Julian Wood (Claimant/Appellant) v The Secretary of State for Communities and Local Government (First Defendant) Gravesham Borough Council (Second Defendant/Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Bean,Lady Justice King |
| Judgment Date | 09 February 2015 |
| Neutral Citation | [2015] EWCA Civ 195 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2014/1144 |
| Date | 09 February 2015 |
[2015] EWCA Civ 195
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(HIS HONOUR JUDGE MACKIE QC
(sitting as a deputy judge of the High Court))
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Sullivan
Lord Justice Bean
Lady Justice King DBE
C1/2014/1144
and
Mr Richard Turney (instructed by Kingsley Smith Solicitors) appeared on behalf of the Appellant
Mr Juan Lopez (instructed by Sharpe Pritchard) appeared on behalf of the Respondent (Second Defendant)
Introduction
This is an appeal against the order dated 21 February 2014 of HHJ Mackie QC, sitting as a deputy High Court judge, dismissing the appellant's application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash the decision dated 8 May 2013 of one of the first respondent's planning inspectors to dismiss the appellant's appeal under section 78 of the Act against the second respondent's decision to refuse to grant outline planning permission for the erection of a single dwelling on land adjoining the See-Ho Public House, Pear Tree Lane, Shorne, Gravesend.
The application under section 288 was made on two grounds which the judge summarised in paragraph 3 of his judgment ( [2014] EWHC 683 (Admin)).
In his first ground of appeal the appellant contended that the inspector had failed properly to apply the policy in paragraph 89 of the National Planning Policy Framework ("NPPF") relating to "limited infilling in villages" in the green belt.
The appellant's second ground of appeal, which had been conceded by the first respondent, who played no part in the proceedings before the judge or in the appeal to this court, contended that the inspector had failed properly to consider the shortfall in housing land supply.
The judge dismissed the first ground of appeal (see paragraphs 66–68 of his judgment). In respect of the second ground of appeal, the judge concluded that the inspector had failed to give adequate reasons because he had failed to deal with the extent of the housing shortfall (see paragraphs 88–90), and granted the appellant a declaration that the inspector had erred in that particular respect.
However, the judge declined to squash the inspector's decision on this ground because he was satisfied that, whatever the extent of the shortfall, the inspector would have reached the same decision given the very strong policy objection to inappropriate development in the green belt (see paragraphs 91–94).
In this appeal the appellant challenges the judge's conclusion that the inspector correctly applied the policy guidance in respect of infilling in villages in paragraph 89 of the NPPF, and the judge's decision not to quash the inspector's decision on ground 2.
The NPPF
Paragraphs 79 to 92 of the NPPF deal with "Protecting green belt land". Inappropriate development in the green belt should not be approved except in "very special circumstances" which will not exist unless the potential harm to the green belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations (see paragraphs 87 and 88).
Paragraph 89 is the key paragraph of the NPPF for the purposes of this appeal. So far as relevant, that paragraph provides that:
"A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:
• limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan …"
Before the judge it was submitted on behalf of the second respondent that the words "under policies set out in the Local Plan" governed both limited affordable housing for local community needs and limited infilling in villages.
In his oral submissions before us Mr Lopez did not pursue that submission, which had been foreshadowed in his written skeleton argument on behalf of the second respondent. In my view, he was right not to do so. The position of the comma in the description of the exception is important. The words at the end of the exception are part of and govern the second limb of the exception — limited affordable housing for local community needs. It is readily understandable why that should be so. It may not be possible to accommodate such housing within a village that is in the green belt, so any expansion of the village to accommodate such housing must be dealt with by policies in the Local Plan. The same considerations do not apply to limited infilling in villages.
Before this court it was common ground that whether or not a proposed development constituted limited infilling in a village for the purpose of paragraph 89 was a question of planning judgment for the inspector and the inspector's answer to that question would depend upon his assessment of the position on the ground. It was also common ground that while a village boundary as defined in a Local Plan would be a relevant consideration, it would not necessarily be determinative, particularly in circumstances where the boundary as defined did not accord with the inspector's assessment of the extent of the village on the ground. Against that agreed background, I turn to the inspector's decision.
The inspector's decision
Having referred to paragraphs 79 to 92 of the NPPF, the inspector said in paragraphs 7 and 8:
"7. The appeal site is located on the south side of Pear Tree Lane and comprises a plot of open land adjacent to the car park of a public house. It is surrounded on all sides by housing, and is bounded by conifer hedges and timber fencing. To the west and south is a continuously built-up area, while to the east it adjoins a line of detached properties extending out into the countryside. On the opposite side of the road is a row of similar bungalows (Ridgeway Bungalows) on deep plots behind which are open fields.
8. I have not been advised of the location of the village envelope or the Green Belt boundary, but the Council states that the site lies outside the village boundary and within the countryside and the Metropolitan Green Belt. Ridgeway Bungalows continue the built-up area further to the east on the north side of Pear Tree Lane."
In paragraph 9 the inspector referred to an earlier appeal for a development of two houses on the appeal site which had been dismissed in 1991. He continued in paragraphs 10 and 11:
"10. The 1991 appeal indicates that the built-up area boundary ran along the east side of Rose Cottage with the public house and other properties to the east of Bowesden Lane being in the countryside. However, at that time the Council was reviewing the Local Plan and proposed to include within the village envelope the public house, its car park and Ridgeway...
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