Phides Estates (Overseas) Ltd v Secretary of State for Communities and Local Government (First Defendant) Shepway District Council (Second Defendant) David Plumstead (Third Defendant)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 26 March 2015 |
| Neutral Citation | [2015] EWHC 827 (Admin) |
| Docket Number | Case No: CO/4792/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 March 2015 |
and
and
[2015] EWHC 827 (Admin)
Mr Justice Lindblom
Case No: CO/4792/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Douglas Edwards Q.C. (instructed by Wedlake Bell) for the Claimant
Mr Richard Moules (instructed by the Treasury Solicitor) for the First Defendant
Mr Paul Brown Q.C. (instructed by Richard Buxton) for the Third Defendant
Hearing date: 17 February 2015
Introduction
Proposals for housing development are sometimes rejected even when there is not, at the time of the decision, the five-year supply of housing land required by government policy. That is what happened in this case. Whether the decision was right or wrong is not for the court to say. The question for the court is whether it was lawfully made.
By an application under section 288 of the Town and Country Planning Act 1990 the claimant, Phides Estates (Overseas) Ltd., seeks an order to quash the decision of the inspector, Ms Christina Downes, appointed by the first defendant, the Secretary of State for Communities and Local Government, in which she dismissed its appeal against the refusal by the second defendant, Shepway District Council, of its application for outline planning permission for a development of housing on land at the former Lympne Airfield in Kent. The inspector's decision letter is dated 8 September 2014. Phides' application is opposed both by the Secretary of State and by the third defendant, Mr David Plumstead, a local resident and a member of the Friends of Lympne Airfield Association, which objected to the proposed development.
The issues for the court
The application raises two main issues for the court:
(1) whether the inspector misunderstood and misapplied Policy SS2 of the Shepway Core Strategy, adopted by the council in 2013, and thus failed to identify the relevant "housing requirements" under paragraph 47 of the National Planning Policy Framework ("the NPPF"), or at least failed to provide intelligible and adequate reasons for her conclusions (ground 1); and
(2) whether the inspector failed to identify the "relevant policies for the supply of housing" within paragraph 49 of the NPPF, or reached inconsistent conclusions on that matter, or in any event failed to provide lawful reasons for those conclusions (ground 2).
Background
The appeal site is owned by Phides. It extends to about 18 hectares within the former airfield, whose total area is about 82 hectares. On its eastern side it adjoins the village of Lympne. To its west is the Lympne Industrial Estate, to its north a large area of land, Link Park, which will be developed for industrial and business uses. Much of the former airfield is still open land, though some of its structures and hardstandings remain. In Phides' appeal it was agreed that the site was not "previously developed land".
The proposal was for a development of 250 dwellings, a village green, a local centre, public open space and playing fields. The application for outline planning permission was submitted on 16 April 2013. It was refused by the council on 25 November 2013. The council's first reason for refusal was this:
"The proposed development, being located outside the village confines of the Lympne settlement boundary, and being of such a size, scale and impact, which is disproportionate with the settlement hierarchy, status and identified strategic role and needs of Lympne and which fails to promote the good design and distinctiveness of Lympne, is contrary to policies DSD, SS1, SS2, SS3, CSD1, CSD2 and CSD3 of the adopted Shepway Core Strategy Local Plan 2013, saved policies CO1 and HO1 of the Shepway District Local Plan Review 2006 and [the NPPF], principally paragraphs 12, 17, 49 and 70, all of which require plan-making and decision-taking to be plan-led with development proportionate and consistent with the settlement's status and identified strategic role, which deliver the social, recreational and cultural facilities and services the community needs."
There were two further reasons for refusal, but they were later abandoned.
On 18 December 2013 Phides appealed against the council's decision. The inspector held an inquiry into the appeal over four days, from 22 to 25 July 2014, and made her site visit on 29 July 2014. At the inquiry Phides argued that Policy SS2 of the core strategy required the delivery of 400 dwellings a year in the period to 2025/2026, not 350 as the council contended; that the council could not demonstrate a five-year supply of housing land to meet that requirement, with a buffer of 20%; that, in the light of government policy in paragraph 49 of the NPPF, the "relevant policies for the supply of housing", including saved Policy CO1 of the local plan, and several policies of the core strategy — Policy SS1, Policy SS2, Policy SS3, Policy CSD1, Policy CSD2 and Policy CSD3 — could not be considered "up-to-date"; that the presumption in favour of sustainable development in paragraph 14 was therefore engaged; that there were no "adverse effects" arising from the development which would "significantly and demonstrably outweigh the benefits, assessed against the policies of [the NPPF], taken as a whole"; and that there was therefore no reason why planning permission for it should be withheld.
