Stop Pyestock Blot Act Today v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judgment Date | 27 May 2010 |
| Neutral Citation | [2010] EWHC 1520 (Admin) |
| Docket Number | CO/11714/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 May 2010 |
[2010] EWHC 1520 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand
London WC2A 2LL
Before: John Howell Q.C.
(Sitting as a Deputy Judge)
CO/11714/2009
MR. PAUL STINCHCOMBE (instructed by Peyto Law, Fleet, Hampshire) appeared on behalf of the Claimant
MR. JAMES STRACHAN (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
MR. JOHN LITTON QC (instructed by Marrons Solicitors, Leicester) appeared on behalf of the first and second Interested Parties
1. THE DEPUTY JUDGE: This is an application under section 288 of the Town and Country Planning Act 1990 by Stop Pyestock Blot Act Today (“SPLAT”) to quash a decision of the Secretary of State for Communities and Local Government to grant planning permission for the development of part of the Defence Research Agency's Pyestock complex in Farnborough, Hampshire.
Introduction
2. The site is located in a strategic gap which was identified in the Hampshire County Structure Plan 1996-2011 (“the Structure Plan”) between Fleet and Farnborough. It extends to 47.5 hectares and is surrounded by large stands of largely coniferous forest. It has been substantially developed since the early 1940s. Much of the site is occupied by an array of industrial style buildings of different sizes and heights. It also contains a variety of structures and infrastructure such as tanks, flews, pipework, roads, hardstanding and parking areas. Between the developed areas there are grassed open areas.
3. In February 2003 a certificate of lawful existing use and development (“CLEUD”) was issued in respect of land including the appeal site for “research and development use together with office, storage and ancillary uses in Class B1, B2 and B8, along with nursery/creche, shop and assorted sports facilities Class A1, A3, D1 and D2”. The accompanying plan shows five zones. The appeal site is included within zone 1. The First Schedule includes the following description of zone 1:
“The site is used as a whole for research and development of products or processes within Use Class B1(b) with uses of individual ancillary buildings more accurately described in appendix A. The latter includes a Schedule of the buildings, which are individually identified with the use and Use Class specified.”
4. The Secretary of State considered two applications for planning permission at the site made by the First and Second interested parties, Prudential Property Investment Managers Ltd and Astral Developments Ltd, (“the developers”). Both applications envisaged demolition of many of the existing buildings on the site, the retention of 7338 m 2 of existing buildings in their current use and the construction of 126,216 m 2 of new floor space for Class B8 use. Class B8 use is use for storage or as a distribution centre. The first application submitted on March 22nd 2007 was a pure outline application which was not determined within the prescribed time by the local planning authority, Hart District Council (“the Council”). The second application was a detailed application for permission which was submitted on December 21st 2007. It was refused by the Council on March 25th 2008.
5. The developers accordingly appealed to the Secretary of State against a deemed refusal of the first application and against an actual refusal of the second by the Council. The Secretary of State appointed Christina Downes BSc DipTP MRTPI to hold a public local inquiry into the two appeals. It was held on 15 days between November 25th 2008 and January 9th 2009. SPLAT are a community group formed in 2005 to represent local views about the redevelopment of the site. They appeared at the inquiry to oppose the grant of planning permission.
6. The inspector's report to the Secretary of State in March 2009 is a comprehensive and lucid account of the cases advanced at the inquiry which also set out her conclusions and recommendations in respect of the appeals. As she put it, this was:
“a finely balanced case but it is my overall conclusion that the identified environmental harm is of overriding importance and for this reason alone I recommend that both appeals be dismissed.”
7. The Secretary of State's decision was communicated by letter dated September 1st 2009(“DL”). He disagreed with the inspector's recommendation, concluding that:
“… the benefits which the appeal proposals would bring outweigh any potential additional impact they may have on the integrity of the [Strategic] Gap and the character and appearance of the area.”
Accordingly, he allowed the appeals and granted planning permission on each application made by the developers for the redevelopment of the site.
8. This application is not of course an appeal on the planning merits. On an application under section 288 of the Town and Country Planning Act 1990 the court may only quash the decisions impugned if they were outwith the powers conferred on the Secretary of State or if the claimants have been substantially prejudiced by a failure on the part of the Secretary of State to comply with a relevant requirement, in this case the requirement to give reasons.
9. On behalf of SPLAT, Mr. Paul Stinchcombe seeks to impugn the decision to grant planning permission on these appeals essentially on three grounds. He contends that:
(i) The Secretary of State erred in law in determining that the proposals were overall in accordance with the development plan, although they did not accord with the policy in the Local Plan for preserving the Strategic Gap and a specific policy in that Plan for the development of this site, and that, accordingly, he failed to comply with section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”);
(ii) In any event the Secretary of State failed to have regard to a material consideration, namely the possibility that the site could be redeveloped in a manner which would achieve the same or similar benefits without causing the environmental harm associated with the proposals or, alternatively, that the Secretary of State failed to give any reasons why the proposals should be granted permission given that possibility; and
(iii) The Secretary of State's conclusion, if he reached it, that the benefits of the proposals outweighed the environmental harm associated with them was irrational when the same or similar benefits could be secured without that harm.
The Development Plan
(a) background
10. The Secretary of State was required in accordance with section 38(6) of the 2004 Act to determine these appeals in accordance with the development plan unless material considerations indicated otherwise. For the purpose of this requirement the development plan comprises the relevant Regional Spatial Strategy and the Development Plan documents (taken as a whole) which had been adopted or approved for the area: see section 38(3) of the 2004 Act. The documents which comprised the development plan in this case changed between the time of the local planning inquiry and the date of the Secretary of State's decision. At the time of the inquiry the relevant documents were the Regional Planning Guidance for the South East (“RPG9”), the Structure Plan and the saved policies of the Hart Local Plan (Replacement) 1996-2001 (“the Local Plan”).
11. In the Structure Plan strategic gaps were designated to protect those areas of land which, although not necessarily of the highest visual attractiveness, had particular importance as open and undeveloped land. Policy G1 of the Structure Plan provided that:
“To prevent neighbouring urban areas from merging into one another, strategic gaps, comprising land which has a predominantly open and/or rural appearance, will be maintained between…Fleet and Aldershot/Yately…the precise boundaries of these gaps will be defined in local plans with the objectives of preventing coalescence and protecting the separate identity and amenity of the urban areas they separate. Only land necessary to achieve these long-term objectives will be included.
Permission will only be granted for development even in accordance with other policies in the Plan where: (i) it cannot be more suitably located elsewhere; or (ii) it would not compromise, individually or cumulatively with other existing or proposed development, the integrity of the gap.”
12. The Local Plan contained two policies of particular relevance to this application. The first is CON 19. It provided that:
“Development will not be permitted which would diminish the following defined strategic gaps physically or visually…Fleet and Aldershot/Yately.”
The other Local Plan policy of relevance was DEV12. This provided that:
“Within ‘area A’ of the test and evaluation establishment at Pyestock, redevelopment for employment uses will be permitted provided that neither the rural character of the locality, nor the open nature of the strategic gaps, is adversely affected.”
The explanatory text to this policy stated that:
“This area shown on the proposals map forms the main part of the Defence Research Agency's Pyestock complex comprising a variety of office, administrative and research buildings, as well as industrial and engineering buildings. Should redevelopment of the site occur, it will be important to maintain existing employment levels whilst retaining the rural and open nature of the strategic gap between Fleet and Farnborough. The...
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