The Queen (on the application of David Tate) v Northumberland County Council
| Jurisdiction | England & Wales |
| Judge | Her Honour Judge Belcher |
| Judgment Date | 30 March 2017 |
| Neutral Citation | [2017] EWHC 664 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 March 2017 |
| Docket Number | Case No: CO/4198/2016 |
[2017] EWHC 664 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Leeds Combined Court Centre,
1 Oxford Road, Leeds, LS1 3BG
Her Honour Judge Belcher
Case No: CO/4198/2016
Miss Annabel Graham Paul (instructed by Harrison Grant Solicitors) for the Claimant
Mr Juan Lopez (instructed by Northumberland County Council Legal Services) for the Defendant
Hearing date: 22 February 2017
This is a judicial review of the Defendant's decision dated 6 July 2016, taken by its strategic planning committee, to grant outline planning permission for the erection of a two-storey, five bed residential dwelling with associated curtilage, parking and access, on land west of Bramblings, Tranwell Woods near Morpeth (the "Decision"). All references to the trial bundle in this judgment will be by capital letter "B" followed by the relevant page number.
This is the third challenge by way of judicial review to the grant of outline planning permission for this development. The original decision was quashed by this court (CO/6007/2014) on 3 March 2015 because the Defendant had failed properly to apply the relevant Green Belt policy. Following the quashing of the planning permission, the Defendant re-determined the matter, and the further grant of planning permission was quashed by this court on 16 April 2016 because the Defendant had failed to apply policy H7 of the local plan (CO/178/2016). This judicial review is a challenge to the second redetermination. The Claimant accepts that the specific errors which resulted in the previous planning permissions being quashed, have not been repeated.
There is no dispute between the parties that the land in question is within the Green Belt, and that accordingly the provisions of the National Planning Policy Framework ("NPPF") relating to the protection of Green Belt land apply. The relevant paragraphs are 79 to 92 of the NPPF (B:509–511). The NPPF notes that the fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open. Green Belt also assists in safeguarding the countryside from encroachment. By definition, a local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances (Paragraphs 89 and 87 NPPF). However, paragraph 89 NPPF includes a list of exceptions in which new buildings will not necessarily be considered inappropriate. It follows that in cases falling within the exceptions in paragraph 89 NPPF, it is not necessary for there to be very special circumstances before planning permission is granted. The exceptions listed in paragraph 89 NPPF include "limited infilling in villages". The Decision in this case in favour of the grant of planning permission was based on that exception, namely that the proposed development amounted to limited infilling in a village.
That Decision is challenged in these proceedings both in relation to the conclusion that Tranwell Woods is a "village", and in relation to the conclusion that the proposal constitutes "limited infilling". The grounds of the challenge are that in reaching its decision the Defendant has
i) misinterpreted the meanings of "village" and "limited infilling" in the context of policy,
ii) that the decision is irrational on the facts,
iii) that the decision is inconsistent with other decisions and other parts of the Officer's report (the "OR") which was prepared for the planning committee, and further is inconsistent with the recently adopted Neighbourhood Plan,
iv) that the decision is inadequately reasoned.
There was a dispute between counsel as to whether the challenge based on inadequacy of reasons was directed only to "limited infilling", or whether it also extended to "village". Whilst the grounds listed at paragraph 10 of the Grounds of Challenge (B:11) appear to challenge the inadequacy of reasons in relation to both aspects of the matter, the detail given in relation to the inadequacy of reasons in paragraph 18 of the Grounds (B:18) is directed to the absence of reasoning in relation to "limited infilling". In response to questions from me, Miss Graham Paul conceded that the reasons challenge could only properly be directed to the question of "limited infilling", and she made no application to amend to extend the reasons challenge to "village".
I also sought clarification from Miss Graham Paul as to paragraph 20 of her Grounds (B:15) which, at least on one reading, appears to be inviting this Court to provide an appropriate definition of village: "…..So that a consistent interpretation can be adopted". It is no part of the function of this Court to provide definitions for terms which the legislature has deliberately chosen not to define. Miss Graham Paul accepted that she was not asking for an authoritative definition from this Court.
