R (on The Application of Tw Logistics) v Tendring District Council (Respondent 1) Anglia Maltings (holdings) Ltd (Respondent 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Aikens,Lord Justice Mummery |
| Judgment Date | 24 January 2013 |
| Neutral Citation | [2013] EWCA Civ 9 |
| Docket Number | Case No: C1/2012/1300 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 January 2013 |
and
[2013] EWCA Civ 9
Lord Justice Mummery
Lord Justice Aikens
Lord Justice Lewison
Case No: C1/2012/1300
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION,
ADMINISTRATIVE COURT
Mr Justice Silber
CO/11946/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ian Dove QC (instructed by S J Berwin LLP) for the Appellant
Mr David Altaras (instructed by Holmes & Hill LLP) for Respondent 1
Mr Rhodri Price Lewis QC (instructed by Howes Percival LLP) for Respondent 2
Hearing date : 16 January 2013
Mistley is a small village in Essex, on the south bank of the River Stour, just to the south east of Dedham Vale and Constable country. It originated as a Georgian planned town, with artisans' cottages; and it also contains a working port. The port handles loose materials, such as granite, stone and aggregates. It is operated by TW Logistics Ltd. Mistley, including the port, forms part of the Manningtree and Mistley Conservation Area. The local planning authority, Tendring DC, has adopted a Conservation Area Management Plan (the "CAMP") which TW Logistics Ltd says is in part unlawful. Silber J rejected the challenge. His judgment is at [2012] EWHC 1209 (Admin) and is available on bailii. With the permission of Sir David Keene TW Logistics appeal.
The challenge before Silber J relied on a number of different grounds. But only one ground of appeal is pursued in this court. What TW Logistics says is that some of the proposals contained in the CAMP are inconsistent with the adopted Local Plan, and are to that extent unlawful. TW Logistics' appeal was argued by Mr Ian Dove QC and Mr David Forsdick. Mr David Altaras defended the judge's judgment on behalf of Tendring DC. He was supported in this endeavour by Mr Rhodri Price Lewis QC who appeared for Anglia (Maltings) Holdings Ltd, the owner of a disused warehouse on the quayside known as Thorn Quay Warehouse.
The legal framework is common ground. It is agreed that:
i) Planning decisions must be made within the parameters of development plans authorised by statute. These exist at different levels in a hierarchy.
ii) In our case the relevant statutory development plan is the Local Plan; the relevant policies of which have been saved pending the formulation of new development plan documents.
iii) A planning authority is required to set out its policies for the use and development of land in its development plan.
iv) In making planning decisions a planning authority must have regard to the provisions of the development plan, so far as material to the application; and any other material consideration. Decisions must be made in accordance with the plan unless material considerations indicate otherwise.
v) In relation to conservation areas, the planning authority has a statutory duty from time to time to formulate and publish proposals for the preservation and enhancement of the conservation area. The CAMP was produced in order to comply with this duty. It is not part of the development plan.
vi) Each tier of the development plan is required to be generally consistent with the tier above. Likewise a planning authority's planning policies must be consistent with the development plan.
vii) Whether a tier of a development plan is consistent with a tier above, and whether a published policy is consistent with the development plan are each a question of the interpretation of the plan or policy in question. The interpretation is objective. The planning authority does not have a discretion to decide for itself what the documents mean. If there is a dispute about what they mean then ultimately the court must decide.
viii) The CAMP does not itself contain policies, but in so far as the proposals contained in it are inconsistent with policies in the Local Plan those proposals are unlawful.
It is therefore common ground that there is only one question for us to decide. Are the challenged sections of the CAMP inconsistent with the relevant parts of the Local Plan?
