Ribble Valley Borough Council v The Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Bird |
| Judgment Date | 16 November 2021 |
| Neutral Citation | [2021] EWHC 3092 (Admin) |
| Docket Number | Case No: CO/4685/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 3092 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
The Civil Justice Centre
Manchester
HIS HONOUR JUDGE Bird
sitting as a Judge of this Court
Case No: CO/4685/2020
Miss Reid (instructed by Ribble Valley Borough Council) for the claimant
Mr Goatley QC (instructed by Addleshaw Goddard LLP) for the second defendant
Hearing dates: 16 th September 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 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
This is an application made under section 288 of the Town and Country Planning Act 1990 to the High Court seeking an order quashing a decision of the Secretary of State's Inspector Graeme Robbie, made on 10 November 2020 (“the Decision”). Permission to proceed was granted by His Honour Judge Eyre QC (as he then was) on 21 January 2021.
The Inspector allowed a section 78 appeal against a failure on the part of Ribble Valley Borough Council (“RV”) to give notice within the prescribed period of a decision on an application for planning permission. He granted planning permission for the erection of 39 dwellings with landscaping and associated works with access at the junction of Chatburn Road and Pimlico Link Road in Clitheroe.
The Relevant Policies
When deciding the appeal, it is common ground that the Inspector was obliged to consider The Ribble Valley Borough Council Core Strategy 2008–2028 (“CS”). The Development Strategy forms part of the CS. Key statement DS1 deals with the broad intended location of three types of future development: housing, development to promote employment opportunities and retail and leisure development. Key statement DMG2 sets out strategic considerations in respect of development management policy.
DS1 requires that the majority of new housing be concentrated within an identified strategic site located to the south of Clitheroe and the principal settlements of Clitheroe (the main administrative centre of the RV with a population of 14,765 – see para.2.6 of the local plan), Longridge (population 7,724 and the other main town in the RV) and Whalley (population 3,895). The extent of the Clitheroe settlement identified in policy DS1 is outlined on a plan exhibited at exhibit 11 to the witness statement of Nicola Hopkins.
DMG2 provides:
Development should be in accordance with the core strategy development strategy and should support the spatial vision.
1. development proposals in the principal settlements of Clitheroe, Longridge and Whalley…. should consolidate, expand or round-off development so that it is closely related to the main built up areas, ensuring this is appropriate to the scale of, and in keeping with, the existing settlement
Policy DMH3 deals with areas of open countryside or areas of outstanding natural beauty. There, residential development is to be limited to development essential for the purposes of agricultural or residential development which meets an identified local need.
The following definitions form part of the CS and are set out in the glossary:
a. CONSOLIDATION – Refers to locating new developments so that it adjoins the main built up area of a settlement and where appropriate both the main urban area and an area of sporadic or isolated development.
b. SETTLEMENT – see Defined Settlement
c. DEFINED SETTLEMENT – A defined settlement is one which contains at least 20 dwellings and a shop or public house or place of worship or school or village hall, i.e., they are of a size and form that justifies treatment as a settlement. Settlements smaller than this limit will not be given settlement boundaries as they are not considered to be large enough or to contain enough facilities to allow for growth beyond that delivering regeneration benefits or local needs housing.
d. EXPANSION – This is limited growth of a settlement generally it should be development which is in scale and keeping with the existing urban area.
e. ROUNDING OFF – Development which is essentially part of rather than an extension to the built up part of the settlement. It can be defined as the development of land within the settlement boundary (which is not covered by any protected designation) where at least two thirds of the perimeter is already built up with consolidated development.
The Decision
The Decision records that RV had resolved that if they had determined the planning application, they would have rejected it on the ground that the proposed development would not be in a suitable location.
The proposed development is outside the boundary of the settlement of Clitheroe and is in the open countryside so that development at the site would be contrary to policy DMH3. The Decision records the fact at paragraphs 8 and 9. The Inspector nonetheless concluded that the development would be in accordance with DMG2. The Secretary of State does not resist RV's application to quash the Inspector's decision. The application is pursued by the developer.
The Decision includes the following (with emphasis added by underlining):
a. (Paragraph 11) Although located beyond Clitheroe's settlement boundary, the appeal site is well related to it in terms of built form, and its physical and visual relationships. The appeal site is therefore seen very much as a part of Clitheroe and the pattern of development along Chatburn Road. CS policy DMG2 seeks to support the CS's development strategy as set out in Key Statement DS1. To this end, it states that development proposals in principal settlements such as Clitheroe should consolidate, expand or round-off development so that it is closely related to the main built up areas, ensuring that it is appropriate to the scale of, and in keeping with, the existing settlement.
b. (Paragraph 12) The site is clearly not within the defined settlement boundary for Clitheroe. However, having regard to the nature and context of the land immediately around it, particularly the adjacent and adjoining residential development and prevailing pattern of development and built form along Chatburn Road, it is not unreasonable to conclude that the proposed residential development of the appeal site would consolidate development in a manner closely related to the main built up area of Clitheroe.
c. (Paragraph 13) The CS Glossary definition of consolidation refers to new developments adjoining the main built up area of a settlement. The proposal would do this. The Glossary does not distinguish between consolidation within or beyond a settlement, just that it adjoins the main built up area. The prevailing pattern of development along Chatburn Road is not one of isolated or sporadic development, even if the glossary definition also includes these, where appropriate, within the definition of consolidation.
d. (Paragraph 14): the appeal site can be sufficiently seen as a consolidation in the terms set out in CS policy DMG2 and the CS Glossary, confers support from the first part of CS policy DMG2.
The single ground of challenge to the Decision is that the Inspector made an error of law when interpreting (and applying) DMG2.
The Arguments
Miss Reid of Counsel appeared for RV. She argued that the proper construction of the policy was clear. Policy DMG2 must be read in context. Key statement DS1 is an important part of that context. A key aim of the CS is to concentrate new development in certain identified areas. The CS does not prohibit new development outside those identified areas but imposes far more stringent requirements on such development (see DMH3). RV submits (and it is agreed) that the Inspector correctly identified the development site as falling outside an area identified in policy DS1. Having correctly identified the proposed site of the development the Inspector ought to have gone on to apply the correct policy (DMH3). Whilst it would be potentially open to the Inspector to depart from policy DMH3 if he was to follow that course, he would need in the first instance to accept that the policy would apply and then provide proper and cogent reasons for departing from it. In fact, the Inspector applied policy DMG2, the wrong policy.
Mr Goatley QC appeared for the developer. In summary, he submitted that the Inspector was entitled to reach the conclusion he did as a matter of planning judgment. The Inspector identified that policy DMH3 was relevant (see...
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