R Mevagissey Parish Council v Cornwall Council Mevagissey Bay View LLP (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 27 November 2013 |
| Neutral Citation | [2013] EWHC 3684 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6597/2013 |
| Date | 27 November 2013 |
[2013] EWHC 3684 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BRISTOL
Bristol Civil Justice Centre,
2 Redcliff Street, Bristol, BS1 6GR
Mr Justice Hickinbottom
Case No: CO/6597/2013
and
Alex Goodman (instructed under public access provisions) for the Claimant
The Defendant not appearing or being represented
Harriet Townsend (instructed by Stephens Scown LLP) for the Interested Party
Introduction
In this claim, the Claimant seeks to quash the grant of planning permission by the Defendant Council ("the Council") on 21 March 2013 for a residential development at a site consisting of 1.2 hectares in two undeveloped fields, at School Hill, Mevagissey ("the Site").
The application for planning permission was made in April 2012 by the Interested Party ("the Developer"). The proposed development comprised 31 dwellings, including 21 affordable homes (i.e. accommodation for households whose needs are not met by the market), with associated landscaping, roads and services. It is uncontroversial that there was a clearly identified need for affordable accommodation in Mevagissey, with 100 people on the Homechoice register and a recent report indicating that the provision of 55 affordable homes was required in the parish. Behind the development was an intention that the ten open market homes would subsidise the affordable homes, so that they would not require any public funding.
However, the whole of the village of Mevagissey, including the Site, falls within the South Coast Area of Outstanding Natural Beauty ("the AONB"). The Site lies only 20m from the South West Coastal Path, and its specific location is in an area described as one of "spectacular coastline scenery and far-reaching views", and elsewhere as a "dramatic unspoilt coastline".
The planning application of course required the Council to weigh all material considerations; but, in particular, it required the Council to consider, in the light of the relevant policies, the tension between the local need for affordable housing and the impact of the proposal on this location within the AONB. One primary ground of challenge is that the Council's approach to this task was not in accordance with the relevant policies and was therefore unlawful.
The Relevant Planning Policies
Under the relevant statutory provisions (notably Part IV of the Countryside and Rights of Way Act 2000), the sole criterion for designation of an AONB is that the outstanding beauty of the area makes it desirable that particular protections should apply to it. Under sections 84(4) and 85(1) of the 2000 Act, a planning authority must take steps to accomplish the purpose of conserving and enhancing the natural beauty of an AONB; and must have regard to that purpose in exercising any function in relation to, or affecting land in, an AONB.
Given those statutory provisions, the specific policy guidance in the National Planning Policy Framework ("the NPPF") that deals with the proper approach to development within an AONB is unsurprising. It is at paragraphs 115–116, and reads as follows:
"115. Great weight should be given to conserving landscape and scenic beauty in… [AONBs], which have the highest status of protection in relation to landscape and scenic beauty….
116. Planning permission should be refused for major developments in these designated areas except in exceptional circumstances and where it can be demonstrated they are in the public interest. Consideration of such applications should include an assessment of:
• the need for the development, including in terms of any national considerations, and the impact of permitting it, or refusing it, upon the local economy;
• the cost of, and scope for, developing elsewhere outside the designated area, or meeting the need for it in some other way; and
• any detrimental effect on the environment, the landscape and recreational opportunities, and the extent to which that could be moderated."
Thus, amongst material considerations, national policy gives the conservation of landscape and scenic beauty in an AONB a particular enhanced status. It requires an application for planning permission for a major development within an AONB to be refused, unless (i) there are exceptional circumstances ("exceptional" in this context connoting rarity); and (ii) it is demonstrated that, despite giving great weight to conserving the landscape and scenic beauty in the AONB, the development is in the public interest. As well as any detrimental effect of the development on the landscape, this national policy requires the planning decision-maker to assess, and take into consideration, the need for the development and the scope for meeting the assessed need in some other way.
Turning to local guidance, the development plan for Mevagissey includes saved Policy 2 of the Cornwall Structure Plan, which is consistent with that national guidance. It provides that:
"The conservation and enhancement of sites, areas, or interests, of recognised international and national importance for their landscape, nature conservation, archaeological or historic importance… should be given priority in the consideration of development proposals."
Paragraph 32 makes clear that AONBs fall within the definition of areas of recognised national or international significance.
Similarly, Policy 13 of the Restormel Local Plan, which is the relevant local plan for Mevagissey and also part of the development plan, provides:
"Within the [AONB]… priority will be given to the preservation and enhancement of natural beauty. Development will not be permitted that would conflict with this objective."
Finally, Policy PD7 of the Cornwall AONB Management Plan 2011–16 (adopted by the Council in February 2011) states:
"Particular care will be taken to ensure that no development is permitted in or outside the AONB which would damage its natural beauty, character and social qualities or otherwise prejudice the achievement of the AONB purposes."
