R: John Harvey v Mendip District Council 1) Patrick Gordon and Others (Interested Parties/Respondents)

JurisdictionEngland & Wales
JudgeLord Justice Sales,Lord Justice McFarlane
Judgment Date07 November 2017
Neutral Citation[2017] EWCA Civ 1784
Docket NumberCase No: C1/2016/4698
CourtCourt of Appeal (Civil Division)
Date07 November 2017

[2017] EWCA Civ 1784

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CARDIFF DISTRICT REGISTRY

HIS HONOUR JUDGE JARMAN QC

CO/3150/2016

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice McFarlane

and

Lord Justice Sales

Case No: C1/2016/4698

Between:
The Queen on the Application of: John Harvey
Appellant
and
Mendip District Council
Respondent

and

1) Patrick Gordon
2) Madeleine Gordon
3) Bridgeman Ltd
Interested Parties/Respondents

Stephen Whale for the Appellant (instructed on a Direct Access basis)

Tim Sheppard (instructed by Mendip District Council) for the Respondent Council

James Burton (instructed by BGW Solicitors) for Mr and Mrs Gordon

Hearing date: 18 October 2017

Judgment Approved

Lord Justice Sales
1

This is an appeal in a planning judicial review case. The appellant objects to outline planning permission granted by the first respondent ("the Council"), acting principally by its Planning Board, on 13 May 2016 for residential development of an open plot of land in the village of North Wootton where he lives. The planning permission was granted on the application of the interested parties (Mr and Mrs Gordon, who also live in the village, and a development company called Bridgeman Ltd).

2

At the time when they made the application, Mr and Mrs Gordon were living in North Wootton but wanted to build a new house for themselves and their children on a paddock which they own in the village. In order to persuade the Council to grant planning permission to build that house for themselves (which I will call the "open market house", for reasons which will become clear), Mr and Mrs Gordon proposed to gift the rest of the land constituted by the paddock to Bridgeman Ltd which would then build up to 6 affordable homes on that land.

3

The outline planning permission which was granted was for development of the paddock to build "up to 6 affordable homes and 1 open market dwelling house". Approval of the details of the layout, scale, appearance, access and landscaping of the site was reserved to the Council at a later stage. The division between outline permission and reserved matters is a familiar one, governed by the Town and Country Planning (Development Management Procedure) (England) Order 2015/595 ("the 2015 Order").

4

At first instance, the judge rejected the appellant's claim for judicial review on each of the four grounds advanced by him. He has been granted permission to appeal on only one ground, which is his contention that in granting planning permission the Planning Board wrongly considered that the proposed development was in conformity with Development Policy 12 (Rural Exception Sites) ("DP12") in the Council's Local Plan, whereas in fact the proposed development was in breach of that policy on its proper interpretation.

5

The Council and interested parties resist the appeal. They say that the Planning Board was right to take the view that the proposed development was in conformity with the Local Plan.

6

In case they are wrong in their arguments to that effect, by a respondent's notice Mr and Mrs Gordon also invite this court to dismiss the appeal on three discretionary grounds in relation to remedy, namely that (i) it is highly likely that the planning permission would have been granted even if the Planning Board had not misinterpreted policy DP12 as the appellant contends, so relief should be denied pursuant to section 31(2A) of the Senior Courts Act 1981; (ii) the appellant failed to serve his appellant's notice on Mr and Mrs Gordon at the time when he should have done as laid down in CPR Part 52.12, by not later than 28 December 2016, and only served it on them on 5 January 2017, which has caused them financial prejudice and distress (in that they had thought that the legal proceedings had been conclusively resolved in their favour, only to find that they were going to continue), so that relief should now be refused; and (iii) the appellant, acting by his solicitors, wrote to the Council on 24 November 2015 to object to the planning application made by Mr and Mrs Gordon but did not identify as a ground of objection the alleged unlawfulness relied upon before the judge and on this appeal.

The Local Plan

7

The Local Plan was adopted by the Council on 15 December 2014 after going through the usual development plan adoption process. Core Policy 1 set out the Mendip Spatial Strategy. It provided that to enable the most sustainable pattern of growth for Mendip district (a) the majority of development will be directed to the five principal market town settlements in the district; (b) in the rural parts of the district new development that is tailored to meet local needs will be provided for in (i) certain primary villages, which have the best facilities and employment opportunities, (ii) secondary villages, which offer some services and the best available public transport services, and (iii) "In other villages and hamlets, development may be permitted in line with the provisions set out in Core Policy 4 to meet specifically identified local needs within those communities". North Wootton is a village within sub-paragraph (iii). Thus residential development in the rural parts of the district was to be focused on the primary villages and the secondary villages, with a more restrictive approach applicable to development in other villages and hamlets such as North Wootton.

