R Park Lane Homes (South East) Ltd v Rother District Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMrs Justice Lang
Judgment Date09 March 2022
Neutral Citation[2022] EWHC 485 (Admin)
Docket NumberCase No: CO/2831/2021

[2022] EWHC 485 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Lang DBE

Case No: CO/2831/2021

Between:
The Queen on the application of Park Lane Homes (South East) Limited
Claimant
and
Rother District Council
Defendant

and

(1) Burwash Parish Council
(2) Burwash Save Our Fields
Interested Parties

Jonathan Clay (instructed by Harrison Grant Solicitors) for the Claimant

Richard Moules (instructed by Legal Services) for the Defendant

Robert Banks in person for the Second Interested Party

The First Interested Party did not appear and was not represented

Hearing dates: 13 January, 3 & 4 February 2022

Approved Judgment

Mrs Justice Lang
1

The Claimant applies for judicial review of the decision (“the Decision”) of the Defendant (“the Council”), made on 9 July 2021, to accept the recommendations of the Examiner into the draft Burwash Neighbourhood Development Plan (“BNDP”), under paragraph 12 of Schedule 4B to the Town and Country Planning Act 1990 (“TCPA 1990”), and to proceed to a neighbourhood planning referendum.

2

The Claimant is the part-owner and developer of land at Strand Meadow, Burwash, East Sussex (“the Site”). The Council is the local planning authority for the area. The Site was allocated for housing by the Council in 2006. On 7 March 2018, the Council granted the Claimant outline planning permission at the Site for a residential development of up to 30 dwellings, but it has not yet gained approval for reserved matters.

3

The First Interested Party is the Parish Council (“the PC”) for the Parish of Burwash. It is the qualifying body responsible for preparing the BNDP. The Second Interested Party (“IP2”) is a group of local residents who are concerned to protect the historic character and appearance of Burwash and the surrounding countryside, which is designated as an Area of Outstanding Natural Beauty (“AONB”). Its aim is to support “the right housing in the right place”.

4

The Claimant challenges the Council's decision on two grounds.

Ground 1

5

The Council erred in accepting the Examiner's finding that the draft BNDP met the basic conditions in paragraph 8(2) of Schedule 4B to the TCPA 1990, namely, that:

i) having regard to national policies (the National Planning Policy Framework 1 (“the Framework”)) and advice contained in guidance issued by the Secretary of State (the Planning Practice Guidance (“the Guidance”)), it was appropriate to make the plan (sub-paragraph (a)); and

ii) the making of the plan was in general conformity with the strategic policies contained in the development plan for the area (sub-paragraph (e)).

Ground 2

6

The Claimant submitted that the procedure adopted by the Council was procedurally unfair because the Claimant was not given an opportunity to make representations on the Examiner's report/s, or the officer's report, before the Chief Executive (who was exercising delegated authority), made the decision on 9 July 2021. In consequence, the Claimant's concerns were not adequately considered by the Chief Executive. The Claimant contends that, before the decision was made it should have been consulted, either at a meeting of all interested parties, or the Examiner should have held a hearing.

7

The Claimant seeks a quashing order quashing the Decision and a declaration that “the BNDP does not comply with the basic conditions and cannot do so without amendment to (a) allocate and identify sufficient land (including the Strand Meadow site) to meet the (minimum) target of 52 dwellings and (b) to amend the settlement boundary to reflect this”.

8

Permission to apply for judicial review was granted on the papers by Dove J. on 15 October 2021.

Planning history

The Development Plan

The Rother District Local Plan

9

The Rother District Local Plan (“Rother DLP 2006”) was adopted in July 2006. It contained both strategic and non-strategic policies. Policy VL1 allocated the Site for housing and recreational purposes. The accompanying plan showed that the Site was mainly within the development boundary for the settlement, but a small area proposed for use as amenity land fell outside the boundary. Policy VL1 provided that proposals would be permitted where no more than 17 dwellings were provided, of which 40% were to be affordable.

The Core Strategy

10

The Core Strategy was adopted in September 2014. It superseded the Rother DLP 2006. However, Policy VL1 was saved, and remains extant. The Council has confirmed that the Site continues to be allocated under Policy VL1 of the Rother DLP 2006.

11

The Overall Spatial Development Strategy is set out in Policies OSS1, OSS2 and OSS3 of the Core Strategy.

