Stroud District Council v Secretary of State for Communities and Local Government Gladman Developments Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 06 February 2015 |
| Neutral Citation | [2015] EWHC 488 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4082/2014 |
| Date | 06 February 2015 |
[2015] EWHC 488 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/4082/2014
Miss J Wigley (instructed by Stroud District Council) appeared on behalf of the Claimant
The Defendant did not attend and was not represented
Mr P Goatley (instructed by Irwin Mitchell) appeared on behalf of the Interested Party
This is a challenge under section 288 of the Town and Country Planning Act 1990 to a decision of an Inspector dated 21 July 2014 whereby he allowed an appeal against the decision of Stroud District Council refusing permission for a development of some 150 houses in land lying between King's Stanley and Leonard Stanley within the River Frome valley at the foot of the escarpment to the Cotswold Hills. It lay between 50 and 150 metres outside the boundaries of the Cotswold Area of Outstanding Natural Beauty ("AONB"). Three footpaths cross the site. From the footpaths, views towards the escarpment of the Cotswolds could be obtained. The Inspector defined the main issues as being the effect of the proposals on (a) the character and appearance of the area; (b) the natural beauty of the Cotswold's AONB; (c) coalescence between the two villages I have referred to; and (d) the balance between harm and benefit.
In paragraphs 10 to 12 he dealt with the first issue. He recognised that the development of the 8 hectares of agricultural land between the two settlements and outside the defined settlement boundaries would cause "some harm to the landscape". He said in 12:
"From my visit, I agree that there would be some harm to the character and appearance to the immediate vicinity including much more restricted views from the footpaths crossing the site."
The next section of his decision turned to the AONB. He described the views that he had obtained of the site from the AONB. He referred to the popular Cotswolds Way running roughly parallel with the boundary to the AONB; the appeal site was easy visible from nearby advantage points within the AONB; houses would be seen in front of those in the two villages. He had viewed the site along this section of the Cotswold Way just below Stanley Wood:
"In my assessment, initially at least, the new roofs and other finishes would be likely to stand out, and to jar, and have a significant impact on views across the valley from this section of the Cotswolds Way."
He went on, however, to say that with time and landscaping the development proposals would soften:
"Consequently, from just below Stanley Wood I find that in time the scheme would not cause significant harm to views out of the AONB."
He referred to other viewpoints from which he concluded that harm would either be minimal or the assertion of harm not credible.
In paragraph 16 he said that around half of Stroud District was within the AONB. Of the remainder, most of the land in it can probably be seen in views from somewhere within the AONB. Given the need for additional housing, it followed that views from the AONB were very likely to be affected by new housing development wherever it went.
He then dealt specifically with two paragraphs of the National Planning Policy Framework, paragraphs 115 and 116. I shall return to the former. Paragraph 116 dealt with major developments "in" AONBs. That does not apply to this case because no part of the development is "in" the AONB.
He was referred in the post-Inquiry submissions to the decision of the Court of Appeal in R(Cherkley Campaign Limited) v Mole Valley District Council [2014] EWCA Civ 567 and paragraph 44 in particular. In that case the Court of Appeal was concerned with the development abutting, and to a small extent actually falling within, an AONB. Richards LJ said at paragraph 44:
"The relevance of the golf course as a whole for the AONB, including such matters as its impact on visual perspectives, is not in doubt. It forms an aspect of the landscape issues covered inter alia by paragraph 115 of the NPPF and Policy REC12 of the Local Plan. The question here, however, is whether the golf course as a whole can properly be regarded as a development to which paragraph 116 of the NPPF applies."
It is plain that the thrust of that judgment deals with an NPPF policy irrelevant in these proceedings. Accordingly, the Inspector rightly recognised that Cherkley was of limited relevance.
He recorded in paragraph 17 that the Council had argued with reference to the statutory purpose and duty of the Cotswold's Conservation Board that the scenic beauty of the AONBs can also include their settings and views out and that Cherkley could be relevant in this context. He continued:
"I accept that, in extreme circumstances, a major development outside an AONB which caused a considerable harmful impact to its immediate landscape could have an adverse impact on the landscape and scenic beauty of an adjoining AONB. However, I have found that the impact would be less than significant in views out of the AONB and therefore give limited weight to this concern."
The penultimate sentence of that quote finds an ally in paragraph 11 of the Cotswold Conservation Board position statement, which is not a policy document with any statutory status.
The statutory duty to which he referred is section 85 of the Countryside and Rights of Way Act 2000, which provides that (for example in relation to planning decisions) a planning authority, and for that matter the Secretary of State, "shall have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty".
The Inspector then considered an argument in relation to another paragraph, paragraph 109, of the NPPF:
"The planning system should contribute to and enhance the natural and local environment by:
• protecting and enhancing valued landscapes … "
It had been argued, as he recorded it, that the site is a valued landscape "as it is valued by neighbouring residents". He continued:
"I accept that, currently, there is no agreed definition of valued as used in this paragraph. In the absence of any formal guidance on this point, I consider that to be valued would require the site to show some demonstrable physical attribute rather than just popularity. In the absence of any such designation, I find that paragraph 109 is not applicable to the appeal site. Similarly, I have studied footnote 9 to the NPPF but again note that it refers to land designated as an AONB which the appeal site is not."
Local Plan Policy NE8 only permitted development affecting the setting of the AONB if a number of criteria, including nature, siting and scale being in sympathy with the landscape, were satisfied. The policy has as a tailpiece the following:
"Major development will not be permitted unless it is demonstrated to be in the national interest and that there is a lack of alternative sites."
He said of this in paragraph 19:
"Although the proposed houses would undoubtedly have some impact, as detailed design and facing materials would be subject to reserved matters, landscape features and trees would be retained, and as the scheme would not cause significant harm to views out of the AONB, it would comply with the above criteria. Even if it were deemed to amount to major development, given the Council's lack of a 5 year HLS, there is a lack of alternative sites. On this issue, I conclude that the proximity of the AONB to the site should not be a bar to development."
He rejected next the coalescence argument. On sustainability, which included the question of the environmental role of the site, he said:
" … There would be some harm to the landscape, including immediate views, and this harm counts against the proposals."
In paragraph 28:
"Looked at in the round, I conclude that the moderate harm to the character and appearance of the area, the limited harm to the AONB, and the moderate harm (on balance) through wider accessibility difficulties, would not outweigh the economic and social benefits of new housing."
Overall, and returning to paragraph 14 of the NPPF, he concluded that the adverse impacts of granting permission would not "significantly and demonstrably outweigh the benefits" and he affirmed that in paragraph 40.
Miss Wigley appeared for the Council to argue four grounds. Ground 1 related to the Inspector's approach to valued landscape. Ground 2 related to the policy basis for the consideration of views towards the AONB but from outside it. Ground 3 related to the way he had described harm as moderate having found it as significant, initially at least. Ground 4 concerned the Inspector's approach to a major development in the setting of the AONB in Development Plan Policy NE8.
The Secretary of State did not appear, having indicated his willingness to concede that the decision should be quashed because of the way the Inspector had dealt with Policy NE8. He said he accepted that the decision should be quashed on the ground "that it is not evident on the face of the decision letter that the defendant's Inspector fully considered all elements of Local Plan Policy NE8". I take that as a reference to ground 4.
I deal first with ground 1. It is important to understand what the issue at the Inquiry actually was. It was not primarily about the definition of valued landscape but about the evidential basis upon which this land could be concluded to have demonstrable physical...
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