R Lanner Parish Council v The Cornwall Council Coastline Housing Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Lewison,Lord Justice Rimer |
| Judgment Date | 25 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1290 |
| Docket Number | Case No: C1/2013/0403 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 October 2013 |
and
[2013] EWCA Civ 1290
Lord Justice Rimer
Lord Justice Jackson
and
Lord Justice Lewison
Case No: C1/2013/0403
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT, QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE THORNTON QC
CO13562012
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Philip Coppel QC (instructed by Follett Stock LLP) for the Appellant
Mr James Findlay QC and Mr Sancho Brett (instructed by Cornwall Council) for the Respondent
This judgment is in seven parts, namely:
Part 1. Introduction,
Part 2. The facts,
Part 3. The judicial review proceedings,
Part 4. The Appeal to the Court of Appeal,
Part 5. Did the Planning Committee misunderstand policy H20?
Part 6. Was the Planning Committee presented with sufficient and correct data concerning the local need for affordable housing?
Part 7. Conclusion.
This is an appeal against a decision of Judge Anthony Thornton QC, whereby he rejected a judicial review challenge to the grant of planning permission for a residential development on the outskirts of a village in Cornwall. The principal issues in the appeal are (i) whether the Planning Committee misunderstood one of the provisions of a draft local plan; (ii) whether the judge should have relied upon evidence which contradicted the official records; (iii) whether the Planning Committee received sufficient and correct information concerning the local need for affordable housing.
The second of those three issues is of wider importance, because it impacts upon the way judicial review proceedings generally are conducted.
The claimant in the judicial review proceedings and the appellant before this court is Lanner Parish Council ("LPC"). The defendant in the judicial review proceedings and respondent in this court is the Cornwall Council ("the Council").
The applicant for planning permission was Coastline Housing Ltd ("Coastline"). Coastline is named as an interested party in the proceedings, but it has not been separately represented either in the court below or in this court. That is a sensible economy. There is no point in two parties with identical interests being separately represented.
The body which took the relevant planning decision is the West Sub-Area Planning Committee of the Council. I shall refer to this body as "the Planning Committee" or "the Committee".
Lanner is a large village in the west of Cornwall, close to Redruth. Lanner was formerly a mining village. It is situated in what used to be the area of Kerrier District Council, before that body was abolished on 1 st April 2009.
In 2004 Kerrier District Council produced the draft Kerrier District Local Plan. Policy H14 in that document provides:
"Policy H14: Housing in the Countryside
New housing development (with the exception of those developments listed within A-C below) will not be permitted outside towns and villages where:
…
The exceptions for which guidance is provided by other policies of the plan are:
(a) small schemes of affordable housing for local need on rural exceptions sites immediately adjoining suitable villages;
…"
Policy H20 in the draft Kerrier District Local Plan 2004 provides:
"Policy H20: Affordable housing on rural exceptions sites to meet the needs of the local community
The development of affordable housing on small exceptions sites in rural areas will be permitted where:
(i) it is within, or immediately adjoining, the development boundary of a village, as defined by the settlement strategy;
(ii) there is evidence of a local need that would not otherwise be met for affordable housing to serve the village and parish which would be met by the number and size of dwellings proposed, whose individual internal floorspace area should not be significantly more than 100 sq m (1,080 sq ft), excluding garaging, depending upon the evidence of the needs of the local community;
(iii) It is for no more than about 12 dwellings in the larger villages and about 6 dwellings in the smaller villages, depending upon the evidence of the needs of the local community for the survey period;
…"
I shall refer to these two policies in the draft Kerrier District Local Plan 2004 as "policy H14" and "policy H20".
The draft Kerrier District Local Plan 2004 never proceeded to the stage of a public inquiry and it was never adopted. Kerrier District Council was abolished before this could happen. Despite that circumstance the policies contained in the draft Kerrier District Local Plan 2004 were frequently referred to in connection with planning applications. It is common ground that policies H14 and H20 were both material considerations in the present case.
