The Queen (on the application of Leckhampton Green Land Action Group Ltd) v Tewkesbury Borough Council Redrow Homes Ltd and Another (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holgate |
| Judgment Date | 09 February 2017 |
| Neutral Citation | [2017] EWHC 198 (Admin) |
| Docket Number | Case No: CO/2872/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 February 2017 |
and
[2017] EWHC 198 (Admin)
The Hon. Mr Justice Holgate
Case No: CO/2872/2016
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE PLANNING COURT
Bristol Civil and Family Justice Centre
2 Redcliff Street, Bristol
BS1 6GR
David Wolfe QC and Ashley Bowes (instructed by Leigh Day LLP) for the Claimant
Jenny Wigley (instructed by Tewkesbury Borough Council) for the Defendant
Martin Kingston QC and James Corbet Burcher (instructed by Redrow Homes Limited) for the 1 st Interested Party
Hearing date: 29 November 2016
Approved Judgment
Introduction
The Claimant applies for judicial review of the decision by the Defendant, Tewkesbury Borough Council ("TBC"), to grant planning permission for the construction of 377 dwellings on land to the west of Farm Lane, Shurdington, Gloucestershire ("the Farm Lane site").
On 6 July 2016 Lewis J granted permission to apply for judicial review on grounds 1 to 3 of the Claimant's skeleton. He refused permission for the Claimant to argue an additional ground which alleged that the Defendant failed to take into account environmental information relating to the cumulative impacts of the proposed development together with residential development on a neighbouring site, which together made up the South Cheltenham Urban Extension in an emerging development plan. In the substantive hearing before me of grounds 1 to 3, the Claimant renewed its application for permission to raise this argument as ground 4. All parties agreed that oral submissions on this point should be heard in full and the matter dealt with in this judgment.
The Claimant's documentation says little about its status or composition, other than that it is said to represent about 1,100 residents living in the vicinity of the Farm Lane Site and has been actively involved in opposing development proposed on that site.
On 10 October 2014 Redrow Homes Limited ("RHL"), the First Interested Party, made a planning application to the local planning authority, TBC, for development on the Farm Lane site. RHL is a house builder and owns the site. The Second Interested Party, Martin Dawn (Leckhampton) Limited ("MDLL") is described as having a charge over the site. MDLL has taken no active part in these proceedings.
The planning application was accompanied by an Environmental Statement ("ES") dated August 2014 because the proposal amounted to an "urban development project" within paragraph 10(b) of Schedule 2 to the Town and County Planning (Environmental Impact Assessment) Regulations 2011 ( SI 2011 No.1824) ("the EIA Regulations 2011") and was screened as "EIA development".
The Farm Lane site is one of a number of sites identified for housing development in Policy HOU1 of the Tewkesbury Borough Local Plan, covering the period January 2003 to January 2011. The Farm Lane site was allocated for the development of 360 dwellings in policy SD2, a policy dedicated to that site. By a direction made by the Secretary of State for Communities and Local Government ("SSCLG"), both policy HOU1 and policy SD2 have been "saved" and so continue to remain a part of the statutory development plan.
At the time of the decision under challenge, TBC acknowledged that it was unable to demonstrate a 5 year supply of housing land in accordance with paragraph 47 of the National Planning Policy Framework ("NPPF") and so it accepted that, by virtue of paragraph 49, saved policies in the Tewkesbury Borough Local Plan for the supply of housing, notably policy HOU1, should be treated as "out-of-date". The effect of this was that the presumption in favour of sustainable development contained in paragraph 14 of the NPPF applied to RHL's proposal, unless disapplied by one of the two exceptions contained in that paragraph.
The Farm Lane site lies on the southern fringes of Cheltenham and in the vicinity of the village of Leckhampton. It also lies to the north- east of the village of Shurdington. The site covers an area of about 15.41 ha and comprises agricultural land subdivided into fields by hedgerows. Farm Lane marks the eastern boundary of the site and Leckhampton Lane its southern boundary. The Lanes/Brizen Lane housing estate lies immediately to the north. Open agricultural fields adjoin the site to the west. The Farm Lane site is not the subject of any statutory or non-statutory landscape designation, but the Cotswolds Area of Outstanding Natural Beauty ("AONB") lies to the south. Green Belt designation applies to the areas to the south and west of the site.