Development plan policy
When the inspector made her decision on Phides' appeal the development plan comprised the core strategy and the saved policies of the Shepway District Local Plan Review.
The local plan review was adopted in 2006. In Chapter 12, "Countryside", saved Policy CO1 states that the council "will protect the countryside for its own sake". The policy defines the "countryside" as "the area outside of the settlement boundaries identified on the proposals map". It describes the circumstances in which, subject to other plan policies, development in the "countryside" will be permitted.
The council began the preparation of the core strategy in 2011. On 13 April 2011 its Cabinet considered a report in which officers advised on "key decisions" to be taken in that process. The officers recommended "a housing target" for inclusion in the core strategy, which was "400 dwellings per annum over the period to 2026, to allow modest long-term growth in the population of the district". They reminded the members (in paragraph 3.1 of their report) that the "Shepway LDF Core Strategy Preferred Options" document had referred to a required delivery "of between [6,000] and [8,000] new homes over the period 2006 to 2026 …". They advised (at paragraph 3.11) that "an average delivery rate of 400 dwellings per annum be supported over the 20 year period, a figure that is consistent with the annual rate of delivery over the past 20 years …"; and (at paragraph 3.16) that "an appropriate requirement (not necessarily at 400 p.a.) be developed for a period beyond 2026/2027 for inclusion within the proposed submission document". The Cabinet accepted the officers' recommendation. Attached to the officers' report, as Appendix 1, was a paper entitled "Strategic Requirement April 2011". In section 12, "Conclusion", this document put forward as its "Core recommendation", that "a proposed average housing target in the Shepway LDF Core Strategy (subject to final examination of sources of capacity and strategic sites, and Sustainability Appraisal process) features, for the period 2006 to 2026, in the order of 400 new dwellings per annum; this being the upper end level consulted on as a preferred option". One of the further recommendations was that "consideration be given to a policy requirement for housing delivery extending beyond 2026".
The draft core strategy was submitted for examination in January 2012. The examination was carried out by an inspector, Mr Michael Hetherington, who held hearings in May 2012 and March 2013.
In September 2012 the council produced its "Shepway Core Strategy Local Plan Modifications 2012 Technical Note: Windfalls, Housing Supply & Policy Update". This document introduced itself (at paragraph 1.1) as "evidence supporting modifications" to the draft core strategy which the council considered necessary "to ensure the 'soundness' of the Core Strategy in light of both recent changes to national policy, and the Planning Inspector's 'Interim Conclusions' dated 18 th May 2012 …". Section 2 of the document referred to the NPPF — published six months previously in March 2012 — and in particular to paragraph 47, which, it said, "requires local plans to be based on evidence to fully meet needs for market/affordable housing …" (paragraph 2.2). Section 4 dealt with "Housing Delivery and 'Windfalls' — Effects". Paragraph 4.2 said that "[the] central requirement remains for the provision of at least 350 dwellings per year in the period 2006/7 – 2030/31 (inclusive)". Paragraph 4.10 said that the "net implication on the housing trajectory" of the remodelling of the core strategy "housing supply" was that "the 8,750 requirement as a minimum (25 years x 350) is met some two years earlier in the plan period than before". In its "Final Conclusions" the document said that the opportunity had been taken "to update all relevant information with regard to housing land supply to demonstrate consistency with the NPPF". The first of the seven conclusions set out was this:
"The delivery of a minimum of 350 dwellings per annum under...
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Table of Cases
...Government [2015] EWHC 2308 (Admin) 150 Phides Estates (Overseas) Ltd v Secretary of State for Communities and Local Government [2015] EWHC 827 (Admin) 289 Phillips v First Secretary of State [2003] EWHC 2415 (Admin), [2003] 4 PLR 75, [2004] JPL 613, [2003] NPC 122 153 Pilkington v Secretar......
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Table of Cases
...1 All ER 970, [2013] 6 Costs LR 973 314 Phides Estates (Overseas) Ltd v Secretary of State for Communities and Local Government [2015] EWHC 827 (Admin) 482 Phillips v First Secretary of State [2003] EWHC 2415 (Admin), [2003] 4 PLR 75, [2004] JPL 613, [2003] NPC 122 428 Phillips v Low [1892]......