Rafael Suarez v Secretary of State for Communities and Local Government Forest of Dean District Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Jarman QC |
| Judgment Date | 05 January 2017 |
| Neutral Citation | [2017] EWHC 1552 (Admin) |
| Docket Number | CO/3596/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 January 2017 |
[2017] EWHC 1552 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
2 Redcliff Street
Bristol
BS1 6GR
His Honour Judge Jarman QC
(Sitting as a Judge of the High Court)
CO/3596/2016
Mr T Jones appeared on behalf of the Claimant
Mr M Westmoreland-Smith appeared on behalf of the Defendant
This is a statutory review under section 288 of the Town and Country Planning Act 1990 of a decision of a planning inspector, dated 17th June 2016, appointed by the first defendant in these proceedings, the Secretary of State for Communities and Local Government, to determine two appeals of the claimant Mr Suarez. The inspector dismissed the appeals which challenged the decision of the interested party, the Forest of Dean District Council as a local planning authority refusing temporary planning permission for the maintaining of a residence for an equestrian worker at Old Vicarage Farm & Stud, Church Lane, Corse, Gloucester, or for the replacement of that temporary residence and the construction of a permanent dwelling and five additional stables.
The grounds can be summarised as follows. Mr Suarez was represented in this hearing by Mr Jones, as he was in the hearing before the inspector. Mr Jones submits that the inspector in coming to her decision committed errors of law in four main respects. Firstly, that in interpreting paragraph 55 of the National Planning Policy Frameworkas providing a conclusive list of those matters that can be regarded as suitable residential development in the countryside, rather than illustrations, the inspector fell into error. Secondly, the conlusion that only permanent need for on-site residence would be sufficient to make the development suitable is irrational. Thirdly, the conclusion that there was no need for on-site residence whilst accepting that there was a functional need for a full-time worker to live close to the site was erroneous. Finally, the inspector erred in refusing the second appeal (Appeal B) on the basis of adverse conclusions reached at the site visit about the position of one of the stables without giving the claimant opportunity to address those concerns.
The Secretary of State is represented by Mr Westmoreland-Smith in this hearing. The local planning authority was represented by a planning officer at the hearing but has taken no part in these proceedings. On behalf of the Secretary of State the grounds are denied and in essence, Mr Westmoreland-Smith submits the following. Firstly, nowhere in the inspector's decision letter does it indicate that she treated paragraph 55 as a closed list. Secondly, the inspector was entitled to determine on the evidence that there was no permanent need for a rural worker on the site. Thirdly, the enterprise generates the same employment needs whether there is an employee living on the site or not and there is no suggestion that the additional jobs would be created by the grant of permission. Finally, the inspector confirmed that she considered the appeal on the basis of the drawings submitted on behalf of the claimant.
The first application which the inspector considered was dated 22nd July 2014 and was submitted on behalf of the claimant by planning consultants, EJ Planning Ltd. The description of the proposal was:
"Proposed retention of existing logged cabin for rural worker (equestrian) for temporary period (3 years)."
It was indicated that the cabin and the use had already started and indeed had commenced as long ago as June 1999.
In a letter which accompanied that application from EJ Planning Ltd, addressed to the planning officer, reference was made to a decision of His Honour Judge Behrens, sitting as a High Court Judge, and also to paragraph 55 of the National Planning Policy Framework. Reference was made to Judge Behrens at paragraph 44 of the decision, where the judge states:
"The NPPF test simply requires a judgment of whether the proposed agricultural enterprise has an essential need for a worker to be there or near there."
The letter continues as follows:
"That there was such an essential need already existing was the conclusion reached by the planning inspector in her letter dated 6th February 2014 at paragraph 17."
That refers to a previous hearing in respect of the same site. The letter goes on:
"She went further and also found that the need could not be met 'at this time' by other accommodation in proximity to the site. Her concern rested with longevity of both the joint venture agreement itself and the notice period for termination which, at that time, was one month."
The letter goes on to say that in communication with planning officers it was suggested that the agreement referred to should run for 5 years but in response to the decision of the previous inspector a joint venture agreement, which the claimant had then entered into, extended for a 10 year period but the notice period had been extended to 12 months rather than to 1 month.
Paragraph 55 of the National Planning Policy Framework so far as relevant reads as follows:
"To promote sustainable development in rural areas, housing should be located where it will enhance or maintain the vitality of rural communities. For example, where there are groups of smaller settlements, development in one village may support services in a village nearby. Local planning authorities should avoid new isolated homes in the countryside unless there are special circumstances such as:…"
and there are a number of bullet points, only the first of which is relevant for present purposes:
"the essential need for a rural worker to live permanently at or near their place of work in the countryside…"
The only other relevant policy which arises in the present appeal is the core strategy adopted by the local planning authority in February 2012. Policy CSP.4 of which includes the following:
"Most changes in towns and villages will be expected to take place within the existing settlement boundaries, unless or until they are replaced by other LDF documents (for example an Area Action Plan). Exceptions to this may include affordable housing for local persons and building conversions and (rarely) new buildings for employment uses on the edge of settlements. Areas outside settlement boundaries unless otherwise shown in the Key Diagram will be treated as part of the open countryside."
There is no mention of a need for permanency in that policy.
The decision of Judge Behrens referred to the previous planning policy, namely Planning Policy Statement 7. Under that, and in particular under Annex A paragraph 12(2), an applicant had to provide clear evidence that the proposed enterprise to justify a dwelling in the countryside had been planned on a sound financial basis. Judge Behrens referred to that and then to paragraph 55 of the NPPF.
It was common ground before him, as it is before me, that the relevant guidance since the introduction of paragraph 55 of the NPPF on 27th March 2012 is that paragraph and not the policy contained in PPS7. It is also common ground, as observed by Judge Behrens, that the guidance in paragraph 55 of NPPF is significantly less onerous than in PPF7.
Judge Behrens summarised the submissions of the local planning authority in that case, which also involved a temporary permission for 3 years for the erection of a dwelling as follows. Firstly, the local planning authority had to make a planning judgment on whether there was an essential need within paragraph 55 of the NPPF. Secondly, that paragraph had changed the policy. The sole test is whether there is an essential need. Thirdly, it was sufficient in that case for the planning committee to have views of figures showing that the enterprise was viable.
Judge Behrens considered those submissions and at paragraph 44, which I recite in full, he said:
"Thus I accept that the test under paragraph 55 of NPPF is different from the test under Annex A, paragraph 12(iii) of PPS7. In particular I do not accept [the appellant's submission] that the NPPF requires that the proposal is economically viable. As [counsel for the local planning authority] points out this is a temporary permission lasting for only 3 years. The NPPF test simply requires a judgment of whether the proposed agricultural enterprise has an essential need for a worker to be there or near there."
Having considered that application the local planning authority, by a decision dated 22nd July 2014, refused it. Only one reason was given. The reason refers again to the joint venture agreement between the claimant and a company called Tweenhills Stud Farm Ltd, referred to as "Tweenhills".
The reason is as follows:
"The justification for the retention of the dwelling is based on agreement between the applicant and Messrs Tweenhills Stud. Notwithstanding the operational requirements of the equestrienne business. The agreement is able to be terminated by either party with 12 months' notice. This provides insufficient certainty to the business and does not constitute a permanent need. Accordingly, there is insufficient justification for a dwelling on this site contrary to the guidance within the NPPF sections 3 and 6 concerning new housing in the open countryside, policy CSP.4 and CSP.5 of the core strategy and policy AP.1 of the allocations planned (draft). A new dwelling would not be a sustainable development."
The second appeal considered by the inspector related to a further application on behalf...
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