Reigate and Banstead and Another v Secretary of State for Communities and Local Government and Another
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 27 June 2017 |
| Neutral Citation | [2017] EWHC 1562 (Admin) |
| Date | 27 June 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6376/2016 |
[2017] EWHC 1562 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/6376/2016
James Findlay QC and Emma Dring (instructed by Sharpe Pritchard LLP) for the Claimant
The First Defendant did not appear and was not represented
James Pereira QC (instructed by Cripps LLP) for the Second Defendant
Hearing date: 13 June 2017
Approved Judgment
The Claimant ("the Council") applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the First Defendant ("the Secretary of State") made by an Inspector on his behalf on 8 November 2016, in which he allowed an appeal by the Second Defendant ("the developer") against the Council's refusal of planning permission for up to 46 residential units and associated access at 17, The Close, Horley, Surrey RH6 9EB.
Jay J. granted permission on the papers on 30 January 2017.
The decisions of the Council and the Inspector
The Council refused planning permission because, inter alia, it considered the proposed development, which was within the rural surrounds of Horley and Gatwick Airport Open Setting Designations, would have a serious and harmful impact on the openness of the area and contribute towards the coalescence of Horley with Gatwick Airport. This would be contrary to saved policies Hr36 and Hr37 of the Reigate and Banstead Borough Local Plan 2005 and policies CS6 and CS13 of the Reigate and Banstead Local Plan: Core Strategy 2014.
Core Strategy Policy CS6 provided:
"Policy CS6: Allocation of land for development
1. Development sites will be allocated in the Development Management Policies Document, or through other DPDs, taking account of sustainability considerations including environmental and amenity value, localised constraints and opportunities, the need to secure appropriate infrastructure/service provision, and the policies within this Core Strategy.
2. The Council will give priority to the allocation and delivery of land for development in sustainable locations in the urban area, that is:
a. The priority locations for growth and regeneration:
— Redhill town centre
— Horley town centre
— Horley North East and North West sectors
— Preston regeneration area
— Merstham regeneration area
— Other regeneration areas as identified by the Council and its partners
b. The built up areas of Redhill, Reigate, Horley and Banstead:
c. Other sustainable sites in the existing urban area.
3. The Council will also allocate land beyond the current urban area for sustainable urban extensions, based on an assessment of the potential within the following broad areas of search (in order of priority):
a. Countryside beyond the Green Belt adjoining the urban area of Horley
b. East of Redhill and East of Merstham
c. South and South West of Reigate.
Sites beyond the current urban area will be released for development in accordance with policy CS13 and detailed phasing policies within the DMP."
Core Strategy Policy CS13 provided:
"Policy CS13: Housing delivery
1. The Council will plan for delivery of at least 6,900 homes between 2012 and 2027, equating to an annual average provision of 460 homes per year.
2. Housing will be delivered as follows:
a. At least 5,800 homes within existing urban areas, in particular the priority areas for growth and regeneration identified in policy CS6
b. The remainder to be provided in sustainable urban extensions in the locations set out in policy CS6.
3. The Council will identify and allocate in the DMP the necessary sites to deliver these homes in accordance with the policies in the Core Strategy.
4. Sites for sustainable urban extensions within the broad areas of search set out in policy CS6 will be released when such action is necessary to maintain a five year supply of specific deliverable sites (based on the residual annual housing requirement). The phasing of sustainable urban extension sites will be set out in the DMP and will take account of strategic infrastructure requirements."
Following an Inquiry on 4 to 6 October 2016, and a site visit, the Inspector (Mr John L. Gray DipArch MSc Registered Architect) allowed the developer's appeal and granted planning permission, in an Appeal Decision ("AD") dated 8 November 2016. On the first main issue, the Inspector concluded that the proposed access to the appeal site would not appear cramped, contrary to the character of the area, nor would it cause unacceptable noise and disturbance for the occupiers of existing dwellings. On the second main issue, the Inspector concluded that the proposed development would not intrude unacceptably into the rural surrounds of Horley or the open setting of Gatwick Airport. The issue relevant to this challenge was the third main issue – housing need and housing land. The Inspector found that the proposed development was sustainable and it would not cause material harm. The adopted Core Strategy provided for a 5 year supply of housing land (or at least very close to it), but as the Core Strategy Inspector found, environmental and other constraints meant that it was not possible to meet the full objectively assessed need. The proposal would reduce the housing shortfall. The Core Strategy had a clear "urban area first" housing strategy, but as the development only comprised 45 dwellings it would not significantly prejudice the strategy. Although the proposal conflicted with the Core Strategy, there was no reasonable basis upon which to dismiss it.
Grounds of challenge
The Council's overarching ground of challenge was that the Inspector failed properly to apply the statutory requirement to determine the appeal in accordance with the development plan, unless material considerations indicated otherwise. Instead he gave priority to his finding that the proposal amounted to sustainable development, in effect applying a presumption in favour of allowing sustainable development, in the absence of material harm. In adopting this approach, he also misapplied the National Planning Policy Framework ("NPPF").
The Secretary of State conceded that the Inspector erred in his approach and that the decision ought to be quashed.
The developer resisted the challenge, arguing that the Inspector correctly gave primacy to the development plan, but he concluded that there were other material considerations which, when weighed in the balance, indicated that planning permission ought to be granted. The Inspector was entitled to reach this conclusion, as a specialist exercising a planning judgment, and the court ought not to interfere with it.
Legal and policy framework
(i) Applications under section 288 TCPA 1990
Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with, and in consequence, the interests of the applicant have been substantially prejudiced.
The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:
"An application under section 288 is not an opportunity for a review of the planning merits….."
The Court should respect the expertise of Inspectors, and at least start from the presumption that they will have understood the policy framework correctly. Their position is in some ways analogous to that of expert tribunals, in respect of which the courts have cautioned against undue intervention by the courts in policy judgments within their areas of specialist competence: Suffolk Coastal DC v Hopkins Homes Ltd [2017] UKSC 37, per Lord Carnwath at [25].
A decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well-informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.
(ii) Decision-making
Section 70(2) TCPA 1990 provides that the decision-maker shall have regard to the provisions of the development plan, so far as material to the application. Section 38(6) of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004") provides:
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise."
In City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, [1997] 1 WLR 1447, Lord Clyde explained the effect of this provision, beginning at 1458B:
"Section 18A [the parallel provision in Scotland] has introduced a priority to be given to the development...
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