Muller Property Group v Secretary of State for Communities and Local Government Cheshire East Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Gilbart J |
| Judgment Date | 19 December 2016 |
| Neutral Citation | [2016] EWHC 3323 (Admin) |
| Docket Number | Case No: CO/4788/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2016 |
[2016] EWHC 3323 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
Greater Manchester
M60 9DJ
Mr Justice Gilbart
Case No: CO/4788/2016
and
Jenny Wigley (instructed by Hill Dickinson, Manchester) for the Claimant
Stephen Whale (instructed by Government Legal Department) for the Defendant
The Interested Party did not appear
Hearing dates: 12 th December 2016
Approved Judgment
This is an application for leave to apply under s 288 of the Town and Country Planning Act 1990 (" TCPA 1990") to quash a decision letter of the Defendant Secretary of State of 11 th August 2016, whereby he dismissed the Claimant's two appeals (referred to as "appeal A" and "appeal B") against the refusal of planning permission for residential and employment development, together with related development, on land at Audlem Road/Broad Road, Stapeley, Nantwich, Cheshire. Site B adjoins Site A, and was to provide the access to the development on Site A.
It came before me as an oral application to renew, Kerr J having refused permission to apply on the papers on 8 th November 2016.
I shall deal with matters as follows
a) Procedural history
b) Relevant passages in the National Planning Policy Framework "NPPF"
c) The Inspector's Report of March 2014
d) The Decision Letter of August 2016
e) The Grounds of Challenge
(a) Procedural History
The appeals have a substantial history, having been entered originally in May 2013. It was a case where the Defendant recovered jurisdiction, albeit not until 5 th March 2014, after the end of the public inquiry. A public inquiry was held in February 2014 over 4 days, together with a subsequent one day round table discussion, also in February 2014. and the Inspector issued his report in June 2014. He recommended that both appeals be allowed. However no decision letter was received from the Defendant until 17 th March 2015. In that decision, the appeals were dismissed. He did so on the basis that it would be wrong to grant permission in advance of decisions being made in the Development Plan process.
Unhappily, the Defendant reached those decisions without addressing or applying his own policy on arguments of prematurity. It also contained an error about the amount of best and most versatile agricultural land within the appeal site.. The Claimant challenged those decisions in this court. The Defendant submitted to judgement, and a consent order was made on 3 rd July 2015 before Hickinbottom J. The schedule to the order recited the flaws in the decision letter.
The Defendant then decided to invite further representations under Rule 19 of the Town and Country Planning (Inquiries Procedure) Rules 2000. He did so by letter of 17 th July 2015. Having received them, he stated on 15 th September 2015 that he did not need to reopen the inquiry, and would proceed to issue his decision on or before 17 th November 2015. However he failed to do so, and did not issue his decision letter until 11 th August 2016, almost 9 months later than the date he had identified.
It is, to say the least, highly regrettable that at the date of the decision letter, over three years had elapsed since the appeals were made, over two years since the Inspector reported, and 10 months after the Defendant's proposed date for issuing the new decision letter. That however, while regrettable, does not in this case give grounds for quashing the decision.
(b) Relevant passages in NPPF
It is necessary to start consideration of the Inspector's Report and subsequent Decision Letter by saying something of NPPF. It is national policy, published by the Defendant's predecessor in March 2012. I shall presently set out important qualifications to be had in mind when assessing its relevance. This case has featured approaches to it which require comment.
It includes the following passages
"6. The purpose of the planning system is to contribute to the achievement of sustainable development. The policies in paragraphs 18 to 219, taken as a whole, constitute the Government's view of what sustainable development in England means in practice for the planning system.
7. There are three dimensions to sustainable development: economic, social and environmental. These dimensions give rise to the need for the planning system to perform a number of roles:
• an economic role – contributing to building a strong, responsive and competitive economy, by ensuring that sufficient land of the right type is available in the right places and at the right time to support growth and innovation; and by identifying and coordinating development requirements, including the provision of infrastructure;
• a social role – supporting strong, vibrant and healthy communities, by providing the supply of housing required to meet the needs of present and future generations; and by creating a high quality built environment, with accessible local services that reflect the community's needs and support its health, social and cultural well-being; and
• an environmental role – contributing to protecting and enhancing our natural, built and historic environment; and, as part of this, helping to improve biodiversity, use natural resources prudently, minimise waste and pollution, and mitigate and adapt to climate change including moving to a low carbon economy."
Achieving sustainable development
8. These roles should not be undertaken in isolation, because they are mutually dependent. Economic growth can secure higher social and environmental standards, and well-designed buildings and places can improve the lives of people and communities. Therefore, to achieve sustainable development, economic, social and environmental gains should be sought jointly and simultaneously through the planning system. The planning system should play an active role in guiding development to sustainable solutions.
"The presumption in favour of sustainable development
11. Planning law requires that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise.
12. This National Planning Policy Framework does not change the statutory status of the development plan as the starting point for decision making. Proposed development that accords with an up-to-date Local Plan should be approved, and proposed development that conflicts should be refused unless other material considerations indicate otherwise. It is highly desirable that local planning authorities should have an up-to-date plan in place.
13 ……
14. At the heart of the National Planning Policy Framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
For plan-making this means that:
• local planning authorities should positively seek opportunities to meet the development needs of their area;
• Local Plans should meet objectively assessed needs, with sufficient flexibility to adapt to rapid change, unless:
– 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; or
– specific policies in this Framework indicate development should be restricted." (A footnote (9) gives as examples policies relating to Habitat Directives, designated Sites of Special Scientific Interest, designated Green Belts, Areas of Outstanding Natural Beauty, Heritage Coasts, National Parks, designated heritage assets or areas at risk of flooding or coastal erosion)
For decision-taking this means": ("unless material considerations indicate otherwise" appears in a footnote)
"• approving development proposals that accord with the development plan without delay; and
• where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
– 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; or
– specific policies in this Framework indicate development should be restricted. (Reference is again made to footnote (9))
15. Policies in Local Plans should follow the approach of the presumption in favour of sustainable development so that it is clear that development which is sustainable can be approved without delay. All plans should be based upon and reflect the presumption in favour of sustainable development, with clear policies that will guide how the presumption should be applied locally."
• Chapter 6 deals with "Delivering a wide choice of high quality homes." The following paragraphs are relevant:
"6. Delivering a wide choice of high quality homes
47. To boost significantly the supply of housing, local planning authorities should:
• use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;
• identify and update annually a supply of specific deliverable sites sufficient to provide five years' worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the...
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