It has long been recognised that Gloucester and Cheltenham are unable to meet the whole of their development requirements within their respective administrative areas. Partly as a result of the introduction by the Localism Act 2011 of the duty to co-operate in section 33A of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004"), Gloucester City Council, Cheltenham Borough Council and TBC have agreed to promote a joint development plan known as the Joint Core Strategy ("JCS"). The plan period runs to 2031. Roughly about one third of the new homes required is proposed to be met in the administrative area of the TBC which would include what in physical terms would amount to urban extensions of Gloucester and Cheltenham.
On 20 November 2014 the JCS was submitted to SSCLG for statutory examination under PCPA 2004 by an independent inspector. Policy SA1 of the submission draft of the JCS proposes strategic alterations on a number of sites, one of which would be "A6 South Cheltenham/Leckhampton." The draft plan proposes to allocate 1124 dwellings on the site as an "indicative total". The Farm Lane site forms the western part of the draft A6 allocation and represents that part which lies within the area of TBC. The remaining and larger part of the allocation, lying to the east of the Farm Lane site, falls within the administrative area of Cheltenham Borough Council.
The proposed development of the Farm Lane site is a matter of great local controversy. TBC received 809 representations on the planning application, of which 742 were letters of objection. Initially, Natural England raised an objection to the proposal in their letter dated 7 November 2014, because of a lack of information in the application as to its impact on the AONB. The Cotswolds Conservation Board ("CCB") (established under section 87 of the Countryside and Rights of Way Act 2000) also has statutory responsibilities in relation to the AONB. CCB responded that it had no objection to the development of the site for residential purposes, save that the proposed layout would have an unacceptable adverse impact on the AONB because of the inadequacy of the green buffer area proposed for the southern part of the site. On 7 November 2014 English Heritage (now Historic England) expressed their concern that insufficient information had been presented by the developer on the impact of the proposed development on heritage assets.
In order to address these objections, in May 2015 RHL submitted an amended layout and landscape strategy and a Built Heritage Assessment. The new layout proposed a significant increase in the size of the landscape buffer in the southern part of the site. TBC undertook further consultation, from which it is clear that English Heritage, Natural England and the CCB did not object to the proposal.
The processing of the application was handled by Joan Desmond, a Development Management Team Leader at TBC with nearly 30 years' experience of planning. She was responsible for preparing the officers' report to the meeting of TBC's Planning Committee on 29 September 2015. She explains in her witness statement that members of the Committee have not only a good deal of local knowledge but also "good planning knowledge with many of them having been members of the Committee for a numbers of years" (paragraph 17). She adds that:
"In order to maintain their knowledge and keep it up to date, Committee members receive regular training on both legal and planning policy matters."
Consequently, it is said that Committee members are familiar with such matters as heritage issues and the application of the statutory tests for the protection of the setting of listed buildings.
Mr Paul Skelton has been the Development Manager at TBC since 2009. He has been employed by the authority since 1991 and is a full member of the Royal Town Planning Institute. Mr Skelton is responsible for the overall direction and coordination of (inter alia) planning applications within TBC. He has a delegated function to determine the majority of planning applications submitted to the Council. All other planning applications are allocated to the Planning Committee. He usually checks most of the reports prepared by officers for the committee and did so in the case of the report on the Farm Lane application. The members of the Committee visited the site on 25 September 2015 in advance of their meeting.
On 29 September 2015 the Planning Committee resolved to delegate authority to Mr Skelton to permit RHL's application, subject to formal observations from the County Council as highways authority and the completion of a section 106 obligation to secure the infrastructure required for the development and to avoid prejudicing the delivery of the wider A6 strategic allocation.
Mr Skelton explains in his witness statement that officials of the SSCLG had been closely monitoring the Farm Lane application with a view to deciding whether it should be called in for determination by the minister. On 21 December 2015 the SSCLG issued a holding direction that TBC should not issue any grant of...
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