St Modwen Developments Ltd v Secretary of State for Communities and Local Government and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Lindblom,Lord Justice McCombe,Lord Justice Jackson
Judgment Date20 October 2017
Neutral Citation[2017] EWCA Civ 1643
Docket NumberCase No: C1/2016/2001
Date20 October 2017

[2017] EWCA Civ 1643

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PLANNING COURT

MR JUSTICE OUSELEY

[2016] EWHC 968 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Jackson

Lord Justice McCombe

and

Lord Justice Lindblom

Case No: C1/2016/2001

Between:
St Modwen Developments Ltd.
Appellant
and
(1) Secretary of State for Communities and Local Government
(2) East Riding of Yorkshire Council
(3) Save our Ferriby Action Group
Respondents

Mr Christopher Young and Mr James Corbet Burcher (instructed by Irwin Mitchell LLP) for the Appellant

Mr Richard Honey (instructed by the Government Legal Department) for the First Respondent

Mr Paul Tucker Q.C. and Mr Freddie Humphreys (instructed by East Riding of Yorkshire Council) for the Second Respondent

Ms Emma Reid-Chalmers ( Pro bono instructed by direct access) for the Third Respondent

Hearing date: 8 June 2017

Lord Justice Lindblom

Introduction

1

The complaint in this appeal is that the Government's planning policy for housing development in the National Planning Policy Framework ("the NPPF") – in particular, the policy for a five-year supply of housing land in paragraph 47 – was misunderstood and misapplied in a decision on a statutory appeal against the refusal of planning permission. The appeal is by no means the first of its kind. It raises no new point of law.

2

The appellant, St Modwen Developments Ltd., appeals against the order of Ouseley J., dated 28 April 2016, dismissing its application under section 288 of the Town and Country Planning Act 1990 challenging the decisions of the first respondent, the Secretary of State for Communities and Local Government – in a decision letter dated 25 June 2015 – to dismiss two appeals under section 78 of the 1990 Act against the refusal of planning permission by the second respondent, East Riding of Yorkshire Council, for a large development of new housing on land at Brickyard Lane, Melton Park, about 13 kilometres to the west of Hull. The third respondent, Save Our Ferriby Action Group, was an objector to the proposals.

3

The appeal site extends to about 38 hectares, in three parcels, the largest of which is about 35 hectares to the south of Monks Way, straddling Brickyard Lane. Access to it is gained from the A63 trunk road to its north. The village of Melton lies to the north of the A63, the village of North Ferriby to the south, the town of Elloughton-cum-Brough about two kilometres to the west. Much of the site had been allocated for employment development in the development plan – the Beverley Borough Local Plan (1996) and the Joint Structure Plan for Kingston upon Hull and the East Riding of Yorkshire (2005) – and also in the emerging East Riding Local Plan. The first of the two schemes before the Secretary of State, the scheme in "Appeal A", was for up to 510 dwellings; the second, in "Appeal B", for up to 390 dwellings, with 7.7 hectares of land for "employment" uses. The council's reasons for refusing planning permission, for both schemes, referred to the loss of employment land, conflict with the settlement hierarchy, and prejudice to the progress of the emerging local plan. Both appeals were recovered for determination by the Secretary of State. They were heard at an inquiry that lasted 20 sitting days in November 2013 and April, May and August 2014, and was eventually closed in September 2014. The inspector submitted her report to the Secretary of State on 2 March 2015, recommending that both appeals be dismissed. In his decision letter the Secretary of State agreed with that recommendation and accordingly dismissed both appeals.

4

The challenge before Ouseley J. was pursued on four grounds, all of which he rejected. The appeal before us is more confined. I granted permission to appeal on 11 November 2016. When I did so, I said the argument presented on behalf of St Modwen seemed "more elaborate than it need be". I accepted, however, there were matters fit for consideration by this court – in particular, the concept of "a supply of specific deliverable sites …" in paragraph 47 of the NPPF.

The issues in the appeal

5

There are seven grounds of appeal, corresponding broadly to the first of the four grounds pursued in the court below – described by Ouseley J. as "Ground 1: Housing land supply". At the hearing counsel agreed that those seven grounds present us with three main issues, which relate closely to each other, but in a logical sequence are these:

(1) Did the Secretary of State misinterpret or misapply government policy for the supply of housing in paragraph 47 of the NPPF, and, in particular, the concepts of "supply" and "delivery", and were his relevant reasons clear and adequate (grounds 5 and 6)?

(2) Did the Secretary of State misdirect himself, or fail to provide clear and adequate reasons, in his conclusions on the council's housing trajectory (grounds 1 to 4)?

(3) Did the Secretary of State err in law in his conclusions on the council's record of housing delivery (ground 7)?

The principles on which the court will act in a section 288 challenge

6

In my judgment at first instance in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) (at paragraph 19) I set out the "seven familiar principles" that will guide the court in handling a challenge under section 288. This case, like many others now coming before the Planning Court and this court too, calls for those principles to be stated again – and reinforced. They are:

"(1) Decisions of the Secretary of State and his inspectors in appeals against the refusal of planning permission are to be construed in a reasonably flexible way. Decision letters are written principally for parties who know what the issues between them are and what evidence and argument has been deployed on those issues. An inspector does not need to "rehearse every argument relating to each matter in every paragraph" (see the judgment of Forbes J. in Seddon Properties v Secretary of State for the Environment (1981) 42 P. & C.R. 26, at p. 28).

(2) The reasons for an appeal decision must be intelligible and adequate, enabling one to understand why the appeal was decided as it was and what conclusions were reached on the "principal important controversial issues". An inspector's reasoning must not give rise to a substantial doubt as to whether he went wrong in law, for example by misunderstanding a relevant policy or by failing to reach a rational decision on relevant grounds. But the reasons need refer only to the main issues in the dispute, not to every material consideration (see the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council and another v Porter (No. 2) [2004] 1 W.L.R. 1953, at p. 1964B–G).

(3) The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 W.L.R. 759, at p. 780F–H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision (see the judgment of Sullivan J., as he then was, in Newsmith v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74, at paragraph 6).

(4) Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context. A failure properly to understand and apply relevant policy will constitute a failure to have regard to a material consideration, or will amount to having regard to an immaterial consideration (see the judgment of Lord Reed in Tesco Stores v Dundee City Council [2012] P.T.S.R. 983, at paragraphs 17 to 22).

(5) When it is suggested that an inspector has failed to grasp a relevant policy one must look at what he thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the policy in question (see the judgment of Hoffmann L.J., as he then was, South Somerset District Council v The Secretary of State for the Environment (1993) 66 P. & C.R. 80, at p. 83E–H).

(6) Because it is reasonable to assume that national planning policy is familiar to the Secretary of State and his inspectors, the fact that a particular policy is not mentioned in the decision letter does not necessarily mean that it has been ignored (see, for example, the judgment of Lang J. in Sea Land Power & Energy Limited v Secretary of State for Communities and Local Government [2012] EWHC 1419 (QB), at paragraph 58).

(7) Consistency in decision-making is important both to developers and local planning authorities, because it serves to maintain public confidence in the operation of the development control system. But it is not a principle of law that like cases must always be decided alike. An inspector must exercise his own judgment on this question, if it arises (see, for example, the judgment of Pill L.J. in Fox Strategic Land and Property Ltd. v Secretary of State for Communities and Local Government [2013] 1 P. & C.R. 6, at paragraphs 12 to 14, citing the judgment of Mann L.J. in North Wiltshire District Council v Secretary of State for the...

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