12

Policy OSS1: Overall Spatial Development Strategy plans for at least 5,700 dwellings over the period 2011–2028. New sites will be identified in accordance with paragraph (iii)(a)-(e). The focus of new development will be in the Bexhill area, with some development in Battle and Rye (sub-paragraphs (a) and (b)). Sub-paragraphs (c) and (d) make provision for villages as follows:

“(c) Facilitate the limited growth of villages that contain a range of services and which contributes to supporting vibrant, mixed rural communities, notably in relation to service provision and local housing needs, and is compatible with the character and setting of the village;

“(d) Allow for small-scale infill and redevelopment, and otherwise enable local needs for housing and community facilities to be met, in other villages;”

Burwash is a village which contains services, and so falls within sub-paragraph (c). Sub-paragraph (e) provides that the countryside continues to be protected by restriction of new development to that for which a countryside location is necessary or appropriate, primarily for employment uses (sub-paragraph (d)).

13

Paragraph 7.52 of the supporting text states that sites for new development will be set out in due course through a Development and Site Allocations Plan and Neighbourhood Plans. Existing Local Plan housing allocations will be subject to review as part of these processes.

14

Policy OSS2: Use of Development Boundaries maintains the use of development boundaries around settlements, and indicates that existing boundaries will be reviewed by the Development and Site Allocations DPD, according to the specified factors. The supporting text explains the rationale behind the policy, as follows:

“7.60 Development boundaries around settlements are a well-established planning policy tool in East Sussex. They provide a clear and readily understood indication of where development would, and would not, be allowed in principle. Within development boundaries there is a presumption that infilling, redevelopment and changes of use will be acceptable subject to other policies of the plan.

7.61 They help to focus development and investment into sustainable locations and to protect against intrusive development beyond the substantially built-up areas of towns and villages.

7.62 Consideration has been given to whether to retain such prescribed limits, or whether to rely on a criteria-based policy. It is found that the level of certainty they afford, for all involved in planning, continues to be highly valued. They reflect the established settlement pattern and provide a useful reference for the application of policies specifically designed to help meet local needs, such as those relating to community facilities and affordable housing. Therefore the use of development boundaries is maintained.”

15

Policy OSS3: Location of development sets out the factors to be considered in assessing the suitability of a particular location for development, both when allocating land for development and determining planning applications.

16

Policy RA1 in the Core Strategy concerns villages in rural areas. It provides, so far as material, as follows:

“Policy RA1: Villages

The needs of the rural villages will be addressed by:

…..

(v) In order to meet housing needs and ensure the continued vitality of villages, the provision of 1,670 additional dwellings (comprising existing commitments, new allocations and windfalls) in villages over the Plan period 2011 to 2028. This will be located in accordance with Figure 12, subject to refinement in the light of further investigation via the Development and Site Allocations DPD and/or Neighbourhood Plans.”

17

Figure 12 is a table headed “Distribution of Rural Housing Allocations”. It indicates 50 new dwellings for Burwash (including 22 current commitments).

18

The supporting text to Policy RA1 states:

“12.41 ‘Potential new sites’ in Figure 12 refers to sites expected to be formally allocated via the Development and Site Allocation Plan or Neighbourhood Plans. These will normally comprise development sites accommodating 6 or more dwellings.

….

12.43 Developments of less than 6 dwellings, on currently unidentified sites, will count towards the overall rural housing numbers total as ‘small-site windfalls’; an estimated allowance for them has been included for years 5–15. Therefore, to avoid double counting, they are in addition to the ‘Potential new sites’ for individual villages.”

Development and Site Allocations Local Plan

19

The Development and Site Allocations Local Plan (“DSA 2019”) was adopted on 16 December 2019.

20

Chapter 8 provides an “Overview” which addresses the Core Strategy housing development targets. The distribution of dwellings between rural villages at Policy RA1 and Figure 12 is updated at Figure 17 to show a total requirement of 52 (including 30 dwellings at the Site, reflecting the grant of planning permission in 2018).

21

Paragraphs 8.9 and 8.10 refer to Neighbourhood Plans:

“8.9 As well as the preparation of this Plan, a number of Neighbourhood Plans have come forward since the Core Strategy was adopted, all of which embrace site allocations...

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