Oadby and Wigston Borough Council v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 03 July 2015 |
| Neutral Citation | [2015] EWHC 1879 (Admin) |
| Docket Number | Case No: CO/1359/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 July 2015 |
[2015] EWHC 1879 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
Mr Justice Hickinbottom
Case No: CO/1359/2015
Timothy Leader (instructed by Mrs Anne Court, Monitoring Officer and Director of Legal Services, Oadby & Wigston Borough Council) for the Claimant
Gwion Lewis (instructed by the Government Legal Department) for the First Defendant
Reuben Taylor QC (instructed by Squire Patton Boggs) for the Second Defendant
Hearing date: 26 June 2015
Introduction
Oadby & Wigston is a small borough of 56,000 people, to the south east of and adjacent to the city of Leicester. The three main towns of Oadby, Wigston and South Wigston fall within the Leicester Principal Urban Area ("PUA"); but the south part of the borough is largely open countryside.
The Claimant adopted the Oadby & Wigston Core Strategy Development Plan Document on 28 September 2010. Using housing figures from the revoked East Midlands Regional Plan, which were based on 2004 population projections, Policy CS1 makes provision for 1,800 new homes in the period 2006 to 2026 at an average rate of 90 dwellings per year (" dpa"). Although Policy CS1 recognises that some of these new dwellings will have to be built outside the PUA, most are directed to be within it; and Policy CS7 restricts development in the countryside unless (amongst other things) there is a justifiable need which outweighs the adverse effect on the rural environment.
This claim concerns the proposed construction of up to 150 dwellings and related development on land at Cottage Farm, Glen Road, Oadby, Leicestershire ("the Site"), which is outside the PUA. An application for planning permission by the Second Defendant ("the Developer") was refused by the Claimant planning authority ("the Council") on 27 February 2014; but, after a five-day inquiry, on 10 February 2015 an inspector appointed by the Secretary of State, Geoffrey Hill BA Hons, DipTP, MRTPI ("the Inspector"), allowed the Developer's appeal under section 78 of the Town and Country Planning Act 1990 ("the 1990 Act") and granted outline planning permission for the proposed development.
In this application under Section 288 of the 1990 Act, the Council seeks to quash that decision, on one broad ground, namely that the Inspector erred in his assessment of the full objectively assessed need for housing.
Before me, Timothy Leader appeared for the Council, Gwion Lewis for the Secretary of State and Reuben Taylor QC for the Developer. I thank each for his contribution. I should say that Mr Leader and Mr Taylor also appeared before the Inspector, for the Council and the Developer respectively.
The Legal Background
The relevant legal background is uncontroversial. In relation to planning determinations generally, whether the relevant decision-maker is a local planning authority or an Inspector on behalf of the Secretary of State on appeal, the following propositions, relevant to this claim, are well-established.
i) Section 70(2) of the 1990 Act provides that, in dealing with an application for planning permission, a decision-maker must have regard to the provisions of "the development plan", as well as "any other material consideration". "The development plan" sets out the local planning policy for an area, and is defined by section 38 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") to include adopted local plans.
ii) Section 38(6) of the 2004 Act provides:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Section 38(6) thus raises a presumption that planning decisions will be taken in accordance with the development plan, but that presumption is rebuttable by other material considerations.
iii) "Material considerations" in this context include statements of central government policy which are now largely set out in the National Planning Policy Framework ("NPPF"), effective from 27 March 2012, as supplemented by the Secretary of State's web-based Planning Practice Guidance ("the PPG"), which from 6 March 2014 replaced a plethora of earlier guidance documents and which is subject to regular updates.
iv) The true interpretation of policy, including the NPPF, is a matter of law for the court to determine ( Tesco Stores Ltd v Dundee City Council [2012] UKSC 13).
v) Whilst he must take into account all material considerations, the weight to be given to such considerations is exclusively a matter of planning judgment for the decision-maker, who is entitled to give a material consideration whatever weight, if any, he considers appropriate, subject only to his decision not being irrational in the sense of Wednesbury unreasonable ( Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G).
vi) An inspector's decision letter cannot be subjected to the same exegesis that might be appropriate for a statute or a deed. It must be read as a whole, and in a practical, flexible and common sense way, in the knowledge that it is addressed to the parties who will be well aware of the issues and the arguments deployed at the inspector's inquiry, so that it is not necessary to rehearse every argument but only the principal important controversial issues. The reasons for an inspector's decision must be intelligible and adequate to enable an informed observer to understand why he decided the appeal as he did, including his conclusions on those issues. They must not give rise to any substantial doubt that he proceeded in accordance with the law, e.g. in his understanding the relevant policies (see Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at page 28 per Forbes J; Bolton Metropolitan Borough Council v Secretary of State for the Environment [1995] 71 P&CR 309 at page 314; South Somerset District Council v Secretary of State for the Environment [1993] 1 PLR 80 at pages 82H, 83F-G per Hoffmann LJ; and South Bucks District Council v Porter (No 2) [2004] UKHL 33 at [36] per Lord Brown). That standard of required reasons applies even where there are issues that turn on expert evidence: a planning decision-maker is not required to give detailed reasons for accepting or rejecting expert evidence, so long as it is apparent why the decision-maker has found as he has on the principal important controversial issues (a well-established proposition, recently confirmed in Wind Prospect Developments Limited v Secretary of State for Communities and Local Government [2014] EWHC 4041 (Admin) at [36] per Lang J).
vii) Although an application under section 288 is by way of statutory application, it is determined on traditional judicial review grounds.
Housing Projections, Assessments and Requirements Etc
A local planning authority has two distinct, although associated, functions. First, since the Localism Act 2011 ("the 2011 Act"), and subject to national policy and a duty to cooperate with other relevant authorities imposed by section 33A of the 2004 (inserted by section 110 of the 2011 Act), a local planning authority is responsible for strategic development plans for its own area. Such plans are subject to independent examination by an inspector appointed by the Secretary of State, who determines whether the plan is "sound" and whether it complies with various procedural requirements. Once a development plan is adopted, then it sets the background against which the authority performs its second function, namely to determine applications for planning permission.
In respect of future housing, there are a number of different concepts and terms in play, which I considered recently in Gallagher Homes Limited and Lioncourt Homes Limited v Solihull Metropolitan District Council [2014] EWHC 1283 (Admin) at [37] as follows:
"(i) Household projections: These are demographic, trend-based projections indicating the likely number and type of future households if the underlying trends and demographic assumptions are realised. They provide useful long-term trajectories, in terms of growth averages throughout the projection period. However, they are not reliable as household growth estimates for particular years: they are subject to the uncertainties inherent in demographic behaviour, and sensitive to factors (such as changing economic and social circumstances) that may affect that behaviour. Those limitations on household projections are made clear in the projections published by the Department of Communities and Local Government ('DCLG') from time-to-time (notably, in the section headed 'Accuracy').
(ii) Full Objective Assessment of Need for Housing ['FOAN']: This is the objectively assessed need for housing in an area, leaving aside policy considerations. It is therefore closely linked to the relevant household projection; but is not necessarily the same. An objective assessment of housing need may result in a different figure from that based on purely demographics if, e.g., the assessor considers that the household projection fails properly to take into account the effects of a major downturn (or upturn) in the economy that will affect future housing needs in an area. Nevertheless, where there are no such factors, objective assessment of need may be – and sometimes is – taken as being the same as...
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