R (on the application of Tate) v Northumberland County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Lindblom |
| Judgment Date | 29 June 2018 |
| Neutral Citation | [2018] EWCA Civ 1519 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 2018 |
| Docket Number | Case No: C1/2017/1179 |
[2018] EWCA Civ 1519
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
H.H.J. BELCHER (sitting as a deputy judge of the High Court)
[2017] EWHC 665 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
and
Lord Justice Peter Jackson
Case No: C1/2017/1179
and
Mr Juan Lopez (instructed by Northumberland County Council Legal Services) for the Appellant
Ms Annabel Graham Paul (instructed by Harrison Grant Solicitors) for the Respondent
The Interested Party did not appear and was not represented.
Hearing date: 9 May 2018
Introduction
Did a local planning authority, when granting planning permission for the construction of a dwelling-house in a village in the Green Belt, err in law in failing to provide reasons for its conclusion that the development would be “limited infilling”, contrary to the view of an inspector in a previous appeal decision? That is the main question in this appeal. It does not raise any novel issue of law.
With permission granted by Sales L.J. on 3 October 2017, the appellant, Northumberland County Council, appeals against the order of H.H.J. Belcher, sitting as a deputy judge of the High Court, dated 4 April 2017, by which she allowed the claim for judicial review brought by the respondent, Dr David Tate, challenging its grant of outline planning permission, dated 6 July 2016, for the erection of a two-storey dwelling-house on land west of “Bramblings”, in the village of Tranwell Woods, near Morpeth. Tranwell Woods is a village to the south-west of Morpeth, in the Northumberland Green Belt. Dr Tate, who lives in “Westwood Cottage” – a dwelling to the west of “Bramblings” – was an objector to the proposal. The applicant for planning permission was the interested party, Ms Susan Leffers-Smith.
In a decision letter dated 9 January 2009 an inspector had dismissed an appeal against the refusal by Castle Morpeth Borough Council of planning permission for similar development on the same site, finding that it was not “infill” development.
Two previous grants of outline planning permission for this proposal had been successfully challenged by Dr Tate. We are concerned in this appeal with the third grant of planning permission, which followed the resolution of the county council's Strategic Planning Committee to approve the proposal at its meeting on 5 July 2016, in accordance with the recommendation of its Senior Planning Officer in his report. The officer had advised the committee that the proposal was not for “inappropriate” development in the Green Belt, because it fell under the exception for “limited infilling in villages” in paragraph 89 of the National Planning Policy Framework (“the NPPF”).
The issue in the appeal
Dr Tate's challenge to the county council's decision included grounds contending that the committee had misinterpreted the concepts of “village” and “limited infilling” in paragraph 89 of the NPPF, that it was inconsistent with the inspector's decision of 9 January 2009, and that the reasons for the grant of planning permission, apparent in the planning officer's report, were inadequate. The judge accepted that, in the circumstances, reasons should have been given for the county council's conclusion that the proposal was for “limited infilling”.
The county council sought permission to appeal on three grounds. Permission was granted by Sales L.J. only on the first, which states that the judge “erred in law” in “[finding] that there was a need for express reasons to be given for the specific decision/finding of the Appellant's Planning Committee that the Development amounted to “limited infilling” [in a village] for the purposes of paragraph 89 of the NPPF, and (even if there was such a need), separately finding that the reasons given were inadequate in law”, and that “[the judge's] approach and finding discloses error and is irrational …”. The sole issue for us, therefore, is whether the county council erred in law by failing to provide reasons for its conclusion that the construction of a dwelling on this site would constitute “limited infilling”, given the conclusion of the inspector in the 2009 appeal that such development was not “infill” development.
The 2009 appeal decision
The site has a surprisingly long planning history. Applications for planning permission for the erection of a dwelling-house were refused in 1989 and, twice, in 1999. An appeal against one of the refusals of planning permission in 1999 was dismissed by an inspector in 2000. Another application was refused in 2008, and that refusal was the subject of the January 2009 appeal decision. A subsequent application was refused in 2014. In November 2014 the county council granted planning permission for the proposal with which we are concerned. That planning permission was challenged by Dr Tate in a claim for judicial review and was quashed in March 2015 – because the county council had failed properly to apply relevant policy for Green Belt. On redetermination, planning permission was again granted, in December 2015. That planning permission was also challenged by Dr Tate and was quashed, by consent, in April 2016 – because the county council had failed properly to apply Policy H7 of the Castle Morpeth Local Plan. It is common ground in these proceedings that the errors in those two decisions were not repeated by the county council in this, its third grant of planning permission for the proposal.
The development proposed in 2008 was described by the inspector in his decision letter as “one new dwelling and garage”. He described Tranwell Woods as “within an area of open countryside …”, adding that “[its] wooded landscape includes dwellings at a low density set in extensive grounds …” (paragraph 6 of the decision letter). He rejected the contention that the appeal site was part of the garden of “Westwood Cottage” and therefore to be regarded as “previously-developed land” as defined in Annex B to Planning Policy Statement 3 (“PPS3”) (paragraph 9). He then turned to the suggestion that the proposal was for “infill development”. On this question he said (in paragraph 10):
“10. The appellant considers the site to be an acceptable form of infill development. No specific definition of acceptable “infill” development is included in the LP documentation before me. None appears in PPS3. The site is enclosed on three sides by dwellings with Belt Plantation to the south, and with an extended shared access from the C151. The development intended does not represent a gap in an otherwise [developed] frontage on the C151 through TW – this, in my view, [is] one reasonable test of infill development. To allow the Appeal would add an intrusive element to this sensitive area of countryside. While the dwelling would have limited visibility from public viewpoints, that cannot establish a convincing justification for the proposal. It would be able to be repeated too often, to the detriment of the countryside. Similarly, to grant planning permission would make it more difficult for the Council to resist similar proposals, undermining the clear intent of local planning policy. …”.
The inspector went on to conclude that “the proposal would adversely affect the character and appearance of the open countryside and Tranwell Woods in conflict with the Development Plan and national planning guidance” (paragraph 15), and, having considered all other material considerations, that the appeal should be dismissed (paragraph 21).
The Northumberland Green Belt around Morpeth was subsequently extended to include Tranwell Woods.
Paragraph 89 of the NPPF
In a section of the NPPF headed “Protecting Green Belt land”, paragraphs 86 and 87 state:
“86. If it is necessary to prevent development in a village primarily because of the important contribution which the open character of the village makes to the openness of the Green Belt, the village should be included in the Green Belt. …
87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.”
Paragraph 89 states:
“89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:
…
• limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan …
….”
Dr Tate's objection
A draft of the planning officer's report for the committee meeting on 5 July 2016 was made available to interested parties in early June 2016. Dr Tate's objection to the proposal at this stage, in a letter dated 5 June 2016, included this:
“ Infill in a village
The Planning [Officer's] only justification for recommending approval of this application is that it would represent limited infill within a village.
The site is 2.5 acres in size[,] does not abound a public road and is situated within the open countryside in an area of housing that has no settlement boundary. Which of these factors does the Planning Officer feel would stand up in front of a High Court Judge?
By their own documentation submitted as extra evidence the land owner is only allowing the applicant to own 1/5 of the site.
The application site is the existing 0.5 acre clearing in the developed part of Gubeon West. It does not include the 2 acres of external woodland surrounding it, and [is] not owned by the applicant, who therefore has no right of control over it.
One would therefore rightly question how does the land owner intend to dispose of the rest of the land? Would this further area be classed as infill by the Planning Officer? The whole scenario...
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