St Albans City and District Council v 1. Secretary of State for Communities and Local Government and Others Strife Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 13 March 2015 |
| Neutral Citation | [2015] EWHC 655 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3953/2014 |
| Date | 13 March 2015 |
[2015] EWHC 655 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Holgate
Case No: CO/3953/2014
and
Matthew Reed and Sasha Blackmore (instructed by St. Albans City and District Council) for the Claimant
Stephen Whale (instructed by The Treasury Solicitor) for the First Defendant
Martin Kingston QC and David Forsdick QC (instructed by Hogan Lovells) for the Second Defendant
Paul Stinchcombe QC and Ned Helme (instructed by Wayne Leighton LLP) for the Interested Party
Hearing dates: 3 rd and 4 th February 2015
Background
The Claimant, St. Albans City and District Council ("the Council"), challenges the decision of the Secretary of State for Communities and Local Government given by letter dated 14 July 2014 to grant planning permission for a strategic rail freight interchange ("SRFI") on land in and around the former Radlett Aerodrome, North Orbital Road, Upper Colne Valley, Hertfordshire. The Secretary of State allowed the appeal by the Second Defendant, Helioslough Limited ("Helioslough") under section 78 of the Town and County Planning Act 1990 ("TCPA 1990") against the refusal of planning permission by the Council. The challenge is brought under section 288 of the TCPA 1990.
STRiFE Limited ("Strife") was set up to campaign against the SRFI proposal by channelling representations from local communities affected by the proposals. The organisation was formed in 2006 and appeared at the public inquiries into Helioslough's proposals held in 2007 and 2009. On 29 December 2014 Stewart J ordered that Strife should appear in these proceedings as an Interested Party rather than as the Third Defendant.
The appeal proposal covers eight parcels of land referred to as Areas 1 to 8 and amounting in total to 419 ha. The whole of the site falls within the Metropolitan Green Belt and the Council's administrative area. The SRFI and connecting roadways are proposed to be located in Area 1, which has an area of 146 ha. It is bounded by the A414 dual carriageway to the north, the Midland Main Line on an embankment to the east and the M25 to the south. The settlements of Park Street and Frogmore lie to the west. Area 2, occupying 26 ha, lies immediately to the east of the Midland Main Line. A new railway line would be provided through Area 2 to link the railway sidings in Area 1 to the existing main railway line. Areas 3 to 8 would generally remain in agricultural/woodland use with improved public access, and some more formal recreational uses, so as to form a country park. Additional landscaping would be provided in Areas 3 to 8.
Green Belt policy
At the time of the decision dated 14 July 2014 national policy on development in the Green Belt was set out in the National Planning Policy Framework ("NPPF"). The policy came into force on 27 March 2012. For the purposes of these proceedings, Green Belt policy prior to the NPPF was not materially different. Paragraph 87 states: "As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances." It was common ground that Helioslough's proposal fell within the definition of inappropriate development contained in paragraph 89. Paragraph 88 provides:
"When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
First Appeal
The proposal has been the subject of two planning applications. The first was made on 26 July 2006 and refused by the Council. The public inquiry into Helioslough's appeal sat between November and December 2007. The main issue was whether the harm to the Green Belt and other harm was clearly outweighed by very special circumstances, notably the need for the SRFI in the proposed location. The Inspector, Mr. Andrew Phillipson, produced a report to the Secretary of State on 4 June 2008, in which he found that Helioslough's assessment of alternative sites for the SRFI was materially flawed. Because of that "critical" failing he recommended that planning permission should be refused (IR 16.203–16.204 and 17.1). 1
However, in IR 16.202 Inspector Phillipson stated:-
(i) The need for SRFIs to serve London and the South East was capable of being a very special circumstance clearly outweighing harm;
(ii) If it had been demonstrated that no other site would come forward to meet the need for further SRFIs to serve London and the South East that would be satisfied by the appeal proposal, he would have taken the view that the harm to the Green Belt and other harm identified from the proposal would be outweighed by the need to develop a SRFI on the appeal site, and would have recommended the grant of planning permission.
