Richard James Verdin (t/a The Darnhall Estate) v (1) The Secretary of State for Communities and Local Government (2) Cheshire West and Chester Borough Council and Another (Interested Party)

Hearing dates: 11 and 12 July 2017

Approved Judgment

Robin PurchasQC:

Introduction

This claim is brought under section 288 of the Town and Country Planning Act 1990 (the 1990 Act) to quash the decision of the First Defendant on 7 ^th July 2016 dismissing his appeal against the refusal of planning permission by the Second Defendant for the residential development of land off Darnhall School Lane, Winsford (the Site).

The Claimant relies on the following grounds:

i) That the First Defendant wrongly rejected a proposed condition requiring self-build housing as part of the development; alternatively he failed to give adequate reasons for his decision;

ii) That the First Defendant wrongly rejected a proposed condition requiring training and employment measures as part of the development; alternatively he failed to give adequate reasons for his decision;

iii) That the First Defendant wrongly rejected a proposed condition requiring local building firms to be used for the development; alternatively he failed to give adequate reasons for his decision;

iv) That the First Defendant wrongly rejected a proposed condition requiring local procurement as part of the proposed development; alternatively he failed to give adequate reasons for his decision;

v) Ground 5 was not pursued at the hearing

vi) That the First Defendant wrongly failed to take account of the fact that the housing figure in the Winsford Neighbourhood Plan (the WNP) was not intended to be a cap on the number of dwellings to be provided;

vii) Alternatively to ground 6, that the First Defendant erred in failing to take account of the fact that the WNP was not in conformity with the Cheshire West and Chester Local Plan (Part One) Strategic Policies (the CWACLP);

viii) That the First Defendant had a closed mind in determining not to permit residential development on sites not allocated in the WNP;

ix) That the First Defendant unlawfully delayed his decision on the appeal, causing prejudice to the Claimant;

x) That the First Defendant unlawfully failed to make any finding as to whether the proposed development was sustainable;

xi) That the First Defendant acted unlawfully in allowing himself to be lobbied by local MPs; and

xii) That the First Defendant unlawfully failed to consult the Claimant on another appeal which he took into account in relation to the available housing supply.

Background

The site comprised an area of open fields of about 6.5 hectares on the edge of Winsford. The application dated 12 July 2013 was in outline with all matters reserved and proposed residential development for upto 184 dwellings.

The application was refused by the Second Defendant on 26 November 2013 on grounds of prematurity to the published WNP which was proposed for examination. The Claimant appealed and the decision was recovered by the First Defendant for his determination on 25 ^th February 2014.

On 21 ^st March 2014 the Second Defendant wrote to the First Defendant that it would not be supporting the ground of refusal at the proposed inquiry. The inquiry was held on 10 ^th and 11 ^th June 2014. On 11 ^th August 2014 the inspector reported to the First Defendant recommending that the appeal be allowed subject to conditions.

By letter dated 14 ^th April 2015 the First Defendant decided to reopen the inquiry before the same inspector, as he had received representations that material considerations had changed, indicating that he wished to be informed on the extent to which the proposed development complied with the development plan and whether proposed development would amount to sustainable development including whether there was a five year supply of deliverable housing sites. The WNP had been made in November 2014 and the CWACLP had been adopted in January 2015.

For the purposes of the reopened inquiry the Claimant revised his proposals for the development:

i) Increasing the level of affordable housing from 30% (as required under the relevant policy) to 40%;

ii) Proposing a condition that 10% of the proposed housing should comprise self-build plots;

iii) Proposing a condition that the remaining market housing should be constructed by small to medium local businesses (SMEs);

iv) Proposing a condition that not less than 50% of the workforce should come from Cheshire and not less than 20% from Cheshire West; and

v) Proposing a condition that 20% of the gross construction costs should be secured by local procurement.

The reopened inquiry was held on 15–18 September 2015.

The Decision

The decision of the First Defendant was dated 7 July 2016. It attached the original report of the inspector (the OR) and his supplementary report (the SR) following the reopened inquiry, in both of which he had recommended allowing the appeal subject to conditions.

At paragraph 247 of the SR the inspector concluded that a five year supply of housing could be demonstrated and that the development plan's policies for the supply of housing were up to date.

In considering sustainable development from paragraph 248 of the SR the inspector concluded that the development would conflict with policy STRAT9 of the CWACLP, being outside the settlement limits of Winsford established under the former local plan (the VRBLP) policy GS5. He further concluded at paragraph 256 in respect of the WNP:

"Although policy H1 should not be seen as a cap on housing development, the effect of policy H1 in particular is to make provision for housing to a level close to the minimum requirements of policy STRAT6 of the CWACLP and to guide the location of development in accordance with the vision of the WNP … Additional sites could come forward that are not allocated or are on PDL, but they would need to fit with the WNP vision to comply with the plan."

At paragraph 259 he concluded that the proposed development "cannot be said to comply with the WNP overall".

At paragraph 260 he concluded on the development plan:

"There would be compliance with a number of relevant policies in the development plan … These include those used to assess the proposal against specific matters such as transport (STRAT10), affordable housing (SOC1), housing mix (SOC3), and environment (ENV2, ENV4 and ENV6). But there would be conflict with Policy GS5 of the VRBLP, Policy STRAT9 of the CWACLP and to a lesser extent Policy STRAT1 of the CWACLP. Policy GS5 still has considerable weight in the context of Winsford. There would also be conflict with Policy H1 of the WNP. The housing supply policies GS5, STRAT9 and H1 are the dominant polices for assessing proposals for development outside the Winsford settlement boundary. I conclude that the proposal would be contrary to the development plan overall."

On the economic role he concluded:

"(261) The economic benefits set out in OR147 still apply. In addition the housing offer, whereby up to 92 new homes would be built by local SMEs, supports the Government's objective of boosting that sector of the economy. The self-build plots and elements of local training, employment and procurement would also add value to the local economy.

(262) The weight to be given to the benefit of the additional market housing needs to be seen in the context of the Council's response to the need to boost significantly the supply of housing. That is what has been achieved by providing a 5 year supply of housing land. That said, the fact that the market housing will be delivered by SMEs takes up the weight a notch. This along with the other elements of the housing offer means that the economic benefits of the appeal proposal are likely to be able to be distinguished from many other housing proposals in the Borough or indeed other proposals on non-allocated sites on the edge of Winsford.

…

(264) Overall there are significant economic benefits from the proposal."

On the social role he concluded at paragraph 269 that substantial weight should be given to the provision of affordable housing on the site. He continued at paragraph 270:

"(270) The self-build element would carry some social benefits in helping to respond to the needs of a particular group identified by the SHMA and the Government who wish to build their own homes. The proposals do not follow the approach advocated by Policy SOC3 of the CWACLP as a Community Land Trust is not involved. Therefore there are questions over the affordability of the plots (SR 183). That said, the scheme for self-build would allow an input by the Council into the open market value of the plots and the PPG does not refer specifically to affordability in discussing this element of demand."

The inspector referred in this part of his conclusions to the Second Defendant's case reported at paragraph 183, which stated:

"(183) Each of these matters is a benefit which can point to national policy support. However, the self-build element still has serious issues attached to it. Policy SOC3 of the CWACLP refers to working with organisations such as Community Land Trusts to help bring forward schemes for self-build groups and individuals. The supporting text to the policy explains that that is because such bodies can acquire land cheaply. The mechanism for provision of the self-build units...