Persimmon Homes (Thames Valley) Ltd v Worthing Borough Council
| Jurisdiction | England & Wales |
| Judge | Sir Keith Lindblom,Lady Justice Andrews |
| Judgment Date | 30 June 2023 |
| Neutral Citation | [2023] EWCA Civ 762 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001665 |
and
[2023] EWCA Civ 762
Sir Geoffrey Vos, MASTER OF THE ROLLS
Sir Keith Lindblom
(Senior President of Tribunals)
and
Lady Justice Andrews
Case No: CA-2022-001665
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
MRS JUSTICE LANG
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Cairnes KC and James Corbet Burcher (instructed by Shoosmiths LLP) for the Appellant
Isabella Tafur and Daisy Noble (instructed by Sharpe Pritchard LLP) for the Respondent
The Interested Party did not attend and was not represented
Hearing date: 17 May 2023
Approved Judgment
This judgment was handed down remotely at 4.10pm on 30 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Sir Keith Lindblom, Senior President of Tribunals:
Introduction
The main question in this case is whether an inspector who granted planning permission for a large development of housing and other uses in countryside within the setting of a National Park made errors of law when considering relevant local and national planning policy. The court below held that he did, in two ways: first, in failing to deal with the proposal's conflict with two draft strategic policies in an emerging local plan, and secondly, in misapplying the Government's policy for development that would affect the setting of a National Park.
With permission granted by Warby L.J., the appellant, Persimmon Homes (Thames Valley) Ltd. (“Persimmon”), appeals against the order of Lang J. dated 1 August 2022, quashing a decision of an inspector appointed by the second respondent, the Secretary of State for Levelling Up, Housing and Communities. The inspector allowed Persimmon's appeal against the refusal by the first respondent, Worthing Borough Council (“the council”), of outline planning permission for a mixed-use development including 475 dwellings on land to the north-west of the railway station in Goring-by-Sea. The Secretary of State defended the decision in the court below, but has taken no part in the appeal to this court.
The site is about 20 hectares of agricultural land, part of Chatsmore Farm, outside the boundary of the built-up area as defined in the Worthing Core Strategy 2011, in an undeveloped swathe of land between the settlements of Goring-on-Sea to the east and Ferring – in the district of Arun – to the west, and within the setting of the National Park. The railway station, which is within the built-up area, lies immediately to the south-east. The South Downs National Park extends down to the A259 Littlehampton Road, which runs east-west on the northern side of the site. Persimmon's application for planning permission was submitted to the council in August 2020. The council refused planning permission on 11 March 2021. Persimmon appealed under section 78 of the Town and Country Planning Act 1990. The inspector held an inquiry into that appeal over eight days in January 2022. His decision letter is dated 25 February 2022. The challenge to it was brought by an application under section 288 of the 1990 Act.
The issues in the appeal
There were originally four grounds of challenge. The judge rejected grounds 1 and 3 but upheld grounds 2 and 4. Ground 2 was that the inspector failed to take into account the proposal's conflict with two emerging policies in the Submission Draft Worthing Local Plan, Policy SS1 and Policy SS4, or to provide adequate reasons for his assessment of it against those two policies. Ground 4 was that he had erred in his consideration of the likely effect of the development on the National Park, in particular the acknowledged harm to its setting, failing to perform his duty under section 11A of the National Parks and Access to Countryside Act 1949, to apply the policy in paragraph 176 of the National Planning Policy Framework (“the NPPF”), and to give adequate reasons for his conclusions on these matters. Permission to appeal was granted against the judge's decision on each of those two grounds. Persimmon must succeed on both issues if the appeal is to be allowed.
