Manor Oak Homes Ltd v Secretary of State for Communities and Local Government

JurisdictionEngland & Wales
JudgeSir Duncan Ouseley
Judgment Date10 July 2019
Neutral Citation[2019] EWHC 1736 (Admin)
Docket NumberCase No: CO/5094/2018
CourtQueen's Bench Division (Administrative Court)
Date10 July 2019

[2019] EWHC 1736 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Sir Duncan Ouseley,

sitting as a High Court Judge

Case No: CO/5094/2018

Between:
Manor Oak Homes Limited
Claimant
and
Secretary of State for Communities and Local Government
Defendant

and

Aylesbury Vale District Council
Interested Party

Paul Tucker QC and Sarah Reid (instructed by Shakespeare Martineau) for the Claimant

Hugh Flanagan (instructed by GLD) for the Defendant

The Interested Party did not appear and was not represented

Hearing dates: 6 June 2019

Approved Judgment

Sir Duncan Ouseley, sitting as a High Court Judge:

1

This appeal under s288 of the Town and Country Planning Act 1990 concerns the approach which an Inspector should adopt to the granting of planning permission where highway infrastructure, necessary to make the development acceptable, depends in part on contributions from other developments, as yet without permission or contributions secured by agreement. It arose here in the context of an agreement on highways issues between the developer, highway authority and development control authority, which all three regarded as sufficient to dispose of the highways objection. The Inspector did not accept that agreement as sufficient to deal with the highways issue because of the other as yet unsecured contributions.

2

Manor Oak Homes Ltd, the developer and Claimant, appealed to the Secretary of State for Housing, Communities and Local Government, the Defendant, from the non-determination by the Aylesbury Vale District Council, the District Council, of its application for planning permission to build 375 homes on land off Wendover Road, Stoke Mandeville, in Buckinghamshire. Buckinghamshire County Council, BCC, is the highway authority. A Planning Inspector dismissed the appeal after a one day hearing. The Claimant now appeals that decision.

3

Mr Tucker QC's submissions for the developer are all addressed to how the Inspector approached the probability of necessary highway improvements actually being brought about, and the possibility that they might not be. First, she had required “certainty” but there was no legal or policy requirement for certainty; something less sufficed. Second, there was no evidence which could reasonably support her conclusion that it was “unknown or unlikely” whether the other contributing schemes would come forward. Third, her reasons for departing from the views of the highway authority and planning authority were legally inadequate, to the developer's prejudice. Mr Tucker in his Skeleton Argument trailed a natural justice argument, but this was not a formal ground of challenge, and was treated as a supporting point to the prejudice alleged in his reasons ground.

The Decision Letter

4

The District Council's putative reasons for refusal had included the effect of the proposal on highway capacity and safety, but by the time of the hearing, that had ceased to be a main issue between the main parties, as a result of an agreement reached after prolonged discussions between the developer and BCC in particular, for contributions towards highway improvements. As anticipated, this found formal expression after the hearing in an agreement under s106 of the 1990 Act, which the Inspector was sent and took into account. In DL 28, she referred to this Deed of Undertaking, DoU, as providing for the financial contributions for “junction improvements at Wendover Road/Station Road, [J2] and Station Road/Risborough Road/Lower Road [J3]… and towards the South East Aylesbury Link Road [related to J8, Walton Street Gyratory], [which] are reasonable and necessary to mitigate the impacts from the development on the transport network and for highway safety reasons.” (I have added the Junction numbers and names for ease of later reference; I have also referred only to the improvements where an issue arose because of the contributions required from other development schemes.)

5

The main issues at the Inquiry concerned what may broadly be termed the impact of the proposal on the character and appearance of the area, and the appropriateness of contributions sought for various facilities, other than the highway improvements. The impact on the highway network was dealt with under the heading “Other matters”.

6

Thereunder, the Inspector explained that the developer had provided three Transport Assessments, TAs; in 2017, revised in February and again importantly in July 2018, to take into account concerns expressed by the District Council following consultation with BCC. BCC had indicated that the July 2018 revision and the mitigation measures it contained had addressed its concerns in respect of the proposal upon highway capacity and safety. She added, [DL31]: “Local residents do not however share the views of the Council in this regard.”

