R Aldingbourne Parish Council v Arun District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 07 December 2017 |
| Neutral Citation | [2017] EWHC 3450 (Admin) |
| Date | 07 December 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/901/2017 |
[2017] EWHC 3450 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Holgate
CO/901/2017
APPEARANCES
Dr A Bowes (instructed by Barlow Robbins Solicitors) appeared on behalf of the Claimant.
Mr G Lewis (instructed by Arun District Council Legal Department) appeared on behalf of the Defendant.
The claimant, the Aldingbourne Parish Council (“APC”) applies for judicial review of the decision by the defendant, Arun District Council (“ADC”) to grant planning permission for eight dwellings on land south and east of Barnside, Hook Lane, Aldingbourne, West Sussex.
The decision notice was issued on 9 th January 2017 pursuant to a resolution passed by the defendant's development committee on 2 nd November 2016. The first and second interested parties are the freehold owners of the site, the third interested party holds a charge over that site, and the fourth interested party was the successful applicant for planning permission. None of the interested parties have taken part in these proceedings.
Permission to apply for judicial review was granted by Sir Wyn Williams on 12 th May 2017.
Development plan policies
At the date of the decision notice, the development plan comprised the Arun District Local Plan (“ADLP”) and the Aldingbourne Neighbourhood Development Plan 2014-203(“ANDP”). ADC resolved to make the ANDP on 9 th November 2016. The ANDP had previously passed a local referendum held on 18 th October 2016.
Policy EH1 of the ANDP provides:-
“Proposals for development outside of the built-up area boundary, that do not accord with development plan policies in respect of the countryside, will be resisted unless it is for essential utility infrastructure, where the benefits outweigh any harm, and it can be demonstrated that no reasonable alternative sites are available.”
It is agreed between the parties that those countryside policies are GEN2 and GEN3 of the ADLP. Policy GEN2 is a policy which refers to the definition of the boundaries of the built-up area for the purposes of the local plan. The court was told that those boundaries had been defined in the neighbourhood plan, which followed the local plan.
Policy GN3 is a general countryside protection policy. It provides:-
“Outside the built-up area, as defined in the proposals map, the countryside will be safeguarded for its own sake. Development will not be permitted unless:…”
A series of exceptions is then listed and the policy concludes by stating:-
“Permission will not be given for the extension of isolated groups of buildings or the consolidation of linear or sporadic development unless the proposal accords with the criteria (i),(ii),(iii) or (v).”
Policy EH3 of the ANDP is a policy for protection of “the best and most versatile agricultural land” (“BMVAL”). That concept is defined both in the National Planning Policy Framework and in the Neighbourhood Plan to include grade 2 agricultural land as classified by DEFRA. It is common ground that the application site falls within the grade 2 classification. The policy provides:-
“Proposals for development on the ‘best and most versatile’ agricultural land… will be resisted unless if can be demonstrated that it would meet the following criteria:
• It supports the diversification of an agricultural enterprise or other land-based rural business;
• The need for the development clearly outweighs the harm.”
As part of the background to ground 2 of this challenge, I should refer to the discussion in the Neighbourhood Plan of housing need within the district for which the defendant is responsible. Para. 2.2.4 of the ANDP states that there is an emerging development plan, the Arun Local Plan, which will cover the period 2011–2031. That had reached the stage of being “examined,” but the examination had been suspended by the Inspector to allow ADC “to undertake significant work to ensure the local plan is sound”. That work included the identification of the Objectively Assessed Housing Need (“OAHN”) for the district. The Inspector decided that the draft local plan had proposed a housing target of only 580 dwellings a year which had not been based upon an OAHN exercise. He suggested an annual target of 845 dwellings per year, an increase of 46 per cent.
The ANDP continues:-
“As the Arun Local Plan Examination is currently suspended, no conclusions have yet been drawn about how the recommended increase in the overall housing target for the District would translate into an increase in the proposed parish allocation for Aldingbourne. However, if a pro-rata uplift were to be applied, it would result in an increase from the proposed Policy H SP1 target of 30 dwellings to approximately 44 dwellings, over the plan period to 2031.”
This mathematical exercise simply related to the parish of Aldingbourne.
The neighbourhood plan continues:-
“In addition to identifying the Parish's housing allocation, Policy H SP1 of the emerging Arun Local Plan proposes to allocate a strategic development, for at least 2,000 dwellings, in the Barnham/Eastergate/Westergate area. This proposed allocation may include land within Aldingbourne Parish and is therefore of considerable interest and concern to the local community. For clarity, if any such strategic allocation is made within an adopted Arun Local Plan, this will need to be reflected in a future review of the ANDP.”
Thus, the only review of housing allocations expressly contemplated by the ANDP related to that one site. The ANDP did not contain a policy commitment to make any additional allocations if the emerging local plan should require such action, or if identified housing sites should not proceed. In that regard, it is to be contrasted with policy H1 of the Yapton Neighbourhood Plan 2014–2029 which did. That plan provided as follows:-
“The neighbourhood plan identifies allocations to accommodate growth (policies SA1 and SA2). In addition to these allocations infill development will be considered acceptable within the built-up area subject to the provisions of policy BB1 and other material planning considerations. Additional allocations will be made if the emerging Arun Local Plan requires such action or if the identified housing sites do not proceed.” (emphasis added)
Turning to the housing policies of the ANDP, which begin at p. 28 of the plan, for reasons which have been set out in that document and were subject to statutory examination, the finally made version of the neighbourhood plan contains no specific allocations of housing land. Policy H6 deals with windfall sites in so far as they may arise within the built-up area boundary. Although this neighbourhood plan has proceeded in advance of the local plan, there is no policy in the neighbourhood plan which provides for its policies to be reviewed in the event of additional allocations becoming necessary when the local plan is adopted.
National Planning Policy Framework
Paragraph 112 of the NPPF provides that:-
“Local planning authorities should take into account the economic and other benefits of the best and most versatile agricultural land. Where significant development of agricultural land is demonstrated to be necessary, local planning authorities should seek to use areas of poorer quality land in preference to that of a higher quality.”
Grounds of challenge
The claimant has been granted permission to challenge the defendant's decision on two grounds:-
(1) the officers' report to committee failed to take into account policies dealing with the loss of best and most versatile agricultural land;
(2) the advice given to the committee failed to take into account the appeal decision of the Secretary of State dated 13 th September 2016 on a site at Yapton, alternatively to supply adequate reasons for departing from that decision.
Legal principles
The legal principles governing a challenge to a decision of a local planning authority to grant planning permission are well established in a number of authorities. They were summarised by the Court of Appeal in R (Mansell) v Tonbridge and Malling Borough Council [2017] EWCA Civ 1324 [para.41]. I also draw attention to the judgment of the Chancellor of the High Court, Sir Geoffrey Vos, at para.63 where in the line with recent statements of the Supreme Court he deprecated excessive legal analysis and criticism of the contents of officers' reports to planning committees. Relevant legal principles have also been summarised in R (Luton Borough Council) v Central Bedfordshire Council [2014] EWHC 4325 (Admin) at paras.90–95 and R (Plant) v Lambeth LBC [2017] PTSR 453 at paras.66–69.
I should also refer to Sales LJ in R (Lensbury Limited) v Richmond-upon-Thames London Borough Council [2016] EWCA Civ 814 at para.8, where he stated:-
“An officer's report containing a planning authority's reasons for granting planning permission is to be read fairly as...
To continue reading
Request your trial