The NPPF deals with affordable housing in rural areas such as Mevagissey in paragraph 54:
"In rural areas, exercising the duty to cooperate with neighbouring authorities, 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. Local planning authorities should in particular consider whether allowing some market housing would facilitate the provision of significant additional affordable housing to meet local needs".
In the relevant local guidance, that is picked up in saved Policy 9 in the Cornwall Structure Plan:
"Local plans should set targets for affordable housing….
Local plans should set out the circumstances where affordable housing will be provided as an "exception" to normal policy in rural areas, providing the basis of resources to be targeted at areas of greatest need in locations easily accessible to a range of services and facilities…".
The accompanying notes, at paragraph 65, expand on that policy:
"… Policy 9 allows for both the provision of affordable housing as part of development on planned sites and 'exceptions' approach in villages.
…
Currently, the planning system is specifically providing for affordable housing in two main ways. First, through 'planned' sites, where a particular proportion of housing is to be 'affordable'. The proportion appropriate and the type of housing is determined through the local planning process. The second method has become known as the 'exceptions' approach. This is specifically aimed at rural communities, where sites within and on the edge of villages can, in certain circumstances, be granted planning permission for affordable housing on sites where housing for the open market would not be allowed."
Policy AH5 of the draft Council development plan document, Affordable Housing (September 2010), states that
"Planning permission will be granted for exception sites well-related to existing villages where the development will provide affordable homes that meet a clearly identified need for affordable housing in that specific community."
It goes on to say that the inclusion of market housing will not normally be supported, but the Council may be willing to negotiate a departure from existing policy on any such scheme, which satisfies a number of criteria including (i) the development meets a local need, and (ii) the inclusion of market housing is essential for the successful delivery of the development. The notes state:
"8.6.2 The justification for development on such sites can only be made on the basis of a pressing local need for affordable housing which cannot easily and expediently be met in other ways….
8.6.3 Rural exceptions should normally be limited to 100% affordable housing restricted for local needs in perpetuity. [Planning Policy Statement 3] clarifies that exceptions proposals may only include affordable housing. As such, any proposals for exception site development that include cross-subsidy from open market sales would represent a departure from national policy. However, the possibility of departure proposals exists and there may be circumstances within which the use of a departures approach may be justified."
8.6.4 The Council will, therefore, consider proposals to include an element of market housing…."
Planning Policy Statement 3 has been replaced by the NPPF, but this...
To continue reading
Request your trial
-
Phoung Vo (ap) Against The Right Honourable The Lord Wallace Of Tankerness, Qc, Advocate General For Scotland
...the decisions about which the petitioners complain. I was referred to the cases of R (Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin) paragraphs 73 and 76; and Walton v Scottish Ministers [2012] UKSC 44 at paragraphs 133, 135 and 138-139; and BM v SSHD 2011 SC 726. [7......
-
R (on the application of Jedwell) v Denbighshire CC
...opinion had been adopted and that the reasons given in support of a screening decision were in any event inadequate ( R (Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin)), I recently said this with regard to the correct approach to relief in public law claims (at [73]......
-
The Queen (on the application of The Midcounties Co-operative Ltd) v Forest of Dean District Council Aldi Stores Ltd (Interested Party)
...the officers' recommendation but departed from it. He cited with approval what had been said by Hickinbottom J (as he then was) in Mevagissey Parish Council [2013] EWHC 3684 (Admin), at para. 54. He went on to state: "Where the Planning Committee is disposed to disagree with the Council's o......
-
R Royston Potter v Amber Valley Borough Council Mr & Mrs Michael Wood (Interested Parties)
...of this claim, if I might be forgiven, the summary of the principles derived from these cases I gave recently in R (Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin) at [43] is a useful starting point: "(i) When planning permission is granted, only summary reasons are ......
-
Overview of the Regulatory Framework affecting Wind and Solar Energy Developments
...is not to be equated with an exceptional need for affordable housing in an area R (Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin). Habitats and biodiversity 174. To protect and enhance biodiversity and geodiversity, plans should: a) identify, map and safeguard compon......
-
Table of Cases
...Ltd) v Barnet London Borough Council [2009] EWHC 2956 (Admin), [2009] NPC 135 441 R (Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin), [2013] All ER (D) 14 (Dec) 373 R (Mid-Counties Co-operative Ltd) v Forest of Dean District Council [2013] EWHC 1908 (Admin), [2013] JP......
-
Table of Cases
...22 R (McLennan) v Medway Council [2019] EWHC 1738 (Admin), [2019] PTSR 2025 227–33 R (Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin), [2013] 11 WLUK 722 36 R (Peter Wright) v Forest of Dean DC and Resilient Energy Severndale Ltd [2019] UKSC 53, [2019] 1 WLR 6562 97, ......
-
Areas of Outstanding Natural Beauty, Sites of Special Scientific Interest, National Parks and Other Areas of Conservation or Protection
...the land is of special interest by reason of its flora, fauna, or geological or 8 R (Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin); the grant of planning permission for the development of 21 affordable homes at a coastal site within an AONB was quashed where the LPA......