Swale Borough Council v Secretary of State for Housing Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 17 December 2020 |
| Neutral Citation | [2020] EWHC 3482 (Admin) |
| Docket Number | Case No: CO/1461/2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 December 2020 |
[2020] EWHC 3482 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Ross Cranston
Sitting as a High Court Judge
Case No: CO/1461/2020
William Upton QC (instructed by Sharpe Pritchard) for the Claimant
George Mackenzie (instructed by GLS) for Defendant (1)
Peter Village QC (instructed by Winckworth Sherwood) for Defendant (2)
Hearing dates: 8 December 2020
Introduction
This is a challenge by the claimant, Swale Borough Council (“the Council”), to a costs order made against it by a planning inspector appointed by the first defendant, the Secretary of State for Housing, Communities and Local Government (“the Secretary of State”). It followed the planning inspector's grant of planning permission to SW Attwood and Partners (“Attwood”), the second defendant, after it successfully appealed the Council's refusal of planning permission.
Mrs Justice Lang refused the Council permission to apply for statutory review of the costs decision on the papers. However, at an oral renewal hearing Tim Mould QC, sitting as a Deputy High Court judge, granted the Council permission on two grounds of the application.
Background
The background, in brief, is as follows. The Council is the planning authority; Kent County Council (“Kent CC”) is the education and highways authority.
Attwood had applied to the Council for outline planning permission for a development of up to 700 dwellings and supporting infrastructure in Minster-on-Sea, Isle of Sheppey, Kent. The application was made on 11 June 2018.
The Council's planning committee refused the application on 8 August 2019, although the report from the Council's planning officers had recommended approval. Four reasons were given for refusal: (1) the significant and demonstrable harm to the open, undeveloped character and appearance of the area and a failure to provide sufficient landscape mitigation; (2) the failure to secure a sufficient setting to Parsonage Farmhouse, a grade II listed building; (3) the failure to make provision for affordable housing, including affordable ownership housing, contrary to policies A12 and DM8 of the Swale Borough Local Plan, and paragraphs 61–64 of National Planning Policy Framework (“the NPPF”); and (4) the proposed transport improvements offered to address capacity issues within the local highway network were not sufficient to mitigate the harm caused by the additional traffic arising from the development, contrary to policies A12 and DM6 of the Local Plan and paragraph 109 of the NPPF.
Attwood appealed and a planning inspector was appointed. Attwood lodged its statement of case on 27 September 2019. The Council lodged its statement of case two months later, in November, which it revised the following month.
There was a case management conference, by telephone, on 6 December 2019. The inspector noted that the main issues for the inquiry would be the effect of the development on the character and appearance of the surrounding area; its effect on the setting of the grade II listed Parsonage Farmhouse; its effect on the provision of affordable housing in the borough, which the Council would review following a meeting of the planning committee on 17 December 2019; and the development's effect on the flow of traffic on the local road network.
There followed a number of statements of common ground. The Overarching statement of common ground of the 31 January 2020 had travelled through a number of iterations.
The appeal was heard 4–7 February 2020. The focus was on the first and second reasons that the Council had refused permission, character and appearance and heritage, since by the time of the hearing agreement had been reached over affordable housing and highways. Although it would not accord with the development plan as a whole, the inspector allowed the appeal and granted planning permission, along with the imposition of planning conditions and a section 106 undertaking.
At the end of the inquiry, Attwood submitted an engrossed section 106 Unilateral Undertaking dated 7 February 2020, the version agreed with the Council and Kent CC at the inquiry.
At the time the inspector issued his decision letter on the appeal, he also handed down a decision on the costs of the appeal. His conclusion was that the Council should bear Attwood's costs of the appeal as regards the issues of (a) affordable housing and (b) highways.
The affordable housing issue
The background to the affordable housing issue was a report on the economic viability of the proposal which the Council and Attwood had jointly commissioned from the consultants, Pathfinder. That covered both the proposed development and a scaled-down version. In a report in August 2018 Pathfinder had concluded that the proposed development was only marginally viable and could not provide any affordable housing. The scaled-down version, Pathfinder concluded, was even less viable.
In its updated report dated 12 December 2018 Pathfinder again concluded that the proposed development was only marginally viable and could not provide a full package of section 106 contributions.
Then in August 2019, as we have seen, affordable housing was the 3 rd of the reasons for the Council's refusal of planning permission.
On 18 December 2019 the Council's senior planning officer, emailed Attwood to confirm that the planning committee had met the previous day and decided that it would not defend reason 3, affordable housing, and that it would not challenge the viability evidence submitted with the application, in other words the Pathfinder report. However, the email added:
“If, however, the viability position is to change during the course of the appeal (for example, at the Case Management Conference call your client's barrister referred to a potential challenge to the KCC [Kent CC's] request for secondary school contributions), then the Council would expect this sum of money to be recycled within the s.106 to provide affordable housing…[W]e will be making this point as part of our case.”
Following the case management conference, on 18 December 2019, Kent CC emailed the planning inspectorate, copying in the parties, referring to its surprise that at the case management conference, for the very first time, it learnt that previously agreed secondary education contributions of £820,000 would be disputed and that no contributions would be provided.
There were a number of emails between the Council and Attwood following the 18 December withdrawal. In these Attwood maintained its position that there was not scope for affordable housing.
Attwood had commissioned Dr Lee to report on economic viability. In his proof of evidence, available on 7 January 2020, he had concluded that the scheme was not economically viable.
Discussions occurred between Attwood and Kent CC, and in a statement of common grounds on 13 January 2020 Atwood agreed with Kent CC that it would make a contribution to secondary education of £678,975.
The Council had had Pathfinder review Dr Lee's evidence and on 28 January 2020 called on Attwood to respond to the Pathfinder's analysis that it was wrong.
The Overarching statement of common ground of the 31 January 2020 recorded that policy DM8, Affordable Housing, provided at (1) that 0% affordable housing would be sought on the Isle of Sheppey, and at (6) that if evidence demonstrated that economic conditions, or the proposed characteristics of a development or its location, had positively changed the impact of viability of the provision of affordable housing, the Council would seek a proportion of affordable housing closer to the assessed level of need, or higher if development viability was not compromised.
The statement then recalled that the Council had not provided any evidence that the scheme was in conflict with the policy and on 17 December 2019 had resolved not to defend this reason for refusal. The statement continued:
“Following notice from the appellant [Attwood] that they were seeking to challenge the Secondary School contribution sought by Kent County Council, the Council did query whether this would release funding that could be made available for affordable housing. However, following the agreed position between K[ent] CC and the appellant on a revised secondary school contribution, and the acceptance of increased costs relating to highways works, the Council is satisfied that there is no surplus to be allocated towards affordable housing.”
On 5 February 2020 a statement of common ground on viability recorded that the parties agreed that the scheme was viable but could not make any contribution towards affordable housing. The statement contained a new table dealing with appraisal inputs and was signed by Dr Lee and the Council.
The highways issue
There were a number of highway issues which the inspector had to resolve. A particular issue in dispute between the Council and Attwood revolved around the Barton Hill Drive / Minster Road roundabout (“the Barton Hill junction”) and the Halfway Road / Minster Road / The Crescent signalised junction (“the Halfway Road junction”) (“the two junctions”).
As regards the junctions, Kent CC as the highways authority had written to the Council on 13 September 2018 that the junctions were unable to facilitate the level of development proposed without additional mitigation. A month later, on 12 October 2018, Kent CC reiterated that Attwood was requested to demonstrate an attempt to reduce the congestion at the two junctions.
In early 2019, on 12 February, Kent CC wrote to the Council that the measures Attwood had now agreed would provide...
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