South Oxfordshire District Council v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 28 November 2017 |
| Neutral Citation | [2017] EWHC 3554 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4020/2017 |
| Date | 28 November 2017 |
[2017] EWHC 3554 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Mr Justice Holgate
CO/4020/2017
CO/4193/2017
APPEARANCES
Mr R Green (instructed by Sharpe Pritchard) appeared on behalf of the Claimant in CO/4020/2017.
Mr R Harwood QC (instructed by Harrison Grant Solicitors) appeared on behalf of the Claimant in CO/4193/2017.
Ms I Tafur (instructed by the Government Legal Department) appeared on behalf of the Defendant in both matters.
Mr C Lockhart-Mummery QC (instructed by Harvey Jaskel Solicitors) appeared on behalf of the Interested Party in both matters.
On 2 nd August 2017 an inspector appointed by the Secretary of State allowed the appeal by Mrs Claire Engbers against the refusal by South Oxfordshire District Council (“SODC”) of her application for outline planning permission. The application also sought approval for the means of access to the site and for strategic landscaping. Other matters, including the design of the development, were left to be dealt with as reserved matters. The proposal was for 95 dwellings, of which 40 per cent would be affordable units.
The site comprises about 5.65 hectares of semi-improved grassland lying in the countryside beyond Shiplake. The inspector described the site as “developed” rather than “open countryside” (see DL26 and 28).
South Oxfordshire District Council and Shiplake Parish Council have both issued claims under s.288 TCPA 1990 challenging the decision made. Permission was refused on the papers by Lang J. The claimants have renewed their applications, which were heard by me today in a single hearing. The proposed grounds overlap to some extent, and I will give my decision in a single judgment.
In para.13 of the decision letter, the inspector set out what he considered to be the main issues in the appeal. The first issue, housing land supply, he dealt with between DL14 and 24. In DL24 he reached the conclusion that there was substantially less than a five-year supply of housing land, and very marginally a less-than-three-year supply of housing land, that second point being relevant to the application of the Written Ministerial Statement in relation to Neighbourhood Plans as set out in DL50.
Between DL25 and DL32 the inspector dealt with the effect of the proposal on the character and appearance of the area. I have already referred to DL26 where he explained why he took the view that the site lay within developed rather than open countryside. In DL27 he referred to the effect of loss of trees. He drew attention to the conclusion of the inspector who dealt with an earlier appeal to the effect that:
“… in the medium term the proposed planting scheme would be likely to enhance frontage tree cover. In the longer term the proposal would establish a more extensive, diverse and sustainable woodland across the frontage of the site, the landscape benefits of which would outweigh the negative arboricultural impacts of the removal of parts of the existing woodland.”
He expressly endorsed that conclusion by reference to the proposals before him.
In DL28 he recognised that the development would result in a fundamental and profound change in the character of the site, but he took the view that the effect would only be “moderate adverse”, and that there would be a negligible effect on the character of the “Thames Valley and Fringes” character area as a whole. He said that the site is well contained by tree belts and lies within a developed part of the countryside.
He dealt with visual impact in DL29, concluding that any glimpses that there would be of the development would be “similar to those of the concentrated elements of the settlement and would not be unusual or detrimental to the appearance of the area”. He then discussed at some length the visual impact of the proposed highway arrangements and considered that the junction proposals might have the greatest visual impact. But overall he concluded in DL32 that the development would have only a moderate adverse effect on the character and a minor adverse effect on the appearance of the area, and so to that limited degree there would be conflict with relevant development plan policies dealing with those aspects.
The third issue concerned highway safety, which the inspector dealt with in considerable detail between DL33 and 42. He pointed out that there was substantially more information available to him than to the previous inspector, and as a result of that he concluded that there was no basis for refusal of planning permission by reference to this subject.
The fourth issue identified by the inspector related to sustainable development. He covered this between DL43 and 46. He assessed the proposal against the three roles of sustainable development referred to in para.7 of the NPPF. It is only necessary to refer to DL44, in which he stated that, quite apart from the benefits of the proposals, there was no reason to suppose that the scheme, the design of which would be developed at the reserved matters stage, would not provide a high-quality built environment. He explained in DL45 why he considered this location, in his judgment, to be sustainable.
The inspector then dealt with the overall planning balance and set out his overall conclusions between DL52 and 57. The challenges which are proposed to be made focus primarily upon these paragraphs. In DL52 it is apparent that the inspector had well in mind the provisions of s.38(6) of the Planning and Compulsory Purchase Act 2004.
I turn to deal with the application by South Oxfordshire District Council first of all. They raise two grounds, the second of which is specific to their claim. Ground 2 relates to the manner in which the inspector assessed the housing land requirement for the purposes of deciding whether the provision in para.49 of the NPPF – that the LPA be able to demonstrate at least a five-year supply of deliverable housing sites – was met. Here it was common ground that SODC could not (see DL15), with the outcome that the policies in the local plan and core strategy for the supply of housing were deemed to be out of date for the purpose of triggering the tilted balance in para.14 of the NPPF (see Hopkins Homes v SSCLG [2017] 1 WLR 1865).
The issue which SODC seeks to raise concerns a detailed and technical point arising out of DL19, 20 and 24. There is no legal challenge to the annual requirement figure taken by the inspector or his decision to add the agreed figure for the previous shortfall in housing land supply of 1,553 units, or to his decision to add a 20% buffer requirement because of the persistent under-delivery of housing in the district (see also DL14). The issue left for the inspector to determine here was whether the 20% buffer should be added before or after the shortfall had been included in the calculations. In DL20 the inspector said:
“The consistent approach taken in recent years by Inspectors is to apply the 20% buffer after the shortfall is added to the housing requirement. There is no evidence to justify a different approach.”
Mr Green, on behalf of SODC, confirmed this morning that there was indeed no evidence from the Council on this aspect. As the inspector rightly said, and as Mr Green confirms, the matter was dealt with solely by way of submissions (see p.252 of the bundle, paras.18 and 19). Paragraph 19 made the point that this issue appears to have troubled decision makers constantly because of a lack of guidance from the authors of central Government policy, and that it has been dealt with in “many appeal decisions”. The submissions did not offer a solution, or advance a positive case, by referring to any particular appeal decisions. Instead, in para.18, it was suggested that the approach taken by the appellant involved double-counting. But this was not the subject of any evidence in order to demonstrate the point in this case. The inspector dealt with this by stating that he understood the consistent approach taken by the Inspectorate in recent years was to follow the approach advocated by the appellant (the interested party in this application). There has been no attempt to challenge the inspector's entitlement to rely upon those appeal decisions. Instead, it is merely said that he failed to comply with his duty to give reasons.
In the circumstances, I can see nothing legally inadequate, applying the test laid down by the House of Lords in South Bucks DC v Porter (No 2) to make this ground potentially arguable. As a matter of law, the Inspector's reasoning was adequate to deal with the way in which SODC put its case at the inquiry. The contrary is not arguable. I also accept that the decision of the deputy judge in Wokingham Borough...
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