There was one further matter which required clarification. Miss Graham Paul characterises the OR, and the Decision made in reliance upon it, as "….trying to squeeze a square peg into a round hole in order to get around the Green Belt status of the site". In response to questions from me, Miss Graham Paul accepted that she was not asserting improper motivation or malfeasance either by the officer or the strategic planning committee. She advised me that she had used the description of a square peg into a round hole simply to indicate that Tranwell Woods would not fit into the definition of village, and to illustrate that it was irrational.
The Law
The parties helpfully provided me with an agreed chronology and an agreed summary of legal propositions. The following is taken from that document. The NPPF is a mandatory material planning consideration in decision taking. The interpretation of planning policy, including the NPPF, is a matter of law for the court ( Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at 780). Whether or not a proposed development constitutes limited infilling in a village for the purposes of paragraph 89 NPPF is a question of planning judgement and the answer to that question would depend upon an assessment of the position on the ground ( Wood v Secretary of State for Communities and Local Government and Gravesham BC [2015] EWCA Civ 195 at [12]).
The purpose of an OR is not to decide the issue in question, but to inform the Members of the relevant considerations relating to the application. When challenged, planning officers' reports are not to be subjected to the same exegis that might be appropriate for the interpretation of a statute. What is required is a fair reading of the planning officer's report as a whole. In construing reports, it has to be borne in mind that they are addressed to a "knowledgeable readership", including council members "who by virtue that membership, may be expected to have a substantial local and background knowledge". ( R v Mendip DC ex parte Fabre (2000) 80 O & CR 500 at 500).
Reasons must be intelligible and adequate ( University of Bristol v North Somerset Council [2013] EWHC 231 (Admin). Reasons must be given on the principal controversial issues ( South Bucks v Porter (No 2) [2004] 1 WLR 1953 at [41]–[42]). It is for the Claimant to satisfy the court that any lacuna in the stated reasons is such as to raise a "substantial doubt" as to whether the decision affords a ground for quashing. Reasons can be briefly stated ( R (oao Birchall Gardens LLP v Hertfordshire CC [2016] EWHC 2794 (Admin) [at 72, 82]).
In addition to the above which was taken from the "Agreed Legal Propositions" document, there is no dispute that whilst the interpretation of planning policy, including the NPPF, is a matter of law for the court, the weight to be given to the NPPF and the application of it is a matter of judgement for the decision maker, subject to the bounds of rationality. The role of the court is, of course, restricted to a review of the lawfulness of the decision, and it is not for the court to make its own assessment of the merits. Matters of planning judgement are within the exclusive province of the local authority.
The "Village" Challenge
Part of Miss Graham Paul's case was that the question of what amounts to a village is to be construed restrictively, bearing in mind that the purpose of the NPPF is to protect Green Belt. She submitted that the purpose of the exception is the promotion of a policy of continued vitality and operation of villages in the Green Belt, by making a village more dense, rather than permitting sprawling development into countryside. She submitted that the government could have referred to areas of development in close proximity to a village in the NPPF had it wanted to do so, but it chose the word "village" in the exception. She submitted the word "village" must be there for a reason.
Whilst paragraphs 80–92 of the NPPF are headed "Protecting Green Belt land" and are plainly directed to construction of new buildings generally being inappropriate in Green Belt, the exceptions listed in paragraph NPPF are precisely that, "exceptions". They are entirely separate from paragraph 87 which requires that inappropriate development should not be approved except in very special circumstances. The exceptions listed in paragraph 89 are exceptions to the requirement that a local planning authority should regard construction of new buildings as inappropriate. In those circumstances, in my judgment, the exceptions are to be construed on their face, and the general policy restricting development in the Green Belt does not assist when considering what is a "village".
Tranwell Woods is set within an area of open...
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