8

Core Policy 2 ("Supporting the Provision of New Housing") set out how it was proposed that the needs for new housing in the Council's district would be met. The main focus was upon provision in the market towns and the primary and secondary villages, but it was also stated that "Housing developments will make contributions towards the delivery of affordable housing in line with Development Policies 11 or 12."

9

Core Policy 4 ("Sustaining Rural Communities") stated that rural settlements and the wider rural area would be sustained by making planned provision for housing within the primary and secondary villages and "Identifying and delivering opportunities for the provision of rural affordable housing, secured for the benefit of the community in perpetuity, where there is evidence of local need as set out in Development Policies 11 and 12."

10

It is not necessary to refer to Development Policy 11. Development Policy 12 is headed "Rural Exception Sites". It provides as follows:

1. As an exception to normal policy for the provision of housing set out in Core Policies 1 and 2, affordable housing for local people may be permitted in locations adjoining existing rural settlements on small sites where development would not otherwise be permitted where:

a) the development will provide affordable homes that meet a clearly identified need for affordable housing as identified in the latest Local Housing Needs Assessment specific to that settlement; and

b) the need cannot reasonably be met in any other way on a site where housing would be permitted under normal policies; and

c) the development satisfies other policies in this Plan, with particular regard being given to its integration into the form and character of the settlement and its landscape setting.

2. All Exception Sites approved under this policy will be made subject to a planning obligation to ensure that:

a) all initial and subsequent occupiers of the affordable dwellings will be eligible local people, in the first instance, and

b) affordable homes secured under the policy are retained in perpetuity for occupation by those in housing need.

3. The inclusion of market housing will be supported where any such scheme meets all the criteria in the preceding parts of this policy, and:

a) which has clear evidence of support from the local Parish Council.

b) demonstrates, through detailed financial appraisal, that the scale of the market housing component is essential for the successful delivery of the development.

c) ensures no additional subsidy for the scheme and its affordable housing delivery is required."

11

The explanatory text for DP12 included para. 6.114, which states:

"There are particular difficulties in securing an adequate supply of affordable housing for local needs in rural areas as was considered in relation to Core Policies 2 and 4. Despite measures set out in Development Policy 11, there are likely to be few developments, in certain villages, which are of sufficient scale to secure appropriate numbers of affordable homes to meet local needs. As an exception to normal policy therefore, and where it can be demonstrated that a proposed development will meet a particular locally generated need that cannot be accommodated in any other way, the District Council may be prepared to permit small scale residential development adjoining a rural settlement."

Factual background

12

The factual background which is relevant for this appeal can be stated shortly.

13

It was common ground below that for the purposes of policy DP12 the relevant "latest Local Housing Needs assessment specific to" North Wootton was one produced in 2013 and it appears to have been common ground that it identified a need for 5 affordable homes. The judge made a finding to that effect and took this as the foundation for his reasoning in the case on the point in question on this appeal: see [4], [30] and [33]–[34].

14

There is no respondent's notice which puts this in issue, but Mr Burton for Mr and Mrs Gordon sought to raise a new argument at the hearing before us that the 2013 assessment should be interpreted as identifying a need of about 5 affordable homes, which might have allowed the Planning Board to assess that its decision to grant planning permission was in conformity with policy DP12 on that basis. We did not give him permission to take this new point at this late stage. I would add that I found it very unpersuasive in any event, because...

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4 cases
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    • Queen's Bench Division (Administrative Court)
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    ...been substantially different if the conduct complained of had not occurred. In my judgment, that is highly likely here. 83 In R (Harvey) v Mendip District Council [2017] EWCA Civ 1784, a planning case, Sales LJ (as he then was) said: “…it is … telling that none of the decision-makers in th......
  • C G Fry & Son Ltd v Secretary of State for Levelling Up Housing and Communities
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    • Queen's Bench Division (Administrative Court)
    • 30 June 2023
    ...for example, matters falling for consideration at an earlier stage cannot be revisited: R(Harvey) v Mendip District Council [2017] EWCA Civ 1784, [41], per Sales LJ (with whom McFarlane LJ agreed). 61 Mr Banner also invoked the principle that, in approving the details required by a conditi......
  • R Cava Bien Ltd v Milton Keynes Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 10 November 2021
    ...per Laing J. Furthermore, a witness statement could be a very important aspect of such evidence: R (Harvey) v Mendip District Council [2017] EWCA Civ 1784 at [47], per Sales LJ, although the court should approach with a degree of scepticism self-interested speculations by an official of th......
  • R Amrik Singh Gill v Cabinet Office [No.3]
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    ...per Laing J. Furthermore, a witness statement could be a very important aspect of such evidence: R (Harvey) v Mendip District Council [2017] EWCA Civ 1784 at [47], per Sales 144 I have, accordingly, and with due caution considered Mr Bell's evidence in this regard. However, having done so ......

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