Keith Langmead Ltd v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 11 April 2017 |
| Neutral Citation | [2017] EWHC 788 (Admin) |
| Docket Number | Case No: CO/5351/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 April 2017 |
[2017] EWHC 788 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/5351/2016
John Litton QC and Graeme Keen (instructed by Irwin Mitchell LLP) for the Claimant
Stephen Whale (instructed by the Government Legal Department) for the First Defendant
The Second Defendant did not appear and was not represented
Hearing dates: 21 & 22 March 2017
Approved Judgment
The Claimant applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the First Defendant ("the Secretary of State"), dated 13 September 2016, dismissing its appeal against the refusal by Arun District Council ("the Council") to grant outline planning permission for a development of up to 100 dwellings on land to the south of Ford Lane, Yapton, West Sussex.
An Inspector (Mr D. Nicholson) appointed by the Secretary of State held an Inquiry on 7 to 10 July 2015 and issued a Report, dated 7 October 2015 (hereinafter "IR"). The Inspector recommended that the appeal should be allowed and planning permission granted. However, the Secretary of State disagreed with the Inspector, and dismissed the appeal. The Secretary of State's conclusions, insofar as they are material to this challenge, were set out in his Decision Letter ("DL") as follows:
"33. Having regard to section 38(6) of the Planning and Compulsory Purchase Act 2004, the Secretary of State concludes that, for the reasons outlined above, the appeal proposal is not in accordance with the Development Plan as a whole, including the Neighbourhood Plan, given the conflicts he finds with policies BB1, E1, GEN2 and GEN3. He has therefore gone onto consider whether there are any material considerations which might nevertheless justify allowing the appeal. The district does not have a 5 year supply of deliverable housing sites so paragraph 49 of the Framework is engaged and permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework when taken as a whole."
….
"36. The Secretary of State has noted the Inspector's conclusions at IR11.51 and IR11.55. However, he does not agree, given his findings on neighbourhood planning. As such, he weighs the harms caused by conflict with the YNP and the provisions of paragraph 198 of the Framework against the benefits of the proposal, as set out by the Neighbourhood Planning Guidance he has issued. He gives very substantial weight to this conflict. As such he concludes that the proposal does not comply with the social element of sustainability, and he gives very substantial weight to this against the proposal.
37. The Secretary of State gives significant weight to the benefits of the provision of housing, and further significant weight to the provision of affordable housing. He also gives moderate weight to the fact that the proposed development is in a sustainable location.
38. Against this he gives very substantial weight to the conflict with YNP policy BB1, in line with the provisions of paragraph 198 of the Framework, given his conclusions on neighbourhood planning. He gives limited weight to the adverse impact to the character and appearance of the field, and further limited weight to the loss of agricultural land. He gives moderate weigh to the conflict with ADLP policies GEN1 and GEN2.
39. He therefore concludes that the identified adverse impacts of this proposal would significantly and demonstrably outweigh the identified benefits when assessed against the policies in the Framework taken as a whole. The Secretary of State concludes that the appeal should fail."
On 13 December 2016, Dove J. granted the Claimant permission to proceed with a statutory review under section 288 TCPA 1990.
The Claimant's grounds may be summarised as follows:
i) The Secretary of State misunderstood and misinterpreted the National Planning Policy Framework ("NPPF").
ii) The Secretary of State failed to apply the NPPF as a whole.
iii) The Secretary of State failed to take account of a material change in circumstances and/or investigate it.
iv) The Secretary of State failed to take into account other material considerations, namely, the Independent Examiner's reservations about the Yapton Neighbourhood Plan ("YNP").
v) The Secretary of State's decision was internally inconsistent with regard to the weight given to policies in the Arun District Local Plan ("ADLP") and the YNP.
vi) The Secretary of State's conclusion that Policy BB1 of the YNP should be given substantial weight was irrational.
vii) The Secretary of State failed to give adequate reasons for his decision.
Legal and policy framework
(i) Applications under section 288 TCPA 1990
Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with, and in consequence, the interests of the applicant have been substantially prejudiced.
The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:
"An application under section 288 is not an opportunity for a review of the planning merits….."
A decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well-informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.
(ii) Decision-making
The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise. Section 70(2) TCPA 1990 provides that the decision-maker shall have regard to the provisions of the development plan, so far as material to the application. Section 38(6) of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004") provides:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise."
The duty under the equivalent Scottish provision was explained by Lord Clyde in Edinburgh City Council v Secretary of State for Scotland [1997] 1 W.L.R. 1447, at 1459:
"In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will be required to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse."
This statement of the law was approved by the Supreme Court in Tesco Stores Limited v Dundee City Council [2012] UKSC 13, [2012] P.T.S.R. 983, in which it rejected the proposition that each planning authority was entitled to determine the meaning of development plans from time to time as it pleased, within the limits of rationality. Development plans should be interpreted objectively, in accordance with the language used, read in its proper context. They should be followed unless there is good reason to depart from them.
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