R Bovale Ltd (Claimant) (1) Secretary of State for Communities and Local Government (2) Hereford Council (Defendants)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date13 Oct 2008
Neutral Citation[2008] EWHC 2538 (Admin)
Docket NumberCO/5244/2007

[2008] EWHC 2538 (Admin)





Mr Justice Sullivan


The Queen on the Application of Bovale Limited
(1) Secretary of State for Communities and Local Government
(2) Hereford Council

Anthony Crean QC (instructed by Martineau Johnson) appeared on behalf of the Claimant

James Maurici (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant

Timothy Jones and Jack Smythe (instructed by Hereford Council) appeared on behalf of the Second Defendant

(Approved by the court)




This is an application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash a decision of an inspector appointed by the first defendant to determine the claimant's appeal against the decision of the second defendant to refuse planning permission for the development of what was described in the application form as a “total care village” for the elderly on land off Faraday Road, Hereford (“the site”). The Inspector's decision is contained in a decision letter dated 17th May 2007 and followed an inquiry held on 24th to 26th April 2007 and a site visit made on 26th April 2007.

The decision letter


In paragraph 2 of the decision letter the Inspector identified three main issues:

“… first whether the site should be retained for employment uses, secondly whether the proposal would provide satisfactory living conditions for future residents because of risk of odour and whether that factor might prejudice future operations at a nearby chicken processing plant, and thirdly whether the proposal should make any provision for affordable housing.”


The Inspector resolved the second issue in favour of the claimant.


In respect of the first issue, the Inspector concluded in paragraph 15 of the decision letter:

“… that the site should be retained for employment (Class B) development because of its suitability and the apparent demand, and that the proposal would therefore conflict with UDP policy E5. For the reasons given I do not believe that the site has no realistic prospect of employment development and so the proposal would also conflict with RPG proposal PA6.”


In respect of the third issue, the claimant contended that the proposed development fell within Class C2 in the Town and Country Planning (Use Classes) Order 1987 (“the Use Classes Order”) and that there was therefore no need to make any provision for affordable housing. The second defendant accepted that the nursing home and residential retirement home elements of the “total care village” were not to be regarded as dwellings and so did not give rise to any policy requirement to provide an element of affordable housing. However, the second defendant contended that the remaining element of the total care village, 100 assisted living units, should be regarded as dwellings so that provision should be made for affordable housing. The Inspector agreed with the second defendant and concluded in paragraph 33 of the decision letter that:

“… the proposal should make provision for affordable housing and, because it does not, it conflicts with policy H9, as well as national policy in PPS 3.”

The Inspector drew the threads together for the purposes of section 38(6) of the Planning and Compulsory Purchase Act 2004 in paragraph 34 of the decision letter:

“Although I consider that the proposal would provide satisfactory living conditions for future residents and that there would be no undue threat to future operations at the Sun Valley plant, I believe that the site should be retained for employment development and should make provision for affordable housing. Because the proposal does neither it would conflict with policies in the development plan. I have therefore considered the other factors cited by the appellant which are said to be advantages of the proposal. These comprise the need for the facility, the creation of 145 jobs, and the visual improvement that would be brought to the area.”


Only the first of those factors is relevant for the purposes of this application. The Inspector dealt with it in paragraph 35 of the decision letter, saying:

“… I acknowledge that UDP policy CF7 generally permits residential nursing and care homes (in residential areas), though makes no specific site allocations. It is axiomatic therefore that any such proposal would be sited on an area allocated for other uses. I accept too the appellant's evidence that there is a need for these kinds of facilities in Hereford (and this was not challenged by the Council) and that numerous planning and social objectives and strategies highlight the importance of health and social inclusion. Nevertheless there is no evidence that this is the only site in Hereford suitable for the proposal, or even that the appellants had conducted a thorough but fruitless search for such a site. Conversely the Council pointed to three sites in the city which were allocated for residential development in the UDP (and listed in their residential land availability survey) which might be suitable. Because of these factors I cannot conclude that any demand or need for the facility is so weighty that it overcomes the objections I have identified…”


The Inspector's overall conclusion in paragraph 37 was:

“In summary I do not consider that the need for the facility, the creation of 145 jobs, or the visual improvement of the site are sufficient, either in combination or individually, to overcome the harm I have identified.”

The claimant's grounds of challenge


In accordance with directions given by Collins J ( [2008] EWHC 2143 (Admin)), the first defendant filed her skeleton argument early, and before the claimant's skeleton argument. Since the judgment of Collins J is the subject of an appeal to the Court of Appeal by the Secretary of State, I express no view as to the extent of the court's powers to make procedural directions in respect of section 288 applications, but I do endorse the claimant's submission that this case is a very good illustration of the practical advantages for all parties of an early indication by the Secretary of State of her response to a section 288 application. In the light of the early filing and service of the first defendant's skeleton argument, the claimant abandoned one ground of challenge and part of another ground, thereby narrowing the issues between the parties and reducing the estimated length of the hearing.


The skeleton argument of Mr Crean QC on behalf of the claimant set out five grounds on which the Inspector's decision was challenged. It is convenient to deal with those grounds in reverse order.


In his oral submissions, Mr Crean rightly accepted that the fifth ground, inadequate reasons, added nothing of substance to the other four grounds.


In the fourth ground, the claimant contended that the Inspector had failed to consider its submissions that, whether or not the 100 assisted living units should rightly be regarded as falling within Class C3 rather than Class C2 of the Use Classes Order, the second defendant had assured the claimant that the application for planning permission would be treated as an application for a Class C2 use and had subsequently changed its mind. It was submitted that this conduct by the second defendant was unfair and that the Inspector ought therefore, as a matter of discretion, to reject the second defendant's contention that an element of affordable housing was required.


On the claimant's appeal under section 78 the Inspector was required to form his own planning judgment, and his judgment that the 100 units were properly to be regarded as falling within Class C3 in the Use Classes Order has not been challenged in these proceedings. In these circumstances, it is difficult to see the relevance of this submission, even if there had at some point been unfairness by the second defendant. The short answer to this submission is, however, that there was no unfairness. The claimant relied on an exchange of correspondence in...

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