R Village Concerns v Wealden District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dove |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] EWHC 2039 (Admin) |
| Docket Number | Case No: CO/2553/2021 |
| Court | Queen's Bench Division (Administrative Court) |
| Year | 2022 |
and
and
[2022] EWHC 2039 (Admin)
THE HONOURABLE Mr Justice Dove
Case No: CO/2553/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Jenny Wigley QC (instructed by Richard Buxton Solicitors) for the Claimant
Mr Richard Moules (instructed by Legal Services Manager of Wealden District Council) for the Defendant
Mr Christopher Boyle QC and Mr Luke Wilcox for the First Interested Party (instructed by BDB Pitmans)
Hearing dates: 24 May 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and will be released for publication on the National Archives caselaw website. The date and time for hand-down is 10am on 29 July 2022. I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
On 11 th June 2021 the defendant granted planning permission for demolition of an equestrian worker's dwelling, stables and horse walker and change of use of equestrian land to provide up to 205 C3 dwellings (including 35% affordable provision), access, landscaping and other associated infrastructure at Hesmonds Stud, Waldron Road, East Hoathly, East Sussex. The application was in outline and granted subject to numerous conditions and the terms of a planning obligation under section 106 of the Town and Country Planning Act 1990. The first interested party was the applicant for the planning permission. The claimant is an unincorporated residential association that is formally constituted, and which was set up for the purpose of protecting the parish of East Hoathly and Halland from over-development as well as to protect the historic character and ambience of these villages. The claimant participated in the planning application process raising objections which are detailed so far as relevant in due course in this judgment.
This application seeks a judicial review of the decision to grant planning permission on two grounds which are set out below. It seeks the quashing of the decision to grant planning permission. I am grateful to the legal teams on all sides of the case for the assistance which they have provided in carefully preparing the necessary papers for the case which greatly assisted in the conduct of an efficient hearing. I am also grateful for the focused and helpful submissions of all counsel in the case. Ms Jenny Wigley QC appears on behalf of the claimant, Mr Richard Moules appears on behalf of the defendant and Mr Christopher Boyle QC and Mr Luke Wilcox appear on behalf of the first interested party. All references to submissions made by the parties in the following judgment should be read accordingly.
The application
The nature of the application and the development applied for has been set out above. The application was supported by a package of documentation which included a Design and Access Statement and a Planning Statement. The Planning Statement contained an explanation of the mix of dwellings which were proposed (which was also reflected in the Design and Access Statement) in the following terms:
“4.6 The proposal would make provision for a number of different house types to reference the variety found within East Hoathly and to avoid the development adopting a bland and homogenous appearance. The mix of dwellings is shown in the table below.
Unit Type
Number of Units
1 & 2
Bedroom
36
2
Bedroom Specialist
5
3
Bedroom
122
4 & 5
Bedroom
42
Total
205
Table 1: Schedule of Accommodation
4.7 The majority of dwellings proposed feature 3 bedrooms. This type of accommodation is more flexible and allows young families to move in and grow in those. The proposal also offers No.36 1 and 2 bedroom dwellings in which are appropriate for older people to downsize to. Further, there are comparatively very few large dwellings with just No.42 units having four or five bedrooms. Bungalows have also been included in the proposal to house older residents or potentially those with disabilities.”
These figures in relation to housing mix were only proposed indicatively as part of the outline application. As set out above, the claimant raised objections on numerous topics in relation to their concerns about the impact of the application. In particular, at paragraph 4.15 of their objections dated 13 th January 2017, they sought to rebut the contention made on behalf of the first interested party that there were relatively few large dwellings comprised within the mix having four or five bedrooms by referring to a recent survey of community opinion on the type of housing preferred. They argued that the survey did not support the provision of 42 four and five bedroom houses within the development which, at 20% of the development, they contended could not properly be described as comparatively very few. Again, at paragraph 6.1 of the same document they reiterated the point that 20% of the homes having four to five bedrooms was not what the community wanted as demonstrated in the recent village survey.
Others who were consulted in relation to the application included Historic England and the defendant's Conservation Officer. Both of these consultees provided a detailed examination of the impact of the proposals upon the historic built environment, and in particular the East Hoathley Conservation Area and listed buildings in the vicinity of the site. Historic England formed the view that the proposed development would cause a high level of harm to the interests of the historic built environment and therefore there was a conflict with policy (in particular that contained in the National Planning Policy Framework (“the Framework”)). They objected to the application as it was presented, but in passing they remarked that a much smaller scheme utilising only a part of the site might be feasible subject to appropriate design. The Conservation Officer also objected to the planning application on the basis that harm, albeit less than substantial harm, would be caused to the interests of the historic built environment by the application proposed. Again, like Historic England, the Conservation Officer considered that there could be scope for a far smaller development subject to appropriate detailing.
These and other consultation responses were brought together in an officers' report in respect of the application for consideration by the Planning Committee who were going to determine the application at their meeting on 16 th July 2020. It was recommended that, subject to conditions and the completion of a satisfactory planning obligation, planning permission should be granted.
The officers' report contained comments from the defendant's Landscape and Arboricultural officer. This officer made specific observations in relation to a number of specified trees and hedgerows and drew attention to an area of Ancient Woodland at Alders Wood, to the north of the site, as well as another area of Ancient Woodland at Moat Wood to the south of the site. The Landscape and Arboricultural officer suggested that consideration “should be given to a more sensitive site layout that aids retention in full or at the very least reduces fragmentation to a minimum and maintains linear connectivity across the site”. The officer considered that suitable mitigation in relation to a number of identified hedgerows and trees could be conditioned as part of any planning approval. In respect of Alders Wood, the officer noted that in the illustrative plans a new road was proposed to run parallel with the woodland edge without any buffer zone. The officer drew attention to the need to establish a 15m buffer zone as a minimum around this area of Ancient Woodland in line with guidance from the Forestry Commission and Natural England. The Landscape and Arboricultural officer therefore suggested amendments to the scheme layout to allow retention of significant and high quality arboricultural features (as detailed in the objection) as well as the establishment of a minimum 15m buffer zone around the area of Ancient Woodland at Alders Wood. Draft condition 32 contained within the officer's report comprised a requirement for a scheme to provide a minimum width of 20m from the canopy edge of Ancient Woodland areas to be submitted and approved in writing prior to the commencement of development.
The officers' appraisal of the proposal commenced with setting out the relevant policies from the development plan in respect of the proposal, as well as those contained within the Framework. This list of policies included policy AFH1 of the adopted Affordable Housing Delivery Local Plan 2016 which is set out in full below. The officers' report went on to examine housing land supply and identified that at the time of the report the defendant could only demonstrate a 3.67 years supply of housing land, short of the 5 year supply of housing land required by paragraph 73 of the Framework, and that, on the basis that the exceptions within footnote 6 of the Framework were not engaged, the presumption in favour of development applied, and the application was to be considered applying the tilted balance contained within paragraph 11d of the Framework.
Of particular relevance to the present case, the officers' report also examined the question of design density and layout and contained the following opinion:
“Design, Density & Layout
As an outline application with all matters reserved other than access to the site (i.e appearance, landscaping, layout and scale), the position of particular buildings,...
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