7

She accepted the view of BCC, contrary to that of local residents, that J1, whereby the proposal accessed the highway network, would be satisfactory; DL 32. The July 2018 TA had assessed 9 key junctions for the impact of this proposal along with other “developments that would be likely to occur in the locality.” Of these junctions, 3 would require improvement works to accommodate the appeal proposal, towards which the developer had agreed to pay a contribution, as set out in the DoU. These were what the TA termed J2, J3 and J4. In fact, the developer was bearing the whole cost of J4. The other 6 junctions did not require improvement works, including J8, the Walton Street Gyratory, either because they could cope any way or, as would be the case with J8, the situation would improve and vehicle numbers would be reduced once the South East Aylesbury Link Road, SEALR, and two other link roads were connected; DL 34. The DoU provided for a £1.22m contribution to the SEALR.

8

In DL35, the Inspector concluded: “In the absence of substantive evidence to demonstrate otherwise, I am satisfied that, subject to the mitigation measures being implemented as set out in the TA, that the proposal would not have an adverse effect upon the function and safety of the highway network.”

9

She continued:

“36. However, the funding of the mitigation measures proposed is dependent on other development schemes in the area contributing to them, along with the appeal proposal; not all of which have yet received planning permission. In the event that one or more of the schemes contributing to these works does not receive planning permission and/or is not delivered, it would be unlikely that the funding for the mitigation would be realised. As such, on the evidence before me, there is no certainty at this stage, that the mitigation works proposed would be implemented.

37. I acknowledge that the approach taken in the TA was supported by the Highway Authority. However, in the absence of a scenario assessing the impact of vehicle movements that would result from the proposed development on the transport network in isolation, I cannot be certain that there would be no unacceptable impact on highway safety that the residual cumulative impact would not be severe, if the identified mitigation measures were not implemented.

38. In light of the above, I am unable to conclude whether traffic associated with the proposal could be safely accommodated on the transport network as required by the Framework, or indeed make an assessment of what the residual cumulative impact of the proposal would be. In reaching this view, I am mindful that the proposal would improve [various transport facilities]. However these matters do not outweigh my concerns in this regard.”

10

Mr Tucker QC submitted that the Inspector in DL36 was not referring to the way in which the effects on J8 would be alleviated, that is by the SEALR rather than junction improvement as such. That is wrong. True, she identified the three junction improvements in DL 34, but she then went on to deal with the other road improvements which solve the problem at J8. There is no reason to read DL36 as suddenly limited to only some of the improvements to which the developer had agreed to contribute and to which other developers were expected to contribute. The status of the SEALR was touched on at the hearing, as I come to later.

11

In DL45, she had set against the benefits of the proposal, the substantial harm which would be caused to the character and appearance of the area. “Further harm could be caused because there is no certainty that the proposal could take place without having a severe adverse impact on the transport network in terms of capacity, congestion and highway safety.” She continued in DL47 that, even if the housing requirements had tilted the balance towards the grant of permission, “the harm that would be caused to the character and appearance of the area and the uncertainty over the proposal's impact on the transport network would, in any event, significantly and demonstrably outweigh the benefits of the proposal, when assessed against the Framework taken as a whole.”

Discretion

12

It is convenient to deal with discretion here. Mr Flanagan, for the Secretary of State, relied on those paragraphs to argue that, even if the Inspector had erred in law on the highways issue, she would still have dismissed the appeal; the decision should therefore not be quashed in the exercise of my residual discretion. He submitted that the impact on the character and appearance of the area was of itself judged by the Inspector to be a separate and sufficient reason for dismissing the appeal.

13

Mr Flanagan has to show that the outcome would inevitably have been the same, even if the Inspector had erred on highways. That means that he has to show that the Inspector in fact concluded that the impact on the character and appearance of the area was, by itself, a sufficient basis for dismissing the appeal....

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