The Queen (on the application of Clive Gare) v Babergh District Council
| Jurisdiction | England & Wales |
| Judge | Mr Martin Rodger |
| Judgment Date | 26 July 2019 |
| Neutral Citation | [2019] EWHC 2041 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/407/2019 |
| Date | 26 July 2019 |
and
[2019] EWHC 2041 (Admin)
Mr M. Rodger QC, DEPUTY CHAMBER PRESIDENT OF THE UPPER
TRIBUNAL ( Lands Chamber)
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: CO/407/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jenny Wigley (instructed by Richard Buxton, Solicitors) for the Claimant
Ashley Bowes (instructed by Shared Legal Service) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 17, 18 July 2019
HTML VERSION OF JUDGMENT
Mr Martin Rodger QC:
The village of Hartest is a small settlement about 7 miles south of Bury St Edmunds in Suffolk. On 20 December 2018 the Defendant planning authority, Babergh District Council (“the Council”), granted planning permission, against the advice of its officers, for the erection of six single storey two and three-bedroom houses on part of a paddock off Lawshall Road on the eastern side of the village (“the Site”). The Site comprises about 0.46ha and adjoins the rear garden of a house called The Paddocks. It is outside the built-up area boundary of the village but within the Hartest conservation area and is part of a special landscape area.
The only indication of the Council's reasons for its decision are contained in the minutes of the planning committee meeting at which it was taken.
The claimant, Mr Gare, lives at 9 Green View, which overlooks the Site from a slightly elevated position on the south side of Lawshall Road. On 21 March 2019, Lang J granted him permission to seek judicial review of the defendant's decision on five grounds. At the hearing of the application Ms Jenny Wigley, who appeared on behalf of the claimant, applied to add an additional closely connected ground. Mr Ashley Bowes formally objected to that request on behalf of the defendant but sensibly agreed that the better course would be for the Court to reach a conclusion on the additional ground after hearing all of the argument.
In summary, the claimant's grounds are as follows (the additional ground for which permission is sought being number 5):
(1) Failure to give reasons for the decision to grant planning permission.
(2) Failure to determine whether or not, and the extent to which, the proposal complied with the development plan.
(3) Inconsistency in decision making and failure to explain a change in approach to the weight to be afforded to that part of the development plan, Policy CS2, concerning settlement pattern.
(4) Misinterpretation of Policy CS2, failure to give adequate reasons, and error on the part of officers in advising that it had reduced weight and should not be determinative of the application.
(5) A suggested misdirection by officers concerning the need for the defendant to determine whether relevant policies of the Core Strategy generally conform to the aims of the NPPF.
(6) A misdirection by officers in relation to development plan policy CS11 concerning development in or adjacent to hinterland villages.
The relevant development plan policies
The Babergh Core Strategy 2014, together with the saved policies of the Babergh Local Plan (Alteration No. 2) 2006 together comprise the statutory development plan.
Policy CS1 of the Core Strategy reflects the presumption in favour of sustainable development in paragraph 11 of the NPPF (2018 edition) and provides:
“Where there are no policies relevant to the application or relevant policies are out of date at the time of making the decision then the Council will grant permission unless material considerations indicate otherwise – taking into account whether:
i) any adverse impacts of granting permission would significantly and demonstrably outweigh the benefits, when assessed against the policies in the National Planning Policy Framework taken as a whole; or
ii) specific policies in that Framework indicate that development should be restricted.”
Policy CS2 of the Core Strategy is titled “Settlement Pattern Policy”. It sets out a strategy for future growth which is intended to operate until 2031 and identifies a hierarchy with three categories of settlement – towns/urban areas, core villages and “hinterland villages” — to which most development will be directed sequentially. A fourth category, the countryside, is dealt with separately.
Hartest is identified in CS2 as a hinterland village, in relation to which the policy states:
“Hinterland Villages will accommodate some development to help meet the needs within them. All proposals will be assessed against Policy CS11. Site allocations to meet housing and employment needs may be made in the Site Allocations document where circumstances suggest this approach may be necessary.”
