R Gibson v Mid Sussex District Council
| Jurisdiction | England & Wales |
| Judge | Judge Robinson |
| Judgment Date | 26 March 2014 |
| Neutral Citation | [2014] EWHC 1296 (Admin) |
| Docket Number | CO/17401/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 March 2014 |
[2014] EWHC 1296 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Her Honour Judge Alice Robinson
(Sitting as a Judge of the High Court)
CO/17401/2013
Mr Richard Turney (instructed by Bond Dickinson LLP) appeared on behalf of the Claimant
Mr Juan Lopez (instructed by the Legal Department of Mid Sussex District Council) appeared on behalf of the Defendant
Introduction
This is an application for judicial review of the grant of planning permission by Mid Sussex District Council ("the Council") dated 30 October 2013 for the erection of 26 dwellings on land between Sunnymead and Huntsland Lodge, Turners Hill Road, Crawley Down, West Sussex ("the site").
The applicant for planning permission is Hastoe Housing Association Limited ("Hastoe") and the proposed development comprises wholly affordable housing in a mixture of flats and houses. The site lies on the edge of but outside the defined settlement limit of Crawley Down and was the subject of considerable local objection. The claimant is a resident of Crawley Down and one of those who objected to the proposed development.
The application was considered by the Council's North East Area Planning Committee ("the Committee") on 18 July 2013. A decision on it was deferred as members requested additional information in respect of housing need. It was reconsidered by the Committee on 15 August which resolved unanimously to approve the application.
The claimant's solicitors wrote a pre-action protocol letter to the Council dated 20 September raising six grounds of challenge. The Council replied on 7 October rejecting all the grounds raised and the decision notice was issued on 30 October 2013.
These proceedings were issued on 10 December 2013 and on 30 January 2014 Supperstone J ordered that the claim be dealt with at an expedited rolled-up hearing. That was in response to a request from Hastoe, the Interested Party, who informed the court in a witness statement of Jane Gallifent dated 23 December 2013 that development has already commenced and unless the development is completed by 31 March 2015 all the grant funding for it will be lost.
The planning permission is challenged on a single ground, namely that when considering the application the Council failed to consider alternative sites as it was required to do by policy H5(f) of the Mid Sussex Local Plan 2004, and in doing so (a) failed correctly to interpret policy H5 and/or (b) failed to have regard to a material consideration. This is not a ground raised in the pre-action protocol letter.
Factual background
The application for planning permission was submitted under the rural exceptions policy of the Mid Sussex Local Plan 2004 ("the Local Plan"). That was because the site lay outside the settlement boundary and was subject to the following countryside policies of the Local Plan:
"C1
Outside built-up area boundaries, as detailed on the Proposals and Inset Maps, the remainder of the plan area is classified as a Countryside Area of Development Restraint where the countryside will be protected for its own sake. Proposals for development in the countryside, particularly that which would extend the built-up area boundaries beyond those shown will be firmly resisted and restricted to:
…
(f) proposals for which a specific policy reference is made elsewhere in this Plan…"
"C2
Strategic Gaps have been defined and will be safeguarded between:
…
Crawley and East Grinstead
…
as defined on the Proposals map and its insets, with the objectives of preventing coalescence and retaining the separate identity and amenity of settlements.
Development will not be permitted within the strategic gap areas unless:
(a) it is necessary for the purposes of agriculture, or some other use which has to be located in the countryside;
(b) it makes a valuable contribution to the landscape and amenity of the gap and enhances its value as open countryside; and
(c) it would not compromise individually or cumulatively the objectives ad fundamental integrity of the gap."
The rural exceptions policy of the Local Plan is H5 which provides as follows:
"H5 In exceptional circumstances additional land may be released outside the built-up areas for housebuilding carried out by the Local Housing Authority, Registered Social Landlords or other appropriate agencies which will meet the housing requirements both now and in the future, of local people unable to afford the cost of property on the open market. Developers and landowners will be required to enter into legally binding agreements with the Local Planning Authority prior to the grant of planning permission to ensure that this objective is achieved. All proposals will need to meet the following criteria:
(a) a local housing need exists, this must be demonstrated by a housing needs survey, or other evidence;
(b) the proposal site should be located adjacent to an existing settlement within which adequate social facilities and essential services are available;
(c) the proposal site should be accessible by public transport;
(d) proposals should be modest in scale and should not lead to a rapid increase in population which would be inconsistent with the scale and character of the settlement;
(e) proposals should relate physically to the settlement, be in keeping with the character of surrounding development and should not be intrusive in the landscape; and
(f) proposals within Areas of Outstanding Natural Beauty, Strategic Gaps or on best and most versatile agricultural land will only be permitted in exceptional circumstances where there is no other suitable site to meet the local need."
Relevant national policy is set out in the National Planning Policy Framework ("NPPF"). Of particular importance is paragraph 14:
"At the heart of the National Planning Policy framework is a presumption in favour of sustainable development, which should be seen as a golden thread running through both plan-making and decision-taking.
…
For decision-taking this means:
• approving development proposals that accord with the development plan without delay; and
• where the development plan is absent, silent or relevant policies are out-of-date, granting planning permission unless:
— any adverse impacts of doing so 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…"
The guidance on housing provides that local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing (paragraph 47). Paragraph 49 states:
"Housing applications should be considered in the context of the presumption favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five year supply of deliverable housing sites."
Paragraph 54 states, so far as relevant:
"In rural areas… local planning authorities should be responsive to local circumstances and plan housing development to reflect local needs, particularly for affordable housing, including through rural exception sites where appropriate…"
Rural exception sites are defined in Annex 2 to the NPPF as:
"Small sites used for affordable housing in perpetuity where sites would not normally be used for housing…"
In the section on decision taking the NPPF states:
"187. Local planning authorities should look for solutions rather than problems, and decision-takers at every level should seek to approve applications for sustainable development where possible. Local planning authorities should work proactively with applicants to secure developments that improve the economic, social and environmental conditions of the area."
"197. In assessing and determining development proposals, local planning authorities should apply the presumption in favour of sustainable development."
The application for planning permission was the subject of an officer's report to the Committee on 18 July. It was subsequently updated for the meeting on 15 August and for present purposes it is that updated report which is important. The Executive Summary states:
"Permission is sought for the erection of 26 dwellings units, made up of 12 one and two bedroom flats and 14 two and three bedroom houses, with associated parking and a new road from Turners Hill Road, Crawley Down. The site lies on the western side of Turners Hill Road on the edge of the village to the immediate south of Sunnymead. The application proposes that the dwellings are 100 percent affordable and will remain so in perpetuity. As such the application has been submitted under the Rural Exceptions Site policy of the Mid Sussex Local Plan (policy H5).
On the basis that the Council cannot demonstrate a 5 year housing land supply, the policies for the provision of housing within the MidSussex Local Plan are out of date. In these circumstances the National Planning Policy Framework (NPPF) states that permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits. The application has therefore been considered in the context of the presumption in favour of sustainable development advocated by the NPPF.
It is considered that the development of this site with 26 units as a "rural exceptions site" is...
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