Monkhill Ltd v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 24 July 2019 |
| Neutral Citation | [2019] EWHC 1993 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/539/2019 |
| Date | 24 July 2019 |
[2019] EWHC 1993 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holgate
Case No: CO/539/2019
and
Mr Charles Banner QC and Mr Matthew Fraser (instructed by Penningtons Manches LLP) for the Claimant
Mr Richard Moules (instructed by Government Legal Department) for the Defendant
Hearing dates: 9 July 2019
Approved Judgment
Introduction
This claim raises important issues about the interpretation of the presumption in favour of sustainable development for decision-taking in paragraph 11(d) of the National Planning Policy Framework (“NPPF”). The challenge brought by the Claimant, Monkhill Limited, asks the court to consider how paragraph 11(d)(i) should be interpreted so as to determine which policies in the NPPF fall within its scope. This in turn raises an important issue about the interpretation of paragraph 172 of the NPPF in relation to development in an Area of Outstanding Natural Beauty (“AONB”), or a National Park, or the Broads.
Paragraph 11 of the NPPF (in so far as relevant) provides as follows:-
“Plans and decisions should apply a presumption in favour of sustainable development.
For decision-taking this means:
c) approving development proposals that accord with an up-to-date development plan without delay; or
d) where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date 7, granting permission unless:
i. the application of policies in this Framework that protect areas or assets of particular importance provides a clear reason for refusing the development proposed 6; or
ii. any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole”
Paragraph 11(d)(ii) is often referred to as the “tilted balance”.
In summary, the effect of footnote 7 is that where a local planning authority is unable to demonstrate a five-year supply of deliverable housing sites in accordance with paragraph 73 of the NPPF, or where the Housing Delivery Test indicates that the delivery of housing was substantially below (that is less than 75% of) the housing requirement over the previous three years, “the policies which are most important for determining the application” are deemed to be “out-of date”, so that the presumption in favour of sustainable development applies and planning permission should be granted unless either limb (i) or limb (ii) is satisfied.
Footnote 6 explains that the policies in limb (i) are:
“those in this Framework (rather than those in development plans) relating to: habitats sites (and those sites listed in paragraph 176) and/or designated as Sites of Special Scientific Interest; land designated as Green Belt, Local Green Space, an Area of Outstanding Natural Beauty, a National Park (or within the Broads Authority) or defined as Heritage Coast; irreplaceable habitats; designated heritage assets (and other heritage assets of archaeological interest referred to in footnote 63; and areas at risk of flooding or coastal change.”
The Claimant applies under section 288 of the Town and Country Planning Act 1990 to quash the decision of the First Defendant's Inspector given by a letter dated 10 January 2019 dismissing its appeal against the refusal of planning permission by the Second Defendant, Waverley Borough Council. The appeal arose from an application for planning permission to redevelop land at Longdene House, Hedgehog Lane, Haslemere, Surrey. The application was in two parts: first, outline planning permission for the erection of up to 28 new dwellings and the demolition of two existing dwellings, glasshouses and outbuildings; and second, full planning permission for the change of use and refurbishment of Longdene House from Office (Class B1a) to Residential (Class C3) to provide a new dwelling.
The appeal site comprised Longdene House, a Victorian dwelling currently in use as offices, its gardens and adjoining fields. Access is gained from Hedgehog Lane via a private driveway along a tree-lined avenue. The hybrid planning application related to 4 areas of the appeal site. Area A is to the north of the driveway. It is an open field, except for a small wooden storage building, and is used to raise horses. Outline planning permission was sought to build 25 dwellings on Area A. In Area B outline permission was sought for the replacement of a pair of semi-detached cottages in Area B with two dwellings. Area C comprised Longdene House. This was the subject of an application for full planning permission for change of use to a single dwelling with a detached garage. Within Area D, which includes the existing glass houses, it was proposed to erect one dwelling. The submitted plans showed that the other fields within the site would remain undeveloped.
The majority of Area A and all parts of Areas B, C and D lie within the Surrey Hills AONB. The remaining part of Area A is designated as an Area of Great Landscape Value (“AGLV”). The town centre of Haslemere lies about 1.3km from the site.
NPPF Policy on AONBs, national Parks and the Broads
Paragraph 172 of the NPPF sets out the policy on development in AONBs, National Parks and the Broads. The first part of the policy applies to development generally within these designated areas and provides as follows:-
“Great weight should be given to conserving and enhancing landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to these issues. The conservation and enhancement of wildlife and cultural heritage are also important considerations in these areas, and should be given great weight in National Parks and the Broads. The scale and extent of development within these designated areas should be limited.”
The second part of paragraph 172 applies solely to “major development”. Footnote 55 explains that for the purposes of paragraphs 172–173 (paragraph 173 being a similar policy concerned with areas defined as Heritage Coast):-
“whether a proposal is ‘major development’ is a matter for the decision maker, taking into account its nature, scale and setting, and whether it could have a significant adverse impact on the purposes for which the area has been designated or defined.”
That explanation raises essentially a matter of planning judgment for the decision-maker.
The development control policy applicable to major development in an AONB, National Park or the Broads is as follows:
“Planning permission should be refused for major development55 other than in exceptional circumstances, and where it can be demonstrated that the development is in the public interest. Consideration of such applications should include an assessment of:
a) the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
b) the cost of, and scope for, developing outside the designated area, or meeting the need for it in some other way; and
c) any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated.”
It was common ground between the Claimant and the Second Defendant that the proposal in this case did not constitute a “major development”. The Inspector reached the same conclusion in paragraph 31 of his decision letter (DL31).
The decision letter
The Inspector stated in DL6 that one of the main issues to be determined was whether the proposal would cause “material harm to the intrinsic character, beauty and openness of the Countryside beyond the Green Belt, the AONB and the AGLV” as a result of its urbanising impact and harm to the landscape character. He dealt with that issue between DL18 and DL33. Between DL34 and DL37 he addressed issues concerning highway safety, which had been raised not by the Second Defendant but by local residents. In DL37 the Inspector concluded that any resultant harm to highway safety should not weigh significantly against the proposal. He added:
“residual cumulative impacts on the road network would not be severe, and any increased risk to highway safety would fall far short of an unacceptable impact which would, in accordance with the Framework, justify preventing the development on highway grounds.”
In DL38 to DL42, the Inspector dealt with housing land supply. In DL41, he concluded:-
“I find that the housing land supply here would be between 3.37 and 4.6 years. There is not enough information about individual sites for me to assess where within this range the current supply falls. Nevertheless, this is a significant shortfall.”
In DL42, the Inspector continued:-
“The additional dwellings from the proposed development would make a significant contribution to the supply of housing in Haslemere. The provision of 10 affordable dwellings would be particularly important in providing for local needs and would comply with LPP1 Policy AHN1. Given the housing land supply situation and the degree of shortfall, these are benefits which will be given significant weight in the planning balance.”
Between DL43 and DL45, the Inspector dealt with “other matters”. In DL43, he concluded that the proposal, whether alone or in combination with other developments, would not be likely to have a significant effect on the Wealden Heath Special Protection Area and therefore no appropriate assessment was required. In DL44, the Inspector identified employment benefits and ecological benefits to which he attributed moderate weight in...
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