Thame Town Council v Secretary of State for Housing, Communities and Local Government

JurisdictionEngland & Wales
JudgeMrs Justice Lang
Judgment Date16 February 2021
Neutral Citation[2021] EWHC 291 (Admin)
Docket NumberCase No: CO/1720/2020
CourtQueen's Bench Division (Administrative Court)
Date16 February 2021

[2021] EWHC 291 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Lang DBE

Case No: CO/1720/2020

Between:
Thame Town Council
Claimant
and
(1) Secretary of State for Housing, Communities and Local Government
(2) Angle Property (PCDF IV Thame) LLP
(3) South Oxfordshire District Council
Defendants

Jack Parker (instructed by Richard Buxton Solicitors) for the Claimant

Robert Williams (instructed by the Government Legal Department) for the First Defendant

Paul Brown QC (instructed by Forsters LLP) for the Second Defendant

The Third Defendant did not appear and was not represented

Hearing date: 20 January 2021

Approved Judgment

Mrs Justice Lang
1

The Claimant applies for a statutory review, pursuant to section 288 of the Town and Country Planning Act 1990 (“TCPA 1990”), of the decision dated 27 March 2020, made by an Inspector appointed on behalf of the First Defendant (“the Secretary of State”), to allow an appeal by the Second Defendant (“Angle”) and grant planning permission for the re-development of land at DAF Trucks Ltd, Eastern Bypass, Thame, OX9 3FB (“the Site”).

2

The Claimant is the parish authority for the market town of Thame in Oxfordshire. Angle is a property development company which owns the Site. The Third Defendant (“the Council”) is the local planning authority for the area in which the Site is situated, which refused Angle's application for planning permission on 27 February 2019.

Planning history

3

The Site, known as Kingsmead Business Park, is 1.4 km to the east of Thame Town Centre. It is approximately 4.2 hectares in size, and comprises a warehouse, with an associated service yard, and a two storey office building with a large car park. The Site is currently vacant. The offices were occupied by DAF Trucks until July 2018. The warehouse was occupied by another business until July 2017.

4

On 10 September 2018, Angle applied for:

i) outline planning permission (all matters reserved except access) for demolition of existing buildings, and development of 1,511 square metres of offices within Class B1, and up to 129 dwellings within Class C3, and associated works; and

ii) full planning permission for erection of a 68 bed care home within Class C2 and associated access, vehicular parking, landscaping, ancillary infrastructure and other works.

5

The Site has the status of an existing “employment site” for the purposes of the Council's development plan policies (hereinafter “the Policies”), which seek to resist the loss of such sites.

6

Policy E6 of the South Oxfordshire Core Strategy (“SOCS”) provides, so far as is material:

“Proposals for the redevelopment or change of use of redundant land or buildings in employment … use to non-employment uses will be permitted if:

(i) …..

(ii) the existing use is no longer economically viable and the site has been marketed at a reasonable price for at least a year for that and any other suitable employment or service trade uses.”

7

Paragraphs 6.21 to 6.24 of the supporting text clarify the purpose of the policy:

i) The district is an area of economic growth and demand for premises is usually high.

ii) There is net out-commuting from the district and therefore it is important that local job opportunities are retained. The provision and retention of local employment opportunities contributes to the aim of the Structure Plan and Local Plan to reduce the need to travel and thus minimise congestion, pollution and energy use.

iii) It is important to retain the main employment sites in towns like Thame, in order to maintain a reasonable balance of employment and residential uses within them.

iv) Employment in the towns supports their role as local service centres.

v) Service trades and builders, which provide essential services to the residents of the district, often have difficulty in finding suitable premises.

8

Policy WS12 of the Thame Neighbourhood Plan (“TNP”) provides, so far as is material:

Retain existing employment land in employment use

Existing employment sites outside the town centre boundary must remain in employment use (B1, B2 or B8).

8.11 Proposals for the redevelopment or change of use of redundant land or buildings in employment …. use to non-employment uses will only be permitted if the existing use is no longer economically viable and the site has been marketed at a reasonable price for at least a year for that and any other suitable employment or service trade uses.”

9

Prior to applying for planning permission, Angle did not market the Site as a whole as required by the Policies. Instead, Angle excluded the office building from the marketing exercise, acting upon pre-application advice given to it by a planning officer at the Council.

10

The justification put forward for this approach was that approval in principle for a change of use from office use to residential use had already been granted. On 8 September 2017, the Council had granted prior approval for a change of use of the office building and car park at the Site (Class B1) to residential use (Class C3), to comprise 45 flats with ancillary facilities and parking. The informatives confirmed that:

i) development had to be completed within a period of 3 years starting with the prior approval date;

ii) the prior approval decision “relates solely to the proposed change of use of the building and not any proposed external alteration to it. Any changes may require planning permission and/or approval under the Building Regulations”.

11

A further grant of prior approval, excluding the car park, was granted in January 2018.

12

Although the Officer Report recommended that planning permission should be granted, the Planning Committee resolved to refuse planning permission. The refusal notice dated 27 February 2019 gave three reasons for refusal, but two of those reasons are not relevant to this claim. The first reason for refusal was that:

“1. The proposed development would result in the loss of an existing employment site and it has not been demonstrated that the site is no longer economically viable as the marketing exercise undertaken is considered to be inadequate and fails to cover the whole of the site. As such the proposed development conflicts with Policy E6 of the adopted South Oxfordshire Local Plan 2011 and Policy WS12 of the Thame Neighbourhood Plan.”

13

Angle appealed the refusal of planning permission to the Secretary of State, who appointed an Inspector (Mr Chris Baxter BA (Hons) DipTP MRTPI) to determine the appeal. The Inspector held a hearing on 11 February 2020, and made a Site visit on 11 February 2020.

The Inspector's decision

14

The Inspector identified the effect of the proposals on employment land as a main issue in the appeal at paragraph 6 of the decision letter (DL6). He concluded that the proposal was contrary to the Policies because, as the office building part of the appeal site had not been included in the marketing exercise, it had not been demonstrated that the whole of the appeal site was no longer economically viable (DL7 – 10).

15

The Inspector found that the office building benefited from an extant prior approval for its conversion to flats which did not expire until September 2020, which Angle described as a “fall back” position. The Inspector said that, while there was little evidence of a house builder attached to the scheme, the building was empty and “it is a real possibility that building works can commence prior to September 2020 in order to convert the office building into residential flats. On this basis, I attach significant weight to the extant Prior Approval scheme” (DL11).

16

At DL12, the Inspector concluded:

“Section 38(6) of the Planning and Compulsory Act 2004 requires that planning applications and appeals must be determined in accordance with the development plan unless material considerations indicate otherwise. Therefore, I conclude that whilst the proposal would conflict with Policy E6 of the SOCS and Policy WS12 of the TNP, this is outweighed by the fact that the office building part of the appeal site benefits from an extant Prior Approval and the submitted marketing exercise demonstrates that the warehouse part of the site is no longer viable.”

Legal framework

17

The parties referred to the summary of relevant principles set out by Lindblom LJ in St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2017] EWCA Civ 1643, [2018] PTSR 746, at [6] – [7].

(i) Applications under section 288 TCPA 1990

18

Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with, and in consequence, the interests of the applicant have been substantially prejudiced.

19

The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimant must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.

20

The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties Ltd v Secretary of State for the Environment (1981) 42 P & CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:

“An application under section 288 is not an opportunity for a review of the planning merits…..”

21

In Hopkins Homes v Secretary of State for Communities and Local Government [2017] 1 WLR 1865, Lord Carnwath said, at [26], that claimants should “distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and...

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