New Dawn Homes Ltd v Secretary of State for Communities and Local Government (First Defendant) Tewksbury Borough Council (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 20 December 2016 |
| Neutral Citation | [2016] EWHC 3314 (Admin) |
| Date | 20 December 2016 |
| Docket Number | Case No: CO/4193/2016 |
| Court | Queen's Bench Division (Administrative Court) |
[2016] EWHC 3314 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
Mr Justice Holgate
Case No: CO/4193/2016
and
Anthony Crean QC and Killian Garvey (instructed by Shoomiths, Solicitors) for the Claimant
Ned Westaway (instructed by Government Legal Department) for the Defendants
Hearing date: 6 December 2016
Introduction
In 2011 the Kings Head Inn in Tewkesbury Road in the village of Norton closed. It had been a thriving public house for many years but trade declined and a succession of owners were unable to make a success of it. The village has a population of only about 300 people.
The Claimant, New Dawn Homes Limited, bought the entirety of the site some time before the end of 2013. The site included to the east of the pub an area which had been used as a car park and to the west the former beer garden.
On 10 October 2013 the Claimant applied to the Second Defendant, Tewkesbury Borough Council ("TBC") for full planning permission for the construction of 4 new dwellings on what was described as "Land at Kings Head Inn, Old Tewkesbury Road, Norton". TBC granted permission on 10 December 2013. This is the site of the former car parking area lying to the east of the Kings Head and occupies 6.2ha. The approved drawings provide for a new access onto Tewkesbury Road. Between the site and the pub building lies the existing access for the Kings Head. Condition 12 required the developer to provide 18 car parking spaces to the south of the pub building as shown on drawing "116-01 Rev. 2". Access to these spaces would be gained through the existing vehicular entrance to the King's Head. The spaces were to be provided on land in the ownership or control of the Claimant (ie. land lying within the conventional blue line shown on one of the application drawings — see paragraph 3.4 of the Claimant's statement in support of its section 78 appeal referred to in paragraph 6 below).
The statutory development plan comprises the saved policies of the Tewkesbury Borough Local Plan 2011. Policy HOU13 states that in order to address the need for more affordable housing in the Borough, TBC "will seek to negotiate with developers for the provision of an element of affordable housing on sites of 15 or more dwellings or on sites in excess of 0.5 hectare. Within settlements with a population of 3,000 or fewer, the threshold will be 5 dwellings". Because taken in isolation the 2013 application only sought approval for 4 dwellings, planning permission was granted without any requirement that affordable housing be provided.
On 11 July 2014 the Claimant applied to TBC for a further detailed planning permission for the erection of 4 new dwellings on "land at Kings Head Inn, Tewkesbury Road, Norton", but this time on the area of land laying to the west of the public house, which had formerly been used as its beer garden. The area of this site is 0.17ha. The application proposed that access to this area would be through a small residential cul-de-sac, King's Elm. Mr Anthony Crean QC, who appeared on behalf of the Claimant, confirmed that before the application was made, his client had obtained legal control over land in third party ownership in order to be able to provide this access. TBC concluded that taking the two development sites together, the 4 dwelling threshold for the provision of affordable housing was exceeded and an appropriate contribution should be made. The Claimant disagreed, but it is said that in order to avoid delay a commercial decision was taken to accept the Council's stance. Accordingly, the Claimant entered into a planning obligation under section 106 of the Town and County Planning Act 1990 ("TCPA 1990") to make a contribution of £118,400 towards the provision of affordable housing off-site and planning permission was granted on 1 May 2015. I note that condition 9 required 30 parking spaces to be provided to the south of the pub building before any of the 4 dwellings could be occupied, instead of the 18 spaces required by condition 12 of the 2013 permission.
