Sienkiewicz v South Somerset District Council Probiotics International Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 17 December 2015 |
| Neutral Citation | [2015] EWHC 3704 (Admin) |
| Docket Number | Case No: CO/74/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2015 |
[2015] EWHC 3704 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/74/2015
and
Gregory Jones QC & Jeremy Pike (instructed by James Smith) for the Claimant
Stephen Whale (instructed by SSDC) for the Defendant
Hearing dates: 3 and 4 November 2015
The Claimant lives in the small village or hamlet of Lopen in South Somerset. South Somerset District Council, the Defendant, granted planning permission on 28 November 2014 for the erection of a building for class B1, B2 and B8 uses at the former Nursery site at Lopen Head. Those classes are respectively office, light industrial and warehouse uses, most of the former Nursery site is allocated for employment uses in the South Somerset Local Plan which is part of the statutory Development Plan. Four buildings have been erected on it, two of which are owned and occupied by Probiotics International Limited, Probiotics, and on the part not allocated are substantial but unused Nursery greenhouses. That is the part of the former site for which planning permission was granted on 28 November 2014, and that grant the decision challenged.
There had been an earlier decision by the Council to grant planning permission on the identical application. This was successfully challenged by the Claimant and Lewis J quashed that decision but on one only of a number of grounds, [2013] EQHC 4000 (Admin). That ground was that a planning condition limiting occupation of the building to Probiotic was invalid. Lewis J rejected the Claimant's contention that the Council had failed to recognise the primacy of the Development Plan: it had and had concluded that the development was not in accordance with the Development Plan but other material considerations including the NPPF indicated that planning permission should be granted. Lewis J also rejected an argument that the Council ought to have concluded that the development was EIA development requiring environmental assessment under Schedule 1 or alternatively Schedule 2 of the EIA Regulations 2011, an argument repeated here in relation to Schedule 2.
The challenge this time is no less multi-faceted. It is said:
i) That the Council erred in concluding that the development was in accordance with the Development Plan properly interpreted and in the light of the decision of Lewis J. The Council had misinterpreted the National Planning Policy Framework, NPPF, and had ignored relevant emerging local plan policies. The Council was inconsistent in its decision making in the application of Development Plan policies, and had ignored relevant decisions. It was said that the Defendant ought have referred the application to the Secretary of State under the Town and Country Planning (Consultation) England Direction 2009, on a point put differently from that previously raised before Lewis J. Permission was granted to argue those four grounds.
ii) Permission was refused for the next two grounds, but they were before me on a renewed application for permission, to be dealt with as a rolled-up hearing. The Council had approached conditions wrongly. It failed to consider the need for conditions tying the development to Probiotics in view of the extent to which development was justified because of Probiotics needs; various tailpieces to 5 conditions permitting written variations were unlawful and did not achieve what they were intended to achieve in controlling the mix of development; informatives were written as if they were intended to be as effective as conditions but could not be. The Council ought to have provided a screening opinion that the development was EIA development under the EIA Regulations: it was admittedly a Schedule 2 development and in concluding that it was not EIA development because it was not likely to have significant environmental effects, the Council had ignored cumulative impact. The officer reaching the contrary screening opinion had no authority to reach that opinion for two separate reasons including a want of signature to an email.
Grounds 1 and 2: failing to decide lawfully whether the development accorded with the Development Plan
Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires the determination of a planning application to be made in accordance with the Development Plan "unless material considerations indicate otherwise". Although the interpretation of policy is for the Court, it is a planning judgment as to whether or not an application accords with the Plan and especially so where relevant Plan policies pull in different directions, which means that the judgment has to be reached by considering the Plan as a whole.
Lewis J considered the Officer's Report and Committee decision in 2013. It did not, in so many words, express a conclusion on whether the proposal accorded with the development plan as a whole. However, he concluded that, read as a whole and in context, the officer had advised that the proposal would not accord with the plan, which is why the officer had gone on to consider the various material considerations which indicated a determination which did not accord with the plan. In [27], Lewis J noted the submission of Mr Whale, then as now for the Council, that conflict with a policy did not necessarily mean conflict with the plan viewed as a whole. He continued: "in the present case, however, all the development plan policies to which reference was made indicate that the proposed development on this site (i.e. large scale business expansion in a rural area) would not be permitted." Mr Jones QC for the Claimant submitted that this passage showed that Lewis J had himself concluded that the proposal would not accord with the development plan, as part of his reasoning as to how the officer had reasoned the report; he judged that all relevant policies went the one way, so no exercise in planning judgment was really called for to reach that conclusion. The Council however decided in November 2014, following the quashing of 2013 permission, that that the development did accord with the development plan, without, contended the Claimant, any material change in policy or circumstance.
The first ground of challenge contended that the decision that the proposal accorded with the development plan, viewed as a whole, was not rationally open to the Council, and that neither officers nor members gave any reasons for reaching a decision so inconsistent with its previous one. The Council appeared also to have ignored the decision of Lewis J on this point.
The officer report for the Council committee in 2014 referred to the original approval of the scheme, quoting the reasons for the grant of permission in 2013 which included the following: "The scheme accords with Policy ST5, ST6, and EC3 of the South Somerset Local Plan, Policy 49 of the …Joint Structure Plan Review and to policy in the NPPF." It then referred to the grounds of challenge and to the fact that the challenge had been successful only on the ground challenging the terms of the condition linking the occupation of the building to Probiotics. It did not spell out the basis upon which the ground of challenge based on the development plan failed, namely that although the development did not accord with it, the Council rationally concluded that material considerations indicated a grant of permission.
The report set out for members the language of s38(6). Little weight was to be accorded to the Emerging Local Plan, ELP; the relevant policy framework was provided by the National Planning Policy Framework, NPPF and the South Somerset Local Plan 2006, SSLP, the relevant component of the development plan. A number of relevant policies were listed, but not all of them, submitted Mr Jones.
The consideration of the planning policies began with paragraph 28 of the NPPF, which states: "Planning policies should support economic growth in rural areas in order to create jobs and prosperity by taking a positive approach to sustainable new development. To promote a strong rural economy, local…plans should: support the sustainable growth and expansion of all types of business and enterprise in rural areas, both through conversion of existing buildings and well designed new buildings…." I also mention at this stage paragraph 215 in Annex 1 to the NPPF which states:
"In other cases and following this 12-month period, due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the Framework, the greater the weight that may be given)."
This consideration of policies led on to policy ME4 of the SSLP, which provided: "Proposals for the small scale expansion of existing businesses (classes B1, B2 and B8…) outside defined development areas shown on the proposals map will be permitted provided that they satisfactorily meet the following criteria": that the proposal is needed and appropriate in its location, and existing buildings are reused where possible; if land is to be developed outside the curtilage of existing development, that additional land must be essential to the business; there should be no adverse effect on the countryside from the scale, character or appearance of the new buildings and no substantial additional traffic should be generated. ELP Policy 4 was set out: it is more positively disposed towards the expansion of existing businesses in the countryside.
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