Shropshire Council v Secretary of State for Communities and Local Government and Another Magnus Charles Mowat and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 02 November 2016 |
| Neutral Citation | [2016] EWHC 2733 (Admin) |
| Docket Number | Case No: CO/2850/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 November 2016 |
[2016] EWHC 2733 (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/2850/2016
and
Anthony Crean QC and Killian Garvey (instructed by Sharpe Pritchard LLP) for the Claimant
Thea Osmund-Smith (instructed by Humphries Kirk LLP) for the First and Second Interested Parties
The First and Second Defendants did not appear and were not represented
Hearing date: 20 October 2016
Approved Judgment
The Claimant applies under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990") to quash the decision of the First Defendant, made on his behalf by an Inspector on 16 May 2016, in which he allowed an appeal brought by the Second Defendant and granted conditional planning permission for a development of 68 dwellings at Teal Drive, Ellesmere, Shropshire, SY12 9PX.
The Claimant refused planning permission on the ground that the benefits of the development were outweighed by the unacceptable harm to the open countryside, contrary to the development plan.
The Inspector concluded in his Appeal Decision ("AD"):
"34. It is therefore clear that there is no recent evidence in line with the above requirements of the Framework and the PPG that offers any reliable support to the CS housing requirement, which is, in my view out-of-date being based on the RSS. Further, the Council accept that it is not suggested that the CS housing requirement will be the FOAN for their plan review and that the evidence will ultimately tell what their FOAN is. This confirms that the Council are not at the current time sure what its FOAN is and that this work is yet to be undertaken. In such circumstances, I consider that if the Council does not have a FOAN, then it does not have a robust housing requirement and therefore it must follow that it cannot demonstrate it has a five year housing land supply…"
"45. ….I consider that the CS housing requirement is out-of-date and the Council does not have a FOAN. Therefore, the Council does not have a robust housing requirement, in line with the requirements of the Framework and the PPG. Consequently, it follows that the Council cannot demonstrate a five year housing land supply and its policies that relate to the supply of housing are out-of-date….Paragraph 49 of the Framework states that relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five-year supply of deliverable housing sites. Furthermore, Paragraph 14 of the Framework is engaged, which sets out that permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole."
"61. On balance, I consider that the identified adverse impacts of the scheme and the associated development plan conflict are not sufficient to significantly and demonstrably outweigh the substantial benefits of the proposal. As a result, I conclude that the proposal represents sustainable development as set out in the Framework, when read as a whole. Consequently there are material considerations that outweigh the identified development plan conflict. This is particularly bearing in mind that the Council cannot demonstrate a five year housing land supply and the associated implication that have been discussed in the above sections."
Ouseley J. granted permission on the papers on 14 July 2016, and in the light of his observations, the First Defendant conceded that the decision ought to be quashed. The Second Defendant has also not resisted the application to quash. However, the Interested Parties, who are the trustees of the appeal site, have resisted the Claimant's application.
Legal framework
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 v Secretary of State for the Environment (1978) 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 of an Inspector's decision.
The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) of the Planning and Compulsory Purchase Act 2004, read together with section 70(2) TCPA 1990. The National Planning Policy Framework ("NPPF") is a material consideration for these purposes.
An Inspector's 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 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.
An Inspector is required to give adequate reasons for his decision, pursuant to Rule 18 of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000. The standard of reasons required was described by Lord Brown in South Bucks District Council and another v Porter (No 2) [2004] 1 WL.R. 1953, at [36].
Policy Framework
The NPPF provides:
"47. To boost significantly the supply of housing, local planning authorities should:
• use their evidence base to ensure that their Local Plan meets the full, objectively assessed needs for market and affordable housing in the housing market area, as far as is consistent with the policies set out in this Framework, including identifying key sites which are critical to the delivery of the housing strategy over the plan period;
• identify and update annually a supply of specific deliverable sites sufficient to provide five years worth of housing against their housing requirements with an additional buffer of 5% (moved forward from later in the plan period) to ensure choice and competition in the market for land. Where there has been a record of persistent under delivery of housing, local planning authorities should increase the buffer to 20% (moved forward from later in the plan period) to provide a realistic prospect of achieving the planned supply and to ensure choice and competition in the market for land;
"49. Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for the supply of housing should not be considered up-to-date if the local planning authority cannot demonstrate a five year supply of deliverable housing sites."
Where a policy is considered out-of-date, there is a presumption in favour of granting planning permission for sustainable development. By NPPF 14, the presumption operates in the following way when decisions are made:
"where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless:
• any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole; or
• specific policies in this Framework indicate development should be restricted."
The Planning Practice Guidance ("PPG") provides at paragraph 30:
"What is the starting point for the five-year housing supply?
The National Planning Policy Framework sets out that local planning authorities should identify and update annually a supply of specific deliverable sites sufficient to provide five years' worth of housing against their housing requirements. Therefore local planning authorities should have an identified five-year housing supply at all points during the plan period. Housing requirement figures in up-to-date adopted Local Plans should be used as the starting point for calculating the five year supply. Considerable weight should be given to the housing requirement figures in adopted Local Plans, which have successfully passed through the examination process, unless significant new evidence comes to light. It should be borne in mind that evidence which dates back several years, such as that drawn from revoked regional strategies, may not adequately reflect current needs.
Where evidence in Local Plans has become outdated and policies in emerging plans are not yet capable of carrying sufficient weight, information provided in the latest full...
To continue reading
Request your trial
-
Keep Bourne End Green v Buckinghamshire Council (formerly Wycombe District Council)
...be perfect or complete (see the judgment of Lang J. in Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin), at paragraph 27). The scope for a reasonable and lawful planning judgment here is broad (see the judgment of Hickinbottom J. in Stra......
-
Jelson Ltd v Secretary of State for Communities and Local Government and Another
...the FOAN has been considered on a number of occasions in recent case law. In Shropshire Council et ors v BDW Trading et ors [2016] EWHC 2733 (Admin) Mrs Justice Lang was confronted with an Inspector's decision which stated: "It is therefore clear that there is no recent evidence in line wit......
-
Jelson Ltd v (1) Secretary of State for Communities and Local Government
...be perfect or complete (see the judgment of Lang J. in Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin), at paragraph 27). The scope for a reasonable and lawful planning judgment here is broad (see the judgment of Hickinbottom J. in Strat......
-
Hallam Land Management Ltd v Secretary of State for Communities and Local Government and Another
...but also how big it is, and how significant …". 17 In Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin), Lang J said at para 28: "In my judgment, in the instant case, the Inspector was required to make judgments, based on the evidence, as ......
-
Planning Permission
...not be perfect or complete (see judgment of Lang J in Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin) at [27]). The scope for a reasonable and lawful planning judgment in such cases is broad (see judgment of Hickinbottom J in Stratford-o......
-
Table of Cases
...1 WLR 168, [1997] 1 All ER 481, [1997] JPL 523, HL 418 Shropshire Council v Secretary of State for Communities and Local Government [2016] EWHC 2733 (Admin) 165 Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P & CR 306, [1988] 3 PLR 25, [2017] PTSR 1041, CA......