In Cornwall (as in other counties) there are many people who are in need of affordable housing. When persons apply to the Council for social housing, their names are recorded on a register known as the "Homechoice Register". The areas of Cornwall with which each applicant has a connection are also recorded on the register.
Applicants on the Homechoice Register are assessed. They are then assigned to one of the following five bands:
"Band "A" Urgent Housing Need
Band "B" High Housing Need
Band "C" Medium Housing Need
Band "D" Low Housing Need
Band "E" Adequately Housed".
One piece of secondary legislation is relevant to the present appeal. This is the Town and Country Planning (Development Management Procedure) (England) Order 2010 ("the 2010 Order"). The 2010 Order came into force on 1 st October 2010. It has recently been amended, but those amendments do not affect the present appeal.
Article 31 of the 2010 Order requires a planning authority to include in any notice of planning permission a summary of its reasons for the grant of such permission.
After these introductory remarks, I must now turn to the facts.
On the 3 rd August 2009 Coastline applied to the Council for planning permission to construct 25 affordable dwellings at Tresavean Estate in Lanner. Coastline proposed to build these houses on a greenfield site adjoining the boundary of the village on the south west side.
As is often the case with planning applications, there were strong feelings on both sides. Mr Mark Kaczmarek, a member of the Council who lives in Lanner, strongly supported the proposed development. Mr Kaczmarek's electoral division is St Day and Lanner. Lanner Parish Council strongly opposed the proposed development. LPC duly submitted a statement of its objections to the Council.
One of LPC's grounds for objecting to the application was that 25 dwellings constituted too large a development. On a proper application of policy H20 no more than about 12 dwellings should be built at Tresavean Estate.
Another objection raised by LPC was that a need for 25 affordable dwellings had not been established. LPC relied upon a local needs housing survey which it had carried out in May 2010. LPC had sent a questionnaire to each of the households in the parish. The response rate was 21%. Of those who completed questionnaires, 30 people expressed a wish to be considered for local needs housing. Out of these 30 people, 11 were judged to meet local needs housing eligibility criteria.
Having collated all the relevant evidence and submissions, the Council's planning officer prepared his report for the Planning Committee. The officer recommended that Coastline's application be approved. The first main paragraph of his report reads as follows:
"Principle of development
The proposal constitutes residential development of a Greenfield site adjoining the development boundary of Lanner village. It proposes 100% affordable housing and is considered as an 'exception site' in accordance with policy H20 of the Draft Kerrier District Local Plan 2004. The Affordable Housing Officer has confirmed that the Cornwall Homechoice Register has 51 applicants with a local connection to Lanner Parish. The development accords with policies 8, 9 and 10 of the Cornwall Structure Plan, policies H14 and H20 of the Draft Kerrier District Local Plan 2004 and Government advice contained within Planning Policy Statement 3."
In relation to need, the officer duly summarised the local needs housing survey carried out by LPC and a separate survey carried out by Coastline. He also placed emphasis on the contents of the Council's Homechoice Register. On three occasions the officer stated that the Register had 51 applicants with a local connection to Lanner. He did not, however, give a breakdown of the 51 applicants as between bands A, B, C, D and E.
In paragraph 29 of his report the officer discussed the effect of policy H20. He wrote:
"The proposal constitutes residential development of a Greenfield site adjoining the development boundary of Lanner village. It proposes 100% affordable housing and can therefore be considered as an 'exception site' in accordance with policy H20 of the Draft Kerrier District Local Plan 2004. Lanner is a larger village and policy H20 normally allows for about 12 affordable dwellings. However the additional 13 dwellings are considered justified with regard to the current needs of the community as verified by the Affordable Housing Officer."
After that passage the officer went on to discuss the effect of relevant policies in the Cornwall Structure Plan 2004. He also drew attention to the advice contained in Planning Policy Statement 3, published by the Department for Communities and Local Government. In...
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