R Stroud District Council v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 09 June 2016 |
| Neutral Citation | [2016] EWHC 1940 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1717/2016 |
| Date | 09 June 2016 |
[2016] EWHC 1940 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Holgate
CO/1717/2016
Miss Sasha Blackmore (instructed by Stroud District Council solicitors) appeared on behalf of the Claimant
Mr Tim Buley (instructed by Government Legal Department appeared on behalf of the Defendant
Mr Christopher Boyle QC and Mr Andrew Parkinson (instructed by DAC Beachcroft) appeared on behalf of the Interested Party
This is a renewed application by Stroud District Council ("the Council") to obtain permission under section 288 of the Town and Country Planning Act 1990 to challenge the decision given on behalf of the first defendant by its Inspector in a decision letter ("DL") dated 17 February 2016.
In paragraph 7 of the decision the Inspector set out a number of grounds which originally the Council had pursued as reasons for refusal. He recorded that following the submission of further reports and discussions all the objections had been addressed to the satisfaction of the Council, but on the other hand, with the adoption of the Stroud District Council Local Plan ("SDLP") on 19 November 2015, the Council had raised a new issue namely that the proposed development of as many as 51 houses on the appeal site was inappropriate in policy terms as a sustainable level of development for Kingswood over the plan period to 2031. Other parties pursued objections on other fronts.
In DL9 the Inspector set out what he considered to be the main issues, including:
i. "(i) whether the proposal can be considered to be sustainable having regard to the Council's strategy for the scale and distribution of new housing development;"
He dealt with issue (i) between paragraphs 14 to 31 of his decision. In DL14 to DL25 he considered the strategy as set out in the SDLP. In DL25, having stated that the SDLP has to be read as a whole, he reached the conclusion that there would be no overall conflict with the policies for scale and distribution of housing. It is important to note that that conclusion was based upon a number of carefully phrased conclusions in the preceding paragraphs which, in the judgment of the Inspector, supported the sustainability of this particular proposal.
Although the Inspector recognised that the appeal site lies outside the settlement boundary for Kingswood, in DL17 he said that having regard to the Rural Settlement Topic Paper and the Settlement Role and Function Study, which noted the range of services from which Kingswood benefits:
i. "the site 'is located close to the centre of the settlement within walking distance of existing village services'."
He went on to add:
i. "Further, I note that the main parties agree that 'the site is a sustainable location adjacent to the settlement and the settlement has been identified as a sustainable location to accommodate some growth over the plan period'."
In both paragraphs DL18 and DL21 the Inspector explained his reasons for concluding that the proposed development on the appeal site would not lead to any on-site or off-site planning harm.
At paragraphs DL26 to DL31 the Inspector went on to consider the three dimensions of sustainable development, the second of which is the "social role", and in DL28 to DL29 he explained why he considered that significant weight should be attached to the provision of additional housing, both open-market housing and affordable housing.
As regards affordable housing, he noted that the appeal proposal would deliver 30 per cent affordable housing in accordance with policy CP9, and he also noted that whereas the Council had a seven-year supply of housing land overall within the district, there was also an unadjusted need for affordable housing of 446 dwellings per annum and a significant shortfall in the delivery of affordable housing to meet that need.
In DL18 the Inspector said:
i. "Thus to deliver additional development at Kingswood is not a challenge to the strategy outlined in Policies CP2 and CP3; it is necessary in order to fulfil that strategy."
That first sentence of DL18, in my judgment, is unimpeachable. It simply used the term "additional development" without any reference to scale or quantum. That is why he went on to say subsequently that for him the key issues at this stage of his decision were the scale of the development proposed given that the site is located outside the settlement boundary of a Tier 3 centre and also how policy CP3 should be applied.
In DL19 he correctly observed that while CP3 is silent as to quantum, it sets out a comparative scale of development which is related to the hierarchy of centres. He then compared Tier 3 with Tier 4 where development is restricted to limited development meeting the settlement's own housing needs. Tier 5 is more constrained to "very limited development". Tier 2 refers to "modest development", and in between Tiers 2 and 4, Tier 3 permits "lesser development".
The Inspector therefore went on to consider whether this particular proposal could be considered to be lesser development in the context of Kingswood, given the attributes of the site and the effects of the development proposed. He was not considering whether developments of this scale should be considered to be "lesser development" for the purposes of Kingswood in general or indeed Tier 3 centres in general.
All parties have referred to the decision of the Supreme Court in Tesco Stores v Dundee City Council [2012] PTSR 983, which is authority for the well-known proposition that the correct construction of a planning policy is a matter of law for the court to determine, but it is also clear from that decision (see paragraphs 19 to 20) that the application of a policy which has been correctly construed is a matter for the planning judgment of the decision-maker and is only susceptible to review in the courts "in the event that it was unreasonable".
In the well-known decision of Sullivan J (as he then was) in the case of R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC (Admin) 74 (see paragraphs 7 to 8), irrationality is a particularly difficult hurdle to surmount when dealing with matters of planning judgment. It follows that on matters of planning judgment another decision-maker might reach very different conclusions on future proposals within the district, subject to considering, insofar as they might need to do so, whether the consistency principle in the North Wiltshire District Council case is engaged. It also follows that even in relation to the instant case another Inspector presented with the same information as was before this Inspector might have reached the opposite conclusion and refused to grant permission, but by the same token it does not follow that any particular judgment reached by this Inspector can be treated as irrational.
I turn to consider ground 1, failure to take into account material considerations. This embraces a number of topics. The first point, set out in paragraphs 26 to 31 of the Council's grounds, complains that the Inspector failed to take into account support for the Council's case from the conclusions of the Inspector who had recently conducted the statutory examination of the Local Plan. I have considered all the passages referred to in the Council's closing submissions. The context was very different. The Local Plan Inspector was examining, inter alia, the soundness of the strategy and policies of that plan. He was not considering how the policies relevant to the determination of this particular appeal should be applied to the appeal site. The two key issues involved in the relevant part of the section 78 decision were whether the appeal site could be considered to be a lesser level of development, given its location and attributes in the context of Kingswood, and whether the proposal materially conflicted with the settlement boundary policy. These were site-specific issues which by definition were not dealt with in the examination of the Local Plan.
Although paragraph 5.12 of the closing submissions referred to passages in the Examination Report which rejected the allocation of other sites in Kingswood outside the settlement boundary, that rejection identified site-specific objections to the release of those particular sites, such as an effect on the AONB, whereas the section 78 Inspector concluded that the release of the appeal site would not give rise to on-site or off-site planning harm of any kind. In my judgment, there was no need for the section 78 Inspector in this case to deal with the Council's reliance upon the passages cited from the examination report. His conclusions on the two key points identified under his first issue did not involve disagreement with those parts of the Examination Report or call for any explicit reasoning applying the well-known principles in South Bucks District Council v Porter. In my judgment, it is not arguable that the Inspector failed to have regard to this consideration.
It is clear that the Inspector disagreed with the Council's case as he summarised it in DL14, in the way it sought to apply the adopted Local Plan policies to this particular site and not Kingswood in general, whether inside or outside the development boundaries, or to the Tier 3 settlements in general.
One example serves to illustrate how, in my judgment, the Council has misread the decision...
To continue reading
Request your trial