R Denbighshire County Council v The Welsh Ministers
| Jurisdiction | England & Wales |
| Judge | Jarman QC |
| Judgment Date | 23 May 2017 |
| Neutral Citation | [2017] EWHC 3219 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 May 2017 |
| Docket Number | CO/5700/2016 |
[2017] EWHC 3219 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Cardiff Civil and Family Justice Centre
2 Park Street
Cardiff
South Wales
CF10 1ET
HIS HONOUR JUDGE Jarman QC
CO/5700/2016
and
Mr Evans appeared on behalf of the Claimant
Ms Hatton appeared on behalf of the Defendant
HIS HONOUR JUDGE
In these proceedings Denbighshire County Council, as local planning authority, seek to challenge two decisions of the Welsh Ministers made by a planning inspector appointed them. The first decision, in a letter dated 29th September 2016, allowed the appeal of the interested parties, Mrs and Mrs White, against the refusal by the council of their application for approval of details pursuant to condition 1 of an outlined planning permission, granted on 11th September 2013, for residential development on the land to the north side of Bryn Gobaith, St Asap, Denbighshire.
The second decision of the same date was made in terms of an award of costs of the appeal proceedings against the council in favour of Mr and Mrs White.
In respect of the first decision the challenge is made by way of a statutory application under section 288 of the Town and Country Planning Act 1990. That provides so far as material. As follows:
“(1) If any person—
(a) is aggrieved by any action … [the Welsh Ministers] to which this section applies and wishes to question the validity of that action on the grounds—
(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action, he may make an application to the High Court under this section.”
The challenge to the costs decision is made by way of judicial review. It is common ground before me however, that that decision stands or falls with the first.
The permission in question was an outline permission granted by the council in September 2013 for “the development of 1.1 hectares of land for residential purposes” to the north side of Bryn Gobaith. That contained a number of conditions. The first condition reads as follows:
“Approval of the details of the layout, scale and appearance of building(s), and the landscaping of the site (hereinafter called ‘the reserved matters’) shall be obtained from the local planning authority in writing before the commencement of any development.”
There then follow some 15 further conditions relating to the development.
That outline permission did not make any provision in respect of the number of dwellings to be provided on the site. That number was not referred to in the description of the development permitted, nor was it the subject of a condition. A drawing had been submitted with the application showing 18 houses on the site but that was indicative. The only evidence as to why that is comes from a passage in the decision letter of the inspector, that the council did not wish to be “over prescriptive” in making such a condition.
In September 2014 Mr and Mrs White applied for reserved matters approval. The application showed the layout, scale and appearance of 14 dwellings and site landscaping as well as a detailed mix of housing. The council refused that application for two reasons as follows:
“It is the opinion of the local planning authority that the proposed development, by virtue of proposed number of dwellings, would fail to provide an acceptable density of development and would therefore represent an inefficient use of land. An inefficient use of land is contrary upon to the overarching principles of sustainable development. The proposal is therefore contrary to the requirements of policy RD1 criteria (ii) and policy BSC1 of the Denbighshire Local Development plan, and advice contained within Chapter 4 and Chapter 9 of the Planning Policy Wales edition 8.
It is the opinion of the local planning authority that the proposed development would fail to provide a reasonable mix and balance of house sizes in relation to the proposed market housing and fails to reflect local need and demand, and the results of the local housing market assessment — need, demand, affordability in Derbyshire 2015 – 2017. The proposal is therefore contrary to the requirements of policy BSC1 of the Denbighshire Local Development Plan and advice contained within chapter 9 of Planning Policy Wales edition 8.”
It is common ground that it is the first of these reasons for refusal which I must focus upon in this application.
Further details of that reason are to be found in the case officer's report on the reserved matters which led to that refusal. At paragraph 4.2.2 of that report, under a heading “Density of development”, reference is made to Planning Policy Wales, paragraph 4.11.5 which states:
“Good design promotes the efficient use of resources including land.”
Paragraph 9.3.4 states that increases in density help to conserve land resources and good design can overcome adverse effects. Chapter 4 of the LDP identifies a lack of housing, including affordable housing for local needs to meet the predictive growth of the population in the county being a key issue facing the county.
There was also reference in that report to the policy referred to in the refusal, namely RD1, criteria 2. The plan I am told was adopted in 2013 but predated this refusal. In the report, it was said that that test requires a minimum density of 35 dwellings per hectare to be achieved in order to ensure the most efficient use of land is achieved. But those were minimum standards and should be achieved unless there were local circumstances that dictate a lower density.
Policy BSC1 provides that new housing within the county would be required to meet the needs of local communities and to meet projected population changes. It was further said in the report that as the area on site was 1.1 hectares and 14 dwellings were proposed, that represented a density of 12.7 dwellings per hectare whereas policy RD1 indicates that the site should be provided 39 dwellings.
Against that factual background I turn now to the legal framework within which the inspector made his decision. There are two principles which are well known and established which are not in dispute before me. The first is that in order to impose an effective restriction on a planning permission a condition must be used.
The second, is that the only matters which can be considered following the grant of an outline permission are those which have been made the subject of a condition at that stage, whether it is standard reserved matters condition or a condition relating to other matters.
Accordingly it is common ground before me that the key legal issue in the case concerns the scope of the reserved matter of layout and whether that entitled the council to refuse the reserved matters application on the basis that the density of the proposal was unacceptable because there are too few houses proposed and that the use of land proposed would therefore be inefficient.
It is necessary therefore for me to have regard to the statutory scheme which was in effect at the time of the inspector's letter. That is not materially different to the scheme as it applies now.
The scheme is brought into effect by the Town and Country Planning (Development Management (Procedure) Wales Order 2012/801. The version was enforced from the 30th April 2012. Paragraph 3 deals with outline applications for an outline planning permission and sub-paragraph (1) provides:
“(1) Where an application is made to the local planning authority for outline planning permission, the authority may grant permission subject to a condition specifying reserved matters for the authority's subsequent approval.”
Paragraph 2 deals with interpretation. Outline planning permission means:
“'outline planning permission (‘caniatâd cynllunio amlinellol’) means a planning permission for the erection of a building, which is granted subject to a condition requiring the subsequent approval of the local planning authority with respect to one or more reserved matters…”
“Reserved matters”, in relation to an outline planning permission or an application for such permission:
“‘reserved matters’ ('materion a gedwir yn ôl, ‘materion a gadwyd yn ôl’) in relation to an outline planning permission, or an application for such permission, means any of the following matters in respect of which details have not been given in the application—
(a) access;
(b) appearance;
(c) landscaping;
(d) layout; and
(e) scale, within the upper and lower limit for the height, width and length of each building stated in the application for planning permission in accordance with article 3(4).”
Reverting back to the definition of “layout” within that Article, that is defined as meaning:
“'layout (‘llunwedd’) means the way in which buildings, routes and open spaces within the development are provided, situated and orientated in relation to each other and to buildings and spaces outside the development.”
“Layout” was not always defined for the purposes of the scheme. The first time it was so defined was under the Town and Country Planning (General Development Procedure) (Amendment) Wales Order 2008/2336 which came into force on 6th October 2008:
“‘reserved matters’, in relation to an outline planning permission, or an application for such permission, means any of the following matters in respect of which details have not been given in the application—
(a) access;
(b)...
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