Policy CS2 includes the following statement in relation to the countryside:
“In the countryside, outside the towns/urban areas, Core and Hinterland Villages defined above, development will only be permitted in exceptional circumstances subject to a proven justifiable need.”
“Countryside” is not defined in CS2 but paragraph 2.1.5.1 of the explanatory notes states that everywhere beyond the built-up areas of the urban / regeneration areas and core and hinterland villages, as defined by settlement development boundaries, is to be treated as open countryside. Paragraph 2.7.5 records that built-up area boundaries defined by the 2006 local plan saved policies remain in effect. Reference is also made to reviewing settlement boundaries and, if necessary, defining them in further development plan documents where appropriate.
Confirmation of the continuing relevance of built-up area boundaries in the 2006 local plan is found in paragraph 2.8.7.5 of the core strategy, which prefaces Policy CS11 concerning strategy for development for core and hinterland villages. The 2006 boundaries are there described as “a useful starting point” when considering the relationship between the existing pattern of settlement and proposed development and distinguishing between the built-up area and the countryside. Policy CS11 is then described as “intentionally provid[ing] greater flexibility for appropriate development beyond these i.e. [built-up area boundaries], for identified Core and Hinterland villages subject to specified criteria.”
Policy CS11 itself then sets out criteria to be addressed when considering development for core and hinterland villages. It acknowledges that not all will be relevant in every case, depending on the scale and location of the proposal. The criteria identified as applicable to development for core villages include the landscape, environmental and heritage characteristics of the village; the locational context of the village and the proposed development; the site location and the sequential approach to site selection; and locally identified needs, such as for affordable housing. The same considerations are to be applied to hinterland villages, which additionally are expected to demonstrate “a close functional relationship to the existing settlement”.
In R (East Bergholt Parish Council) v Babergh District Council & Agett [2016] EWHC 3400, Mitting J considered the meaning and relationship of Policies CS2 and CS11. He described the policies as “far from clear”, but rejected a submission by counsel then appearing for the defendant that they were in conflict and that CS11, which is intended to give greater flexibility, should prevail over CS2. At paragraph 18 Mitting J explained how the policies were to be reconciled:
“It is common ground that the Local Plan, must, if possible, be construed as a whole. A construction of Policies CS2 and 11 which combines both is possible. Development can take place outside the built-up area boundaries in the 2006 Local Plan or those to be shown in the Site Allocations document, if they fulfil the requirements of CS11 and if the Local Planning Authority are satisfied that the circumstances are exceptional and are subject to a proven justifiable need. Fulfilment of the requirements of policy CS11 may more readily permit the Local Planning Authority to be satisfied about both of the requirements for development in the countryside, as defined in paragraph 2.1.5.1, hence the greater flexibility, but they do not remove the need to address both. Only if satisfied that both requirements are met should planning permission be granted for a development outside the built-up area boundary of a Core Village.”
Although the focus in that case was there on core villages, there is no reason to take a different approach to the relationship between the two policies so far as they apply to hinterland villages.
The relevant facts
A previous application for outline permission to construct six two-storey dwellings on the Site was refused by the Council on 28 April 2016. Amongst the reasons given for refusal was that the proposal was contrary to Policies CS2 and CS11 as it would not be well related to the pattern of development in the settlement.
The current application was made in August 2017 at a time when the Council could not demonstrate a five-year housing land supply. Officers recommended refusal. Their reasons for doing so included the inconsistency of the proposal with the requirement of Policy CS11 that development should be in or adjacent to hinterland villages, and well related to the existing settlement; secondly, no exceptional circumstances had been identified justifying development in the countryside contrary to Policy CS2; thirdly, the proposal did not engage any of the special circumstances in paragraph 55 of the NPPF which may provide reasons for permitting new isolated homes in in the countryside.
The application was determined by the planning committee (at the request of a councillor)...
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