The Queen-on the application of Barry Zins v East Suffolk Council
| Jurisdiction | England & Wales |
| Judge | James Strachan |
| Judgment Date | 06 November 2020 |
| Neutral Citation | [2020] EWHC 2969 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 November 2020 |
| Docket Number | Case No: CO/93/2020 |
[2020] EWHC 2969 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Strachan QC (Sitting as a Deputy Judge of the High Court)
Case No: CO/93/2020
and
Mr David Forsdick QC (instructed by Sharpe Pritchard LLP) for the Claimant
Mr Robin Green (instructed by East Suffolk Council) for the Defendant
Hearing dates: 23 rd July 2020
Approved Judgment
James Strachan QC (Sitting as a Deputy Judge of the High Court):
Introduction
By a claim form dated 10 January 2020, the Claimant Barry Zins challenges a grant of planning permission by East Suffolk Council (“the Council”) to Active Urban (Woodbridge) Limited (“the Interested Party”) for the redevelopment of the Council's former office complex at Melton Hill, Melton (“the Site”) for:
“Residential development (100 no units) including 32 no affordable housing units (Class C3) plus a community space (91sq.m) (Class D) and a retail unit (157.7 sq.m)(A1/A2/A3), car parking, means of access and landscaping, all following demolition of the buildings on site.”
By his Amended Statement of Facts and Grounds, the Claimant contends that the Council erred in:
i) the approach adopted to the issue of affordable housing; and
ii) the application of the “tilted balance” in the determination of the planning application.
Permission was granted by Order of the Honourable Mr Justice Jay dated 1 st May 2020.
The substantive hearing took place by video conferencing with the co-operation of the parties. The Claimant was represented by Mr Forsdick QC. The Defendant was represented by Mr Green. I am very grateful to them for the clarity and helpfulness of their written and oral submissions. The Interested Party did not appear and was not represented.
Factual Background
The Site
The Site was previously occupied by the former Suffolk Coastal District Council (“SCDC”) for various local authority functions before SCDC moved out to new purpose-built premises elsewhere.
In August 2014 SCDC produced a Planning Position Statement for the Site. Its stated purpose was to inform potential developers of SCDC's requirements and expectations in relation to potential future uses. It sought to set out a planning framework for the assessment of future planning applications. The statement was not subject to consultation and was not formally adopted. It identified that it did not bind SCDC as a local planning authority to grant planning permission for any particular development.
Residential C3 use for flats and family housing, including affordable tenure, was identified as a use that would be acceptable in principle. The statement suggested the developable area had the potential to accommodate a scheme incorporating a variety of housing sizes, including the provision of affordable homes and lifetime homes. It also suggested that the majority of new housing that had been delivered recently in Woodbridge, as well as that envisaged for the foreseeable future, was on small infill plots unlikely to yield the required range of housing and affordable provision. It stated there was a need for smaller units, and affordable housing, in the town to ensure it did not become polarised by large plots and retirement dwellings. The Site was identified as providing a real opportunity to deliver this in a sustainable location. Under the heading “Affordable Housing Requirement” it stated:
“The communities [sic] need for affordable housing is a material planning consideration and covered by Policy DM2 of the Local Plan (Core Strategy). There is a requirement for affordable housing in both of the Parish's of Woodbridge and Melton. The scheme is expected to provide up to one-third (33%) of all housing on site to be affordable. The preference for any affordable housing is to be rented accommodation. The exact mix of the affordable units would be a matter for neg[oti]ation with discussions from the Council's Housing Enabling Officer.”
In January 2015 SCDC tendered the Site for sale. Informal tenders were invited by 4 June 2015. Completion was expected to take place no later than November/December 2016. An indicative layout accommodating 69 houses and apartments was shown, but the tender document noted that applicants might choose to remodel the scheme in line with their own vision.