The council's refusal of planning permission
The council refused planning permission for six reasons. Only the first and second reasons are relevant to the issues we have to decide. They stated:
“01. The proposed development is outside of the built-up area as defined in the Worthing Core Strategy and the emerging Submission Draft Worthing Local Plan and is not allocated for residential development. The proposal is therefore contrary to policy 13 of the Worthing Core Strategy and emerging policies SS4, SS5 and SS6 of the Submission Draft Worthing Local Plan, resulting in the coalescence of settlements and the loss of an important area of green space that contributes to local amenity, sense of place and wildlife. Furthermore, it is considered that the adverse impacts of the development would demonstrably outweigh the benefits as substantial adverse landscape and visual effects would arise from the development affecting the local area and the wider landscape, including the landscape setting to the National Park (therefore adversely affecting its statutory purpose to conserve and enhance its natural beauty and cultural heritage), Highdown Hill scheduled Monument and the Conservation Area.
02. The application is considered to be premature as the development proposed is so substantial, and its cumulative effect would be so significant, that to grant permission would undermine the plan-making process in particular its overall spatial strategy about the location of new development, its landscape evidence and proposed green space designations that are central to the emerging Submission Draft Worthing Local Plan. The proposal therefore fails to comply with paragraph 49 of [the NPPF].”
Policy 13 of the Worthing Core Strategy
The Worthing Core Strategy was adopted in 2011. Together with the saved policies of the previous local plan, it was, at the time of the challenged decision, the statutory development plan. It identified four areas of open countryside as “long established breaks in development between settlements”. The site was in one of those areas. It had been a designated gap in the West Sussex Structure Plan (2004) and in the previous local plan.
Policy 13 of the core strategy stated, under the heading “The Natural Environment and Landscape Character”:
“Worthing's development strategy is that new development needs can be met within the existing built up area boundary and, with the exception of the West Durrington strategic allocation, and will be delivered on previously developed sites, therefore:
• Residential development outside of the existing built up area boundary will only be considered as part of a borough-wide housing land review if there is a proven under-delivery of housing within the Core Strategy period.
• Other proposals that support countryside based uses, such as agriculture and informal recreation may be considered if they are deemed essential and/or can contribute to the delivery of the wider strategic objectives. If development in these areas is proposed it must take into account and mitigate against any adverse effects on visual and landscape sensitivity.
…”.
The draft policies in the emerging local plan
The draft Worthing Local Plan was submitted for examination in June 2021. Examination hearings were held in November 2021. In December 2021 the local plan inspector sent his initial advice letter to the council, indicating the steps required to make the draft local plan sound and legally compliant. The council's schedule of main modifications, approved by him, was published about two months after the decision on Persimmon's appeal, in April 2022. Consultation followed, in April and May 2022. The local plan inspector's report was published in October 2022. He rejected Persimmon's contention that the appeal site ought to be allocated. The local plan was eventually adopted by the council in March 2023. It contains 12 major allocations for housing development, for about 1,750 dwellings.
Draft Policy SS1 in the emerging local plan set out the strategy for new development in the borough in the plan period. At the time of the challenged decision it stated:
“SS1 SPATIAL STRATEGY
Up to 2036 delivery of new development in Worthing will be managed as follows:
The Local Plan will:
a) seek to provide for the needs of local communities and balance the impact of growth through the protection and enhancement of local services and (where appropriate) the safeguarding of employment sites, leisure uses, community facilities, valued green/open spaces and natural resources;
b) help to deliver wider regeneration objectives, particularly in the town centre and seafront, through the allocation of key urban sites;
c) seek to increase the rate of housing delivery from small sites.
d) The strategy for different parts of the Borough is as follows:
i) Land within the Built Up Area Boundary — development will be permitted subject to compliance with other policies in the Local Plan. Development should make efficient use of previously developed land but the density of development should be appropriate for its proposed use and also relate well to the surrounding uses and the character of the area. Within the existing urban fabric nine key regeneration sites are allocated for development.
ii) Edge Of Town Sites – six edge of town sites are allocated for development.
iii) Open Spaces/Countryside/Gaps – valued open space and landscapes outside of the Built Up Area Boundary are protected. This includes important gaps between settlements, the undeveloped...
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