Laing Homes Ltd v Secretary of State for Transport, Local Government and the Regions and Another

JurisdictionEngland & Wales
JudgeMr Justice Richards,MR JUSTICE RICHARDS
Judgment Date01 October 2002
Neutral Citation[2002] EWHC 1967 (Admin)
Date01 October 2002
Docket NumberCase No: CO/1337/2002
CourtQueen's Bench Division (Administrative Court)

[2002] EWHC 1967 (Admin)

IN THE HIGH COURT OF JUSTICE

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

The Honourable Mr Justice Richards

Case No: CO/1337/2002

Between
Laing Homes Limited
Claimant
and
(1) The Secretary of State for Transport, Local Government and the Regions
(2) Fareham Borough Council
(3) Pelham Homes Limited
Defendants

Robin Purchas QC and Jonathan Milner (instructed by Laing Homes) for the Claimant

David Forsdick (instructed by the Treasury Solicitor) for the First Defendant

Timothy Corner QC and John Pugh Smith (instructed by Olswangs) for the Third Defendant

(The Second Defendant did not appear nor was represented)

Mr Justice Richards
1

The claimant, Laing Homes Limited (“Laing”), challenges under s.288 of the Town and Country Planning Act 1990 a decision of the Secretary of State dated 6 February 2002 which granted outline planning permission to Pelham Homes Limited (“Pelham”) for residential development at a site North of Whiteley, Fareham, Hampshire.

2

At no stage prior to the decision did Laing object to Pelham's application. Its present challenge arises out of the implications that the decision, or the reasoning in it, has for Laing's own application for planning permission for residential development at a site at Peters Road, Fareham, which is still before the Secretary of State following a call-in. In essence Laing complains that, for reasons that were unknown to Laing until the decision was issued, the decision meant that only one of the sites would gain planning permission and the Secretary of State acted unlawfully and unfairly in deciding to grant permission in respect of the Pelham site without considering whether the Laing site was a better alternative or alerting Laing so that it could make representations on the point. Thus the main issues raised by Laing are (1) whether in determining the Pelham application the Secretary of State should have considered the availability and suitability of the Laing site, (2) whether it was incumbent upon him to address the issue of the comparative merits of the two sites, (3) whether he acted unfairly in failing properly to consider the merits of the Laing site or in failing to afford Laing a proper opportunity of being heard before a decision was made in respect of the Pelham site, (4) whether he failed properly to understand and apply the policy requirements of PPG3 and (5) whether adequate reasons were given.

Factual history

3

The relevant structure plan is the Hampshire County Structure Plan 1996–2001 (Review), adopted in January 2000. The structure plan requires constituent authorities to make provision for new housing, including a baseline housing provision in policy H2 and a reserve housing provision in policy H4. The relevant local plan is the Fareham Local Plan Review, adopted in March 2000. In order to ensure that sufficient land is available to meet the structure plan requirements for the period 1999–2006, policy H1 of the local plan allocates a number of sites for residential development, with an indicative number of dwellings for each. They include the Pelham site (260 dwellings) and the Laing site (210 dwellings), as well as a third major site at Hunts Pond Road (240 dwellings). Both the Pelham site and the Laing site are greenfield sites the development of which would constitute an urban extension in policy terms. They were the only two which were before the Secretary of State for determination at the material time.

4

The planning application in respect of the Pelham site was made on 26 November 1999. Fareham Borough Council resolved to grant outline planning permission on 26 April 2000, subject to call-in by the Secretary of State. The application was called in by the Secretary of State on 7 August 2000. A public inquiry was held on 21–22 November 2000. The inspector subsequently reported to the Secretary of State, whose decision letter was issued on 6 February 2002.

5

The planning application in respect of the Laing site was made on 25 October 2000. The council resolved in principle to grant outline planning permission on 11 July 2001, subject to call-in and to a number of unproblematic outstanding matters. The application was called in by the Secretary of State on 31 October 2001. A public inquiry was held on 25–28 June 2002. The Secretary of State's decision is still awaited. (The planning application was in fact made in the name of Bovis Homes and there are references in the relevant documents to Bovis Homes as well as to Laing. But I shall refer throughout to Laing, as was done in the submissions before me.)

