R East Bergholt Parish Council v Babergh District Council Paul Bernard Aggett and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mitting |
| Judgment Date | 09 December 2016 |
| Neutral Citation | [2016] EWHC 3400 (Admin) |
| Docket Number | CO/2375/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 December 2016 |
[2016] EWHC 3400 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Mitting
CO/2375/2016
Miss Sasha Blackmore (instructed by Royds Withy King) appeared on behalf of the Claimant
Mr Reuben Taylor QC and Mr Mark Beard (instructed by Head of Legal, Babergh District Council) appeared on behalf of the Defendant
Miss V Hutton (instructed by Linda Russell Solicitors) appeared on behalf of the Interested Parties
On 9 March 2016, the Planning Committee of Babergh District Council resolved to grant planning permission for the erection of 10 single-storey dwellings for the over-55s and ancillary works on a 0.87-hectare site off Hadleigh Road, East Bergholt. Planning permission was granted on 29 March 2016. East Bergholt Parish Council challenges that decision and grant.
The site is the major part of a meadow between two listed buildings to the north and south, Gatton House and The Gables. It lies to the east of the modern built-up area of East Bergholt to the north of the old village. It is in an area designated as an Area of Outstanding Natural Beauty and abuts the conservation area which includes the old village but not the substantial modern additions to the north.
The principal grounds of challenge are four: (1) the Local Planning Authority did not follow its own policy set out in its Local Plan adopted in February 2014; (2) it did not properly apply paragraph 115 of the Planning Policy Framework or deal adequately with the heritage issues; (3) it failed to have proper regard to the emerging Neighbourhood Policy produced by East Bergholt Parish Council; (4) it did have regard to a financial benefit to Babergh District Council without disclosing that fact.
East B ergholt is a village of 2,700 inhabitants in rural Suffolk in Constable country to the south of Ipswich. It is designated in Babergh's Local Plan as a "Core Village". The significance of the designation is set out in policy CS (for Core Strategy) 2 in the Local Plan:
i. "Core Villages will act as a focus for development within their functional cluster and, where appropriate, site allocations to meet housing and employment needs will be made in the Site Allocations document."
A "functional cluster" comprises a Core Village, a number of — not less than five —Hinterland Villages, of which there are 43; and the countryside and smaller settlements in between.
Paragraph 2.1.3.2 of the Local Plan explained that Core Villages were defined as such because of the role that they played in the provision of essential services and facilities to a catchment area of smaller villages and rural settlements. Policy CS2 contained two significant further statements. One:
i. "In all cases the scale and location of development will depend upon the local housing need … and the views of local communities as expressed in parish … neighbourhood plans."
Two:
i. "In the countryside, outside the towns/urban areas, Core and Hinterland Villages defined above, development will only be permitted in exceptional circumstances subject to a proven justifiable need."
"Countryside" was not defined in Policy CS2, but it was in paragraph 2.1.5.1 of the explanatory notes which preceded it:
i. "Everywhere beyond the built up areas of the urban/regeneration areas and Core and Hinterland Villages, defined by settlement development boundaries, is treated as open countryside".
As noted, allocations to meet housing needs were to be made in a site allocations document. This has not yet been done.
Policy CS3 set out Babergh's strategy for growth and development. It included provision for 5,975 new dwellings between 2011 and 2031 in the district. Of these, 1,050 were to be provided in Core and Hinterland Villages. As Note 4 to the table of dwellings to be built in identified locations stated, this figure was the allowance for rural growth.
Policy CS11 set out the strategy for development for Core and Hinterland Villages:
i. "Proposals for development for Core Villages will be approved where proposals score positively when assessed against Policy CS15 and the following matters are addressed to the satisfaction of the local planning authority (or other decision-maker) where relevant and appropriate to the scale and location of the proposal:
ii) the landscape, environmental and heritage characteristics of the village;
iii) the locational context of the village and the proposed development (particularly the AONBs, Conservation Areas and heritage assets;
iv) site location and sequential approach to site selection;
v) locally identified need — housing and employment, and specific local needs such as affordable housing;
vi) locally identified community needs;
vii) cumulative impact of development in the area in respect of social, physical and environmental impacts."
Policy CS15 sets out a long list of desirable characteristics in proposals for development which are not in issue in these proceedings and do not require to be set out.
Two paragraphs of the explanatory notes to Policy CS11 are relevant to its interpretation for present purposes:
i. "2.8.5.4: It is clear that the Core Villages identified are very varied and their needs and factors which influence what is an 'appropriate level of development' will vary from village to village. This is especially the case where villages are situated within environmentally and visually sensitive landscapes, particularly the AONBs, and/or where they include conservation areas and heritage assets. These landscapes and heritage assets will be key considerations in the site allocation process, and when considering planning applications. Although a total number of 1,050 new dwellings is indicated in Policy CS3, this includes the ten Core Villages and all the Hinterland Villages. It is therefore important that this not viewed as a sum simply to be divided equally or randomly between the number of villages listed. The approach to the distribution of new dwellings within Policy CS3 is to be driven by the function of the villages, their role in the community, and the capacity for a particular level of growth which will be guided by many factors and which will result in a different level of development being identified as 'appropriate' in different settlements, even those within the same category."
There is then a reference to the Site Allocations document, which is the same document as that referred to in Policy CS2.
Paragraph 2.8.5.7 provides:
i. "The BUABs [Built-Up Area Boundaries] defined in the 2006 Local Plan Saved Policies and later in a future DPD [Development Planning Document] for Site Allocations, provide a useful starting point when considering the relationship of proposed development in relation to the existing pattern of development for that settlement and for defining the extent of its developed area and a distinction between the built up area and the countryside. Policy CS11 intentionally provides greater flexibility for appropriate development beyond these, for identified Core and Hinterland Villages subject to specified criteria."
It is common ground that the interpretation of these policies is a matter of law, see Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at paragraph 17, but that they are not to be read like a statute or contract ( SSCLG v Hopkins Homes Ltd [2016] EWCA (Civ) 168 at paragraph 24). That is fortunate, because the policies are far from clear.
The first question in issue is whether or not Policy CS11 is an exception to or supplants Policy CS2. Mr Taylor QC and Mr Harwood QC for the Local Planning Authority and the applicant for planning permission and interested party respectively submit that it is and does. Miss Blackmore for East Bergholt Parish Council submits that it does not.
Mr Taylor and Mr Harwood submit that the purpose of Policy CS11 is, as explained in paragraph 2.8.5.7 in the explanatory notes, to afford the Local Planning Authority greater flexibility for appropriate development outside the built-up area boundaries as defined in the 2006 plan or in the as yet undrafted Site Allocations document. Consequently it must prevail over the qualified prohibition on development in the countryside set out in Policy CS2. I do not agree. If interpreted thus, it produces a flat contradiction between two policies. It is common ground that the Local Plan must, if possible, be construed as a whole. A construction of Policies CS2 and 11 which combines both is possible. Development can take place outside the built-up area boundaries in the 2006 Local Plan or those to be shown in the Site Allocations document, if they fulfil the requirements of CS11 and if the Local Planning Authority are satisfied that the circumstances are exceptional and are subject to a proven justifiable need. Fulfilment of the requirements of Policy CS11 may more readily permit the Local Planning Authority to be satisfied about both of the requirements for development in the countryside, as defined in paragraph 2.1.5.1, hence the greater flexibility, but they do not remove the need to address both. Only if satisfied that both requirements are met should planning permission be granted for a development outside the built-up area boundary of a Core Village.
The second issue is what is meant by "locally identified need" for housing in Policy CS11(iv)? Mr Taylor...
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