The Secretary of State's decision on the first appeal was issued on 1 October 2008. The then Secretary of State broadly agreed with her Inspector's conclusions and accepted the recommendation to dismiss the appeal and refuse permission. In DL 58 she stated:-
"The Secretary of State considers that the need for SRFIs to serve London and the South East is a material consideration of very considerable weight and, had the appellant demonstrated that there were no other alternative sites for the proposal, this would almost certainly have led her to conclude that this consideration, together with the other benefits she has referred to above were capable of outweighing the harm to the Green Belt and the other harm which she has identified in this case (IR 16.202). However, like the Inspector, she considers the appellant's Alternative Sites Assessment to be materially flawed and its results to be wholly unconvincing (IR 16.203). She considers this failing to be critical. In view of this, she concludes that the appellant has not shown that the need for the proposal or the benefits referred to above constitute other considerations which clearly outweigh the harm to the Green Belt and other harm which this development would cause, and that very special circumstances to justify the development have not been demonstrated."
Second Appeal
On 9 April 2009 Helioslough lodged a second application which was identical to the first. It was refused by the Council on 21 July 2009 and the subsequent appeal under section 78 was considered at a public inquiry between November and December 2009. The Inspector, Mr. A. Mead, produced his report to the Secretary of State on 10 March 2010. In that report the Inspector accepted that Helioslough had demonstrated a lack of suitable alternative sites. In particular he concluded that the location of the Colnbrook site in a Strategic Gap between Slough and London as well as in the Green Belt "weighed heavily" against it being preferred to the appeal site (IR 13.115). Having balanced the various planning considerations in IR 13.118 to 13.119, Inspector Mead concluded that very special circumstances had been shown to outweigh harm and recommended that planning permission be granted.
The Secretary of State's first decision letter on the second appeal was issued on 7 July 2010. He broadly agreed with Inspector Mead's conclusions save in one respect. He disagreed that the location of the Colnbrook site within the Green Belt and a Strategic Gap "weighed heavily" against it being preferred to the appeal site. He considered that an SRFI at Colnbrook could be less harmful and consequently he was not satisfied that very special circumstances had been demonstrated so as to outweigh the harm. He therefore dismissed the second appeal. Also on 7 July 2010 the Secretary of State issued a decision letter on Helioslough's application for costs in which he accepted Inspector Mead's recommendation in a separate report that a partial award be made against the Council.
Challenge in the High Court to the dismissal of the second appeal
Helioslough brought a challenge to the Secretary of State's decision under section 288 of the TCPA 1990. On 1 July 2011 HH Judge Milwyn Jarman QC ordered that the Secretary of State's decision be quashed ( [2011] EWHC 2054 (Admin)). In summary the Judge held that the Secretary of State had misconstrued the Strategic Gap policy in Slough's Core Strategy and consequently had failed to treat that as an additional policy restraint over and above the Green Belt designation. The Secretary of State had failed to appreciate that the Strategic Gap policy had been formulated because of the special sensitivity of the tightly defined area to which it applied and the "very high bar" set by that policy, namely that development must be shown to be "essential" (paragraphs 79 to 88 of the judgment).
Redetermination of the second appeal
The process of redetermining the second appeal began with a letter from the Secretary of State dated 15 September 2011. Substantial written representations were submitted and exchanged in several rounds. The parties had access to the 2010 report of Inspector Mead as well as the 2008 report of Inspector Phillipson.
In a letter dated 19 September 2012 the Secretary of State...
To continue reading
Request your trial
-
R West Lancashire Borough Council v Secretary of State for Communities and Local Government and Others
...may be justified however. The authority most strongly relied upon by Mr Tucker is St Albans City and District Council v SSCLG [2015] EWHC 655 (Admin). That is an authority which must be treated with great respect given the enormous planning experience of the judge who decided it. The releva......
-
The Queen (on the application of Leckhampton Green Land Action Group Ltd) v Tewkesbury Borough Council Redrow Homes Ltd and Another (Interested Parties)
...QC sought to gain some support from the explanation suggested in paragraphs 84 to 85 of St. Albans City and District Council v SSLCG [2015] EWHC 655 (Admin) as to why a "cautious" approach had been suggested by the Court of Appeal in Kides. But St. Albans did not involve an allegation that ......
- Moulton Parish Council and Another (Joint Claimants) v Secretary of State for Communities and Local Government Forest Heath District Council (First Interested Party) Newmarket Horsemen's Group (Second Interested Party)
-
Baroness Cuberlege of Newick and Another v Secrtary of State for Communities and Local Government and Another
...dealt with: see R v Secretary of State for the Environment ex p Baber (1996) JPL 1034 at p1040; St Albans City and District Council v Secretary of State for Communities and Local Government [2015] EWHC 655 (Admin) at [88]–[101]; Moulton Parish Council v Secretary of State for Communities a......