Philip Warner v The Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 27 November 2014 |
| Neutral Citation | [2014] EWHC 3993 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 November 2014 |
| Docket Number | Case No: CO/3573/2014 |
[2014] EWHC 3993 (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/3573/2014
Iain Colville (instructed by Hopkins Solicitors LLP) for the Claimant
Mark Westmoreland Smith (instructed by the Treasury Solicitor) for the First Defendant
The Second Defendant was not represented and did not appear
Hearing date: 27 November 2014
Introduction
This is an application under Section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), in which the Claimant seeks to quash a decision dated 20 June 2014 of an inspector appointed by the First Defendant Secretary of State, Mr R Schofield BA (Hons) MA MRTPI ("the Inspector"), to dismiss an appeal against the decision of the Second Defendant local planning authority ("the Council") dated 28 January 2014 to refuse planning permission for a proposed development of eight dwellings on land to the rear of the Miners' Arms, Stoneyford Road, Sutton in Ashfield, Nottinghamshire ("the Site").
Before me, Iain Colville has appeared for the Claimant, and Mark Westmoreland Smith for the Secretary of State; and I thank them at the outset for their assistance.
The Legal and Policy Background
In relation to planning decisions, the following propositions, relevant to this claim, are well-established.
i) A planning decision-maker must take into account all material considerations (section 70 of the 1990 Act).
ii) However, the weight to be given to material 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. That discretion is subject only to (a) express statutory provision (notably section 38(6) of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act"), referred to below) and guidance which might inform the exercise of the discretion, and (b) the decision not being irrational in the sense of Wednesbury unreasonable, i.e. a decision to which no person in the position of the decision-maker and on the evidence before him could reasonably come ( Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780F-G). Because the exercise of discretion involves a series of planning judgments, in respect of which an inspector or other planning decision-maker has particular experience and expertise, anyone who challenges a planning decision on Wednesbury grounds, faces "a particularly daunting task" ( Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 75 (Admin) at [8] per Sullivan J, as he then was).
iii) Because of the importance of consistency in public decision-making, previous planning decisions are capable of being material considerations because "like cases should be decided in a like manner" ( North Wiltshire District Council v Secretary of State for the Environment [1992] 65 P&CR 137 at page 145 per Mann LJ). However:
"To state that like cases be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way, am I necessarily agreeing or disagreeing with some critical aspect of the decision of the previous case? The areas for possible agreement or disagreement cannot be defined but they would include an interpretation of policies, aesthetic judgments and assessment of need. Where there is disagreement then the inspector must weigh the previous decision and give reasons for departure from it. These can on occasion be short, for example in the case of a disagreement on aesthetics. On other occasions they may have to be elaborate." ( ibid: see also Dunster Properties Limited v First Secretary of State [2007] EWCA Civ 236 especially at [12], a more recent case adopting the same approach).
Thus, there may need to be an analysis of the relevance of an earlier decision, including if and how it differs from the case in hand; and, where appropriate, an explanation by the decision-maker as to why findings in that earlier decision are being departed from ( R (Fox Strategic Land and Property Limited) v Secretary of State for Communities and Local Government [2012] EWCA Civ 1198 at [33]–[35] per Pill LJ).
iv) An earlier planning decision may be relevant in other ways than for the purposes of consistency. For example, the cumulative effect of a development earlier permitted and the proposed development may be a relevant consideration.
v) "Material considerations" in this context also include statements of central government policy now set out in the National Planning Policy Framework ("the NPPF"). Any local guidance is also a material consideration.
vi) A decision-maker must interpret policy documents properly, the true interpretation of such policy being a matter of law for the court ( Tesco Stores Ltd v Dundee City Council [2012] UKSC 13).
vii) Section 70(2) of the 1990 Act expressly provides that "the development plan" is a material consideration. The content of the development plan is defined in section 38 of the 2004 Act to include "development plan documents" for the relevant area. However, the development plan is not simply a material consideration, because section 38(6) of the 2004 Act gives it a particular status. It provides that:
"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."
Therefore, section 38(6) raises a presumption that planning decisions will be taken in accordance with the development plan; but that presumption is rebuttable by other material considerations.
viii) Where a new or revised plan is going through the statutory process required for its adoption, that emerging plan is also a material consideration. As ever, the weight to be given to it is a matter for the decision-maker; but paragraph 216 of the NPPF states:
"From the day of publication, decision-takers may also give weight to relevant policies in emerging plans according to:
— the stage of preparation of the emerging plan (the more advanced the preparation, the greater the weight that may be given);
— the extent to which there are unresolved objections to relevant policies (the less significant the unresolved objections, the greater the weight that may be given); and
— the degree of consistency of the relevant policies in the emerging plan to the policies in this Framework (the closer the policies in the emerging plan to the policies in the Framework, the greater the weight that may be given)."
ix) Paragraph 47 of the NPPF requires planning authorities to "identify and update annually a supply of specific deliverable sites sufficient to provide five years' worth of housing against their requirement with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land". Paragraph 49 provides that housing applications should be considered in the context of the general presumption in favour of sustainable development found in paragraph 14. However, for decision-making on planning applications, paragraph 14 provides that this means:
"… where the development plan is absent, silent, or the relevant policies are out of date, granting permission unless:
— any adverse impacts of so doing would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or
— specific policies in this Framework indicate development should be restricted."
Therefore, if the authority cannot demonstrate a five year plus buffer supply of housing land, then that weighs in favour of a grant of permission. In particular, in those circumstances, (i) relevant housing policies are to be regarded as out-of-date, and hence of potentially restricted weight; and (ii) there is a presumption of granting permission unless the adverse impacts of granting permission significantly and demonstrably outweigh the benefits, or other NPPF policies indicate that development should be restricted in any event.
x) An inspector's decision letter cannot be subjected to the exegesis that might be appropriate for a statute or a deed: it must be read as a whole and in a practical and common sense way ( Seddon Properties v Secretary of State for the Environment (1981) 42 P&CR 26 at page 28 per Forbes J). Furthermore, as Cranston J recently emphasised in Arsenal Football Club plc v Secretary of State for Communities and Local Government [2014] EWHC 2620 (Admin) at [34], an inspector is only required to deal with and give reasons in respect of the main issues in dispute before him, not every material consideration.
xi) Although an application under section 288 is by way of statutory appeal, it is determined on traditional judicial review grounds.
In respect of the development plan relevant in this case, Policy EV2 of the Ashfield Local Plan Review 2002 provides:
"In the countryside permission will only be granted for appropriate development. Development must be located...
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