Paul Newman New Homes Ltd v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Lady Justice Andrews,Lord Justice Coulson,Lord Justice Peter Jackson |
| Judgment Date | 12 January 2021 |
| Neutral Citation | [2021] EWCA Civ 15 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2019/2413 |
| Date | 12 January 2021 |
[2021] EWCA Civ 15
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
PLANNING COURT
Sir Duncan Ouseley (sitting as a Judge of the High Court)
CO/867/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
Lord Justice Coulson
and
Lady Justice Andrews DBE
Case No: C1/2019/2413
and
Christopher Lockhart-Mummery QC and Yaaser Vanderman (instructed by EMW Law LLP) for the Appellant
Guy Williams (instructed by Government Legal Department) for the Respondent
Hearing date: 9 December 2020
Approved Judgment
The central issue on this appeal is whether an experienced Planning Inspector and a specialist Planning Judge (Sir Duncan Ouseley) correctly interpreted paragraph 11d) of the 2018 version of the National Planning Policy Framework (“NPPF”) when dismissing the appellant developer's appeals following the failure by the local planning authority, Aylesbury Vale District Council, (“the Council”) to determine its application for outline planning permission for a residential development of 50 homes and associated facilities in the countryside, on land north of Leighton Road, Soulbury.
Although the 2018 version has itself been replaced by the 2019 NPPF, the language of paragraph 11d) has not been changed in any material respect. Paragraph 11 is entitled “the presumption in favour of sustainable development”. It provides, so far as material, that
“for decision-taking, this means:
…
d) where there are no relevant development plan policies, or the policies which are most important for determining the applications are out-of-date [FN 7] granting permission unless: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; 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.”
The material part of footnote 7 reads as follows:
“This includes, for applications involving the provision of housing, situations where the local planning authority cannot demonstrate a five-year supply of deliverable housing sites (with the appropriate buffer, as set out in paragraph 73) …”
This case is not concerned with the exceptions under i) and ii) and I shall therefore say no more about them.
Paragraph 12 of the 2018 NPPF is also of some relevance. It provides as follows:
“The presumption in favour of sustainable development does not change the statutory status of the development plan as the starting point for decision making. Where a planning application conflicts with an up-to-date development plan … permission should not usually be granted. Local planning authorities may take decisions that depart from an up-to-date development plan, but only if material considerations in a particular case indicate that the plan should not be followed.”
Background
In a letter sent to the Planning Inspectorate on 30 November 2018, which annexed its case officer's report, the Council indicated that it would have refused the application. One of the principal reasons it gave was the detrimental effect of the proposed development on the character and appearance of the rural area. In reaching that conclusion, the Council relied extensively on Policy GP.35 of the 2004 Aylesbury Vale District Local Plan (“AVDLP”) which, despite its age, was still applicable.
Many policies adopted as part of the AVDLP, including those specifically relating to development in the countryside, such as RA.1, RA.12, and RA.15, were not saved by the Secretary of State under paragraph 1 of schedule 8 to the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”). However, policy GP.35, which falls within Chapter 4, under the sub-section “Conservation of the Built Environment” was among those which were saved. The commentary at the beginning of that sub-section states that:
“4.105. design and landscaping of development are important priorities. An approach is required that respects the traditional character of towns and villages, and, where development in the countryside is necessary or appropriate, the traditional character of rural landscape and buildings.”
Policy GP. 35 reads as follows:
The design of new development proposals should respect and complement:
a) the physical characteristics of the site and surroundings;
b) the building tradition, ordering, form and materials of the locality;
c) the historic scale and context of the setting;
d) the natural qualities and features of the area; and
e) the effect on important public views and skylines.”
In its letter to the Planning Inspectorate, the Council said that the application would clearly be perceived to urbanise the undeveloped and rural nature of the entrance to the town along the Leighton Road, and that these changes would clearly be contrary to Policy GP.35 and the NPPF. It explained that the indicative layout served to reinforce the fact that development on this site would be perceived as an incongruous ‘estate’ lying beyond the existing settlement separated from it by a distinct topographical feature, and would appear to be an incongruous feature in the open countryside beyond the settlement boundary. Importantly, it said it felt that any other design “would not be able to overcome the significant harm on [sic] the landscape character.”
The case officer's report expressed the Council's conclusion in these terms:
“the evaluation demonstrates that the proposal would result in the development of a Greenfield site, which would result in an intrusion into open countryside with significant adverse effects on the rural character and appearance of the site and its surroundings, and fails to complement the settlement characteristics and the character of the rural site setting, contrary to GP. 35 of AVDLP and NPPF advice.”
In her decision letter dated 24 January 2019, the Inspector identified two main issues, namely, (i) the effect of the proposed development upon the rural character and appearance of the site and wider area; and (ii) whether the Council had a five-year land supply for housing as required by national planning policy. She approached those questions in the order in which they arise in paragraph 11 of the 2018 NPPF, first asking herself whether there were any relevant policies in the AVDLP. She acknowledged that there were no policies in the Plan which restricted development in the location of the appeal site absolutely. She explained why saved policies RA.13 and RA.14 were inapplicable because of the geographic location of the site. The Inspector then gave lucid and cogent reasons for finding that policy GP.35 was relevant to her decision and that it was in keeping with the aims of the NPPF both in terms of standards of design, and conservation and enhancement of the natural environment. For that reason, she found it up-to-date and gave it full weight.
The Inspector next explained why, in her judgment, the proposed development conflicted with policy GP.35. She held that the proposed development would unnaturally extend the settlement and encroach upon the countryside, and be harmful to its rural character and appearance. She went on to find that the Council had a five-year housing land supply. That meant that footnote 7 to Paragraph 11 of the NPPF had no relevance to the determination of the planning application.
On the basis of those findings, the Inspector decided that the presumption in favour of the development under paragraph 11d) (known as the “tilted balance”) was inapplicable. She therefore applied the planning balance set out in section 38(6) of the 2004 Act. She concluded that the housing benefit taken with the more general economic benefits of the proposal did not outweigh the specific harm that she had found, and dismissed the developer's appeal.
The Judge held that the Inspector correctly found that GP.35 was relevant to a decision on outline planning permission, and that it would be breached by the proposed development. She was entitled to conclude that the development would not accord with the Local Plan. He held that GP.35 gave policy weight and significance to topics relevant to the assessment of the impact of a development on the character and appearance of a rural area. For the purposes of paragraph 11d) of the 2018 NPPF, the Inspector was right in her approach to the existence of a relevant development plan policy, and in her approach to what constituted the most important development plan policies for determining the application. He therefore upheld the Inspector's decision.
The developer appeals against that decision on two grounds namely:
1. The Judge erred in construing paragraph 11d) of the NPPF contrary to its natural meaning and when read in context; and
2. The Judge erred in agreeing with the Inspector's construction of policy GP.35 of the AVDLP that the policy was intended to guide decision-making at the outline application stage.
Although both Mr Lockhart-Mummery QC for the developer and Mr Williams for the Secretary of State understandably concentrated their submissions on Ground 1, and addressed that issue first, as the Judge did in his judgment, logically that issue only arises if the Inspector correctly interpreted policy GP.35. Therefore, I will begin by addressing Ground 2.
Does Policy GP.35 apply to applications for outline planning permission?
Section 38 (6) of the 2004 Act requires an application for planning permission to be determined in accordance with the local development plan unless material considerations indicate otherwise. If...
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