On 15 June 2015 the Claimant made a further application for a full planning permission for the erection of 4 dwellings on the former beer garden land. The application sought approval for a slightly different layout of one of the four dwellings (or more precisely its garage). Initially the Claimant offered to make the same contribution towards the provision of off-site affordable housing, but it is said that, because of delays on the part of TBC, that offer was withdrawn. Consequently, on 19 January 2016 TBC issued a decision notice refusing planning permission solely on the ground that the application failed to propose any contribution to affordable housing. That refusal became the subject of an appeal under section 78 of TCPA 1990 to the first Defendant, the Secretary of State for Communities and Local Government ("SSCLG").
The appeal was dealt with by the written representations procedure and the Inspector appointed by the SSCLG to determine the appeal on his behalf issued a decision letter on 6 July 2016. The Claimant now seeks to challenge that decision by an application for statutory review under section 288 of the TCPA 1990. On 12 October 2016 Green J ordered that the application for permission under section 288 (4A) be dealt with at a rolled-up hearing, which came before me.
I am grateful to all Counsel for their written and oral submissions.
The grounds of challenge
The Claimant's arguments have been put differently over time, but they were refined by Mr Crean QC to raise two alternative grounds:-
Ground 1
On a true interpretation policy HOU13 does not provide for the aggregation of areas of land for development when applying the threshold for the provision of affordable housing and therefore the Inspector erred in law by treating each of the two development areas as forming part of a larger site.
Ground 2
If on a true interpretation policy HOU13 does allow the affordable housing threshold to be applied to aggregated areas of land, it only allows this to be done prospectively and not retrospectively. In other words, aggregation is only possible in relation to areas where a residential planning permission has yet to be granted. It does not allow the aggregation of land with other land on which a planning permission for residential development has already been granted.
General legal principles governing a challenge under section 288
The principles upon which the Court may be asked to quash a decision of a planning Inspector are well-established and were summarised by Lindblom J (as he then was) in Bloor Homes East Midlands Limited v SSCLG [2014] EWHC 754 (Admin) at paragraph 19).
The most authoritative statement on the general legal approach to be taken to the interpretation of a planning policy is set out in Tesco Stores Limited v Dundee City Council [2012] PTSR 983 at paragraphs 17 to 22. In summary, the interpretation of policy is a question of law for the Court to determine objectively in accordance with the language used. But development plans and other policy documents are not analogous in their nature or purpose to a statute or contract and should not be construed as if they were. Furthermore, many policies are framed in language the application of which to a given set of facts requires the exercise of judgment. Matters of that kind fall within the jurisdiction of planning authorities as decision-makers and their exercise of judgment may only be challenged in the Courts if it is irrational or perverse.
It is therefore essential for those seeking to challenge an Inspector's decision, to respect this distinction between interpretation and application of policy. In the latter type of case the limited basis upon which the Courts may intervene was summarised in Barker Mill Estates Trustees v Test Valley Borough Council and SSCLG [2016] EWHC 3028 (Admin) (at paragraphs 22 to 26). The above principles were matters of common ground in this case.
The parties' cases in the planning appeal and the Inspector's decision
In its written statement on the planning appeal the Claimant accepted that three criteria drawn from the decision in R (Westminster City Council) v First Secretary of State and Brandlord Limited [2003] J.P.L 1066 should be applied in order to determine the factual question of whether two development proposals could be aggregated or considered to form part of a larger whole (paragraphs 7.11, 7.16 and 8.2). Those criteria were ownership, whether the areas of land could be considered to be a single site for planning purposes, and whether the development should be treated as a single development. Using those criteria, the Claimant made representations to the Inspector as to why in the circumstances of this case, the two areas of land the subject of separate planning permissions/applications should be treated as separate sites for the purposes of applying the affordable housing threshold. It was submitted, for example, that TBC had failed to pay sufficient regard to the fact that the access point for the development of the beer garden was in separate ownership (paragraphs 7.12 to 7.15).
Having submitted that the two areas of land should be treated as separate sites and not aggregated, applying the criteria taken from Brandlord, the Claimant went on to make legal submissions which cover substantially the same issues as grounds 1 and 2 in this case (paragraphs 7.21 to 7.27). Paragraph 7.28 argued that the two areas could not be considered to be "adjoining" within the meaning of the explanatory text to Policy HOU3. However, the normal...
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