The Claimant refers to a pre-application planning advice letter dated 1 June 2015 from an SCDC planning officer to one bidder. In that document, the officer stated (amongst other things):
“Affordable housing provision is welcomed and should be provided at policy compliant level (33%) and as 100% rented accommodation. I would suggest also that discussion takes place with the Council's Housing Team to ascertain exact unit size requirements.”
In the event, the Interested Party was selected by SCDC as the preferred bidder. The documents indicate it entered into a conditional contract to buy the Site for £6 million.
The Claimant considers the Interested Party agreed to pay too much, given the Site's established use and/or residual land value, if a policy-compliant scheme for affordable housing were to be provided. He believes the Interested Party has been seeking to avoid, or reduce, the provision of policy-compliant affordable housing because of this. He refers, by way of example, to the notes of an “SCDC Office Accommodation Project Board” on 20 June 2016 in which the Interested Party questioned whether affordable housing was required. He also refers to pre-application discussions between SCDC and the Interested Party. He submits the Interested Party erroneously assumed affordable housing requirements might be reduced when obtaining planning permission in reliance on the price paid for the Site contrary to principles expressed in Parkhurst Road Ltd v Secretary of State for the Communities and Local Government [2018] EWHC 991 Admin. He refers to the content of a letter from Carter Jonas to the Interested Party in August 2018 which relates to viability advice provided by BNP Paribas to SCDC; this was to the effect that the benchmark land value of the Site was £2.45million, the residual land value was likely to be between £3.89 million and £4.60 million depending on the split of rent and shared ownership affordable housing, and as this was above the benchmark land value, development of the site with affordable housing should be viable.
The First Planning Application
In July 2017 the Interested Party sought planning permission (reference number DC/17/2840/FUL) to demolish all of the existing offices and buildings on the Site and to replace them with 100 residential units, including 33 affordable housing units, together with a community building (Class D1) and a retail unit that could be a coffee shop (Class A1/A2/A3). The description of development does not identify the tenure mix, but the Claimant says that the material supporting the application referred to a proposal for 24 units as “intermediate housing” and 9 as affordable rented housing units.
The application was controversial. It attracted significant objection on a number of grounds. It involved the provision of 14 angular blocks designed in a modern style. There were objections from (amongst others) Woodbridge Town Council, Melton Parish Council, the Woodbridge Society, the River Deben Association, the Deben Estuary Partnership, the Woodbridge Town Trust, the Woodbridge Riverside Trust, and the National Trust (responsible for the Sutton Hoo archaeological site) and some 330 other letters of objection received, as opposed to 12 letters of support. The objections were advanced on various grounds, including the design of what was proposed, the impact on heritage assets, but also in respect of affordable housing. The Claimant was one of the objectors.
The first planning application was the subject of an officers' report for a planning committee meeting on 13 October 2017 (“the 2017 Report”). Although there were many objections, it is clear that officers ultimately did not agree with the majority of them. To the contrary, officers considered the design to be beneficial, the benefits to outweigh the harms, and that the scheme should be approved.
The Executive Summary in the 2017 Report included the following:
“Planning Permission is sought for the redevelopment of the former Council Offices site into a residential lead scheme of 100 dwellings, with the policy requirement of affordable housing …
…
Members of the Planning Committee had had the benefit of a detailed site visit on the 2 October 2017 which took in a number of public viewpoints so as to understand the sensitive relationships to neighbouring land uses and the wider setting.
The proposed scheme in the opinion of officers represents an interesting and progressive design solution for the site, offering direct views through the site to the Reiver Deben and Sutton Hoo beyond. …
It is acknowledged by officers that the design is bold and unlike other developments in the locality, but this does not make the development unacceptable. The design approach selected is considered to be an acceptable and positive approach in this instance to take to reflect the myriad of constraints on and around the site. Significant pre-application dialogue has taken place with officers, the public and the independent RIBA Suffolk Design Review Panel (SDRP) before formal submissions, as is strongly advocated in the N[ational]...
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