R Royston Potter v Amber Valley Borough Council Mr & Mrs Michael Wood (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 28 March 2014 |
| Neutral Citation | [2014] EWHC 888 (Admin) |
| Date | 28 March 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3612/2013 |
[2014] EWHC 888 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN BIRMINGHAM
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street
Birmingham
Mr Justice Hickinbottom
Case No: CO/3612/2013
and
Jenny Wigley (instructed under public access provisions) for the Claimant
Andrew Hogan (instructed by Geldards LLP) for the Defendant
The Interested Parties not appearing or being represented
Hearing dates: 24–25 March 2014
Introduction
The Claimant owns a property known as Mount Farm, Hazelwood, Belper in Derbyshire. The Interested Parties, Mr & Mrs Wood, live next door at Mount Farm Barn, which they bought and developed into a dwelling with the benefit of planning permission in 2004. The Defendant ("the Council") is the local planning authority for the area.
In this judicial review, the Claimant seeks to quash the grant of planning permission by the Council on 20 December 2012 for a development comprising a new house immediately to the north of and behind both Mount Farm Barn and Mount Farm, on land belonging to Mr & Mrs Wood. I will deal with the grounds in detail in due course; but, briefly, it is submitted on behalf of the Claimant that the reasons given by the Council were inadequate, the Council failed to comply with its statutory obligation to determine the application in accordance with the development plan unless other material considerations indicate otherwise, the Council failed to take into account a particular element of policy as a material consideration, and the Council imposed a condition that is unenforceable.
The Relevant Planning Policies
A number of the grounds are focused on the relevant planning policies, to which I turn first.
The main policies relevant to this claim are found in the local development plan; but the provisions of paragraphs 47–49 of the National Planning Policy Framework are worthy of note. "To boost significantly the supply of housing", paragraph 47 requires local authorities to assess housing need on the basis of objective evidence and to "identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements and to identify sites for satisfy that need over the next five years…". The uncontroverted evidence of Mr Derek Stafford, the Council's Assistant Director of Planning and Regeneration, is that there was in December 2012 – and still is – a chronic shortage of housing land supply in the borough (13 December 2013 Statement, paragraph 22).
The relevant local policy provisions are found in the Amber Valley Local Plan 2006.
By Policy H3, there is generally a presumption in favour of planning permission for housing development in identified urban areas, but those do not include Hazelwood.
Outside those urban areas, a distinction is drawn between sites within and those outside the built framework of a settlement. For the former, "the scope of housing will be more restricted" than in the urban areas listed in Policy H3 (paragraph 3.46). In respect of such sites, Policy H4 provides:
"Within the built framework of all other settlements not listed in Policy H3, planning permission will be granted for housing development, providing the proposals are in the form of one or more of the following:-
1. the conversion of existing dwellings to provide additional units, or of existing buildings to housing from other uses
2. extensions to or replacement of existing dwellings
3. new development on previously developed or brownfield land, or on vacant land which has not been previously developed, providing the development is in the form of infilling of small gaps capable of accommodating no more than 2 dwellings within existing groups of houses, subject to the character of the surroundings."
For the latter, the policy is even more restrictive. They are subject to Policy H5, the notes to which state:
"3.47 Outside settlements, housing development needs to be strictly controlled…
…
3.51 Although Housing Policy 5 of the adopted Joint Structure Plan recognises that development may be acceptable beyond the built framework of settlements, but within the wider physical confines of villages, it is considered that more than sufficient opportunities are likely to be available within the built framework of the Borough's urban areas and villages, together with those sites identified in policy H1 to meet the Joint Structure Plan requirement."
Policy H5 itself provides:
"Outside the built framework of settlements, planning permission will not be granted for housing development unless the proposals are in the form of one or more of the following:-
1. extensions to existing buildings, provided this would not result in a significant change to the scale or character of the dwelling and its surroundings
2. replacement of existing dwellings, providing that the number of dwelling units is not increased
3. new development which can be shown to be necessary for the operation of a rural based activity and where countryside location is essential."
