will, in all probability, need to be provided in the Green Belt provide significant weight in favour of the appeal."
At paragraphs 26–28 the Inspector referred, under the heading "Other Matters", to the nearby Arthur Close development in respect of which planning permission was granted on appeal in 2006 for the construction of 4 flats and 4 houses although the site is located within the Green Belt. The Inspector considered that the decision significantly pre-dated the application of the Framework and the national planning policy context which applied at the time was materially different and so limited weight was given to it.
The Inspector's conclusions are set out at paragraphs 31–34:
"31. I have concluded that the development would cause substantial harm due to its inappropriateness, the harm caused to openness and to one of the purposes of including land in the Green Belt. The conflict with development plan policies adds further weight against the development. Further moderate harm against the proposal would be caused by its impact on the character of the area and the visual amenities of the Green Belt.
32. On the other hand significant weight is given in favour of the proposal due to the need for affordable housing. Some further weight is given to the lack of available alternative sites and the fact that other sites are also likely to be in the Green Belt.
33. However, the Government have made it clear in their Ministerial Statement of 1 st July 2013 that unmet demand for housing is unlikely to outweigh the harm to the Green Belt and other harm so as to constitute the very special circumstances justifying inappropriate development in the Green Belt.
34. Having balanced all the material considerations in this case, it is my judgment that the considerations in favour of the development are insufficient to amount to the very special circumstances necessary to clearly outweigh the substantial harm caused by inappropriate development in the Green Belt and the other harms I have identified. Very special circumstances to justify the development have not been demonstrated and the appeal should therefore be dismissed."
Relevant Policy Considerations
The National Planning Policy Framework ("NPPF") provides as follows with respect to Green Belt:
"9. Protecting Green Belt land
79. The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence.
80. Green Belt serves five purposes:
? to check the unrestricted sprawl of large built-up areas;
? to prevent neighbouring towns merging into one another;
? to assist in safeguarding the countryside from encroachment;
? to preserve the setting and special character of historic towns; and
? to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.
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87. As with previous Green Belt policy,...
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