6

Thus at every stage the two applications moved in parallel, though with the Pelham application always in advance of the Laing application. In view of the way in which Laing's case is put, however, it is helpful to examine the two applications together when going through the chronology in greater detail.

7

No elaboration is needed in relation to the early stages of the Pelham application, namely the application itself and the council's resolution to grant permission. In directing the subsequent call-in on 7 August 2000, the Secretary of State stated that the matters on which he particularly wished to be informed for the purpose of his consideration of the application included:

“(a) the relationship of the proposed development to the development plan for the area;

(b) the relationship of the proposed development to Government policy advice in Planning Policy Guidance Note PPG 3, in particular in respect of … the advice in the PPG on a sequential approach to brownfield/greenfield sites …;

….

(e) if the proposed development is not in accordance with PPG3 and/or the development plan, whether the need for the development and benefits from it would nevertheless justify the grant of permission”.

8

Those issues were considered at length at the public inquiry and in the inspector's report. The case for Pelham and the council was that the development was in accordance both with the development plan and with PPG3. Heavy reliance was placed on the identification of the site as an allocated site under local plan policy H1 and the findings of the local plan inspector which underlay that allocation: the local plan inspector had conducted a public inquiry in 1998 and reported in 1999. As it was put in the conclusions of the inspector's report on the Pelham application:

“147. The Council strongly supports the application, seeing it as fully consistent both with the development plan, and with PPG3. It was impressed upon me that, although the development plan (i.e. both the structure and local plans) and the final version of PPG3 were adopted/issued at about the same time, previous emerging guidance was incorporated into the emerging development plans, and was taken into account by the County and District Councils and by the local plan Inspector.

148. The inquiry proposal is not new; its merits as a housing allocation have already been exhaustively examined, and supported, at a local plan inquiry. Apart from a few individual local residents, and a local residents’ association (not counting the letters of objection), there was no opposition to the proposal at this call-in inquiry. None of these objectors presented any detailed or documentary evidence ….”

9

On call-in issue (a), the inspector concluded that the Pelham application would be fully consistent with local plan policy H1 and, more generally, would not only be consistent with the development plan but would be a positive step towards its implementation. On call-in issue (b), he concluded overall that the application would be consistent with the aims of PPG3. In particular, as regards the sequential approach to brownfield/greenfield sites, he stated:

“163. … In the terms of PPG3, this is an important topic, but I do not need to labour it. In brief, the parties’ evidence stresses the point, which I accept, that throughout the local plan process previously developed land in urban areas was identified first as potential housing land. But there remained a need to identify some greenfield land, in order to meet the structure plan housing requirement. This was accepted and supported by the local plan Inspector.

164. I have no reason to disagree with that Inspector's conclusions. They were reached after a far more exhaustive, borough-wide study of other sites and development options than was possible at this inquiry.

165. As an urban extension, the application site comes second in preference, under the sequential search sequence, to previously developed land in urban areas (PPG3, para 30). PPG3 para 67 refers to urban extensions. To paraphrase, it describes them as likely to prove the next most sustainable option after building on sites within urban areas. This is so especially where it is possible to utilise existing infrastructure, where there is good access to public transport (or where new provision is made), and there is good access to jobs, schools, shopping and leisure facilities. In general, I consider that these conditions obtain with the present proposal.

166. … I conclude from all this that although the application site is not the first theoretical preference under PPG3's search sequence, it represents the second preference and meets the search requirements.”

10

In relation to call-in issue (e), the inspector observed that strictly speaking there was no need to consider it because the proposal accorded both with the development plan and, generally, with PPG3. He went on to state, however, that the need rested mainly upon the structure plan housing requirement and that the application site was allocated in order to meet this, and that:

“185. Housing land supply was exhaustively examined by the local plan...

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