Whether within or outside a settlement, all housing development must also satisfy the criteria set out in Policy H12 (see paragraphs 3.46 and 3.50), which sets various criteria for quality and design of housing development, including a requirement that "all new housing development to be at a minimum net density of 30 dwellings per hectare, unless it can be shown that there are significant constraints to development, or that development would have an adverse impact on the character or appearance of the locality" or (by virtue of paragraph 3.75 of the accompanying notes) "unless it can be shown that this would be inappropriate having regard to the scale and character of the locality".
The Planning History
Mount Farm and the barn were originally under the same ownership, as part of the same working farm. The barn was sold in 2004.
An application for planning permission to convert the Mount Farm Barn to a dwelling house, with a separate access, was made to the Council by Planning Design Practice Ltd on behalf of Mr & Mrs Wood (Application AVA/2004/0209). It was accompanied by a plan showing the proposed application site by a red line, drawn quite closely round the barn itself and excluding the land comprising the current application site. Planning permission was granted on 18 May 2004. The reasons included that the proposed development was within settlement, and therefore the policy in the then-emerging Local Plan that became Policy H4 applied. Under the grant, the development to be carried out only in accordance with the details and specifications shown on a plan, which showed a fenced site and no garden beyond the back wall at the north of the barn, i.e. again not including any of the land comprising the current application site.
Later in 2004, a further application (Application No AVA/2004/1468) was made for a different proposed development converting and extending the barn, on a larger application site, which included some garden to the north of the barn, but which still only covered part of the current application site. That application was refused on 7 February 2005. The stated reasons for the refusal did not refer to the policy that became Policy H4, but rather the policy that became Policy H5 of the adopted Local Plan, i.e. on the basis that this development was (at least in part) housing in the countryside, outside the built framework of the settlement.
In 2005, there was an application for planning permission for the reconstruction of Mount Farm, which was accompanied by a plan which showed the words "Open fields beyond" on the land where the current application site is situated. The application was allowed on appeal.
In July 2007, planning permission was refused for two lean-to extensions to Mount Farm Barn. The officer's report for that application seems to have been premised on the basis that the proposed development was within settlement.
The Planning Application
A planning application for a house on the current application site, with which this claim is primarily concerned, was first submitted in 2011. There was only one objector, namely the Claimant who objected on a number of grounds. In considering the application, the Council's Planning Board (a committee of councillors which is responsible for considering and determining planning applications) ("the Board") had the benefit of a report by a Council Planning Officer, Mrs Rae Gee. Her report considered the Claimant's contention in his objections that the proposed site was not garden land, but she said that she had reviewed that planning file and "the subject of the application was included in the red-line site boundary and no conditions were imposed which restricted the use of the land". She concluded that the site was "classed as domestic curtilage and is used and maintained as such i.e. the grass is mowed and there is decking" (paragraph F); and therefore within the built framework of a settlement. However, because such land was no longer classified as brownfield land or previously developed land, the development would nevertheless be contrary to Policy H4 and therefore unacceptable in principle. However, having considered the planning history of the site, the scale and character of the development, efficient use of land, impact on the highway network, and impact on existing properties, the report concluded:
"Whilst the...
To continue reading
Request your trial
-
R (NHS Property Services Ltd) v Surrey County Council
...The summary of reasons must be drafted with greater care where the members differ from the officer: R (Potter) v Amber Valley BC [2014] EWHC 888 (Admin). Reference was also made to Hoard v SSCLG and others [2016] EWCA Civ 169 at [54] per Lewison LJ. Here the Committee had to explain why it ......
-
Reason‐Giving in Administrative Law: Where are We and Why have the Courts not Embraced the ‘General Common Law Duty to Give Reasons’?
...two instances the court neglected to offer a final opinion, preferring to decide thecase on other grounds: R (Potter) vAmber ValleyBC [2014] EWHC 888 (Admin) (Potter); AB n23 above.51 See, especially, JUSTICE-All Souls Committee, n 1 above, discussed below.52 See, especially, cases cited ibi......