The planning authority is supportive of the expansion of the port eastwards. Policy LMM 1a in the Local Plan allocates and safeguards 3 hectares of land to the east of the quay for port expansion. As well as being included in a conservation area Mistley port is also included in the Mistley Urban Regeneration Area ("the URA") although the boundaries of the URA extend beyond the port. Policy LMM1 of the Local Plan applies specifically to this URA. It provides:
"New development in the Mistley Urban Regeneration Area will be required to:
i. Provide for promotion of a balanced community, including an appropriate range of opportunities for the protection and enhancement of the historic environment (having particular regard to the maritime heritage of the area) and the provision of new housing, employment, tourist, recreation and leisure facilities;
ii. Protect the employment base of Mistley through the provision of alternative employment facilities to replace any potential loss of employment;
iii. Protect the port operations;
iv. Have regard to the potential for port uses of existing buildings, before allowing any change of use;
v. Allow for access arrangements which do not increase current levels of HGV traffic on the Highways Act Street;
vi. Provide or allow for sustainable and managed public facilities and non-motorised public access to the waterfront, including a public footpath link in all the non-commercial areas and a public right of mooring along the quayside;
vii. Enable the development of views across the Stour Estuary; and
viii. Protect the adjoining nature conservation interests, biodiversity and landscape quality during construction work and thereafter.
New development at the western end of the Urban Regeneration Area must respect the character and setting of the Mistley Towers Scheduled Ancient Monument.
To promote new development in accordance with these requirements, the Council will prepare a Supplementary Planning Document for the Mistley Village and Waterfront area."
The Local Plan also includes a proposals map. On that map the port area is shown covered by vertical hatching. The key reveals that the vertical hatching represents design briefs and mixed uses. Part of the historic port has in fact been redeveloped for residential purposes. Mr Dove also referred to two other policies contained in the Local Plan. They are, first, policy ER3 which says:
"Policy ER3 – Protection of Employment Land
a. The Council will ensure that land in, or allocated in this Plan for employment use will normally be retained for that purpose. Its redevelopment or change of use for non-employment purposes will only be permitted if the applicant can demonstrate that it is no longer viable or suitable for any form of employment use. The applicant should either:-
Submit evidence of a sustained but ultimately unsuccessful marketing exercise, undertaken at a realistic asking price; or
Show that the land (site, or premises) is inherently unsuitable and/or not viable for any form of employment use.
b. Where the loss of an employment site is permitted, the applicant will normally be expected to provide a suitable alternative site elsewhere in the district, or a financial contribution towards the Council's employment, training or regeneration programmes and initiatives.
c. This policy will not be applied where vacant business premises form a subordinate but integral part of an existing dwelling in the same ownership."
Second, policy QL6 which says:
"Within [the Urban Regeneration Areas] permission will be granted for development that reinforces and/or enhances the function, character and appearance of the area and contributes towards regeneration and renewal. In particular the Urban Regeneration Areas will be the focus for:
i. Investment in social, economic and transportation infrastructure; and
ii. Initiatives to improve vitality, environmental quality, social inclusion, economic prospects, education, health, community safety and accessibility.
Planning permission will not be granted for development that would have an adverse impact on the revitalisation of any of these Urban Regeneration Areas."
The written explanation of this policy says that within the Urban Regeneration Areas "the focus will be on mixed-use developments". It also says that at Mistley "waterfront and industrial regeneration is to be encouraged".
The principal parts of the CAMP which TW Logistics say are inconsistent with policy LMM1 are the following:
"6.22 There are mixed views on the industrial aesthetics of the silos on the Crisp maltings site on the metal sheet cladding of the Thorn Quay warehouse, but there is general agreement that the Stockdale warehouse at the western end of Mistley Quay does not enhance the setting of the Mistley Towers. …
Recommendation 9:
Encourage the redevelopment of buildings which have a negative [effect] on the character or appearance of the conservation area as and when they become ready for renewal."
"6.59 A number of improvements, some public and some private, would make a welcome difference to the appearance of the conservation area. The likelihood of schemes coming forward is, of course, increased where arrangements are linked to development opportunities. The most significant possibilities are:
…
Significant improvements to Mistley Quay would include a more pedestrian-friendly public realm and the removal of the fence along the quayside. This could be achieved through reorganisation of the port and the...
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